EXHIBIT 4.6
, dated as of January 14, 2002 (the
"Agreement") by and between The Xxxxxxxx Companies, Inc., a Delaware
corporation (the "Company"), JPMorgan Chase Bank, a New York banking
corporation, not individually but solely as Purchase Contract Agent (the
"Purchase Contract Agent") and as attorney-in-fact of the holders of
Purchase Contracts (as defined in the Purchase Contract Agreement (as
defined herein)), and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated (the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue $1,000,000,000 (or up to
$1,150,000,000 if the underwriters' overallotment option is exercised in
full) aggregate Stated Amount of its FELINE PACS (the "FELINE PACS") under
the Purchase Contract Agreement, dated as of January 14, 2002, by and
between the Purchase Contract Agent and the Company (the "Purchase Contract
Agreement"); and
WHEREAS, the FELINE PACS will initially consist of 40,000,000 (or
46,000,000 if the underwriters' overallotment option is exercised in full)
units referred to as "Income PACS;"
WHEREAS, the Company will issue concurrently in connection with
the issuance of the FELINE PACS $1,000,000,000 (or up to $1,150,000,000 if
the underwriters' overallotment option is exercised in full) aggregate
principal amount of 6.50% Senior Notes due 2007 (the "Notes") of the
Company; and
WHEREAS, the Notes forming a part of the Income PACS will be
pledged pursuant to the Pledge Agreement (the "Pledge Agreement"), dated as
of January 14, 2002, by and among the Company, JPMorgan Chase Bank, as
collateral agent (the "Collateral Agent") and the Purchase Contract Agent,
to secure an Income PACS holder's obligations under the related Purchase
Contract on the Purchase Contract Settlement Date; and
WHEREAS, the Notes of the Income PACS holders and of the Note
holders electing to have their Notes remarketed will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding November
16, 2004 (the "Initial Remarketing Date"); and
WHEREAS, in the event of a Failed Initial Remarketing, the Notes
of the Note holders electing to have their Notes remarketed and of the
Income PACS holders who have elected not to settle the Purchase Contracts
related to their Income PACS by Cash Settlement will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding the
Purchase Contract Settlement Date; and
WHEREAS, in the event of a Successful Initial Remarketing, the
applicable interest rate on the Notes will be reset on the Initial
Remarketing Date, to the Reset Rate to be determined by the Reset Agent as
the rate that such Notes should bear in order for the Applicable Principal
Amount of the Notes to have an approximate aggregate market value of 100.5%
of the Treasury Portfolio Purchase Price on the Initial Remarketing Date,
provided that in the determination of such Reset Rate, the Company shall,
if applicable, limit the Reset Rate to the maximum rate permitted by
applicable law; and
WHEREAS, in the event of a Failed Initial Remarketing, the
applicable interest rate on the Notes that remain outstanding on and after
the Purchase Contract Settlement Date will be reset on the third Business
Day immediately preceding the Purchase Contract Settlement Date, to the
Reset Rate to be determined by the Reset Agent as the rate that such Notes
should bear in order to have an approximate market value of 100.5% of the
aggregate principal amount of the Notes on the third Business Day
immediately preceding the Purchase Contract Settlement Date, provided that
in the determination of such Reset Rate, the Company shall, if applicable,
limit the Reset Rate to the maximum rate permitted by applicable law; and
WHEREAS, the Company has requested Xxxxxxx Xxxxx & Co., Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("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, in the recitals hereto or in the paragraph preceding such
recitals shall have the meanings assigned to them in the Purchase Contract
Agreement or, if not therein defined, the Pledge Agreement.
