, dated as of April 24, 1998 (the
""), between:
XXXXXXX ENTERPRISES, INC., a Louisiana corporation (the
"Company"); and
NATIONSBANC XXXXXXXXXX SECURITIES LLC ("NMS" and, in
its capacity as the remarketing dealer hereunder, the
"Remarketing Dealer").
WHEREAS, the Company has issued $200,000,000 aggregate
principal amount of its 6.40% Remarketable Or Redeemable
Securities Due May 1, 2013 (Remarketing Date May 1, 2003) (the
"ROARS")1 pursuant to an Indenture, dated as of December 1, 1996
(the "Indenture"), between the Company and Citibank, N.A., as
trustee (in such capacity, the "Trustee"), as supplemented by the
First Supplemental Indenture (the "Supplemental Indenture") dated
as of April 24, 1998 between the Company and the Trustee (as
supplemented, the "Indenture"); and
WHEREAS, the ROARS are being sold initially pursuant to
an underwriting agreement, dated April 21, 1998 (the
"Underwriting Agreement"), between the Company and the
underwriters named therein, including NMS; and
WHEREAS, the Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement
(No. 333-14467) under the Securities Act of 1933, as amended (the
"1933 Act"), in connection with the offering of Debt Securities,
including the ROARS, which registration statement was declared
effective by order of the Commission, and has filed such
amendments thereto and such amended prospectuses as may have been
required to the date hereof (such registration statement (No. 333-
14467), including any amendments and supplements thereto, and
including any preliminary or final prospectus relating to the
offering of Debt Securities by the Company constituting a part
thereof and all documents incorporated therein by reference, as
from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), the
1933 Act, or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively,
except that (i) if any new registration statement is filed by the
Company and declared effective by order of the Commission in
connection with the remarketing of the ROARS, the term
"Registration Statement" shall refer to such new registration
statement, from and after the time it becomes effective,
including all documents incorporated therein by reference, as
from time to time amended or supplemented, and (ii) if any
revised or supplemented prospectus shall be provided to the
Remarketing Dealer by the Company for use in connection with the
remarketing of the ROARS which differs from the Prospectus on
file at the Commission at the time the Registration Statement
became effective (whether or not such revised or supplemented
prospectus is required to be filed by the Company pursuant to
Rule 424(b) of the rules and regulations under the 1933 Act (the
"1933 Act Regulations")), the term "Prospectus" shall refer to
such revised or supplemented prospectus from and after the time
it is first provided to the Remarketing Dealer for such use, and
includes all documents incorporated therein by reference, as from
time to time amended or supplemented); and
WHEREAS, NMS is prepared to act as the Remarketing
Dealer with respect to the remarketing of the ROARS on May 1,
2003 (the "Remarketing Date") pursuant to the terms of, but
subject to the conditions set forth in, this Agreement;
NOW, THEREFORE, for and in consideration of the
covenants herein made, and subject to the conditions herein set
forth, the parties hereto agree as follows:
Section 1. Definitions. Capitalized terms used and
not defined in this Agreement shall have the meanings assigned to
them in the Indenture (including in the form of the ROARS issued
thereunder).
Section 2. Representations and Warranties.
(a) The Company represents and warrants to the
Remarketing Dealer as of the date hereof, the Notification Date
(as defined below), the Determination Date (as defined below),
the Remarketing Date and each date thereafter, if any, of an
amended prospectus supplement pursuant to Section 3(e) relating
to the ROARS (each of the foregoing dates being hereinafter
referred to as a "Representation Date"), that (i) it has made all
the filings with the Commission that it is required to make under
the 1934 Act and the rules and regulations thereunder (the "1934
Act Regulations") (collectively, and together with any voluntary
filings made by the Company under the 1934 Act, the "1934 Act
Documents"), (ii) each 1934 Act Document complies in all material
respects with the requirements of the 1934 Act and 1934 Act
Regulations, and each 1934 Act Document did not at the time of
filing with the Commission include an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, and (iii) the Prospectus will not, as of
the Remarketing Date and each date thereafter, if any, of an
amended prospectus supplement pursuant to Section 3(e) relating
to the ROARS, include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(b) The Company further represents and warrants to the
Remarketing Dealer as of each Representation Date as follows:
(i) The accountants who certified the financial
statements and supporting schedules included or incorporated
by reference in the 1934 Act Documents are independent
public accountants as required by the 1933 Act and the 1933
Act Regulations.
(ii) The consolidated financial statements included or
incorporated by reference in the Registration Statement and
Prospectus, together with any related schedules and notes,
present fairly the consolidated financial condition and
results of operations of the Company and its consolidated
subsidiaries at the dates indicated and the results of their
operations and the changes in their cash flow for the
periods specified and comply with the applicable accounting
requirements of the 1933 Act; said financial statements have
been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved, except as expressly
described therein. Any supporting schedules included or
incorporated by reference in the 1934 Act Documents present
fairly in accordance with GAAP the information required to
be stated therein. Any pro forma financial statements and
the related notes thereto included or incorporated by
reference in the 1934 Act Documents present fairly the
information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions
used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein.
(iii) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus (including documents incorporated therein by
reference), except as otherwise stated therein, (x) there
has been no material adverse change in the condition,
financial or otherwise, earnings, affairs or business of the
Company and its subsidiaries considered as a whole, whether
or not arising in the ordinary course of business, and (y)
there have been no material transactions entered into by the
Company or any of its subsidiaries other than those,
including acquisitions, in the ordinary course of business.
(iv) The Company has been duly incorporated and is
validly existing and in good standing under the laws of the
State of Louisiana with corporate power and authority to
own, lease and operate its properties and conduct its
business as described in the Registration Statement; and the
Company is duly qualified as a foreign corporation to
transact business and is in good standing in each
jurisdiction in which it owns or leases property or in which
the conduct of its business requires such qualification,
except to the extent that the failure to be so qualified or
be in good standing would not have a material adverse effect
on the condition, financial or otherwise, earnings, affairs
or business of the Company and its subsidiaries considered
as a whole (a "Material Adverse Effect"), whether or not
arising in the ordinary course of business.
