EXHIBIT 4(u)
GEORGIA-PACIFIC CORPORATION
Senior Deferrable Notes
July 7, 1999
XXXXXX XXXXXXX & CO. INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx Xxxxxxx & Co. Incorporated (the "Remarketing Agent") is
undertaking to remarket the .% Senior Deferrable Notes due August 16, 2004 (the
"Senior Deferrable Notes"), issued by Georgia-Pacific Corporation, a Georgia
corporation (the "Company"), pursuant to the Indenture, dated as of March 1,
1983, between the Company and The Chase Manhattan Bank (National Association),
as Trustee, as amended and supplemented by the First Supplemental Indenture to
the Indenture, dated July 27, 1988, among Georgia-Pacific Corporation, The Chase
Manhattan Bank (National Association), as Trustee, and Xxxxxx Guaranty Trust
Company of New York, as Successor Trustee, and by the Agreement of Resignation,
Appointment and Acceptance, dated as of January 31, 1992, by and among Georgia-
Pacific Corporation, Xxxxxx Guaranty Trust Company of New York, as Trustee, and
The Bank of New York, as Successor Trustee, (the "Senior Trustee") (as amended
or supplemented, the "Indenture").
The Remarketing (as defined below) of the Senior Deferrable Notes is
provided for in resolutions duly adopted by the Board relating to the Senior
Deferrable Notes (the "Senior Deferrable Notes Board Resolution").
Section 1. Definitions.
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(a) Capitalized terms used and not defined in this Agreement shall
have the meanings set forth in the Purchase Contract Agreement, dated as of July
7, 1999 (the "Purchase Contract Agreement"), between the Company and The First
National Bank of Chicago, as Purchase Contract Agent (the "Purchase Contract
Agent"), or in the Senior Deferrable Notes Board Resolution, as the case may be.
(b) As used in this Agreement, the following terms have the
following meanings:
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"Remarketed Senior Deferrable Notes" means the Senior Deferrable
Notes subject to the Remarketing, as identified to the Remarketing Agent by
the Purchase Contract Agent after 11:00 a.m. on the fifth Business Day
immediately preceding the Purchase Contract Settlement Date;
"Remarketing Procedures" means the procedures in connection with the
Remarketing of the Senior Deferrable Notes described in the Senior
Deferrable Notes Board Resolution;
"Remarketing" means the remarketing of the Remarketed Senior
Deferrable Notes pursuant to the Remarketing Procedures; and
"subsidiary" has the meaning set forth in Rule 405 under the
Securities Act.
Section 2. Appointment and Obligations of the Remarketing Agent.
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(a) The Company hereby appoints Xxxxxx Xxxxxxx & Co. Incorporated
as exclusive remarketing agent (the "Remarketing Agent"), and Xxxxxx Xxxxxxx &
Co. Incorporated hereby accepts appointment as Remarketing Agent, for the
purpose of (1) Remarketing Remarketed Senior Deferrable Notes on behalf of the
holders thereof and (2) performing such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with and
pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees to (1) use reasonable efforts to
remarket the Remarketed Senior Deferrable Notes tendered or deemed tendered to
the Remarketing Agent in the Remarketing, (2) notify the Company promptly of the
Reset Rate and (3) carry out such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with the
provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase
Contract Settlement Date (the "Remarketing Date"), the Remarketing Agent shall
use reasonable efforts to remarket, at a price at least equal to 100.25% of the
Stated Amount, the Remarketed Senior Deferrable Notes tendered or deemed
tendered for purchase.
(d) If, as a result of the efforts described in Section 2(b), the
Remarketing Agent determines that it will be able to remarket all Remarketed
Senior Deferrable Notes tendered or deemed tendered for purchase at a price at
least equal to 100.25% of the Stated Amount prior to 4:00 p.m. (New York City
time) on the Remarketing Date without increasing the Coupon Rate, the
Remarketing Agent shall set the Reset Rate at the Coupon Rate. If the
Remarketing Agent determines immediately prior to Remarketing that it will not
be able to remarket all of the Remarketed Senior Deferrable Notes tendered or
deemed tendered for purchase at a price at least equal to 100.25% of the Stated
Amount, the Remarketing Agent shall set the Reset Rate at a rate per annum
(rounded to the nearest one-thousandth of one percent per annum) that the
Remarketing Agent determines to be the lowest rate per annum that will enable it
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to remarket all of the Remarketed Senior Deferrable Notes tendered or deemed
tendered for purchase at a price equal to 100.25% of the Stated Amount.