Section 2. Appointment and Obligations of Remarketing Agent. (a)
The Company hereby appoints Xxxxxxx Xxxxx and Xxxxxxx Xxxxx hereby accepts
such appointment, (i) as the Reset Agent to determine in consultation with
the Company, in the manner provided for herein and in the Indenture (as
defined in Schedule I hereto) (as in effect on the date of this ) with respect to the Notes, (1) the Reset Rate that, in the
opinion of the Reset Agent, will, when applied to the Notes, enable the
Applicable Principal Amount of the Notes to have an approximate aggregate
market value of 100.5% of the Treasury Portfolio Purchase Price as of the
Initial Remarketing Date, and (2) in the event of a Failed Initial
Remarketing, the Reset Rate that, in the opinion of the Reset Agent, will,
when applied to the Notes, enable a Note to have an approximate market
value of 100.5% of its principal amount as of the third Business Day
preceding the Purchase Contract Settlement Date, provided, in each case,
that the Company, by notice to the Reset Agent prior to the tenth Business
Day preceding (x) November 16, 2004, in the case of the Initial Remarketing
(as defined below), or (y) the Purchase Contract Settlement Date, in the
case of the Secondary Remarketing (as defined below), 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 (1) remarket the Notes of the Note holders
electing to have their Notes remarketed and of the Income PACS holders on
the Initial Remarketing Date, for settlement on November 16, 2004 and (2)
in the case of a Failed Initial Remarketing, remarket the Notes of the Note
holders electing to have their Notes remarketed or of the Income PACS
holders who have failed to notify the Purchase Contract Agent, on or prior
to the fifth Business Day immediately preceding the Purchase Contract
Settlement Date, of their intention to settle the related Purchase
Contracts through Cash Settlement. In connection with the remarketing
contemplated hereby, the Remarketing Agent will enter into a Supplemental
(the "Supplemental ") with the
Company and the Purchase Contract Agent, which shall either be (i)
substantially in the form attached hereto as Exhibit A (with such changes
as the Company 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 Supplemental 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 (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 Supplemental is in form and substance
reasonably satisfactory to Xxxxxxx Xxxxx. The Company agrees that Xxxxxxx
Xxxxx shall have the right, on 15 Business Days notice to the Company, to
appoint one or more additional remarketing agents so long as any such
additional remarketing agents shall be reasonably acceptable to the
Company. Upon any such appointment, the parties shall enter into an
appropriate amendment to this Agreement to reflect the addition of any such
remarketing agent.
(b) Pursuant to the Supplemental , 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 Initial Remarketing Date, the
Notes that the Custodial Agent (as such term is defined in the Pledge
Agreement) and the Purchase Contract Agent shall have notified the
Remarketing Agent have been tendered for, or otherwise are to be included
in, the Initial Remarketing, at a price per Note such that the aggregate
price for the Applicable Principal Amount of the Notes is approximately
100.5% of the Treasury Portfolio Purchase Price and (ii) in the event of a
Failed Initial Remarketing, remarket, on the third Business Day immediately
preceding the Purchase Contract Settlement Date, the Notes that the
Custodial Agent and the Purchase Contract Agent shall have notified the
Remarketing Agent have been tendered for, or otherwise are to be included
in, the Secondary Remarketing, at a price of approximately 100.5% of the
aggregate principal amount of such Notes.
Notwithstanding the preceding sentence, the Remarketing Agent shall not
remarket any Notes for a price per Note that is less than the price
necessary for the Applicable Principal Amount of the Notes to have an
aggregate price equal to 100% of the Treasury Portfolio Purchase Price (the
"Minimum Initial Remarketing Price"), in the case of the Initial
Remarketing, or the aggregate principal amount of such Notes, in the case
of the Secondary Remarketing. After deducting the fee specified in Section
3 below, the proceeds of such Initial Remarketing or Secondary Remarketing,
as the case may be, shall be paid to the Collateral Agent in accordance
with Section 5.07 of the Pledge Agreement and Section 5.02 of the Purchase
Contract Agreement (each of which Sections are incorporated herein by
reference). The right of each holder of Notes or Income PACS to have Notes
tendered for the Initial Remarketing or the Secondary Remarketing, as the
case may be, shall be limited to the extent that (i) the Remarketing Agent
conducts an Initial Remarketing and, in the event of a Failed Initial
Remarketing, a Secondary Remarketing pursuant to the terms of this
Agreement, (ii) Notes tendered have not been called for redemption, (iii)
the Remarketing Agent is able to find a purchaser or purchasers for
tendered Notes at a price of not less than the Minimum Initial Remarketing
Price, in the case of the Initial Remarketing, and 100% of the principal
amount thereof, in the case of the Secondary Remarketing 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
Notes, whether in the Initial Remarketing, Secondary Remarketing or
otherwise, and shall in no way be obligated to provide funds to make
payment upon tender of Notes 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
Supplemental , and, without limitation of the
foregoing, the Remarketing Agent shall not be deemed an underwriter of the
remarketed Notes. The Company shall not be obligated in any case to provide
funds to make payment upon tender of Notes for remarketing.