(v) Each of the subsidiaries of the Company has been
duly incorporated or formed and, is validly existing and in
good standing under the laws of the jurisdiction of its
incorporation or formation, is duly qualified to do business
and in good standing as a foreign corporation in each
jurisdiction in which its ownership of property or conduct
of its business requires such qualification (except where
the failure to so qualify or be in good standing would not
have a Material Adverse Effect), and has power and authority
necessary to own, lease or operate its properties, to
conduct the business in which it is engaged; except as
otherwise disclosed in the 1934 Act Documents, all of the
issued and outstanding capital stock of each corporate
subsidiary that is held of record by the Company or a
subsidiary of the Company has been duly authorized and
validly issued, is fully paid and nonassessable, except to
the extent failure to be would not have a Material Adverse
Effect, and such capital stock or equity interests in each
subsidiary that are owned by the Company, directly or
through subsidiaries, are held free and clear of any
mortgage, pledge, lien, encumbrance or claim not permitted
by the Indenture.
(vi) This Agreement has been duly authorized, executed
and delivered by the Company.
(vii) The Indenture has been validly authorized,
executed and delivered by the Company and duly qualified
under the Trust Indenture Act of 1939, as amended (the "1939
Act"), and, assuming it has been duly executed and delivered
by the Trustee, constitutes the legally binding obligation
of the Company.
(viii) The ROARS have been validly authorized and
executed by the Company and authenticated, issued and
delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as
provided in the Underwriting Agreement, and constitute
legally binding obligations of the Company entitled to the
benefits of the Indenture.
(ix) Neither the Company nor any of its subsidiaries
is in violation of its corporate charter or by-laws or in
default under any agreement, indenture or instrument, except
for such violations or defaults that would not result in a
Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Indenture and the ROARS
and the consummation of the transactions contemplated herein
and in the Prospectus (including the issuance and sale of
the ROARS and the use of the proceeds from the sale thereof
as described in the Prospectus under the caption "Use of
Proceeds") have been duly authorized by all necessary
corporate action and do not and will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any such
subsidiary pursuant to, any material agreement, indenture or
instrument to which the Company or any such subsidiary is a
party or by which it is bound or to which any of its
property or assets is subject, nor will such action result
in a material violation of the charter or by-laws of the
Company or any such subsidiary or any order, rule or
regulation of any court or governmental agency having
jurisdiction over the Company or any such subsidiary or its
property.
(x) Except as set forth in the Prospectus (including
documents incorporated therein by reference), there is no
action, suit or proceeding before any court or governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting
the Company or any subsidiary, that might reasonably be
expected to result in any material adverse change in the
condition, financial or otherwise, earnings, affairs or
business of the Company and its subsidiaries considered as a
whole, or which might reasonably be expected to materially
and adversely affect the consummation of the transactions
contemplated in this Agreement or the performance by the
Company of its obligations hereunder.
(xi) No consent, approval, authorization, order or
decree of, or filing or registration with, any court or
governmental agency or body is required for the execution,
delivery and performance by the Company of this Agreement
and the Indenture or the consummation of the transactions
contemplated hereby and thereby or in connection with the
remarketing of the ROARS pursuant hereto, except such as
have been already obtained or will be obtained as of the
time required.
(xii) The Company and its subsidiaries possess
adequate certificates, authorities, licenses or permits
issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to conduct the
business now operated by them, and neither the Company nor
any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of
any such certificate, authority, license or permit that,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse
Effect.
(xiii) The Company and each of its subsidiaries has
good and marketable title in fee simple to all real property
and good and marketable title to all personal property owned
by it and necessary in the conduct of the business of the
Company or such subsidiary in each case free and clear of
all liens, encumbrances and defects except (x) such as are
referred to in the Prospectus (including documents
incorporated therein by reference) or (y) such as do not
individually or in the aggregate have a Material Adverse
Effect.
(xiv) Neither the Company nor any of its subsidiaries
is an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(xv) The ROARS are rated at least "Baa3" by Xxxxx'x
Investors Service, Inc., at least "BBB" by Standard &
Poor's, a division of The XxXxxx-Xxxx Companies, Inc., or,
in each case, such other rating as to which the Company
shall have most recently notified the Remarketing Dealer
pursuant to Section 3(a) hereof.
(c) Any certificate signed by any director or officer
of the Company and delivered to the Remarketing Dealer or to
counsel for the Remarketing Dealer in connection with the
remarketing of the ROARS shall be deemed a representation and
warranty by the Company to the Remarketing Dealer as to the
matters covered thereby.
Section 3. Covenants of the Company. The Company
covenants with the Remarketing Dealer as follows:
(a) The Company will provide prompt notice by
telephone, confirmed in writing (which may include facsimile or
other electronic transmission), to the Remarketing Dealer of the
occurrence at any time of any event set forth in clause (i), (ii)
or (v) or the first subclause of clause (iii) of Section 8(d) of
this Agreement.
(b) The Company will furnish to the Remarketing Dealer
promptly upon its request:
(i) the Registration Statement, the Prospectus and any
prospectus supplement relating to the ROARS (including in
each case any amendment or supplement thereto, each exhibit
thereto and each document incorporated therein by
reference);
(ii) copies of each report or other document,
including each 1934 Act Document, mailed to or filed by the
Company with the Commission after the date hereof (including
in each case any exhibit attached thereto and document
incorporated therein by reference); and
(iii) in connection with the Remarketing Dealer's due
diligence described below relating to the remarketing of
the ROARS, such other information as the Remarketing Dealer
may reasonably request from time to time, in such form as
the Remarketing Dealer may reasonably request, including,
but not limited to, the financial condition of the Company
or any subsidiary thereof.
The Company agrees to provide the Remarketing Dealer with as many
copies of the foregoing written materials and other Company-
approved information as the Remarketing Dealer may reasonably
request for use in connection with the remarketing of ROARS and
consents to the use thereof in compliance with any applicable
laws for such purpose and agrees to provide the Remarketing
Dealer with the opportunity to perform customary due diligence
with respect to the Company and its subsidiaries from time to
time in advance of the Remarketing Date as the Remarketing Dealer
may reasonably request.
(c) If, at any time from the Notification Date through
the end of the 45 Business Day period described in (e) below, any
event or condition known to the Company relating to or affecting
the Company, any subsidiary thereof or the ROARS shall occur
which would reasonably be expected to cause the Prospectus to
contain an untrue statement of a material fact or omit to state a
material fact, the Company shall promptly notify the Remarketing
Dealer in writing of the circumstances and details of such event
or condition.