(e) Upon receipt of the proceeds from the Remarketing, the
Remarketing Agent shall:
(1) retain 25 basis points (.25%) of the Stated Amount for the
performance of its services as Remarketing Agent hereunder;
(2) remit to the Collateral Agent all excess proceeds of the
Remarketed Senior Deferrable Notes subject to the Pledge Agreement; and
(3) remit to [the holders] all excess proceeds of the Remarketed
Senior Deferrable Notes not subject to the Pledge Agreement.
(f) If none of the holders of Remarketed Senior Deferrable Notes
elects to have Remarketed Senior Deferrable Notes remarketed in the Remarketing,
the Remarketing Agent shall determine the rate that would have been established
had a Remarketing been held on the Remarketing Date, and such rate shall be the
Reset Rate.
(g) If, by 4:00 p.m. (New York City time) on the Remarketing Date,
the Remarketing Agent is unable to remarket all Remarketed Senior Deferrable
Notes tendered or deemed tendered for purchase, a failed Remarketing ("Failed
Remarketing") shall be deemed to have occurred, and the Remarketing Agent shall
so advise by telephone DTC, the Senior Trustee and the Company. In the event of
a Failed Remarketing, the Reset Rate shall equal the Two-Year Benchmark Treasury
rate plus the Applicable Margin.
(h) Provided that there has not been a Failed Remarketing, by
approximately 4:30 p.m. (New York City time) on the Remarketing Date, the
Remarketing Agent shall advise, by telephone:
(1) DTC, the Senior Trustee and the Company of the Reset Rate
determined in the Remarketing and the number of Remarketed Senior
Deferrable Notes sold in the Remarketing;
(2) each purchaser (or the Clearing Agency Participant thereof)
of Remarketed Senior Deferrable Notes of the Reset Rate and the number of
Remarketed Senior Deferrable Notes such purchaser is to purchase; and
(3) each purchaser to give instructions to the Clearing Agency
Participant to pay the purchase price on the Purchase Contract Settlement
Date in same day funds against delivery of the Remarketed Senior Deferrable
Notes purchased through the facilities of DTC.
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Section 3. Representations and Warranties of the Company.
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The Company represents and warrants (i) on and as of the date
hereof, (ii) on and as of the date the Prospectus Supplement or other
Remarketing Materials (each as defined in Section 3(a) below) are first
distributed in connection with the Remarketing (the "Commencement Date"), (iii)
on and as of the Remarketing Date, and (iv) on and as of the Purchase Contract
Settlement Date that:
(a) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(b) A registration statement on Form S-3 (File No. 333-80757) and
an amendment or amendments thereto with respect to the initial offering of
the Senior Deferrable Notes has (i) been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission")
thereunder; (ii) been filed with the Commission under the Securities Act,
and (iii) become effective under the Securities Act; a registration
statement on Form S-3, if required to be filed in connection with the
Remarketing also may be prepared by the Company in conformity with the
requirements of the Securities Act and the Rules and Regulations and filed
with the Commission under the Securities Act; and the Indenture has been
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Copies of such registration statement or registration
statements that have become effective and the amendment or amendments to
such registration statements have been delivered by the Company to you.
As used in this Agreement, "Effective Time" means the date and time
as of which the last of such registration statements that have become
effective or may be filed, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "Effective Date"
means the date of the Effective Time of such last registration statement;
"Preliminary Prospectus" means each prospectus included in such last
registration statement, or amendment thereto, before it became effective
under the Securities Act and any prospectus filed by the Company with your
consent pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such last registration statement, as amended at its
Effective Time, including documents incorporated by reference therein at
such time and, if applicable, all information contained in the final
prospectus filed with the Commission pursuant to Rule 424(b) of the Rules
and Regulations, including any information deemed to be part of such
Registration Statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations; and "Prospectus" means such
final prospectus, as first filed pursuant to Rule 424(b) of the Rules and
Regulations.
Reference made herein to any Preliminary Prospectus, the Prospectus or
any other information furnished by the Company to the Remarketing Agent for
distribution to
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investors in connection with the Remarketing (the "Remarketing Materials")
shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act
as of the date of such Preliminary Prospectus or the Prospectus, as the
case may be, or, in the case of Remarketing Materials, referred to as
incorporated by reference therein, and any reference to any amendment or
supplement to any Preliminary Prospectus, the Prospectus or the Remarketing
Materials shall be deemed to refer to and include any document filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after
the date of such Preliminary Prospectus or the Prospectus incorporated by
reference therein pursuant to Item 12 of Form S-3 or, if so incorporated,
the Remarketing Materials, as the case may be; and any reference to any
amendment to the Registration Statement shall be deemed to include any
annual report of the Company filed with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement.