Section 3. Fees. In the event of a Successful Initial Remarketing,
the Remarketing Agent shall retain as a remarketing fee (the "Remarketing
Fee") an amount not exceeding 25 basis points (0.25%) of the Minimum
Initial Remarketing Price from any amount received in connection with such
Initial Remarketing in excess of the Minimum Initial Remarketing Price. In
the event of a Successful Secondary Remarketing, the Remarketing Agent
shall retain as the Remarketing Fee an amount not exceeding 25 basis points
(0.25%), of the principal amount of the remarketed Notes from any amount
received in connection with such Secondary Remarketing in excess of the
aggregate principal amount of such remarketed Notes. In addition, the Reset
Agent shall, in either case, receive from the Company 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 Company on the Initial Remarketing
Date, in the case of a Successful Initial Remarketing, or on the third
Business Day immediately preceding the Purchase Contract Settlement Date,
in the case of a Successful Secondary 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 Company 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 (i) on the eleventh Business Day
immediately prior to November 16, 2004, or (ii) in the event of a Failed
Initial Remarketing, prior to 3:00 p.m., New York City time on the eleventh
Business Day immediately prior to the Purchase Contract Settlement Date,
provided, in either case, that the Company 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
Company's appointment of a successor to perform the services that would
otherwise be performed hereunder by the Remarketing Agent and the Reset
Agent. Upon providing such notice, the Company shall use all reasonable
efforts to appoint such a successor and to enter into a with such successor as soon as reasonably practicable. The
Company shall notify the Purchase Contract Agent and the Collateral Agent
of the appointment of any such successor.
(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 (i) on
the eleventh Business Day immediately prior to November 16, 2004, or (ii)
in the event of a Failed Initial Remarketing, on the eleventh Business Day
immediately prior to the Purchase Contract Settlement Date. Any such
resignation shall become effective upon the Company's appointment of a
successor 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 Company shall appoint such a successor and enter into
a remarketing agreement 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 Supplemental Remarketing 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 Notes, Growth PACS,
Income PACS or any other securities of the Company. With respect to any
Notes, Growth PACS Units, Income PACS or any other securities of the
Company 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 individual 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. The
Company may, to the extent permitted by law, purchase any Notes that are
remarketed by any Remarketing Agent.
Section 6. Registration Statement and Prospectus. (a) In
connection with the Initial Remarketing, if and to the extent required in
the view of counsel (which need not be an opinion) for either the
Remarketing Agent or the Company by applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing, the
Company (i) shall use its reasonable efforts to have a registration
statement relating to the Notes effective under the Securities Act of 1933
prior to the third Business Day immediately preceding November 16, 2004,
(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 Initial Remarketing
not later than seven Business Days prior to November 16, 2004 (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 Initial Remarketing
not later than the third Business Day immediately preceding November 16,
2004 in such quantities as the Remarketing Agent may reasonably request,
and shall pay all expenses relating thereto.
(b) In the event of a Failed Initial Remarketing and in connection
with the Secondary Remarketing, if and to the extent required in the view
of counsel (which need not be an opinion) for either the Remarketing Agent
or the Company by applicable law, regulations or interpretations in effect
at the time of such Secondary Remarketing, the Company (i) shall use its
reasonable efforts to have a registration statement relating to the Notes
effective under the Securities Act of 1933 prior to the third Business Day
immediately preceding the Purchase Contract Settlement 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 Secondary Remarketing not later
than seven Business Days prior to the Purchase Contract Settlement 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 Secondary
Remarketing not later than the third Business Day immediately preceding the
Purchase Contract Settlement Date in such quantities as the Remarketing
Agent may reasonably request, and shall pay all expenses relating thereto.
(c) If in connection with the Initial Remarketing or, in the event
of a Failed Initial Remarketing, the Secondary Remarketing, it shall not be
possible, in the view of counsel (which need not be an opinion) for either
the Remarketing Agent or the Company, under applicable law, regulations or
interpretations in effect at the time of such Initial Remarketing or such
Secondary Remarketing to register the offer and sale by the Company of the
Notes under the Securities Act of 1933 as otherwise contemplated by this
Section 6, the Company (i) shall use its 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 Notes in connection with the Initial Remarketing or the Secondary
Remarketing, as the case may be, without registration under the Securities
Act of 1933 pursuant to an exemption therefrom, if available, including the
exemption afforded by Rule l44A under the rules and regulations promulgated
under the Securities Act of 1933 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 Initial Remarketing or the Secondary Remarketing, as the case may be,
not later than seven Business Days prior to November 16, 2004, in the case
of the Initial Remarketing, or the Purchase Contract Settlement Date, in
the case of the Secondary Remarketing (or in either case 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 Initial Remarketing or the Secondary Remarketing, as the case may be,
not later than the third Business Day immediately preceding November 16,
2004, in the case of the Initial Remarketing, or the Purchase Contract
Settlement Date, in the case of the Secondary Remarketing, in such
quantities as the Remarketing Agent may reasonably request, and shall pay
all expenses relating thereto.