(d) So long as the ROARS are outstanding, the Company
will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the
1934 Act and the 1934 Act Regulations.
(e) The Company will comply with the 1933 Act and the
1933 Act Regulations, the 1934 Act and the 1934 Act Regulations
and the 1939 Act and the rules and regulations of the Commission
thereunder so as to permit the completion of the remarketing of
the ROARS as contemplated in this Agreement and in each
Prospectus. Except as provided below, if at any time when a
prospectus is required by the 1933 Act to be delivered in
connection with sales of the ROARS on or after the Remarketing
Date, any event shall occur or condition shall exist as a result
of which it is necessary, in the reasonable opinion of counsel
for the Remarketing Dealer or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in
order that such Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or
file a new registration statement or amend or supplement any
Prospectus or issue a new prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations and the
Commission's interpretations of the 1933 Act and the 1933 Act
Regulations, the Company, at its expense, will promptly (i)
prepare and file with the Commission such amendment or supplement
as may be necessary to correct such statement or omission or to
make the Registration Statement or any such Prospectus comply
with such requirements, or prepare and file any such new
registration statement and prospectus as may be necessary for
such purpose and (ii) furnish to the Remarketing Dealer such
number of copies of such amendment, supplement or other document
as the Remarketing Dealer may reasonably request; provided that
(a) the Company shall be obligated to perform the agreements set
forth in (i) and (ii) above during the period ending on the 45th
Business Day after the Remarketing Date, and (b) subsequent to
the 45th Business Day after the Remarketing Date, the Company may
suspend its obligation to comply with the agreements set forth in
(i) and (ii) above and the Remarketing Dealer shall suspend the
use of the Prospectus or any sales of the ROARS that would
require the delivery of a prospectus under the 1933 Act if (x) in
the reasonable opinion of counsel to the Company, the Company
would be required to amend the Registration Statement or amend or
supplement any Prospectus to disclose (A) information relating to
corporate developments or business transactions involving the
Company or its subsidiaries that is not otherwise then required
by law to be publicly disclosed, or (B) financial or other
information relating to parties to such business transactions
that is not readily available to the Company, and (y) in the good
faith judgment of the Chief Executive Officer or Chief Financial
Officer of the Company, such disclosure at such time could
materially and adversely affect the Company or any such corporate
development or business transaction contemplated by the Company
or its subsidiaries, or such disclosure would be unduly
burdensome or impracticable for the Company to provide. If the
Remarketing Dealer has elected to remarket the ROARS and the
Company has not elected to redeem the ROARS, and if as of the
Remarketing Date the Company is obligated, pursuant to the
preceding provisions of this paragraph, to file and have declared
effective a new registration statement or to provide the
Remarketing Dealer with a Prospectus, then the Company shall, at
its expense, on the Remarketing Date furnish to the Remarketing
Dealer an officers' certificate, an opinion, including a
statement relating to the absence of material misstatements in or
omissions from the Registration Statement and the Prospectus, of
counsel for the Company reasonably satisfactory to the
Remarketing Dealer and a "comfort letter" from the Company's
independent accountants, in each case in form and substance
reasonably satisfactory to the Remarketing Dealer, of the same
tenor as the officers' certificate, opinion and comfort letter,
respectively, delivered pursuant to the Underwriting Agreement,
but modified to relate to the Registration Statement and each
Prospectus as amended or supplemented to the date thereof or such
new registration statement and Prospectus.
(f) The Company agrees that neither it, nor any of its
subsidiaries or affiliates whose ownership would cause the ROARS
to be deemed to be no longer outstanding, shall defease, purchase
or otherwise acquire, or enter into any agreement to defease,
purchase or otherwise acquire, any of the ROARS prior to the
remarketing thereof by the Remarketing Dealer, other than
pursuant to Section 4(g) or 4(h) of this Agreement.
(g) The Company will comply with each of the covenants
set forth in the Underwriting Agreement.
Section 4. Appointment and Obligations of the
Remarketing Dealer.
(a) Unless this Agreement is otherwise terminated in
accordance with Section 11 hereof, in accordance with the terms,
but subject to the conditions, of this Agreement, the Company
hereby appoints NMS, and NMS hereby accepts such appointment, as
the exclusive Remarketing Dealer with respect to $200,000,000
aggregate principal amount of ROARS, subject further to
redemption of the ROARS in accordance with clause (g) or (h) of
this Section 4.
(b) The obligations of the Remarketing Dealer
hereunder with respect to the ROARS to be remarketed on the
Remarketing Date are conditioned on (i) the issuance and delivery
of such ROARS pursuant to the terms and conditions of the
Underwriting Agreement and (ii) the Remarketing Dealer's election
on the Notification Date to purchase the ROARS for remarketing on
the Remarketing Date. If the Remarketing Dealer has elected to
remarket the ROARS pursuant to clause (c) below, the Remarketing
Dealer shall not be obligated to set the Interest Rate to
Maturity (as defined below) on any ROARS, to remarket any ROARS
or to perform any of the other duties set forth herein at any
time after the Notification Date in the event that (i) any of the
conditions set forth in clause (a), (b) or (c) of Section 8
hereof shall not have been fully and completely met to the
reasonable satisfaction of the Remarketing Dealer, or (ii) any of
the events set forth in clause (d) of Section 8 hereof shall have
occurred after the Remarketing Dealer makes such election.
(c) If the Remarketing Dealer notifies the Company
and the Trustee on the fifth Business Day prior to the
Remarketing Date (the "Notification Date"), no later than 4:00
p.m. New York City time, of its intention to purchase all but not
less than all the ROARS on the Remarketing Date, all of the ROARS
shall be subject to mandatory tender to the Remarketing Dealer
for purchase and remarketing on the Remarketing Date, and the
Remarketing Dealer shall purchase the ROARS on the Remarketing
Date, upon the terms and subject to the conditions described
herein. The purchase price of the ROARS shall be equal to 100%
of the aggregate principal amount thereof, and the Company shall
pay interest on the ROARS as described in Section 4(f) herein.
(d) If the Remarketing Dealer elects to remarket the
ROARS as provided in clause (c) above, by 3:30 p.m., New York
City time, on the third Business Day immediately preceding the
Remarketing Date (the "Determination Date"), the Remarketing
Dealer shall determine the Interest Rate to Maturity to the
nearest thousandth (0.001) of one percent per annum. The
"Interest Rate to Maturity" shall be equal to the sum of 5.44%
(the "Base Rate") and the Applicable Spread (as defined below),
which will be based on the Dollar Price (as defined below) of the
ROARS.