(c) The Commission has not issued an order preventing or suspending
the use of the Registration Statement, any Preliminary Prospectus, the
Prospectus or the Remarketing Materials.
(d) The Registration Statement conforms (and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus, when they become effective or are filed with the Commission, as
the case may be, will conform) in all respects to the requirements of the
Securities Act and the Rules and Regulations, and the Registration
Statement, the Prospectus and the Remarketing Materials do not and will
not, as of the Effective Date (as to the Registration Statement and any
amendment thereto), as of the applicable filing date (as to the Prospectus
and any amendment or supplement thereto) and as of the Commencement Date,
Remarketing Date and Purchase Contract Settlement Date (as to any
Remarketing Materials) contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that no representation
and warranty is made as to the statement of eligibility and qualification
on Form T-1 of the Senior Trustee under the Trust Indenture Act, or as to
information contained in or omitted from the Registration Statement, the
Prospectus or the Remarketing Materials in reliance upon and in conformity
with written information furnished to the Company by the Remarketing Agent
specifically for inclusion therein. The Indenture conforms in all material
respects to the requirements of the Trust Indenture Act and the applicable
rules and regulations thereunder.
(e) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not
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misleading; and any further documents so filed and incorporated by
reference in the Prospectus, when such documents become effective or are
filed with Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder and
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(f) Subsequent to the date of the latest consolidated financial
statements included or incorporated by reference in the Prospectus or in
any Remarketing Materials, there has not been any material adverse change
in the financial position or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions in
the ordinary course of business, except in each case as set forth in or
contemplated by the Prospectus or any Remarketing Materials.
(g) The execution, delivery and performance of this Agreement by the
Company will not be in contravention of law or of any of the provisions of
the Restated Articles of Incorporation or Bylaws of the Company or of any
subsidiary, or of any indenture, agreement or undertaking to which the
Company or any subsidiary is a party or by which it is bound, or of any
order, rule or regulation applicable to them of any court or of any
governmental body or instrumentality having jurisdiction over them or their
properties.
(h) The certificate delivered pursuant to paragraph (e) of Section 6
hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Remarketed
Senior Deferrable Notes were on the dates on which they were delivered, or
will be on the dates on which they are to be delivered, in all material
respects true and complete.
Section 4. Fees.
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For the performance of its services as Remarketing Agent hereunder,
the Remarketing Agent shall retain from the proceeds of the Remarketing an
amount equal to 25 basis points (.25%) of the purchase price of the Remarketed
Senior Deferrable Notes.
Section 5. Covenants of the Company.
------------------------
The Company covenants and agrees as follows:
(a) (1) To prepare any registration statement or prospectus, if
required, in connection with the Remarketing, in a form approved by the
Remarketing Agent and to file any such prospectus pursuant to the
Securities Act within the period required by the Rules and Regulations;
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(2) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Remarketing Agent with copies thereof;
(3) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Remarketed Senior Deferrable Notes;
(4) to advise the Remarketing Agent, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of the Prospectus,
of the suspension of the qualification of any of the Remarketed Senior
Deferrable Notes for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information,
and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Prospectus or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal.
(b) To furnish promptly to the Remarketing Agent and to counsel to
the Remarketing Agent a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Remarketing Agent in New York City
such number of the following documents as the Remarketing Agent shall
request (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement and the Indenture); (ii) the
Prospectus and any amended or supplemented Prospectus; (ii) any document
incorporated by reference in the Prospectus (excluding exhibits thereto);
and (iv) any Remarketing Materials; and, if the delivery of a prospectus is
required at any time in connection with the Remarketing and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or if for any other
reason it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document incorporated
by reference in the Prospectus in order to comply with the Securities Act
or the Exchange Act, to notify the Remarketing Agent and, upon its request,
to file such document and to prepare and furnish without charge to the
Remarketing Agent and to any dealer in securities as many copies as the
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Remarketing Agent may from time to time request of an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus pursuant
to Rule 424 of the Rules and Regulations, to furnish a copy thereof to the
Remarketing Agent and counsel to the Remarketing Agent; and not to file any
such amendment or supplement which shall be disapproved by the Remarketing
Agent promptly after reasonable notice.