(d) The Company shall also use its reasonable effort to take all
such actions as may (upon advice of counsel to the Company or the
Remarketing Agent) be necessary or desirable under state securities or blue
sky laws in connection with the Initial Remarketing and the Secondary
Remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations. (a)
The obligations of the Remarketing Agent and the Reset Agent under this
Agreement and, in the case of the Remarketing Agent, the Supplemental
Remarketing Agreement shall be subject to the terms and conditions of this
Agreement and the Supplemental Remarketing Agreement, including, without
limitation, the following conditions: (i) the Notes tendered for, or
otherwise to be included in the Initial Remarketing or Secondary
Remarketing, as the case may be, have not been called for redemption, (ii)
the Remarketing Agent is able to find a purchaser or purchasers for
tendered Notes (1) in the case of the Initial Remarketing, at a price not
less than Minimum Initial Remarketing Price, and (2) in the case of the
Secondary Remarketing, at a price per Note not less than 100% of the
principal amount thereof, (iii) the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent, the Securities Intermediary, the Company and
the Trustee shall have performed their respective obligations in connection
with the Initial Remarketing and, in the event of a Failed Initial
Remarketing, in connection with the Secondary Remarketing, in each case
pursuant to the Purchase Contract Agreement, the Pledge Agreement, the
Indenture, this Agreement and the Supplemental Remarketing Agreement
(including, without limitation, the Quotation Agent giving the Remarketing
Agent notice of the Treasury Portfolio Purchase Price no later than 5:00
p.m., New York City time, on the fourth Business Day prior to November 16,
2004, in the case of the Initial Remarketing, and the Purchase Contract
Agent giving the Remarketing Agent notice of the aggregate principal
amount, as the case may be, of Notes to be remarketed, no later than 5:00
p.m., New York City time, on the fourth Business Day prior to the Purchase
Contract Settlement Date, in the case of the Secondary Remarketing, and, in
each case, the Collateral Agent and the Custodial Agent concurrently
delivering the Notes to be remarketed to the Remarketing Agent), (iv) no
Event of Default (as defined in the Indenture) shall have occurred and be
continuing, (v) the accuracy of the representations and warranties of the
Company included and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement or in certificates of any officer of the
Company delivered pursuant to the provisions included or incorporated by
reference in this Agreement or the Supplemental Remarketing Agreement, (vi)
the performance by the Company of its covenants and other obligations
included and incorporated by reference in this Agreement and the
Supplemental Remarketing Agreement, and (vii) the satisfaction of the other
conditions set forth and incorporated by reference in this Agreement and
the Supplemental Remarketing Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined in the Indenture) or event that with the passage of
time or the giving of notice or both would become an Indenture Event of
Default has occurred and is continuing under the Indenture, then the
obligations and duties of the Remarketing Agent and the Reset Agent under
this Agreement and the Supplemental Remarketing Agreement shall be
suspended until such default or event has been cured. The Company will
promptly give the Remarketing Agent notice of all such defaults and events
of which the Company is aware.
Section 8. Termination of Remarketing Agreement. This Agreement
shall terminate as to any Remarketing Agent or Reset Agent that is replaced
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 Supplemental Remarketing Agreement.