The "Applicable Spread" shall be the lowest bid
indication, expressed as a spread (in the form of a
percentage or in basis points) above the Base Rate, obtained
by the Remarketing Dealer on the Determination Date from the
bids quoted by five Reference Corporate Dealers (as defined
below) for the full aggregate principal amount of the ROARS
at the Dollar Price, but assuming (i) an issue date that is
the Remarketing Date, with settlement on such date without
accrued interest, (ii) a maturity date that is the Stated
Maturity Date and (iii) a stated annual interest rate equal
to the Base Rate plus the spread bid by the applicable
Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the
Applicable Spread shall be the lowest of such bid
indications obtained as described above. The Interest Rate
to Maturity announced by the Remarketing Dealer, absent
manifest error, shall be binding and conclusive upon the
actual purchasers of the ROARS ("Beneficial Owners") and
Holders of the ROARS, the Company and the Trustee.
"Comparable Treasury Issues" means the United States
Treasury security or securities selected by the Remarketing
Dealer as having an actual or interpolated maturity or
maturities comparable to the remaining term of the ROARS
being purchased by the Remarketing Dealer.
"Comparable Treasury Price" means, with respect to the
Remarketing Date, (a) the offer prices for the Comparable
Treasury Issues (expressed in each case as a percentage of
its principal amount) on the Determination Date, as set
forth on "Telerate Page 500" (or such other page as may
replace Telerate Page 500), or (b) if such page (or any
successor page) is not displayed or does not contain such
offer prices on the Determination Date, (i) the average of
the Reference Treasury Dealer Quotations (as defined below)
for the Remarketing Date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if
the Remarketing Dealer obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all
such Reference Treasury Dealer Quotations. "Telerate Page
500" means the display designated as "Telerate Page 500" on
Dow Xxxxx Markets (or such other page as may replace
Telerate Page 500 on such service) or such other service
displaying the offer prices specified in (a) above as may
replace Dow Xxxxx Markets.
"Dollar Price" means, with respect to the ROARS, the
present value, as of the Remarketing Date, of the Remaining
Scheduled Payments (as defined below) discounted to the
Remarketing Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury
Rate (as defined below).
"Reference Corporate Dealer" means each of NationsBanc
Xxxxxxxxxx Securities LLC, Bear, Xxxxxxx & Co. Inc.,
Citicorp Securities, Inc. and two others to be selected by
the Company at a later date and their respective successors;
provided that if any of the foregoing or their affiliates
shall cease to be a leading dealer of publicly traded debt
securities of the Company (a "Primary Corporate Dealer"),
the Remarketing Dealer shall substitute therefor another
Primary Corporate Dealer.
"Reference Treasury Dealer" means each of NationsBanc
Xxxxxxxxxx Securities LLC, Bear, Xxxxxxx & Co. Inc.,
Citicorp Securities, Inc. and two others to be selected by
the Company at a later date and their respective successors;
provided that if any of the foregoing or their affiliates
shall cease to be a primary U.S. Government securities
dealer (a "Primary Treasury Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and the
Remarketing Date, the offer prices for the Comparable
Treasury Issues (expressed in each case as a percentage of
its principal amount) quoted in writing to the Remarketing
Dealer by such Reference Treasury Dealer by 3:30 p.m., on
the Determination Date.
"Remaining Scheduled Payments" means, with respect to
the ROARS, the remaining scheduled payments of the principal
thereof and interest thereon, calculated at the Base Rate
only, that would be due after the Remarketing Date to and
including the Stated Maturity Date; provided that if the
Remarketing Date is not an Interest Payment Date with
respect to the ROARS, the amount of the next succeeding
scheduled interest payment thereon, calculated at the Base
Rate only, will be reduced by the amount of interest accrued
thereon, calculated at the Base Rate only, to the
Remarketing Date.
"Treasury Rate" means, with respect to the Remarketing
Date, the rate per annum equal to the semi-annual equivalent
yield to maturity or interpolated (on a day count basis)
yield to maturity of the Comparable Treasury Issues,
assuming a price for the Comparable Treasury Issues
(expressed as a percentage of its principal amount), equal
to the Comparable Treasury Price for the Remarketing Date.
(e) If the Remarketing Dealer elects to remarket the
ROARS as provided in clause (c) above, the Remarketing Dealer
shall notify the Company, the Trustee and The Depository Trust
Company ("DTC") by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00
p.m., New York City time, on the Determination Date of the
Interest Rate to Maturity applicable to the ROARS effective from
and including the Remarketing Date.
(f) If the Remarketing Dealer elects to remarket the
ROARS as provided in clause (c) above, then, subject to the
conditions in Section 8 and the Company's rights in Section 4(h),
the Remarketing Dealer shall deliver the purchase price for the
ROARS to the Trustee by 3:00 p.m. New York City time on the
Business Day immediately preceding the Remarketing Date for
payment to the DTC participant of each Beneficial Owner of ROARS,
through DTC in accordance with the procedures of DTC against
delivery or deemed delivery through DTC of such Beneficial
Owner's ROARS. The purchase price of the ROARS shall be equal to
100% of the aggregate principal amount thereof. The Company
shall make, or cause the Trustee to make, payment of interest due
on the Remarketing Date to each Beneficial Owner of ROARS by book
entry through DTC by the close of business on the Remarketing
Date.
(g) Subject to Section 11(c) of this Agreement, in the
event that (i) the Remarketing Dealer for any reason does not
notify the Company of the Interest Rate to Maturity by 4:00 p.m.,
New York City time, on the Determination Date, (ii) prior to the
Remarketing Date, the Remarketing Dealer resigns and no successor
has been appointed on or before the Determination Date, (iii) at
any time after the Remarketing Dealer elects on the Notification
Date to remarket the ROARS, the Remarketing Dealer shall have
elected to terminate this Agreement as provided in Section 11(b),
(iv) the Remarketing Dealer for any reason does not elect, by
notice to the Company and the Trustee not later than 4:00 p.m.
New York City time on the Notification Date, to purchase the
ROARS for remarketing on the Remarketing Date, (v) the
Remarketing Dealer for any reason does not deliver the purchase
price of the ROARS to the Trustee by 3:00 p.m. New York City time
on the Business Day immediately preceding the Remarketing Date,
or (vi) the Company for any reason fails to pay for and redeem
the ROARS following the Company's election to effect such
redemption as specified in Section 4(h) of this Agreement, the
Company shall redeem the ROARS from the holders as a whole on the
Remarketing Date at a price equal to 100% of the aggregate
principal amount of the ROARS plus all accrued and unpaid
interest, if any, on the ROARS to the Remarketing Date. In any
such case, payment will be made by the Company through the
Trustee to the DTC participant of each Beneficial Owner of ROARS,
by book-entry through DTC by the close of business on the
Remarketing Date against delivery through DTC of such Beneficial
Owner's ROARS.