(f) As soon as practicable, but in any event not later than 15
months, after the Effective Date of the Registration Statement, to make
"generally available to its security holders" an "earnings statement"
(which need not be audited) covering a period of at least twelve months
beginning after the Effective Date which will satisfy the provisions of
Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158). The terms "generally
available to its security holders" and "earnings statement" shall have the
meanings set forth in Rule 158 of the Rules and Regulations.
(g) To take such action as the Remarketing Agent may reasonably
request in order to qualify the Remarketed Senior Deferrable Notes for
offer and sale under the securities or "blue sky" laws of such
jurisdictions as the Remarketing Agent may reasonably request; provided
that in no event shall the Company be obligated to qualify to do business
in any jurisdiction where it is not now so qualified or to take any action
which would subject it to service of process in suits, other than those
arising out of the offer or sale of the Remarketed Senior Deferrable Notes,
in any jurisdiction where it is not now so subject.
(h) For a period of five years following the Effective Date of the
Registration Statement or so long as any of the Remarketed Senior
Deferrable Notes shall remain outstanding, whichever is shorter, to supply
to the Remarketing Agent copies of such financial statements and other
periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock and
to furnish to the Remarketing Agent a copy of each annual or other report
it shall be required to file with the Commission and such other information
concerning the Company and its subsidiaries as the Remarketing Agent may
reasonably request.
(i) To pay (1) the costs incident to the preparation and printing of
the Registration Statement, Prospectus and any Remarketing Materials and
any amendments
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or supplements thereto; (2) the costs of distributing the Registration
Statement, Prospectus and any Remarketing Materials and any amendments or
supplements thereto; (3) the fees and expenses of qualifying the Remarketed
Senior Deferrable Notes under the securities laws of the several
jurisdictions as provided in Section 5(g) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Remarketing Agent); (4) all other costs and expenses
incident to the performance of the obligations of the Company, hereunder;
and (5) the reasonable fees and expenses of counsel to the Remarketing
Agent in connection with their duties hereunder.
Section 6. Conditions to the Remarketing Agent's Obligations.
--------------------------------------------------
The obligations of the Remarketing Agent hereunder are subject to
the following conditions:
(a) The Prospectus shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the Registration
Statement or any part thereof or suspending the qualification of the
Indenture shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and any request of the
Commission for inclusion of additional information in the Registration
Statement or the Prospectus or otherwise shall have been complied with.
(b) The Remarketing Agent shall not have discovered and disclosed
to the Company prior to or on the Remarketing Date that the Prospectus, the
Registration Statement, or the Remarketing Materials or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of counsel for the Remarketing Agent, is material or omits to state
any fact which, in the opinion of such counsel, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, (i) there shall not have
been any material adverse change in the financial position or results of
operations of the Company and its subsidiaries taken as a whole, whether or
not arising from transactions in the ordinary course of business, in each
case other than as set forth in or contemplated by the Registration
Statement or Prospectus and (ii) the Company and its subsidiaries shall not
have sustained any material loss or interference with their business, taken
as a whole, from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or legislative or
other governmental action, order or decree, if in the judgment of the
Remarketing Agent, any such material adverse change makes it impracticable
or inadvisable to proceed with the Remarketing on the terms and in the
manner contemplated in the Prospectus and in the Remarketing Materials.
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(d) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on and as of the
Remarketing Date, and the Company shall have performed in all material
respects all covenants and agreements herein contained to be performed on
its part at or prior to the Remarketing Date.
(e) The Company shall have furnished to the Remarketing Agent a
certificate, dated the Remarketing Date, of (i) either the Chairman, Chief
Executive Officer and President or the Executive Vice President--Finance
and Chief Financial Officer and (ii) either the Vice President and
Treasurer or the Vice President, Deputy General Counsel and Secretary,
stating that:
(i) no order suspending the effectiveness of the Registration
Statement or prohibiting the sale of the Remarketed Senior Deferrable
Notes is in effect, and no proceedings for such purpose are pending
before or, to the knowledge of such officers, threatened by the
Commission;
(ii) the representations and warranties of the Company in
Section 3 are true and correct in all material respects on and as of
the Remarketing Date and the Company has performed in all material
respects all covenants and agreements contained herein to be performed
on its part at or prior to the Remarketing Date;
(iii) the Registration Statement, as of its Effective Date, and
the Prospectus and the Remarketing Materials, as of their respective
dates, did not contain any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(f) On the Remarketing Date, the Remarketing Agent shall have
received a letter addressed to the Remarketing Agent and dated such date,
in form and substance satisfactory to the Remarketing Agent, of Xxxxxx
Xxxxxxxx LLP, or such other firm of nationally recognized independent
public accountants satisfactory to the Remarketing Agent, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" with respect to certain financial information contained
in the Prospectus and in the Remarketing Materials.
(g) Counsel to the Company shall have furnished to the Remarketing
Agent its opinion letter or opinion letters, as the case may be, addressed
to the Remarketing Agent and dated the Remarketing Date, in form and
substance satisfactory to the Remarketing Agent, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing and in good standing under the laws of the State of Georgia
with corporate power to own its properties and conduct its businesses
as described in the Prospectus.
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(ii) The Registration Statement was declared effective under the
Securities Act, as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Rules and Regulations specified in such opinion
on the date specified therein and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(iii) The Registration Statement, as of its Effective Date, and
the Prospectus, as of its date, and any further amendments or
supplements thereto, as of their respective dates, made by the Company
prior to the Purchase Contract Settlement Date (other than the
financial statements, related schedules and other financial data
contained therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the requirements of
the Securities Act, the Rules and Regulations and the Trust Indenture
Act; and the documents incorporated by reference in the Prospectus and
any further amendment or supplement to any such incorporated document
made by the Company prior to the Purchase Contract Settlement Date
(other than the financial statements, related schedules and other
financial data contained therein, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Securities Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder; and the Indenture conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and
regulations thereunder.
(iv) The statements contained in the Prospectus under the
caption "Description of the Senior Deferrable Notes", insofar as it
purports to constitute summaries of certain terms of documents
referred to therein, constitute accurate summaries of the terms of
such documents in all material respects.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming that the Indenture is the valid
and legally binding obligation of the Senior Trustee) constitutes a
valid and binding agreement of each of the Company enforceable against
it in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith
and fair dealing.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
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(vii) The Transactions will not conflict with or constitute a
breach of or default under the Restated Articles of Incorporation or
Bylaws of the Company or any of its subsidiaries, or to such counsel's
knowledge, any indenture, agreement or undertaking material to the
Company and its subsidiaries taken as a whole to which the Company or
any of its subsidiaries is a party or by which it is bound, or any
applicable law, or, to such counsel's knowledge, any administrative
regulation or court decree.
(viii) Except for consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange
Act and applicable state securities laws, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the Transactions.
(ix) To such counsel's knowledge, there are no material pending
or threatened legal proceeding or any governmental proceeding
instituted or threatened against the Company of a character required
to be disclosed in the Registration Statement that is not adequately
disclosed in the Prospectus.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of
America and the laws of the State of Georgia and New York. Such counsel
shall also advise the Remarketing Agent that although such counsel is not
passing upon and assumes no responsibility or liability for the accuracy,
completeness or fairness of the statements contained in the documents
incorporated by reference in the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Remarketing Date,
they have no reason to believe that any of such documents (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion), when such documents became effective or
were filed with the Commission, as the case may be, contained, in the case
of a registration statement which became effective under the Securities
Act, an untrue statement of a material fact or omitted to state a material
fact required to be stated therein necessary to make the statements therein
not misleading, or, in the case of other documents which were filed under
the Securities Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made when such documents were so filed, not
misleading. Such counsel shall also advise the Remarketing Agent that
although such counsel is not passing upon and, except as set forth in
clause (iv) above, assumes no responsibility or liability for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, the Prospectus and the Remarketing Materials and any further
amendments and supplements thereto made by the Company prior to such date,
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such date (other than the financial statements and related
schedules therein, as to which such
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counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that,
as of its date, the Prospectus and the Remarketing Materials or any further
amendment or supplement thereto made by the Company prior to such
Remarketing Date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading or that, as of such Remarketing
Date, either the Registration Statement, the Prospectus or the Remarketing
Materials or any further amendment or supplement thereto made by the
Company prior to such Remarketing Date (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and they do not
know of any amendment to the Registration Statement required to be filed or
of any contracts or other documents of a character required to be filed as
an exhibit to the Registration Statement or required to be incorporated by
reference into the Prospectus or the Remarketing Materials or required to
be described in the Registration Statement, the Prospectus or the
Remarketing Materials which were not filed or incorporated by reference or
described as required.
(h) On or after the execution and delivery of this Agreement, no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2)
under the Securities Act.
Section 7. Indemnification.
---------------
(a) The Company shall indemnify and hold harmless the Remarketing
Agent and each person, if any, who controls the Remarketing Agent within the
meaning of Section 15 of the Securities Act against any and all losses, claims,
damages or liabilities, joint or several (including any investigative, legal and
other expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted) to which they, or any
of them, may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in (A) any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Remarketing Materials or in any amendment or supplement
thereto, or (B) any blue sky application or other document prepared or executed
by the Company (or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the Remarketed Senior
Deferrable Notes under the securities laws of any state or other jurisdiction
(any such application, document or information being hereinafter called a "Blue
Sky Application"), or the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Remarketing Materials or in any
14
amendment or supplement thereto, or in any Blue Sky Application, any material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided however, that the Company shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made (1) in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Remarketing Materials or in any
such amendment or supplement, or in any Blue Sky Application in reliance upon
and in conformity with the written information furnished to the Company by or on
behalf of the Remarketing Agent specifically for inclusion therein and described
in a letter from the Remarketing Agent to the Company; and (2) in that part of
the Registration Statement which constitutes the Statement of Eligibility and
Qualification of the Trustee under the Trust Indenture Act other than any such
untrue statement or omission or alleged untrue statement or omission made
therein in reliance upon and in conformity with information furnished in writing
to the Trustee by or on behalf of the Company for use therein; provided,
further, that as to any Preliminary Prospectus this indemnity agreement shall
not inure to the benefit of the Remarketing Agent or any person controlling the
Remarketing Agent on account of any losses, claims, damages or liabilities
arising from the sale of the Remarketed Senior Deferrable Notes to any person by
the Remarketing Agent if the Remarketing Agent failed to send or give a copy of
the Prospectus, as the same may be amended or supplemented, to that person
within the time required by the Securities Act, and the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact in such Preliminary Prospectus was corrected in the
Prospectus, unless such failure resulted from non-compliance by the Company with
Section 5(c). For purposes of the last proviso to the immediately preceding
sentence, the term "Prospectus" shall not be deemed to include the documents
incorporated therein by reference, and the Remarketing Agent shall not be
obligated to send or give any supplement or amendment to any document
incorporated by reference in any Preliminary Prospectus or the Prospectus to any
person other than a person to whom the Remarketing Agent had delivered such
incorporated document or documents in response to a written request therefor.
(b) The Remarketing Agent shall indemnify and hold harmless the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act, each director of the Company and each officer
of the Company who signs the Registration Statement, to the same extent as the
foregoing indemnity from the Company to the Remarketing Agent, but only insofar
as such losses, claims, damages or liabilities arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained
(A) in any Preliminary Prospectus, the Registration Statement, the Prospectus or
the Remarketing Materials or in any amendment or supplement thereto, or (B) in
any Blue Sky Application, or the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Remarketing Materials or in any amendment or supplement thereto, or in any Blue
Sky Application, any material fact required to be stated therein or necessary to
make the statements therein not misleading, in reliance upon and in conformity
with the written information furnished to the Company by or on behalf of the
Remarketing Agent specifically for inclusion therein and described in a letter
from the Remarketing Agent to the Company; provided, however, that the
obligation of the Remarketing
15
Agent hereunder to indemnify the Company hereunder shall be limited to the total
price at which the Remarketed Senior Deferrable Notes were remarketed.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any action, suit or proceeding, the indemnified party
shall, if an action, suit or proceeding in respect of which a claim is to be
made against the indemnifying party under this Section 7, notify the
indemnifying party in writing of such action, suit or proceeding, enclosing a
copy of all papers served; provided however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 7. If any such action,
suit or proceeding shall be brought against an indemnified party, and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel satisfactory to the indemnified party. After
notice from the indemnifying party to the indemnified party of its election to
assume the defense of such action, suit or proceeding, the indemnifying party
shall not be liable to the indemnified party under this Section 7 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation. The
indemnified party shall have the right to employ its counsel in any such action,
but the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (A) the employment of counsel of such indemnified party
has been authorized by the indemnifying party, (B) the indemnified party
reasonably shall have concluded that there may be a conflict of interest between
the indemnifying party and the indemnified party in the conduct of the defense
of such action (in which case the indemnifying party shall not have the right to
direct the defense of such action on behalf of the indemnified party) or (C) the
indemnifying party shall not in fact have employed counsel satisfactory to such
indemnified party to assume the defense of such action. An indemnifying party
shall not be liable for any settlement of any action or claim effected without
its consent.
Section 8. Contribution.
------------
(a) If the indemnification provided for in Section 7 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 7(a) or 7(b) in respect of any loss, claim, damage or liability
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Remarketing Agent on the other
hand from the Remarketing or (ii) if the allocation provided by clause (i) above
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 the Remarketing Agent on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Remarketing Agent on the other with respect to such offering shall be
deemed to be in the same proportion as the total principal amount of the
Remarketed
16
Senior Deferrable Notes less the fee paid to the Remarketing Agent pursuant to
Section 4 of this Agreement, on the one hand, and the total fees received by the
Remarketing Agent pursuant to such Section 4, on the other hand, bear to the
total principal amount of the Remarketed Senior Deferrable Notes. The relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company on the one hand or the
Remarketing Agent on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Remarketing Agent agree that it
would not be just and equitable if contributions pursuant to this Section 8 were
to be determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability referred to above in this Section 8 shall be
deemed to include, for purposes of this Section 8, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such claim. Notwithstanding the provisions of this Section 8,
the Remarketing Agent shall not be required to contribute any amount in excess
of the amount by which the fees received by it under Section 4 exceed the amount
of any damages which the Remarketing Agent has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls the Remarketing Agent within the meaning of the Securities Act shall
have the same rights to contribution as the Remarketing Agent, and each person,
if any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the provisos in this Section 8. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit, or proceeding against such party in respect of which a
claim for contribution may be made against another party or parties under this
Section 8, notify such party or parties from whom contribution may be sought,
but the omission so to notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this Section 8. No party shall
be liable for contribution with respect to any action or claim settled without
its consent.
Section 9. Resignation and Removal of the Remarketing Agent.
-------------------------------------------------
The Remarketing Agent may resign and be discharged from its duties
and obligations hereunder, and the Company may remove the Remarketing Agent, by
giving 60 days' prior written notice, in the case of a resignation, to the
Company, DTC and the Senior Trustee and, in the case of a removal, the removed
Remarketing Agent, DTC and the Senior Trustee; provided however, that:
(i) the Company may not remove the Remarketing Agent unless (A) the
Remarketing Agent becomes involved as a debtor in a bankruptcy, insolvency
or similar
17
proceeding, (B) the Remarketing Agent shall not be among the 15
underwriters with the largest volume underwritten in dollars, on a lead or
co-managed basis, of U.S. domestic debt securities during the twelve-month
period ended as of the last calendar quarter preceding the Remarketing
Date, (C) the Remarketing Agent shall be subject to one or more legal
restrictions preventing the performance of its obligations hereunder, or
(D) the Remarketing Agent shall determine that (I) the Company has not met
its obligation under Section 6(c) or (II) using its reasonable efforts, the
Remarketing Agent would be unable to consummate the Remarketing on the
terms and in the manner contemplated in the Prospectus and the Remarketing
Materials; and
(ii) no such resignation nor any such removal shall become effective
until the Company shall have appointed at least one nationally recognized
broker-dealer as successor Remarketing Agent and such successor Remarketing
Agent shall have entered into a with the Company, in
which it shall have agreed to conduct the Remarketing in accordance with
the Remarketing Procedures.
In any such case, the Company will use its reasonable efforts to appoint a
successor Remarketing Agent and enter into such a with
such person as soon as reasonably practicable. The provisions of Sections 4, 7
and 8 shall survive the resignation or removal of any Remarketing Agent pursuant
to this Agreement.
Section 10. Dealing in the Remarketed Senior Deferrable Notes.
--------------------------------------------------
The Remarketing Agent, when acting as a Remarketing Agent or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the Remarketed Senior Deferrable Notes. The
Remarketing Agent may exercise any vote or join in any action which any
beneficial owner of Remarketed Senior Deferrable 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. The Remarketing Agent, in its individual capacity,
either as principal or agent, may also engage in or have an interest in any
financial or other transaction with the Company as freely as if it did not act
in any capacity hereunder.
Section 11. Remarketing Agent's Performance; Duty of Care.
---------------------------------------------
18
The duties and obligations of the Remarketing Agent shall be
determined solely by the express provisions of this Agreement and the Indenture.
No implied covenants or obligations of or against the Remarketing Agent shall be
read into this Agreement or the Indenture. In the absence of bad faith on the
part of the Remarketing Agent, the Remarketing Agent may conclusively rely upon
any document furnished to it, which purports to conform to the requirements of
this Agreement or the Indenture as to the truth of the statements expressed in
any of such documents. The 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. The Remarketing Agent, acting
under this Agreement, shall incur no liability to the Company or to any holder
of Remarketed Senior Deferrable Notes in its individual capacity or as
Remarketing Agent for any action or failure to act, on its part in connection
with a Remarketing or otherwise, except if such liability is judicially
determined to have resulted from the gross negligence or willful misconduct on
its part.
Section 12. Termination.
-----------
This Agreement shall terminate as to the Remarketing Agent on the
effective date of the resignation or removal of the Remarketing Agent pursuant
to Section 9. In addition, this Agreement may be terminated (A) by the Company
by notifying the Remarketing Agent at any time before the time when the
Remarketed Senior Deferrable Notes are first generally offered by the
Remarketing Agent to dealers by letter or telegram, or (B) by the Remarketing
Agent by notifying the Company at or prior to 10:00 a.m. (New York City time)
on the Remarketing Date by letter or telegram if,
(a) in the judgement of the Remarketing Agent the sale and
delivery of the Remarketed Senior Deferrable Notes is rendered
impracticable or inadvisable because: (1) additional material governmental
restrictions, not in force and effect on the date hereof, shall have been
imposed upon trading in securities generally or minimum or maximum prices
shall have been generally established on the New York Stock Exchange or on
the American Stock Exchange, or trading in securities generally shall have
been suspended on either such Exchange or a general banking moratorium
shall have been established by Federal or New York authorities; (2) any
event shall have occurred or shall exist which makes untrue or incorrect in
any material respect any statement or information contained in the
Registration Statement or Prospectus or which is not reflected in the
Registration Statement or Prospectus but should be reflected therein in
order to make the statements or information contained therein not
misleading in any material respect, and such untrue or incorrect statement
or information is not corrected in an amendment or supplement to the
Registration Statement or Prospectus, or
19
(b) prior to that time, any of the events described in Sections 6(c)
or (h) shall have occurred.
If this Agreement is terminated pursuant to any of the provisions
hereof, except as otherwise provided herein, the Company shall not be under any
liability to the Remarketing Agent and the Remarketing Agent shall not be under
any liability to the Company, except that (a) if this Agreement is terminated by
the Remarketing Agent because of any failure or refusal on the part of the
Company to comply with the terms or to fulfill any of the conditions of this
Agreement, the Company will reimburse the Remarketing Agent for all of its out-
of-pocket expenses (including the fees and disbursements of its counsel)
reasonably incurred by it, and (b) if the Remarketing Agent failed or refused to
purchase the Remarketed Senior Deferrable Notes hereunder, without some reason
sufficient hereunder to justify the cancellation or termination of its
obligations hereunder, the Remarketing Agent shall not be relieved of liability
to the Company for damages occasioned by its default.
Section 13. Notices.
-------
All statements, requests, notices and agreements hereunder shall
be in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Xxxxxxx & Co. Incorporated,
0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:.;
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx
00000, Attention: Treasurer. (Fax: _____________).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
Section 14. Persons Entitled to Benefit of Agreement.
-----------------------------------------
This Agreement shall inure to the benefit of and be binding upon
the Remarketing Agent, the Company, and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (x) the representations, warranties, indemnities and
agreements of the Company contained in this Agreement shall also be deemed to be
for the benefit of the Remarketing Agent and the person or persons, if any, who
control the Remarketing Agent within the meaning of Section 15 of the Securities
Act and (y) the indemnity agreement of the Remarketing Agent contained in
Section 7(b) of this Agreement shall be deemed to be for the benefit of the
Company's directors and officers who sign the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing contained in this Agreement is intended or shall be
construed to give any person, other than the persons referred to herein, any
20
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
Section 15. Survival.
---------
The respective indemnities, representations, warranties and
agreements of the Company and the Remarketing Agent contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the Remarketing and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
Section 16. Governing Law.
-------------
This Agreement shall be governed by, and construed in accordance
with, the laws of New York.
Section 17. Counterparts.
-------------
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original but all such counterparts shall together constitute one
and the same instrument.
Section 18. Headings.
--------
The headings herein are inserted for convenience of reference only
and are not intended to be part of, or to affect the meaning or interpretation
of, this Agreement.
21
If the foregoing correctly sets forth the agreement between the
Company and the Remarketing Agent, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
GEORGIA-PACIFIC CORPORATION
By: _________________________
Title:
Accepted:
XXXXXX XXXXXXX & CO. INCORPORATED
By: ______________________________
Authorized Representative