No implied covenants or obligations of or against the Remarketing Agent or
the Reset Agent shall be read into this Agreement or the Supplemental
Remarketing 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 or the Supplemental Remarketing Agreement, as the case may be, as
to the truth of the statements expressed therein. 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 Notes or, if there
is any such limitation, the maximum permissible Reset Rate on the Notes,
and they shall rely solely upon written notice from the Company (which the
Company agrees to provide prior to the tenth Business Day before November
16, 2004, in the case of the Initial Remarketing, and prior to the tenth
Business Day before Purchase Contract Settlement Date, in the case of the
Secondary Remarketing) as to whether or not 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 or
the Supplemental Remarketing Agreement to any beneficial owner or holder of
Notes, 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 or the
Supplemental Remarketing 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 or, in the case of the Remarketing Agent,
under the Supplemental Remarketing Agreement. 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
agrees 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 Securities
Act of 1933, 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 (as defined in the Supplemental
Remarketing Agreement) under the 1933 Act relating to the Notes,
as the case may be, if required, or the failure to satisfy the
prospectus delivery requirements of the 1933 Act because the
Company failed to provide the Remarketing Agent with a Prospectus
(as defined in the Supplemental Remarketing Agreement) for
delivery, or (B) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement 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 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 information (whether oral or written) or documents
(including, without limitation, any documents incorporated or
deemed to be incorporated by reference in any such information or
documents) provided by the Company for use in connection with the
remarketing of the Notes or any of the transactions related
thereto, or (F) any breach by the Company of any of the
representations, warranties or agreements included or incorporated
by reference in this Agreement or the Supplemental Remarketing
Agreement, or (G) any failure by the Company to make or consummate
the remarketing of the Notes (including, without limitation, any
Failed Initial Remarketing or Failed Secondary Remarketing) or the
withdrawal, recession, termination, amendment or extension of the
terms of such remarketing, or (H) any failure on the part of the
Company to comply, or any breach by the Company of, any of the
provisions included or incorporated by reference in this
Agreement, the Supplemental Remarketing Agreement, the Purchase
Contract Agreement, the Income PACS, the Growth PACS, the Pledge
Agreement, the Indenture or the Notes (collectively, the
"Operative Documents") or (I) the remarketing of the Notes, as the
case may be, 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 or the Supplemental Remarketing Agreement,
whether or not the Initial Remarketing or the Secondary
Remarketing or the reset of the interest rate on the Notes 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; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), 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 to the extent that any such expense is not paid under
(i) or (ii) above;
provided, however, that the Company shall not be liable under clause (i)
(B), (i) (C), (i) (D) or (i) (E) to the extent any such loss, claim,
damage, liability 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 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 Notes, 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 the Remarketing Agent to the extent that any
such loss, claim, damage or liability of the Remarketing Agent occurs under
the circumstance where (w) the Company had previously furnished copies of
the Prospectus to Xxxxxxx Xxxxx, (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, at or prior
to the written confirmation of the sale of Notes 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 or
omission or alleged untrue statement or omission; provided, further, that
the Company shall not be liable under clause (i)(G) or (i)(I) to the extent
that such loss, claim, damage, liability or expense has, by final judicial
determination, 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
or, in the case of the Remarketing Agent, under the Supplemental
Remarketing Agreement.
Other than as set forth in Section 10(b) below, the Company agrees
that no Agent Indemnified Party shall have any liability (whether direct or
indirect, in contract or tort or otherwise) to the Company 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 or the Supplemental Remarketing
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 agrees that, without Xxxxxxx Xxxxx'x prior written
consent, 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(a) (whether or not Xxxxxxx Xxxxx 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.
(b) The Remarketing Agent and the Reset Agent, severally and not
jointly, agree to indemnify and hold harmless the Company, its directors
and its officers who sign the Registration Statement, and each person, if
any, who controls the Company 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 to
the Agent Indemnified Parties, but only with reference to information
relating to such Remarketing Agent and Reset Agent furnished to the Company
in writing by such Remarketing Agent and 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 the Notes, as the case may be.
Each of the Remarketing Agent and the Reset Agent agrees that,
without the Company's prior written consent, 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 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, 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 on the one hand and
the Remarketing Agent and the Reset Agent on the other hand from the
remarketing of the Notes 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
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 on the one hand and the Remarketing Agent and the
Reset Agent on the other hand in connection with the remarketing of the
Notes contemplated hereby shall be deemed to be in the same respective
proportions as the aggregate principal amount of the Notes 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 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 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 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 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 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, 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 Xxxxxxx Xxxxx 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 or in the Supplemental Remarketing Agreement
to the contrary notwithstanding, the provisions of this Section 10, and the
rights of the Company, the Remarketing Agent, the Reset Agent and 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
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 principles of conflicts of laws that would require the
application of the law of any other jurisdiction.
Section 12. Term of Agreement. (a) 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 Notes are outstanding,
or, if earlier, the Business Day immediately following November 16, 2004,
in the case of a Successful Initial Remarketing, or the Business Day
immediately following the Purchase Contract Settlement Date, in the case of
a Successful Secondary Remarketing. Anything herein to the contrary
notwithstanding, the provisions of the last section of Section 8 hereof and
the provisions of Sections 3, 9, 10 and 12(b) hereof shall survive any
termination of this Agreement and remain in full force and effect;
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.