(h) If the Remarketing Dealer elects to remarket the
ROARS as provided in clause (c) above, then not later than 4:00
p.m. New York City time on the Business Day immediately preceding
the Determination Date, the Company shall notify the Remarketing
Dealer and the Trustee if the Company irrevocably elects to
exercise its right to redeem the ROARS, in whole but not in part,
on the Remarketing Date. If the Company gives such notice to the
Remarketing Dealer and the Trustee, then (i) the Remarketing
Dealer will be deemed to have elected not to remarket the ROARS,
(ii) the Company shall redeem the ROARS from the holders as a
whole on the Remarketing Date at a price equal to 100% of the
aggregate principal amount of the ROARS plus all accrued and
unpaid interest, if any, on the ROARS to the Remarketing Date
(such payment to be made by the Company through the Trustee to
the DTC participant of each Beneficial Owner of ROARS, by book-
entry through DTC by the close of business on the Remarketing
Date against delivery through DTC of such Beneficial Owner's
ROARS) and (iii) the Company will pay the Calculation Amount to
the Remarketing Dealer as provided in Section 11(e) of this
Agreement.
(i) The tender and settlement procedures set forth in
this Section 4, including provisions for payment by purchasers of
ROARS in the remarketing or for payment to the selling Beneficial
Owners of ROARS, shall be subject to modification to the extent
required by DTC or, if the book-entry system is no longer
available for the ROARS at the time of the remarketing, to the
extent required to facilitate the tendering and remarketing of
ROARS in certificated form. In addition, the Remarketing Dealer
may modify (with the consent of the Trustee to the extent
required by the Indenture) the settlement procedures set forth in
the Indenture and/or the ROARS in order to facilitate the
settlement process in any manner not contrary to the Indenture or
adverse to the interests of the Holders of the ROARS; provided,
that such procedures must, in the reasonable opinion of the
Company, allow the Company sufficient time to fund the redemption
of the ROARS on the Remarketing Date.
(j) The Company will (i) use its best efforts to
maintain the ROARS in book-entry form with DTC or any successor
thereto and to appoint a successor depository to the extent
necessary to maintain the ROARS in book-entry form and (ii) waive
any discretionary right it otherwise may have under the Indenture
to cause the ROARS to be issued in certificated form.
Section 5. Fees and Expenses. Subject to Section 11
of this Agreement, for its services in performing its duties set
forth herein, the Remarketing Dealer will not receive any fees or
reimbursement of expenses from the Company.
Section 6. Resignation of the Remarketing Dealer. The
Remarketing Dealer may resign and be discharged from its duties
and obligations hereunder at any time, such resignation to be
effective 10 Business Days after delivery of a written notice to
the Company and the Trustee of such resignation. The Remarketing
Dealer also may resign and be discharged from its duties and
obligations hereunder at any time, such resignation to be
effective immediately, upon termination of this Agreement in
accordance with Section 11(b) hereof. It shall be the sole
obligation of the Company to appoint a successor Remarketing
Dealer.
Section 7. Dealing in the ROARS; Purchase of ROARS by
the Company.
(a) NMS, when acting as the Remarketing Dealer or in
its individual or any other capacity, may, to the extent
permitted by law, buy, sell, hold and deal in any of the ROARS.
NMS, as Holder or Beneficial Owner of the ROARS, may exercise any
vote or join as a Holder or Beneficial Owner, as the case may be,
in any action which any Holder or Beneficial Owner of ROARS may
be entitled to exercise or take pursuant to the Indenture with
like effect as if it did not act in any capacity hereunder. The
Remarketing Dealer, in its capacity either as principal or agent,
may also engage in or have an interest in any financial or other
transaction with the Company as freely as if it did not act in
any capacity hereunder.
(b) Neither the Company nor any of its affiliates may
agree to purchase ROARS from any Reference Corporate Dealer
during the period of time they are submitting a bid in connection
with the remarketing contemplated by this Agreement unless the
Remarketing Dealer is able to confirm that the Applicable Spread
established in such remarketing would not be different than the
Applicable Spread that would have been established had neither
the Company nor any of its affiliates agreed to purchase ROARS
from any such Reference Corporate Dealer in such remarketing.
