This , dated as of June 6, 1997 (the
""), is among Xxxxxx Co., a Delaware corporation (the
"Company"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Chase
Securities Inc., First Chicago Capital Markets, Inc. and Xxxxxx Xxxxxxx & Co.
Incorporated (each being herein a "Remarketing Agent" and, collectively, the
"Remarketing Agents").
WHEREAS, the Company may issue Medium-Term Notes, Series A, with
interest rates to be established periodically by a Remarketing Agent as
contemplated herein (the "Notes"), under an Indenture, dated as of November 11,
1995 (the "Indenture"), between the Company and The Chase Manhattan Bank (as
successor in interest to The Chase Manhattan Bank, N.A.), as trustee (the
"Trustee"), which Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "1939 Act");
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3 (No.
33-64225) under the Securities Act of 1933, as amended (the "1933 Act"), in
connection with the offering of debt securities, which registration statement
was declared effective by order of the Commission on January 23, 1996, and has
filed such amendments thereto and such amended prospectuses as may have been
required to the date hereof and will file such additional amendments thereto and
such additional amended prospectuses as may hereafter be required;
WHEREAS, the Notes will be initially sold pursuant to a distribution
agreement, dated May 3, 1996, and amended as of June 6, 1997, among Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Chase Securities Inc., First
Chicago Capital Markets, Inc. and Xxxxxx Xxxxxxx & Co. Incorporated (the
"Distribution Agreement");
WHEREAS, the Company intends by this to appoint,
on a non-exclusive basis, each Remarketing Agent to act as a remarketing agent
with respect to the Notes for the purpose of (i) setting the interest rate or
rates and the Spread (if any) and/or Spread Multiplier (if any) for such Notes,
(ii) remarketing such Notes from time to time on behalf of the persons who
acquire an interest in the Notes ("Beneficial Owners") which is reflected on the
records of the Depository through its participants ("DTC Participants") and
(iii) accepting tendered Notes for remarketing and receiving payment, or using
reasonable efforts to cause the Trustee to receive payment, of the purchase
price for Notes subject to remarketing and paying Beneficial Owners on whose
behalf such Notes were remarketed; and
WHEREAS, each Remarketing Agent is willing to assume 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 shall have the meanings assigned to them in the
Notes.
Section 2. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants to each Remarketing Agent as of the date hereof and as
of each Interest Rate Adjustment Date for each Interest Rate Period that (i) it
has made all the filings with the SEC that it is required to make under the 1934
Act and the 1934 Act Regulations (collectively, the "1934 Act Documents"), that
each 1934 Act Document complied in all material respects with the requirements
of the 1934 Act and 1934 Act Regulations, and each 1934 Act Document did not,
and will not, at the time of filing with the SEC, as of the date hereof and as
of each Interest Rate Adjustment Date, and as of each Interest Rate Adjustment
Date the applicable Remarketing Materials (as defined herein) will not, 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, not misleading, and (ii)
no consent, approval, authorization, order or decree of any court or
governmental agency or body, including as to an effective registration statement
under the 1933 Act with respect to the Notes, is required for the consummation
by the Company of the transactions contemplated by this or
in connection with the remarketing of Notes pursuant hereto, except such as have
been obtained or rendered, as the case may be.
(b) The Company represents and warrants to each Remarketing Agent as of
the date hereof, as of each date on which the interest rate for a Long Term Rate
Period is established and as of each Interest Rate Adjustment Date for a Long
Term Rate Period (each such date being hereinafter referred to as a
"Representation Date"), as follows:
(i) DUE INCORPORATION AND QUALIFICATION. The Company has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware with corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the 1934 Act Documents and to enter into and perform its
obligations under this ; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure to so qualify and be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise.
(ii) SUBSIDIARIES. Each subsidiary of the Company which is a
"significant subsidiary" as defined in Rule 405 of Regulation C of the 1933
Act Regulations (collectively, the "Significant Subsidiaries") has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and conduct
its business as described in the 1934 Act Documents and is duly qualified
as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such
2
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
and be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the results of operations, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and, except as disclosed in the 1934 Act
Documents, all of the issued and outstanding capital stock of each
Significant Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and, except for directors' qualifying shares
(if applicable), is owned by the Company, directly or through subsidiaries,
free and clear of any security interest, mortgage, pledge, lien,
encumbrance or claim.
(iii) ACCOUNTANTS. The accountants who certified the financial
statements included or incorporated by reference in the 1934 Act Documents
are independent public accountants within the meaning of the 1933 Act and
the 1933 Act Regulations.
(iv) FINANCIAL STATEMENTS. The financial statements and any
supporting schedules of the Company and its subsidiaries included or
incorporated by reference in the 1934 Act Documents present fairly the
consolidated financial position of the Company and its subsidiaries as of
the dates indicated and the consolidated results of their operations for
the periods specified; except as stated therein, said financial statements
have been prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis; and the supporting schedules
included or incorporated by reference in the 1934 Act Documents present
fairly the information required to be stated therein.