(b) All representations and warranties included or incorporated by
reference in this Agreement, or the Supplemental Remarketing Agreement, or
contained in certificates of officers of the Company submitted pursuant
hereto or thereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the Remarketing
Agent, the Reset Agent or any of their controlling persons, or by or on
behalf of the Company or the Purchase Contract Agent, and shall survive the
remarketing of the Notes.
Section 13. Successors and Assigns. Except in the case of a
succession pursuant to the terms of the Purchase Contract Agreement, the
rights and obligations of the Company and the Purchase Contract Agent (both
in its capacity as Purchase Contract Agent and as attorney-in-fact)
hereunder may not be assigned or delegated to any other person without the
prior written consent of the Remarketing Agent and the Reset Agent, which
consent shall not be unreasonably withheld and, except with respect to the
Purchase Contract Agent, in connection with the appointment of a successor
thereof pursuant to the Purchase Contract Agreement. The rights and
obligations of the Remarketing Agent and the Reset Agent hereunder may not
be assigned or delegated to any other person without the prior written
consent of the Company, except that the Remarketing Agent shall have the
right to appoint additional remarketing agents as provided herein. This
Agreement shall inure to the benefit of and be binding upon the Company,
the Purchase Contract Agent, the Remarketing Agent and the Reset Agent and
their respective successors and assigns and the other Indemnified Parties
(as defined in Section 10 hereof) and the successors, assigns, heirs and
legal representatives of the Indemnified Parties. The terms "successors"
and "assigns" shall not include any purchaser of Notes or Notes merely
because of such purchase.
Section 14. Headings. Section headings have been inserted in this
Agreement and the Supplemental Remarketing 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 Supplemental Remarketing Agreement
and will not be used in the interpretation of any provision of this
Agreement or the Supplemental Remarketing Agreement.
Section 15. Severability. If any provision of this Agreement or
the Supplemental Remarketing 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, then, to the extent permitted by law, 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 Supplemental Remarketing Agreement, as the case may be,
invalid, inoperative or unenforceable to any extent whatsoever.
Section 16. Counterparts. This Agreement and the Supplemental
Remarketing 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 Supplemental
Remarketing Agreement may be amended by any instrument in writing signed by
the parties hereto. The Company and the Purchase Contract Agent (except
with respect to the Indenture and the Notes, to which it is not a party)
agree that they will not enter into, cause or permit any amendment or
modification of the Purchase Contract Agreement, the Indenture, the Pledge
Agreement, the Notes, the FELINE PACS or any other instruments or
agreements relating to the Notes or the FELINE PACS which would adversely
affect the rights, duties or obligations of the Remarketing Agent or the
Reset Agent without the prior written consent of the Remarketing Agent or
the Reset Agent, as the case may be.
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 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, to The
Xxxxxxxx Companies, Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxxx
00000 Attention: Treasurer, with a copy to Skadden, Arps, Slate, Xxxxxxx &
Xxxx, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxx Xxxxxx,
Esq.; if to the Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at World Financial
Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: [Xxxx Xxxxxxxx],
with a copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxxxx; and if to the Purchase Contract Agent,
to JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or
to such other address as any of the above shall specify to the other in
writing.
Section 19. Information. The Company agrees to furnish the
Remarketing Agent and the Reset Agent with such information and documents
as the Remarketing Agent or the Reset Agent may reasonably request in
connection with the transactions contemplated by this Remarketing Agreement
and the Supplemental Remarketing Agreement, and make reasonably available
to the Remarketing Agent, the Reset Agent and any accountant, attorney or
other advisor retained by the Remarketing Agent or the Reset Agent such
information that parties would customarily require in connection with a due
diligence investigation conducted in accordance with applicable securities
laws and cause the Company's officers, directors, employees and accountants
to participate in all such discussions and to supply all such information
reasonably requested by any such person in connection with such
investigation.
WITNESS WHEREOF, each of the Company, the 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 signatories as of the
date first above written.
THE XXXXXXXX COMPANIES, INC.
By: /s/ Xxxxx X. Xxxx
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Treasurer
CONFIRMED AND ACCEPTED:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX
& XXXXX INCORPORATED
By: /s/ Xxxx Xxxxx Parish
------------------------------
Authorized Signatory
JPMORGAN CHASE BANK
not individually but solely as
Purchase Contract Agent and as
attorney-in-fact for the holders
of the Purchase Contracts
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
Exhibit A to
Remarketing Agreement
Form of Supplemental Remarketing Agreement
Supplemental Remarketing Agreement dated ______________, ____
among The Xxxxxxxx Companies, Inc., a Delaware corporation (the "Company"),
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the "Remarketing
Agent"), and JPMorgan Chase Bank, as Purchase Contract Agent and
attorney-in-fact for the Holders of the Purchase Contracts (as such terms
are defined in the Purchase Contract Agreement referred to in Schedule I
hereto).