Section 8. Conditions to Remarketing Dealer's
Obligations. The obligations of the Remarketing Dealer under
this Agreement have been undertaken in reliance on, and shall be
subject to, (a) the due performance in all material respects by
the Company of its obligations and agreements as set forth in
this Agreement and the accuracy on each Representation Date of
the representations and warranties in this Agreement and any
certificate delivered pursuant hereto, (b) the due performance in
all material respects by the Company of its obligations and
agreements set forth in, and the accuracy in all material
respects as of the dates specified therein of the representations
and warranties contained in, the Underwriting Agreement, (c) the
submission of a bid by at least one Reference Corporate Dealer on
the Determination Date to purchase the full aggregate principal
amount of the ROARS at the Dollar Price, and (d) the further
condition that none of the following events shall have occurred
after the Remarketing Dealer elects on the Notification Date to
remarket the ROARS:
(i) the rating of any securities of the Company shall
have been down graded or put under surveillance or review
with negative implications, including being put on what is
commonly termed a "watch list," or withdrawn by a nationally
recognized statistical rating agency;
(ii) without the prior written consent of the
Remarketing Dealer, the Indenture (including the ROARS)
shall have been amended in any manner, or otherwise contain
any provision not contained therein as of the date hereof,
that in either case in the reasonable judgment of the
Remarketing Dealer materially changes the nature of the
ROARS or the remarketing procedures (it being understood
that, notwithstanding the provisions of this clause (ii),
the Company shall not be prohibited from amending the
Indenture);
(iii) trading in any securities of the Company shall
have been suspended or materially limited by the Commission,
or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market
shall have been suspended or materially limited, or minimum
or maximum prices for trading shall have been fixed, or
maximum ranges for prices shall have been required, by any
of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers,
Inc. or any other governmental authority, or if a banking
moratorium shall have been declared by either Federal or New
York authorities;
(iv) there shall have occurred any material adverse
change in the financial markets in the United States, any
outbreak of hostilities involving the United States or
escalation thereof or other calamity or crisis or any
material change in existing national or international
political, financial or economic conditions, in each case
the effect of which is such as to make it, in the reasonable
judgment of the Remarketing Dealer, impracticable to
remarket the ROARS or to enforce contracts for the sale of
the ROARS;
(v) an Event of Default, or any event which, with the
giving of notice or passage of time, or both, would
constitute an Event of Default, with respect to the ROARS
shall have occurred and be continuing;
(vi) a material adverse change in the condition,
financial or otherwise, earnings, affairs or business of the
Company and its subsidiaries considered as a whole, whether
or not arising in the ordinary course of business, the
effect of which is such as to make it, in the reasonable
judgment of the Remarketing Dealer, impracticable to
remarket the ROARS or to enforce contracts for the sale of
the ROARS, shall have occurred since the Notification Date
or since the respective dates as of which information is
given in the 1934 Act Documents;
(vii) if required pursuant to Section 3(e) of this
Agreement, the Company shall fail to furnish to the
Remarketing Dealer on the Remarketing Date the officers'
certificate, opinion and comfort letter referred to in
Section 3(e) of this Agreement and such other documents and
opinions as counsel for the Remarketing Dealer may
reasonably require for the purpose of enabling such counsel
to pass upon the sale of ROARS in the remarketing as herein
contemplated and related proceedings, or in order to
evidence the accuracy and completeness of any of the
representations and warranties, or the fulfillment of any of
the conditions, herein contained; and the Remarketing Dealer
shall have failed to receive on the Remarketing Date a
certificate of the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial
Officer or a Vice President of the Company, and the
Treasurer or an Assistant Treasurer of the Company, dated as
of the Remarketing Date, to the effect that (i) the
representations and warranties in this Agreement are true
and correct with the same force and effect as though
expressly made at and as of the Remarketing Date, (ii) the
Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under
this Agreement at or prior to the Remarketing Date and (iii)
none of the events specified in the preceding clause (d) has
occurred; or
(viii) the ROARS are not maintained in book-entry form
with DTC or any successor thereto; provided, that the
Remarketing Dealer, in its sole discretion and subject to
receipt of an opinion of counsel for the Company reasonably
satisfactory to the Remarketing Dealer, may waive the
foregoing condition if in the Remarketing Dealer's judgment
the Indenture and the ROARS can be amended, and they are
amended, so as to permit the remarketing of the ROARS in
certificated form and otherwise as contemplated herein.
(e) In furtherance of the foregoing, the effectiveness
of the Remarketing Dealer's election on the Notification Date to
remarket the ROARS shall be subject to the condition that the
Remarketing Dealer shall have received a certificate of the
Chairman of the Board, the Chief Executive Officer, the
President, the Chief Financial Officer, or a Vice President of
the Company, and the Treasurer or an Assistant Treasurer of the
Company, dated as of the Notification Date, to the effect that
(i) the Company has, prior to the Remarketing Dealer's election
on the Notification Date to remarket the ROARS, provided the
Remarketing Dealer with notice of all events as required under
Section 3(a) of this Agreement, (ii) the representations and
warranties in this Agreement are true and correct at and as of
the Notification Date and (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement at or prior to the
Notification Date. Such certificate shall be delivered by the
Company to the Remarketing Dealer as soon as practicable
following notification by the Remarketing Dealer to the Company
on the Notification Date of its election to remarket the ROARS
and in any event prior to the Determination Date.
In the event of the failure of any of the foregoing
conditions in this Section 8, the Remarketing Dealer may
terminate its obligations under this Agreement or redetermine the
Interest Rate to Maturity as provided in Section 11.
Section 9. Indemnification.
(a) The Company agrees to indemnify and hold harmless
the Remarketing Dealer and its officers, directors and employees
and each person, if any, who controls the Remarketing Dealer
within the meaning of Section 20 of the 1934 Act (the
"Remarketing Dealer Indemnitees") against any loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the
Prospectus (including any incorporated documents), or (ii) the
omission or alleged omission therefrom of a material fact
necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading, or (iii)
the acts or omissions of the Remarketing Dealer in connection
with its duties and obligations to determine the Interest Rate to
Maturity hereunder except to the extent finally judicially
determined to be due to its gross negligence or willful
misconduct, and will reimburse the Remarketing Dealer Indemnitees
for expenses reasonably incurred in investigating or defending
against any such loss, liability, claim or damage, as incurred,
including the reasonable fees and disbursements of counsel;
provided that the foregoing indemnity shall not apply to any
losses, liabilities, claims, damages and expenses to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the
Remarketing Dealer expressly for use in the Registration
Statement or the Prospectus.
(b) The Remarketing Dealer agrees to indemnify and
hold harmless the Company, its directors and each of its officers
who signed the Registration Statement (the "Company Indemnitees")
from and against any loss, liability, claim, damage and expense,
as incurred, and will reimburse the Company Indemnitees for
expenses reasonably incurred in investigating or defending
against any such loss, liability, claim or damage, as incurred,
including the reasonable fees and disbursements of counsel, but
only with respect to untrue statements or omissions or alleged
untrue statements or omissions made in the Registration Statement
or the Prospectus in reliance upon and in conformity with
information furnished to the Company in writing by the
Remarketing Dealer expressly for use in such Registration
Statement or the Prospectus. The indemnity agreement in this
clause (b) shall extend upon the same terms and conditions to
each person, if any, who controls the Company within the meaning
of Section 20 of the 1934 Act.
(c) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
instituted involving any person in respect of which indemnity may
be sought pursuant to this Section 9, such person (hereinafter
called the indemnified party) shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the
indemnifying party) in writing and the indemnifying party shall
be entitled to assume the defense thereof and, upon request of
the indemnified party, shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to
the indemnified party to represent the indemnified party and any
others the indemnifying party may designate and shall pay the
fees and disbursements of such counsel related to such
proceeding. In any such action or proceeding, any indemnified
party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. 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. In the case of any such separate counsel for the
Remarketing Dealer Indemnitees, such counsel shall be designated
in writing by the Remarketing Dealer. In the case of any such
separate counsel for the Company Indemnitees, such counsel shall
be designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment in
accordance with this Agreement. No indemnifying party shall,
without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 9 or Section 10
hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) The indemnity agreements contained in this
Section 9 shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of the
Remarketing Dealer or the Company, and shall survive the
termination or cancellation of this Agreement and the remarketing
of any ROARS hereunder.
Section 10. Contribution. If the indemnification
provided for in Section 9 hereof is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the
Remarketing Dealer on the other hand from the remarketing of the
ROARS pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and of the
Remarketing Dealer on the other hand in connection with the acts,
failures to act, statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any
other relevant equitable considerations.
The relative benefits received by the Company on the one
hand and the Remarketing Dealer on the other hand in connection
with the remarketing of the ROARS pursuant to this Agreement
shall be deemed to be in the same respective proportions as (i)
the total net proceeds from the initial offering (before
deducting expenses) of the ROARS received by the Company, and
(ii) (A) the aggregate positive difference, if any, between the
price at which the ROARS are sold by the Remarketing Dealer in
the remarketing and the price paid by the Remarketing Dealer for
the ROARS on the Remarketing Date, plus (B) the total
underwriting discount and commissions received by the Remarketing
Dealer in the initial offering of the ROARS.
The relative fault of the Company on the one hand and the
Remarketing Dealer on the other hand shall be determined by
reference to, among other things, the responsibility hereunder of
the applicable party for any act or failure to act relating to
the losses, liabilities, claims, damages or expenses incurred or,
in the case of any losses, liabilities, claims, damages or
expenses arising out of any untrue or alleged untrue statement of
a material fact contained in the Registration Statement or the
Prospectus or the omission or alleged omission to state a
material fact therefrom, whether any such untrue or alleged
untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied
by the Company or by the Remarketing Dealer and the parties'
relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and the Remarketing Dealer agree that it would
not be just and equitable if contribution pursuant to this
Section 10 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. The
aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above
in this Section 10 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such act or failure to act or untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 10, the
Remarketing Dealer shall not be required to contribute any amount
in excess of the amount by which the total price at which the
ROARS remarketed by it and resold to the public were sold to the
public exceeds the amount of any damages which the Remarketing
Dealer has otherwise been required to pay by reason of any act or
failure to act for which it is responsible hereunder or any
untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 10(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who
controls the Remarketing Dealer within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Remarketing Dealer, and each
director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
Section 11. Termination of or
Redetermination of Interest Rate to Maturity.
(a) This Agreement shall terminate as to the
Remarketing Dealer on the effective date of the resignation of
the Remarketing Dealer pursuant to Section 6 hereof or the
redemption of the ROARS by the Company pursuant to Section 4(g)
or 4(h) hereof or at 4:00 p.m. New York City time on the fifth
Business Day prior to the Remarketing Date if the Remarketing
Dealer has not elected to remarket the ROARS.
(b) In addition, the Remarketing Dealer may terminate
all of its obligations under this Agreement immediately by
notifying the Company and the Trustee of its election to do so,
at any time on or before the Remarketing Date, in the event that:
(i) any of the conditions referred to or set forth in
Section 8(a), (b) or (c) hereof have not been met or satisfied in
full, (ii) any of the events set forth in Section 8(d) shall have
occurred after the Remarketing Dealer elects on the Notification
Date to remarket the ROARS or (iii) the Remarketing Dealer
determines, in its reasonable discretion, after consultation with
the Company, that it shall not have received from the Company all
of the information it has requested, whether or not specifically
referenced herein, necessary to satisfy its due diligence
obligation under the 1933 Act in connection with the remarketing
of the ROARS or to fulfill its obligations under this Agreement.
(c) Notwithstanding any provision herein to the
contrary, in lieu of terminating this Agreement pursuant to
Section 11(b) above, upon the occurrence of any of the events set
forth therein, the Remarketing Dealer, in its sole discretion at
any time between the Determination Date and 10:30 a.m., New York
City time, on the Business Day immediately preceding the
Remarketing Date, may elect to purchase the ROARS for remarketing
and determine a new Interest Rate to Maturity in the manner
provided in Section 4(d) of this Agreement, except that for
purposes of determining the new Interest Rate to Maturity
pursuant to this paragraph the Determination Date referred to
therein shall be the date of such election and redetermination.
The Remarketing Dealer shall notify the Company, the Trustee and
DTC by telephone, confirmed in writing (which may include
facsimile or other electronic transmission), by 11:00 a.m., New
York City time, on the date of such election, of the new Interest
Rate to Maturity applicable to the ROARS. Thereupon, such new
Interest Rate to Maturity shall supersede and replace any
Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding
and conclusive upon the Beneficial Owners and Holders of the
ROARS on and after the Remarketing Date, the Company and the
Trustee; provided that the Remarketing Dealer, by redetermining
the Interest Rate to Maturity upon the occurrence of any event
set forth in Section 11(b) as set forth above, shall not thereby
be deemed to have waived its right to determine a new Interest
Rate to Maturity or terminate this Agreement upon the subsequent
occurrence of any other event set forth in Section 11(b). If the
Remarketing Dealer elects to purchase the ROARS in accordance
with this clause (c), the Company will retain the right to redeem
the ROARS as specified in Section 4(h) of this Agreement, subject
to the terms and conditions applicable to such redemption as
specified in this Agreement, provided that such election shall be
made no later than 12:30 p.m. New York City time on the Business
Day immediately preceding the Remarketing Date.
(d) If this Agreement is terminated pursuant to this
Section 11, such termination shall be without liability of any
party to any other party, except that, in the case of termination
pursuant to Section 11(b) of this Agreement, the Company shall
reimburse the Remarketing Dealer for all of its reasonable out-of-
pocket expenses incurred in connection with this Agreement or the
remarketing of the ROARS pursuant to this Agreement, including
the reasonable fees and disbursements of counsel for the
Remarketing Dealer, and except further as set forth in
Section 11(e) below. Sections 1, 9, 10, 11(d) and 11(e) shall
survive such termination and remain in full force and effect.
(e) In the case of either (i) termination of this
Agreement pursuant to Section 11(b), (ii) the occurrence, prior
to the Remarketing Dealer's election on the Notification Date to
remarket the ROARS, of any event set forth in Section 8(d)(ii) or
(v), (iii) any redemption or any failure by the Company to redeem
the ROARS following any election by the Company to effect such
redemption as specified in Section 4(h) (each a "Calculation
Event"), the Company shall immediately following the Calculation
Amount Determination Date (as defined below) pay the Remarketing
Dealer, in same-day funds by wire transfer to an account
designated by the Remarketing Dealer, the fair market value,
calculated as set forth below, of the Remarketing Dealer's right
to purchase and remarket the ROARS pursuant to this Agreement
(the "Calculation Amount").
The Calculation Amount will be determined by the Remarketing
Dealer in good faith and on a commercially reasonable basis and
will be equal to an amount, if any, that would be paid by the
Remarketing Dealer in consideration of an agreement between the
Remarketing Dealer and a Reference Corporate Dealer (other than
the Remarketing Dealer) to enter into a transaction that would
have the effect of preserving for the Remarketing Dealer the
economic equivalent of any payment or delivery (whether the
underlying obligation was absolute or contingent) by the
Remarketing Dealer and the Beneficial Owners that would, but for
the occurrence of the Calculation Event, have been required on
the Remarketing Date; provided that, if the Calculation Amount is
being determined with respect to a Calculation Event occurring on
or after the Remarketing Dealer's election on the Notification
Date to remarket the ROARS, the Calculation Amount will be equal
to the excess, if any, of (x) the Dollar Price over (y) the
aggregate principal amount of the ROARS then outstanding. In
determining the Calculation Amount, the Remarketing Dealer will
be entitled to assume that the ROARS are obligations issued by
the United States Department of the Treasury backed by the full
faith and credit of the United States of America. The
Remarketing Dealer shall determine the applicable Calculation
Amount as soon as practicable after the occurrence of any of the
events as described in (i) through (iii) in the preceding
paragraph (the "Calculation Amount Determination Date"). The
Remarketing Dealer shall promptly notify the Company of the
Calculation Amount Determination Date and the Calculation Amount
by telephone, confirmed in writing (which may include facsimile
or other electronic transmission). The Calculation Amount,
absent manifest error, shall be binding and conclusive upon the
parties hereto.
The parties acknowledge that there is no set of
circumstances under this Agreement whereby the Company would be
required to pay the Calculation Amount in the event that the
Remarketing Agent completes the purchase of the ROARS on the
Remarketing Date as contemplated hereby.
(f) This Agreement may not be terminated by the
Company.
Section 12. Remarketing Dealer's Performance; Duty of
Care. The duties and obligations of the Remarketing Dealer shall
be determined solely by the express provisions of this Agreement
and the Indenture. No implied covenants or obligations of or
against the Remarketing Dealer shall be read into this Agreement
or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely
upon any document furnished to it, which purports to conform to
the requirements of this Agreement and the Indenture, as to the
truth of the statements expressed in any of such documents. The
Remarketing Dealer shall be protected in acting upon any document
or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. In connection
with this Agreement, the Remarketing Dealer shall incur no
liability to the Company or to any Beneficial Owner or Holder of
ROARS in its individual capacity or as Remarketing Dealer for any
action or failure to act in connection with the remarketing or
otherwise, except that the foregoing shall not relieve the
Remarketing Dealer from (a) its obligations under Sections 4(d),
4(e) and 4(f) or (b) liability as a result of any gross
negligence or willful misconduct on its part.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED IN SUCH STATE.
Section 14. Term of Agreement. Unless otherwise
terminated in accordance with the provisions hereof, this
Agreement shall remain in full force and effect from the date
hereof until the earlier of the first day thereafter on which no
ROARS are outstanding or the completion of the remarketing of the
ROARS. Regardless of any termination of this Agreement pursuant
to any of the provisions hereof, the obligations of the Company
pursuant to Sections 9, 10, 11(d) and 11(e) hereof shall remain
operative and in full force and effect until fully satisfied.
Section 15. Successors and Assigns. The rights and
obligations of the Company hereunder may not be assigned or
delegated to any other person without the prior written consent
of the Remarketing Dealer. The rights and obligations of the
Remarketing Dealer hereunder may not be assigned or delegated to
any other person without the prior written consent of the
Company. This Agreement shall inure to the benefit of and be
binding upon the Company and the Remarketing Dealer and their
respective successors and assigns, and will not confer any
benefit upon any other person, partnership, association or
corporation other than persons, if any, controlling the
Remarketing Dealer within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, or any indemnified party to
the extent provided in Section 9 hereof, or any person entitled
to contribution to the extent provided in Section 10 hereof. The
terms "successors" and "assigns" shall not include any purchaser
of any ROARS merely because of such purchase.
Section 16. Headings. Section headings have been
inserted in this Agreement as a matter of convenience of
reference only, and it is agreed that such section headings are
not a part of this Agreement and will not be used in the
interpretation of any provisions of this Agreement.
Section 17. Severability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be
invalid, inoperative or unenforceable as applied in any
particular case in any or all jurisdictions because it conflicts
with any provision of any constitution, statute, rule or public
policy or for any other reason, such circumstances shall not have
the effect of rendering the provision in question invalid,
inoperative or unenforceable in any other case, circumstance or
jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
Section 18. Counterparts. This Agreement may be
executed in several counterparts, each of which shall be regarded
as an original and all of which shall constitute one and the same
document.
Section 19. Amendments. This Agreement may be amended
by any instrument in writing signed by each of the parties hereto
so long as this Agreement as amended is not inconsistent with the
Indenture in effect as of the date of any such amendment.
Section 20. Notices. Unless otherwise specified, any
notices, requests, consents or other communications given or made
hereunder or pursuant hereto shall be made in writing (which may
include facsimile or other electronic transmission) and shall be
deemed to have been validly given or made when delivered or
mailed, registered or certified mail, return receipt requested
and postage prepaid, addressed as follows:
(a) to the Company:
Xxxxxxx Enterprises, Inc.
000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
(b) to NMS:
NationsBanc Xxxxxxxxxx Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Syndicate
or to such other address as the Company or the Remarketing Dealer
shall specify in writing.
IN WITNESS WHEREOF, each of the Company and the Remarketing
Dealer has caused this to be executed in
its name and on its behalf by one of its duly authorized officers
as of the date first above written.
XXXXXXX ENTERPRISES, INC.
By /s/ Xxxxxx X. Patron
-----------------------------
Title: Chief Financial Officer,
President - Corporate Division and
Executive Vice President
NATIONSBANC XXXXXXXXXX
SECURITIES LLC
By /s/ Xxxxxxx X. Xxxx
-----------------------------
Title: Managing Director
1/Service Xxxx of NationsBanc Xxxxxxxxxx Securities LLC