(v) AUTHORIZATION AND VALIDITY OF THIS ,
THE INDENTURE AND THE NOTES. This has been duly
authorized, executed and delivered by the Company and, upon execution and
delivery by the Remarketing Agents, will be a valid and legally binding
agreement of the Company; the Indenture has been duly authorized,
executed and delivered by the Company and is a valid and legally binding
agreement of the Company enforceable in accordance with its terms, except
as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be limited by
(1) requirements that a claim with respect to any Notes denominated other
than in U.S. dollars (or a foreign currency or composite currency
judgment in respect of such claim) be converted into U.S. dollars at a
rate of exchange prevailing on a date determined pursuant to applicable
law or (2) governmental authority to limit, delay or prohibit the making
of payments outside the United States. The Notes, when issued,
authenticated and delivered pursuant to the Indenture and the Officer's
Certificate (as defined in the Indenture) applicable thereto against
payment of the consideration therefor, will constitute valid and legally
binding obligations of the Company enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting enforcement of creditors' rights generally or by general equity
principles, and except further as enforcement thereof may be limited by
(1) requirements that a claim with
3
respect to any Notes denominated other than in U.S. dollars (or a foreign
currency or composite currency judgment in respect of such claim) be
converted into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or (2) governmental authority to
limit, delay or prohibit the making of payments outside the United
States. Each Holder (as defined in the Indenture) of Notes will be
entitled to the benefits of the Indenture.
(vi) MATERIAL ADVERSE CHANGES OR MATERIAL TRANSACTIONS. Since
the respective dates as of which information is given in the 1934 Act
Documents, except as may otherwise be stated therein or contemplated
thereby, (1) there has been no material adverse change in the condition,
financial or otherwise, or in the results of operations, business affairs
or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business
and (2) there have been no material transactions entered into by the
Company or any of its subsidiaries other than those in the ordinary
course of business.
(vii) NO DEFAULTS. Neither the Company nor any of its Significant
Subsidiaries is in violation of its charter or in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which it is a party or by
which it or any of them or their properties may be bound, where the
consequences of such violation or default would have a material adverse
effect on the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and the execution and delivery
of this and the Indenture and the consummation of
the transactions contemplated herein and therein have been duly
authorized by all necessary corporate action of the Company 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 of its Significant Subsidiaries
pursuant to, any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound or to
which any of the property or assets of the Company or any such subsidiary
is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any law,
administrative regulation or administrative or court order or decree of
any court or governmental agency, authority or body or any arbitrator
having jurisdiction over the Company.
(viii) LEGAL PROCEEDINGS. Except as may be included or
incorporated by reference in the 1934 Act Documents, there is no action,
suit or proceeding before or by 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 of its subsidiaries,
which will, in the opinion of the Company, result in any material adverse
change in the condition, financial or otherwise, or in the results of
operations, business affairs or business
4
prospects of the Company and its subsidiaries considered as one enterprise,
or will materially and adversely affect the properties or assets thereof or
will materially and adversely affect the consummation of this Remarketing
Agreement or the Indenture or any transaction contemplated hereby or
thereby.
(ix) INVESTMENT COMPANY ACT OF 1940 NOT APPLICABLE. The Company
is not an "investment company" or a "company controlled by an `investment
company'" within the meaning of the Investment Company Act of 1940, as
amended.
(c) ADDITIONAL CERTIFICATIONS. Any certificate signed by any director or
officer of the Company and delivered to one or more Remarketing Agents or to
counsel for the Remarketing Agents in connection with a remarketing of Notes by
one or more Remarketing Agents shall be deemed a representation and warranty by
the Company to such Remarketing Agent or Agents as to the matters covered
thereby.
Section 3. COVENANTS OF THE COMPANY. The Company covenants with
each Remarketing Agent as follows:
(a) The Company will provide prompt notice to the Remarketing Agents
of any notification by a rating agency with regard to the ratings of any
securities of the Company.
(b) The Company will furnish to each Remarketing Agent:
(i) the Registration Statement and the Prospectus relating to
the Notes (including in each case any amendment or supplement thereto
and each document incorporated therein by reference);
(ii) each 1934 Act Document filed after the date hereof;
(iii) notice of the occurrence of any of the events set forth
in clause (c) of Section 8 hereof; and
(iv) in connection with each remarketing of Notes, such other
information as each of such Remarketing Agents may reasonably request
from time to time; provided the Company is not obligated to provide
any material non-public information unless such information relates to
any material adverse change or any event or situation which could
reasonably be expected to result in a material adverse change in the
financial condition, results of operations or business affairs of the
Company and its subsidiaries considered as one enterprise; and
provided further that information provided by the Company pursuant
hereto may only be distributed to holders and potential holders of
Notes by a Remarketing Agent with the prior approval of the Company as
to the form and content of such information.
5
The Company agrees to provide each of the Remarketing Agents with as many
copies of the foregoing written materials and other Company approved
information as the Remarketing Agents may reasonably request for use in
connection with each remarketing of Notes and consents to the use thereof
for such purpose.
(c) If, at any time during which the Remarketing Agent would be
obligated to take any action under this Remarketing Agreement, any event or
condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the Notes shall occur which could reasonably be
expected to affect the accuracy or completeness of any statement of a
material fact contained in any of the reports, documents, materials or
information referred to in paragraph (b) above or any document incorporated
therein by reference (collectively, the "Remarketing Materials"), the
Company shall promptly notify each of the Remarketing Agents in writing of
the circumstances and details of such event or condition unless the
Company, in its sole discretion reasonably exercised, determines that it is
not required to disclose such information pursuant to the 1934 Act or the
1934 Act Regulations.
(d) Notwithstanding any other provision of this Remarketing
Agreement, a Remarketing Agent may resign and be discharged from its duties
and obligations hereunder at any time if, in its sole discretion, it
determines that it lacks the information or the ability to distribute the
information necessary to perform its obligations hereunder or to comply
with applicable laws and regulations in connection therewith, such
resignation to be effective upon delivery of notice to the Company, the
Trustee and the other Remarketing Agents, if any, of such resignation;
provided that no Remarketing Agent shall resign with respect to any Note
between 12:15 p.m., New York City time, and the close of business on any
Interest Rate Adjustment Date for such Note.
Section 4. APPOINTMENT AND OBLIGATIONS OF THE REMARKETING AGENTS.
(a) The Company hereby appoints, on a non-exclusive basis, each Remarketing
Agent, and each Remarketing Agent hereby accepts such appointment as to each
Note for each remarketing for which it is designated and has accepted in
accordance with the following sentence, as the remarketing agent with respect to
the Notes for the purpose of (i) setting the interest rate or rates and the
Spread (if any) and/or the Spread Multiplier (if any) for such Notes, (ii)
remarketing such Notes from time to time on behalf of the Beneficial Owners
thereof and (iii) accepting such tendered Notes for remarketing and receiving
payment, or using reasonable efforts to cause the Trustee to receive payment, of
the purchase price for such Notes subject to remarketing and paying Beneficial
Owners on whose behalf such Notes were remarketed.
In connection with the remarketing on each Interest Rate Adjustment
Date for each Note, the Company shall designate the Remarketing Agent therefor
by notice (confirmed in writing) to such Remarketing Agent; which designation
shall become effective only upon acceptance thereof (confirmed in writing) by
the applicable Remarketing Agent. Unless otherwise agreed by the Company and
the applicable Remarketing Agent(s) in writing, notice of designation shall be
made
6
and accepted not less than eight Business Days prior to (x) the applicable
Interest Rate Adjustment Date, in the case of a Note being remarketed into a
Short Term Rate Period, or (y) the third Business Day preceding the applicable
Interest Rate Adjustment Date, in the case of a Note being remarketed into a
Long Term Rate Period.
Subject to the foregoing and to Section 6 hereof, the Company reserves
the right to appoint or replace the Remarketing Agent with respect to any issue
of Notes at any time.
(b) As to each Note for which it has been designated as Remarketing
Agent in accordance with the preceding Section 4(a), each Remarketing Agent
agrees to (i) use its reasonable efforts to set the interest rate for such Note
and the Spread (if any) and/or the Spread Multiplier (if any) in the Interest
Rate Mode, and on the other terms, selected by the Company, which rate shall be
the lowest rate necessary in the judgment of such Remarketing Agent to remarket
such Note on such date of determination at a price equal to 100% of the
principal amount thereof, (ii) notify the Company and the Trustee promptly of
such interest rate and the Spread (if any) and the Spread Multiplier (if any)
for such Note and the other information specified in clause (e) below with
respect to the next Interest Rate Period for such Note, (iii) use its reasonable
efforts to remarket each Note tendered to such Remarketing Agent in remarketings
held from time to time and (iv) accept tendered Notes for remarketing and
receive payment, or use its reasonable efforts to cause the Trustee to receive
payment, of the purchase price for Notes subject to remarketing and pay or cause
to be paid Beneficial Owners on whose behalf such Notes were remarketed.
(c) It is expressly understood and agreed by the parties hereto that
no Remarketing Agent shall be obligated to set the interest rate or the Spread
or Spread Multiplier on any Notes or to remarket any Notes or perform any of the
other duties set forth herein at any time that any of the conditions set forth
in clause (a) or (b) of Section 8 hereof shall not have been fully and
completely met to the satisfaction of the Remarketing Agent or at any time any
of the events set forth in clause (c) of Section 8 hereof shall have occurred.
(d) In connection with any Note that is being remarketed into a Short
Term Rate Period on the next Interest Rate Adjustment Date for such Remarketed
Note, by 12:00 p.m., New York City time, on such Interest Rate Adjustment Date,
the applicable Remarketing Agent will determine the interest rate for such Note
to the nearest one thousandth (0.001) of one percent per annum for the Interest
Rate Period in which such Interest Rate Adjustment Date falls.
In connection with any Note that is being remarketed into a Long Term
Rate Period on the next Interest Rate Adjustment Date for such Note, by 4:00
p.m., New York City time, on the third Business Day preceding such Interest Rate
Adjustment Date, the applicable Remarketing Agent will determine the interest
rate for such Note to the nearest one thousandth (0.001) of one percent per
annum for the next Interest Rate Period, in the case of a fixed interest rate,
and the Spread, if any, or the Spread Multiplier, if any, in the case of a
floating interest rate; provided that, if for any reason the Remarketing Agent
is unable to determine such interest rate by such time, the next Interest Rate
7
Period for such Note shall be a Weekly Rate Period or such other Short Term Rate
Period as the Company may determine by 9:30 a.m., New York City time, on such
Interest Rate Adjustment Date.
In determining the applicable interest rate for any Notes and other
terms, the applicable Remarketing Agent will, after taking into account market
conditions as reflected in the prevailing yields on fixed and variable rate
taxable debt securities, (i) consider the principal amount of the Notes tendered
or to be tendered on the applicable Interest Rate Adjustment Date and the
principal amount of such Notes prospective purchasers are or may be willing to
purchase and (ii) contact, by telephone or otherwise, prospective purchasers and
ascertain the interest rates or, if applicable, the Spread and/or Spread
Multiplier therefor at which they would be willing to hold or purchase such
Notes.
(e) By 12:30 p.m., New York City time, on the Interest Rate
Adjustment Date for any Note, the applicable Remarketing Agent will notify the
Company and the Trustee in writing (including facsimile or appropriate
electronic media) of (i) the interest rate or, in the case of a floating
interest rate, the initial interest rate and the Initial Interest Reset Date,
the Spread and the Spread Multiplier, and the next Interest Rate Adjustment Date
applicable to such Note, (ii) the Interest Payment Dates (in the case of Notes
being remarketed in the Long Term Rate Mode), (iii) the aggregate principal
amount of all tendered Notes for which such Remarketing Agent is responsible
hereunder on such date, (iv) the aggregate principal amount of tendered Notes
that such Remarketing Agent was able to remarket, at a price equal to 100% of
the principal amount thereof, and (v) such other information as the Trustee may
require for settlement purposes. The Trustee has agreed to transmit to the
Depository such information as the Depository may require for settlement
purposes in accordance with the Depository's procedures as in effect from time
to time.
(f) By telephone or in writing (including facsimile) not later than
approximately 1:00 p.m., New York City time, on such Interest Rate Adjustment
Date, the applicable Remarketing Agent will advise each purchaser of Notes
remarketed on such date (or the DTC Participant of each such purchaser who it is
expected in turn will advise such purchaser) of the principal amount of Notes
that such purchaser is to purchase.
(g) Each Remarketing Agent will use its reasonable efforts to
facilitate payment by the applicable purchasers to the Trustee for payment to
the DTC Participant of each tendering Beneficial Owner of Notes subject to a
remarketing, by book entry through the Depository by the close of business on
the Interest Rate Adjustment Date against delivery through the Depository of
such Beneficial Owner's tendered Notes, of the purchase price for such tendered
Notes that have been sold in the remarketing. The Trustee has agreed to make
such payment to the Depository for payment to the DTC Participant subject to
receipt of payment from the purchaser, and, if any such Notes were subject to
purchase as provided in clause (h) of this Section 4, to pay to the Depository
for payment to the DTC Participant of each tendering Beneficial Owner thereof,
subject to receipt of payment from the Company as provided in clause (h), the
purchase price of such Notes plus accrued interest, if any, to such date.
8
(h) By 12:15 p.m., New York City time, on any Interest Rate
Adjustment Date, the applicable Remarketing Agent shall notify the Company and
the Trustee, in writing (including facsimile), of the principal amount of Notes
that such Remarketing Agent was unable to remarket at a price equal to 100% of
the principal amount thereof on such date. Such notice will constitute a demand
on the Company to purchase such unremarketed Notes at a price equal to the
outstanding principal amount thereof. The Company thereupon will be obligated
under the terms of the Notes to purchase such unremarketed Notes. The Company
shall deposit same-day funds with the Trustee by 3:00 p.m., New York City time,
on such Interest Rate Adjustment Date, in an amount equal to the principal
amount of such unremarketed Notes plus accrued interest thereon.
Notwithstanding any other provision of this Remarketing Agreement to the
contrary, the Trustee and the Remarketing Agents shall not utilize any funds
advanced by the Company for the purchase of unremarketed Notes for which the
Company shall not have deposited accrued and unpaid interest in accordance with
the preceding sentence.
(i) The applicable Remarketing Agent shall supply to any Beneficial
Owner upon request information regarding the interest rate, Spread (if any),
Spread Multiplier (if any), Interest Rate Mode, Interest Rate Period, the next
Interest Rate Adjustment Date and other terms applicable to such Beneficial
Owner's Notes.
(j) The Remarketing Agents may, in accordance with the Notes, modify
the settlement and remarketing procedures set forth in or pursuant to the Notes
in order to facilitate the settlement and remarketing process.
(k) In the case of any Note being redeemed on an Interest Rate
Adjustment Date therefor, the Company shall give the applicable Remarketing
Agent and the Trustee written notice of such redemption prior to the time the
interest rate applicable to the next Interest Rate Period for such Note is
established by such Remarketing Agent. In any other case, the Company shall
give the Remarketing Agents and the Trustee written notice of redemption of
any Note at least two business days prior to the date notice is required to
be given to Holders. In addition, the Company shall give each Remarketing
Agent designated as such in accordance with Section 4(a) hereof with respect
to any Note being repaid at the option of the Holder thereof and the Trustee
notice as soon as practicable, and in any event not later than twelve
Business Days prior to the next succeeding Interest Rate Adjustment Date
therefor of each such Note which will be repaid by the Company at the option
of the Holder thereof on or prior to such Interest Rate Adjustment Date.
Each Remarketing Agent's obligation to remarket any Note shall terminate
immediately upon receipt by it from the Company of any notice of redemption
or repayment thereof.
Section 5. FEES AND EXPENSES. For its services in performing its
duties set forth under Section 4(a) hereof and in determining the interest rate
and remarketing Notes, the Remarketing Agents will be entitled to receive a fee
as described below. With respect to Notes in the Short Term Rate Mode, unless
otherwise agreed by the Company and the applicable Remarketing Agent(s) in
writing, the Company shall pay to the Remarketing Agents on January 15, April
15, July 15, and October 15 of each year a fee equal to ____% of the average
outstanding principal amount of Notes in the Short Term Rate Mode during the
immediately preceding calendar quarter which fee shall be allocated or paid to
each Remarketing Agent as follows: each Remarketing Agent shall
9
receive a pro rata portion of the fee, with respect to each Note in the Short
Term Rate Mode during each calendar quarter, based on the number of days from,
and including, the Interest Rate Adjustment Date on which such Note is
remarketed by such Remarketing Agent (or the first day of the calendar quarter,
if such Interest Rate Adjustment Date precedes such calendar quarter) to, but
excluding, the next Interest Rate Adjustment Date, if any, on which such Note is
remarketed by a different Remarketing Agent (or to, and including, the last day
of the calendar quarter, if such next Interest Rate Adjustment Date, if any,
occurs after the end of such calendar quarter). If any Notes in the Short Term
Mode shall have been redeemed, repurchased, purchased pursuant to the Special
Mandatory Purchase Right or converted to a Long Term Rate Period during any
quarterly period, the fee with respect to those Notes for such quarterly period
shall be payable on such redemption date, repurchase date, purchase date or
conversion date, as the case may be. The fee payable by the Company to the
Remarketing Agents with respect to Notes in any Long Term Rate Period shall be
determined by mutual agreement in writing of the Company and the applicable
Remarketing Agent. A Remarketing Agent may pay to selected broker-dealers a
portion of any fees described above, reflecting Notes sold through such
broker-dealers to purchasers in remarketings. In addition to its obligations
under Section 9 hereof, the Company shall, from time to time upon the request of
the Remarketing Agent, pay the reasonable fees and expenses of counsel incurred
by the Remarketing Agent in connection with the performance of its duties
hereunder. The obligations of the Company to make the payments required by this
Section 5 shall survive the termination of this Remarketing Agreement and remain
in full force and effect until all such payments shall have been made in full.
Section 6. RESIGNATION AND REMOVAL OF THE REMARKETING AGENTS. (a)
A Remarketing Agent may resign and be discharged from its duties and obligations
hereunder at any time, such resignation to be effective 30 days after delivery
of notice to the Company, the Trustee and each other Remarketing Agent of such
resignation; PROVIDED, HOWEVER, that if (i) such resigning Remarketing Agent
shall then be the sole Remarketing Agent or (ii) all of the remaining
Remarketing Agents elect to resign or are removed within one week of delivery of
such notice, then, except as provided in the following sentence, no such
resignation shall become effective until the Company shall have appointed at
least one broker-dealer as successor Remarketing Agent and such successor
Remarketing Agent shall have entered into a remarketing agreement with the
Company in which it shall have agreed to conduct remarketings in accordance with
the terms and conditions of the Notes. In such case, the Company will use its
best efforts to appoint a successor Remarketing Agent and enter into such a
remarketing agreement with such person as soon as reasonably practicable;
PROVIDED, HOWEVER, that, if the Company has not so appointed a successor
Remarketing Agent within 90 days of delivery of notice as provided above, this
Remarketing Agreement shall automatically terminate on such 90th day. Only the
Company may, and shall have the obligation to, appoint a successor Remarketing
Agent.
(b) The Company may in its absolute discretion remove a Remarketing
Agent by giving at least 30 days' prior notice to such Remarketing Agent, the
Trustee and each other Remarketing Agent; PROVIDED, HOWEVER, that if (i) such
removed Remarketing Agent shall then be the sole Remarketing Agent or (ii) all
of the remaining Remarketing Agents elect to resign or are removed within one
week of delivery of such notice, then, except as provided in the following
10
sentence, no such removal shall become effective until the Company shall have
appointed a broker-dealer as successor Remarketing Agent and such successor
Remarketing Agent shall have entered into a remarketing agreement with the
Company in which it shall have agreed to conduct remarketings in accordance with
the terms and conditions of the Notes. In such case, the Company will use its
best efforts to appoint a successor Remarketing Agent and enter into such a
remarketing agreement with such person as soon as reasonably practicable;
PROVIDED, HOWEVER, that, if the Company has not so appointed a successor
Remarketing Agent within 90 days of delivery of notice as provided above, this
Remarketing Agreement shall automatically terminate on such 90th day.
(c) The Company may appoint additional Remarketing Agents by giving
at least 30 days prior notice to each Remarketing Agent and the Trustee. Such
appointment shall be effective upon the additional Remarketing Agent becoming a
party to this Remarketing Agreement or entering into such other written
agreement as is substantially similar to this Remarketing Agreement or otherwise
reasonably satisfactory to the Company, such other Remarketing Agent and the
Trustee.
Section 7. DEALING IN THE NOTES; REDEMPTION OF REMARKETING AGENTS'
NOTES. (a) Each Remarketing Agent, when acting as a Remarketing Agent, and in
its individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Notes. Notwithstanding the foregoing, no
Remarketing Agent shall be obligated to purchase any Notes that would otherwise
remain unsold in a remarketing. If any Remarketing Agent holds any Notes
immediately prior to a remarketing of such Notes and if all other Notes tendered
for sale by Beneficial Owners other than such Remarketing Agent have been sold
in such remarketing, then such Remarketing Agent may sell such number of its
Notes in such remarketing as there are outstanding orders to purchase that have
not been filled by Notes tendered for sale by Beneficial Owners other than such
Remarketing Agent. Each Remarketing Agent, as Holder of the Notes, may exercise
any vote or join as a Holder in any action which any Holder of Notes may be
entitled to exercise or take pursuant to the Indenture with like effect as if it
did not act in any capacity hereunder. Each Remarketing Agent, in its capacity
either as principal or agent, may also engage in or have an interest in any
financial or other transaction with the Company as freely as if it did not act
in any capacity hereunder.
(b) The Company may purchase Notes in a remarketing, provided that
the interest rate established with respect to Notes in such remarketing is not
different from the interest rate that would have been established if the Company
had not purchased such Notes.
Section 8. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS. The
obligations of each Remarketing Agent under this Remarketing 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 Remarketing Agreement and the accuracy of the representations and
warranties in this Remarketing 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
11
the representations and warranties contained in, the Distribution Agreement
and (c) the further conditions that (i) none of the following events shall exist
at any time during which a Remarketing Agent would otherwise be obligated to
take any action under this Remarketing Agreement:
(1) all of the Notes for which such Remarketing Agent is
responsible hereunder shall have been called for redemption, tendered for
repurchase or purchased pursuant to a Special Mandatory Purchase;
(2) without the prior written consent of such Remarketing Agent,
the Indenture or the Notes 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 opinion of such Remarketing
Agent materially changes the nature of the Notes or the remarketing
procedures (it being understood that notwithstanding the provisions of this
clause (2) the Company shall not be prohibited from amending such
documents);
(3) a suspension or material limitation in trading in securities
generally on either the American Stock Exchange or the New York Stock
Exchange or the suspension of trading of the Company's securities on any
exchange shall have occurred or a banking moratorium shall have been
declared by federal, or New York, authorities;
(4) any outbreak or escalation of major hostilities, any
declaration of war by Congress or any other substantial calamity or
emergency shall have occurred; or
(5) a material adverse change or any development which could
reasonably be expected to result in a material adverse change in the
financial condition, results of operations or business affairs of the
Company and its subsidiaries considered as one enterprise shall have
occurred; and
(ii) with respect to any remarketing of any Note, between the time at
which the interest rate for such Note is determined and the time at which
the payment for such Note is to be made, the rating of the Notes shall not
have been downgraded or put on CREDITWATCH or WATCH LIST with negative
implications or withdrawn by a national rating service, the effect of
which, in the opinion of such Remarketing Agent, is to affect materially
and adversely the market price of the Notes or such Remarketing Agent's
ability to remarket the Notes.
In the event of the failure of any of such conditions, the applicable
Remarketing Agent may terminate its obligations under this Remarketing Agreement
as provided in Section 11(b).
Section 9. INDEMNIFICATION. (a) The Company agrees to indemnify
and hold harmless each Remarketing Agent and its respective officers, directors
and employees and each person, if any, who controls any such party within the
meaning of Section 20 of the 1934 Act as follows:
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(i) from and against any loss, liability, claim, damage and expense
whatsoever, as incurred, to which any indemnified party may become subject
insofar as such loss, liability, claim, damage and expense (or actions in
respect thereof) arise out of, or are based upon, (A) the failure to have
an effective registration statement under the 1933 Act relating to the
Notes, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to notify such
Remarketing Agent, of such delivery requirement or failed to provide such
Remarketing Agent with an updated Prospectus for delivery, or (B) any
untrue statement or alleged untrue statement of a material fact contained
in any of the Remarketing Materials (including any incorporated documents),
or (C) the omission or alleged omission to state a material fact required
to be stated in the Remarketing Materials or any revision thereof or
necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading, or (D) any violation by the
Company of, or any failure by the Company to perform any of its obligations
under, this Remarketing Agreement, or (E) the duties such Remarketing Agent
performs hereunder except that is finally judicially determined to be due
to its gross negligence or willful misconduct;
(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 investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever arising out of, or based upon, any of items (A) through (E) in
clause (i) above; provided that such settlement is effected with the
written consent of the Company, which consent shall not be unreasonably
withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the reasonable fees and disbursements of counsel chosen by such
indemnified party), 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 arising out of, or based upon, any of items (A) through (E) in
clause (i) above to the extent that any such expense is not paid under (i)
or (ii) above;
PROVIDED, HOWEVER, 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 made in reliance upon and in conformity with
written information furnished to the Company by the applicable Remarketing Agent
expressly for use in the Remarketing Materials.
(b) Each Remarketing Agent severally agrees to indemnify and hold
harmless the Company, its directors and each of its officers who signed the
Registration Statement, from and against any loss, liability, claim, damage and
expense, as incurred, but only with respect to untrue statements or omissions
made in the Remarketing Materials in reliance upon and in conformity with
information furnished to the Company in writing by such Remarketing Agent
expressly for use in such Remarketing Materials. The indemnity agreement in
this paragraph shall extend upon the same
13
terms and conditions to each person, if any, who controls the Company within the
meaning of Section 20 of the 1934 Act.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the 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.
(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 any Remarketing Agent, and shall survive the termination or
cancellation of this Remarketing Agreement and the remarketing of any Notes
hereunder.
Section 10. CONTRIBUTION. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in Section 9 hereof is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms, the
Company and each Remarketing Agent, acting severally and not jointly, shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by said indemnity agreement incurred by the Company and
the Remarketing Agents, as incurred, in such proportions that each Remarketing
Agent is responsible for that portion represented by the percentage that the
commissions and fees received by such Remarketing Agent in connection with such
remarketing bears to the aggregate principal amount of such Notes outstanding at
the time of such remarketing, and the Company is responsible for the balance.
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. For purposes of this Section,
each person, if any, who controls a Remarketing Agent within the meaning of
Section 20 of the 1934 Act shall have the same rights to contribution as such
Remarketing Agent, 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 20 of the 1934 Act shall have the same
rights to contribution as the Company. With respect to the Remarketing Agents,
their respective obligations to contribute pursuant to this Section 10 are
several in proportion to the principal amount of Notes remarketed by each such
party and not joint.
Section 11. TERMINATION OF REMARKETING AGREEMENT.
(a) This Remarketing Agreement shall terminate as to each Remarketing
Agent on the effective date of the resignation or removal of such Remarketing
Agent pursuant to Section 6 hereof.
14
(b) In addition, each Remarketing Agent may terminate all of its
obligations under this Remarketing Agreement by notifying the Company, the
Trustee and the other Remarketing Agents, if any, of its election to do so, if
any of the conditions referred to or set forth in Section 8 hereof have not been
met or satisfied in full and such failure shall have continued for a period of
30 days after such Remarketing Agent has given notice thereof to the Company,
the Trustee and the other Remarketing Agents, if any, specifying the condition
which has not been met and requiring it to be met; PROVIDED, HOWEVER, that
termination of this Remarketing Agreement by any Remarketing Agent after giving
the required notices shall be immediate in the event of the occurrence and
continuation of any event set forth in Section 8(c) hereof, or in the event such
party determines, in its sole discretion in accordance with Section 3(d) hereof,
after consultation with the Company, that it shall not have received, or lacks
the ability to distribute, all of the information necessary to enable it to
fulfill its obligations under this Remarketing Agreement and applicable law.
Section 12. REMARKETING AGENTS' PERFORMANCE; DUTY OF CARE. The
duties and obligations of each Remarketing Agent shall be determined solely by
the express provisions of this Remarketing Agreement, the Indenture (including
the form of the Notes) and applicable law. No Remarketing Agent shall be
responsible for the acts or omissions of any other party pursuant to this
Remarketing Agreement. No implied covenants or obligations of or against any
Remarketing Agent shall be read into this Remarketing Agreement or the
Indenture. In the absence of bad faith on the part of any Remarketing Agent,
such party may conclusively rely upon any document furnished to it, which
purports to conform to the requirements of this Remarketing Agreement or the
Indenture, as to the truth of the statements expressed in any of such documents.
Each Remarketing Agent shall be protected in acting upon any document or
communication reasonably believed by it to have been signed, presented or made
by the proper party or parties. Each Remarketing Agent shall incur no liability
to the Company or to any Beneficial Owner or Holder of Notes in its individual
capacity or as Remarketing Agent for any action or failure to act in connection
with a remarketing or otherwise, except as a result of gross negligence or
willful misconduct on its part.
Section 13. GOVERNING LAW. THIS REMARKETING 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 Remarketing Agreement shall remain
in full force and effect from the date hereof until the first day thereafter on
which no Notes are outstanding or may be issued. Regardless of any termination
of this Remarketing Agreement pursuant to any of the provisions hereof, the
obligations of the Company pursuant to Sections 5, 9 and 10 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 each of the Remarketing Agents. The rights
and obligations of the Remarketing Agents hereunder
15
may not be assigned or delegated to any other person without the prior
written consent of the Company. This Remarketing Agreement shall inure to the
benefit of and be binding upon the Company and each Remarketing Agent 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 any Remarketing Agent within the meaning of Section 20 of the
1934 Act, or any person entitled to indemnification 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 Notes merely because of such purchase.
Section 16. HEADINGS. Section headings have been inserted in this
Remarketing Agreement as a matter of convenience of reference only, and it is
agreed that such section headings are not a part of this Remarketing Agreement
and will not be used in the interpretation of any provisions of this Remarketing
Agreement.
Section 17. SEVERABILITY. If any provision of this 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 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 Remarketing Agreement
invalid, inoperative or unenforceable to any extent whatsoever.
Section 18. COUNTERPARTS. This Remarketing 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. REMARKETING AGENTS NOT ACTING AS UNDERWRITERS. It is
understood and agreed by the parties hereto that the Remarketing Agents' only
obligations hereunder are as set forth in this Remarketing Agreement. When
engaged in remarketing any tendered Notes, each Remarketing Agent shall act only
as agent for and on behalf of each Beneficial Owner of such Notes so tendered.
No Remarketing Agent shall act as an underwriter for the tendered Notes or in
any way be obligated to advance its own funds to purchase any tendered Notes
(except if in its individual capacity as purchaser of those Notes it elects, in
accordance with Section 7 hereof, to purchase, in its sole discretion) or to
otherwise expend or risk its own funds or to incur or become exposed to
financial liability in the performance of its duties hereunder.
Section 20. AMENDMENTS. This Remarketing Agreement may be amended
by any instrument in writing signed by all of the parties hereto so long as this
Remarketing Agreement as amended is not inconsistent with the Indenture in
effect as of the date of any such amendment; provided, however, that the
signature of any existing Remarketing Agent shall not be required to amend this
Agreement for the sole purpose of adding another Remarketing Agent as a party
hereto pursuant to Section 6(c) hereof.
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Section 21. NOTICES. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing 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:
Xxxxxx Co.
Xxxxxx Center
00 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
(b) to each Remarketing Agent:
If to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
World Financial Center
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: MTN Product Management
Telecopier: (000) 000-0000
If to Chase Securities:
Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Medium-Term Note Desk
Telecopier: (000) 000-0000
If to First Chicago:
First Chicago Capital Markets, Inc.
0 Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
17
If to Xxxxxx Xxxxxxx & Co. Incorporated:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0x Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Manager - Continuously Offered Products
Telecopier: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Medium-Term Note Trading Desk
Telecopier: (000) 000-0000
or to such other address as the Company or the Remarketing Agents shall specify
in writing.
18
IN WITNESS WHEREOF, the Company and each Remarketing Agent have each
caused this Remarketing Agreement to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
XXXXXX CO.
By:
-------------------------------------------
Name: X.X. Xxxxxxxxx
Title: Vice President - Treasurer
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------------------
Authorized Signatory
CHASE SECURITIES INC.
By:
-------------------------------------------
Authorized Signatory
FIRST CHICAGO CAPITAL MARKETS, INC.
By:
-------------------------------------------
Authorized Signatory
XXXXXX XXXXXXX & CO. INCORPORATED
By:
------------------------------------------
Authorized Signatory