NOW, THEREFORE, for and in consideration of the covenants herein
made, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the Remarketing
Agreement dated as of January 14, 2002 (the "Remarketing Agreement") among
the Company, the Purchase Contract Agent and Xxxxxxx Xxxxx & Co. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated or, if not defined in
the Remarketing Agreement, the meanings assigned to them in the Purchase
Contract Agreement (as defined in Schedule I hereto).
2. Registration Statement and Prospectus. The Company has filed
with the Securities and Exchange Commission, and there has become
effective, a registration statement on Form S-3, including a prospectus,
relating to the Notes (as such term is defined on Schedule I hereto). Such
Registration Statement, as amended, and including the information deemed to
be a part thereof pursuant to Rule 430A under the Securities Act of 1933,
as amended (the "1933 Act"), and the documents incorporated or deemed to be
incorporated by reference therein, are hereinafter called, collectively,
the "Registration Statement"; (the related preliminary prospectus dated
____________, including the documents incorporated or deemed to be
incorporated by reference therein, [and preliminary prospectus supplemented
dated __________] are hereinafter called, [collectively] the "preliminary
prospectus";] and the related prospectus dated _____________, including the
documents incorporated or deemed to be incorporated by reference therein,
[and prospectus supplement dated _________] are hereinafter called,
[collectively,] the "Prospectus." The Company has provided copies of the
Registration Statement [, the preliminary prospectus] and the Prospectus to
the Remarketing Agent, and hereby consents to the use of the [preliminary
prospectus] and the Prospectus in connection with the remarketing of the
Notes. (IN THE EVENT THAT A REGISTRATION STATEMENT IS NOT POSSIBLE OR NOT
REQUIRED, INSERT THE FOLLOWING: The Company has provided to the Remarketing
Agent, for use in connection with remarketing of the Notes (as such term is
defined on Schedule I hereto), a [preliminary remarketing memorandum and]
remarketing memorandum and [describe other materials, if any]. Such
remarketing memorandum (including the documents incorporated or deemed to
be incorporated by reference therein, [and] [describe other materials] are
hereinafter called, collectively, the "Prospectus," [and such preliminary
marketing memorandum (including the documents incorporated or deemed to be
incorporated by reference therein) is hereinafter called a "preliminary
prospectus")]. The Company hereby consents to the use of the Prospectus
[and the preliminary prospectus] in connection with the remarketing of the
Notes]. All references in this Agreement to amendments or supplements to
the Registration Statement [, the preliminary prospectus] or the Prospectus
shall be deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), which is
incorporated or deemed to be incorporated by reference in the Registration
Statement [, the preliminary prospectus] or the Prospectus, as the case may
be.
3. Provisions Incorporated by Reference.
(a) Subject to Section 3(b), the provisions of the Underwriting
Agreement (other than [Section 2, Section 3, Section 4, Section 6, Section
8 and Section 9] thereof) are incorporated herein by reference, mutatis
mutandis, and the Company hereby makes the representations and warranties,
and agrees to comply with the covenants and obligations, set forth in the
provisions of the Underwriting Agreement incorporated by reference herein,
as modified by the provisions of Section 3(b) hereof.
(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 Agent and all references to the "Representative" or the
"Representatives" shall be deemed to refer to Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated ("Xxxxxxx Xxxxx"); (ii) all references therein to the
"Notes" or "Initial Notes" shall be deemed to refer to the Notes 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;
(iv) all references therein to the "Registration Statement" [, the
"preliminary prospectus"] or the "Final Prospectus" shall be deemed to
refer to the Registration Statement[, the preliminary prospectus] and the
Prospectus, respectively, as defined herein; (v) all references therein to
this "Agreement," the "Underwriting Agreement," "hereof," "herein" and all
references of similar import, shall be deemed to mean and refer to this
Supplemental Remarketing Agreement; (vi) all references therein to "the
date hereof," "the date of this Agreement" and all similar references shall
be deemed to refer to the date of this Supplemental Remarketing Agreement;
(vii) all references therein to any "settlement date" shall be disregarded;
and (viii) [other changes, including changes relating to the offer and sale
of the Notes in connection with the Remarketing without registration under
the Securities Act of 1933 in reliance upon an exemption therefrom
(including the exemption afforded by Rule 144A)].]
4. Remarketing. 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 principal amount, as the case may be, of Notes set forth in
Schedule I hereto at a purchase price not less than 100% of the [Minimum
Initial Remarketing Price] [aggregate principal amount of the Notes]. 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
[the Minimum Initial Remarketing Price] [such aggregate principal amount,)
payable by deduction from any amount received in connection from such
[Initial] [Secondary] Remarketing in excess of the [Minimum Initial
Remarketing Price] [aggregate principal amount of the Notes]. The right of
each holder of Notes to have Notes 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 Notes in the remarketing or otherwise, and neither the
Company nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Notes for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed
Notes by the purchasers thereof identified by the Remarketing Agent and
payment of the Remarketing Fee shall be made on the Remarketing Closing
Date at the location and time specified in Schedule I hereto (or such later
date not later than five Business Days after such date as the Remarketing
Agent shall designate), which date and time may be postponed by agreement
between the Remarketing Agent and the Company. Delivery of the remarketed
Notes and payment of the Remarketing Fee shall be made to the Remarketing
Agent against payment by the respective purchasers of the remarketed Notes
of the consideration therefor as specified herein, which consideration
shall be paid to the Collateral Agent for the account of the persons
entitled thereto by certified or official bank check or checks drawn on or
by a New York Clearing House bank and payable in immediately available
funds or in immediately available funds by wire transfer to an account or
accounts designated by the Collateral Agent.
If the Notes are not represented by a Global Security held by or
on behalf of The Depository Trust Company, certificates for the Notes shall
be registered in such names and denominations as the Remarketing Agent may
request not less than one full Business Day in advance of the Remarketing
Closing Date, and the Company, the Collateral Agent and the registered
holder or holders thereof agree to have such certificates available for
inspection, packaging and checking by the Remarketing Agent 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 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, to The
Xxxxxxxx Companies, Inc., Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxx, Xxxxxxxx
00000 Attention: Treasurer, with a copy to Skadden, Arps, Slate, Xxxxxxx &
Xxxx, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxx Xxxxxx,
Esq.; if to the Remarketing Agent or Reset Agent, to Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, at World Financial
Center, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx,
with a copy to Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxxxx; and if to the Purchase Contract Agent,
to JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 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 the Notes 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 6 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
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 10 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.
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 and the Remarketing Agent.
Very truly yours,
THE XXXXXXXX COMPANIES, INC.
By:
----------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-----------------------------------
Authorized Signatory
[Add other Remarketing Agents, if any]
JPMORGAN CHASE BANK
not individually but solely as Purchase
Contract Agent and as attorney-in-fact
for the holders of the Purchase Contracts
By:
--------------------------------------
Name:
Title:
SCHEDULE I
Notes subject to the remarketing: 6.50% Senior Notes due 2007 of
the Company (the "Notes").
Purchase Contract Agreement, dated as of January 14, 2002 (the
"Purchase Contract Agreement") by and between The Xxxxxxxx Companies, Inc.,
a Delaware corporation, and JPMorgan Chase Bank, a New York banking
corporation.
Pledge Agreement dated as of January 14, 2002 (the "Pledge
Agreement") by and between The Xxxxxxxx Companies, Inc., a Delaware
corporation, JPMorgan Chase Bank, a New York banking corporation, as
Purchase Contract Agent and JPMorgan Chase Bank, a New York banking
corporation, as Collateral Agent, Custodial Agent and Securities
Intermediary.
Indenture dated as of November 10, 1997 (the "Base Indenture") by
and between The Xxxxxxxx Companies, Inc., a Delaware corporation, and Bank
One National Association (as successor in interest to the First National
Bank of Chicago).
Supplemental Indenture, dated as of January 14, 2002 (the
"Supplemental Indenture" and, together with the Base Indenture, the
"Indenture") by and between The Xxxxxxxx Companies, Inc., a Delaware
corporation, and Bank One Trust Company, National Association (as successor
in interest to the First National Bank of Chicago).
[Minimum Initial Remarketing Price]
[Aggregate Principal Amount of Notes: $ ____________]
Underwriting Agreement, dated January 7, 2002 (the "Underwriting
Agreement") among The Xxxxxxxx Companies, Inc. and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx Barney
Inc. and the other underwriters named therein.
Remarketing Closing Date, Time and Location:
