Exhibit 4.4
EXECUTION COPY
December 17, 0000
Xxxx xx Xxxxxxx Securities LLC
0 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Bank One Trust Company, N.A.
1 Bank Xxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, XX 00000-0000
Ladies and Gentlemen:
This Agreement is dated as of December 17, 2002 (the "Agreement") among
Xxxxxx International Inc, a Delaware corporation (the "Company"), Banc of
America Securities LLC ("Banc of America"), Credit Suisse First Boston
Corporation ("CSFB"), UBS Warburg LLC ("UBS") and Bank One Trust Company, N.A.,
a national banking association, not individually but solely as Purchase Contract
Agent (the "Purchase Contract Agent") and as attorney-in-fact of the holders of
Purchase Contracts (as defined in the Purchase Contract Agreement referred to
below).
SECTION 1. Definitions.
(a) Capitalized terms used and not defined in this Agreement shall have
the meanings set forth in the Purchase Contract Agreement, dated as of December
17, 2002, between the Company and Bank One Trust Company, N.A., as Purchase
Contract Agent, as amended from time to time (the "Purchase Contract
Agreement").
(b) As used in this Agreement, the following terms have the following
meanings:
"Preliminary Prospectus" means any preliminary prospectus relating to the
Remarketed Senior Notes included in the Registration Statement, including the
documents incorporated by
reference therein as of the date of such Preliminary Prospectus; and any
reference to any amendment or supplement to such Preliminary Prospectus shall be
deemed to refer to and include any documents filed after the date of such
Preliminary Prospectus under the Exchange Act, and incorporated by reference in
such Preliminary Prospectus.
"Prospectus" means the prospectus relating to the Remarketed Senior Notes
included in the Registration Statement, in the form in which it was first used
by the Remarketing Agent to confirm sales of the Remarketed Senior Notes in the
Remarketing, including the documents incorporated by reference therein as of the
date of such Prospectus; and any reference to any amendment or supplement to
such Prospectus shall be deemed to refer to and include any documents filed
after the date of such Prospectus under the Exchange Act, and incorporated by
reference in such Prospectus.
"Registration Statement" means a registration statement under the
Securities Act of 1933, as amended (the "Securities Act") prepared by the
Company pursuant to Section 5 hereunder covering, inter alia, the Remarketing of
the Remarketed Senior Notes, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in such registration
statement, and any post-effective amendments thereto.
"Remarketed Senior Notes" means the Pledged Senior Notes and the Separate
Senior Notes, if any, subject to Remarketing as identified to the Remarketing
Agent by the Purchase Contract Agent and the Custodial Agent, respectively,
after 11:00 a.m., New York City time, on the Business Day immediately preceding
the applicable Remarketing Date, and shall include: (a) (i) in the case of the
Initial Remarketing, the Pledged Senior Notes and (ii) in the case of the Final
Remarketing, the Senior Notes of the Holders of Corporate Units who have not
notified the Purchase Contract Agent prior to 5:00 p.m. on the fifth Business
Day immediately preceding the Purchase Contract Settlement Date of their
intention to effect a Cash Settlement of the related Purchase Contracts pursuant
to the terms of the Purchase Contract Agreement or who have so notified the
Purchase Contract Agent but failed to make the required cash payment on the
fourth Business Day immediately preceding the Purchase Contract Settlement Date
pursuant to the terms of the Purchase Contract Agreement, and (b) the Separate
Senior Notes of the holders of Separate Senior Notes, if any, who have elected
to have their Separate Senior Notes be remarketed in such Remarketing pursuant
to the terms of the Purchase Contract Agreement.
"Remarketing" means the remarketing of the Remarketed Senior Notes pursuant
to this .
"Remarketing Agent" means any of Banc of America, CSFB or UBS appointed as
the Remarketing Agent by the Company pursuant to Section 2(a) hereof.
"Remarketing Date" means either the Initial Remarketing Date (as defined
herein) or the Final Remarketing Date (as defined herein), as context requires.
"Remarketing Materials" means the Preliminary Prospectus, the Prospectus or
any other information furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the Remarketing.
"Senior Notes" means the senior notes due February 16, 2008 of the Company.
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"Transaction Documents" means this Agreement, the Purchase Contract
Agreement, the Pledge Agreement and the Indenture, in each case as amended or
supplemented from time to time.
SECTION 2. Appointment And Obligations Of The Remarketing Agent.
(a) On or before the 20/th/ Business Day prior to the Initial Remarketing
Date (the "Appointment Date"), the Company shall send written notice appointing
any of Banc of America, CSFB or UBS as the exclusive Remarketing Agent for the
purpose of (i) Remarketing the Remarketed Senior Notes on behalf of the holders
thereof, (ii) determining, in consultation with the Company, in the manner
provided for herein and in the Purchase Contract Agreement and the Indenture,
the Reset Rate for the Senior Notes, and (iii) performing such other duties as
are assigned to the Remarketing Agent in the Transaction Documents; provided
that if the Company fails to appoint a Remarketing Agent pursuant to this
Section 2(a) by the Appointment Date, the Company shall be deemed to have
appointed Banc of America as the Remarketing Agent. Each of Banc of America,
CSFB and UBS hereby agree that if the Company chooses to appoint it as the
Remarketing Agent, it shall, subject to the terms and conditions set forth
herein, accept such appointment by the Company as the exclusive Remarketing
Agent.
(b) Unless a Special Event Redemption has occurred prior to such date, on
the third Business Day immediately preceding November 16, 2005 (the "Initial
Remarketing Date"), the Remarketing Agent shall use its reasonable efforts to
remarket ("Initial Remarketing") the Remarketed Senior Notes, at a price (the
"Remarketing Price"), based on the Reset Rate, equal to approximately 100.25% of
the sum of the Treasury Portfolio Purchase Price and the Separate Senior Notes
Purchase Price.
(c) In the case of a Failed Initial Remarketing and unless a Special Event
Redemption has occurred prior to such date, on the third Business Day
immediately preceding the Purchase Contract Settlement Date (the "Final
Remarketing Date"), the Remarketing Agent shall use its reasonable efforts to
remarket (the "Final Remarketing") the Remarketed Senior Notes at a price (the
"Final Remarketing Price"), based on the Reset Rate, equal to approximately
100.25% of the aggregate principal amount of the Remarketed Senior Notes being
remarketed in such Final Remarketing. It is understood and agreed that the
Remarketing on any Remarketing Date will be considered successful and no further
attempts will be made if the resulting proceeds are at least 100.25% of the sum
of the Treasury Portfolio Purchase Price and the Separate Senior Notes Purchase
Price, in the case of the Initial Remarketing, or 100.25% of the aggregate
principal amount of the Remarketed Senior Notes in the case of the Final
Remarketing.
(d) In connection with each Remarketing, the Remarketing Agent shall
determine, in consultation with the Company, the rate per annum, rounded to the
nearest one-thousandth (0.001) of one percent per annum, that the Senior Notes
should bear (the "Reset Rate") in order for the Remarketed Senior Notes to have
an aggregate market value equal to the Remarketing Price or the Final
Remarketing Price, as the case may be, and that in the sole reasonable
discretion of the Remarketing Agent will enable it to remarket all of the
Remarketed Senior Notes at the Remarketing Price or Final Remarketing Price, as
the case may be, in such Remarketing, provided that such rate shall not exceed
the maximum interest rate permitted by law.
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(e) In the event of a Failed Remarketing or if no Senior Notes are
included in Corporate Units, and none of the holders of the Separate Senior
Notes elect to have Senior Notes be remarketed in such Remarketing, the
applicable interest rate on the Senior Notes will not be reset and will continue
to be the Coupon Rate set forth in the Indenture, as supplemented from time to
time.
(f) If, by 4:00 p.m. (New York City time) on the applicable Remarketing
Date, the Remarketing Agent is unable to remarket all of the Remarketed Senior
Notes at the Remarketing Price or the Final Remarketing Price, as the case may
be, pursuant to the terms and conditions hereof, a Failed Remarketing shall be
deemed to have occurred, and the Remarketing Agent shall so advise, by telephone
the Depositary, the Purchase Contract Agent and the Company. Whether or not
there has been a Failed Remarketing will be determined in the sole reasonable
discretion of the Remarketing Agent. Promptly following any Failed Remarketing,
the Remarketing Agent shall return Separate Senior Notes submitted for
remarketing, if any, to the Custodial Agent for distribution to the appropriate
Holders.
(g) In the event of a Successful Remarketing, by approximately 4:30 p.m.
(New York City time) on the applicable Remarketing Date, the Remarketing Agent
shall advise, by telephone:
(i) the Depositary, the Purchase Contract Agent and the Company of
the Reset Rate determined by the Remarketing Agent in such Remarketing and
the number of Remarketed Senior Notes sold in such Remarketing;
(ii) each purchaser (or the Depositary Participant thereof) of
Remarketed Senior Notes of the Reset Rate and the number of Remarketed
Senior Notes such purchaser is to purchase; and
(iii) each such purchaser to give instructions to its Depositary
Participant to pay the purchase price on the third business day immediately
following the date of such Successful Remarketing in same day funds against
delivery of the Remarketed Senior Notes purchased through the facilities of
the Depositary.
The Remarketing Agent shall also, if required by the Securities Act or the rules
and regulations promulgated thereunder, deliver to each purchaser a Prospectus
in connection with the Remarketing.
(h) After deducting any fees specified in Section 4 below, the proceeds
from a Successful Remarketing (i) with respect to the Senior Notes that are
components of the Corporate Units, shall be paid to the Collateral Agent in
accordance with Sections 5.07 and 7.03 of the Pledge Agreement, as the case may
be, and Section 5.02 of the Purchase Contract Agreement and (ii) with respect to
the Separate Senior Notes, shall be paid to the Custodial Agent for payment to
the holders of such Separate Senior Notes in accordance with Section 5.02 of the
Purchase Contract Agreement and Sections 5.07 and 7.03 of the Pledge Agreement.
(i) The right of each holder of Separate Senior Notes or Corporate Units
to have Senior Notes remarketed and sold on any Remarketing Date shall be
subject to the conditions
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that (i) the Remarketing Agent conducts an Initial Remarketing pursuant to the
terms of this Agreement, (ii) a Special Event Redemption has not occurred prior
to such Remarketing Date, (iii) the Remarketing Agent is able to find a
purchaser or purchasers for Remarketed Senior Notes at the Remarketing Price or
the Final Remarketing Price, as the case may be and (iv) such purchaser or
purchasers deliver the purchase price therefor to the Remarketing Agent as and
when required.
(j) It is understood and agreed that the Remarketing Agent shall not have
any obligation whatsoever to purchase any Remarketed Senior Notes, whether in
the Remarketing or otherwise, and shall in no way be obligated to provide funds
to make payment upon tender of Senior Notes for Remarketing or to otherwise
expend or risk its own funds or incur or to be exposed to financial liability in
the performance of its duties under this Agreement, and without limitation of
the foregoing, the Remarketing Agent shall not be deemed an underwriter of the
Remarketed Senior Notes. The Company shall similarly not be obligated in any
case to provide funds to make payment upon tender of the Senior Notes for
Remarketing.
SECTION 3. Representations And Warranties Of The Company. The Company
represents and warrants (i) on and as of the date any Remarketing Materials are
first distributed in connection with the Remarketing (the "Commencement Date"),
(ii) on and as of the applicable Remarketing Date and (iii) on and as of the
settlement date relating to such Remarketing Date, that:
(a) Each of the representations and warranties of the Company as set forth
in Section 1 (except for paragraphs (a) and (i) of such section) of the
Underwriting Agreement dated as of December 11, 2002 relating to the issuance of
Equity Units by the Company (the "Underwriting Agreement") among the Company and
the Underwriters identified in Schedule A thereto, is true and correct as if
made on each of the dates specified above; provided that for purposes of this
Section 3(a), (i) any reference in such sections of the Underwriting Agreement
to the "Underwriter" or "Underwriters" or the "Representative" or
"Representatives" shall be deemed to refer to the Remarketing Agent, (ii) the
"Designated Securities" shall be deemed to refer to the Remarketed Senior Notes,
(iii) the "Registration Statement", the "Prospectus" or the "Preliminary
Prospectus" shall be deemed to refer to such terms as defined herein, (iv) the
"First Closing Date" and "Optional Closing Date" shall be each deemed to refer
to the settlement date for the applicable Remarketing Date, (v) "this
Agreement", the "Underwriting Agreement", "hereof", "herein" and all references
of similar import, shall be deemed to mean and refer to this and (vi) "the date hereof", "the date of this Agreement" and all
similar references shall be deemed to refer to the date of this .
(b) The Registration Statement, if any, in the form heretofore delivered
or to be delivered to the Remarketing Agent, has been declared effective by the
Commission in such form; and no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission.
(c) The documents incorporated by reference in the Prospectus, if any,
when they were filed with the Commission, conformed in all material respects to
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact
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required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents are filed with
the Commission, will conform in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder, and
will not contain an 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, in light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information relating to the Remarketing Agent furnished in writing to the
Company by the Remarketing Agent or its counsel expressly for use in the
Prospectus.
(d) The Registration Statement, if any, conforms (and the Prospectus, if
any, 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 material respects to the requirements of
the Securities Act and the rules and regulations promulgated thereunder, and the
Registration Statement and the Remarketing Materials (and any amendment or
supplement thereto) as of their respective effective or filing dates and as of
the Commencement Date, applicable Remarketing Date and settlement date relating
to such Remarketing Date do not 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; provided that no
representation and warranty is made as to any statement of eligibility on Form
T-1 filed or incorporated by reference as part of the Registration Statement,
the Prospectus or the Remarketing Materials, or as to information relating to
the Remarketing Agent 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.
(e) This Agreement has been duly authorized, executed and delivered by the
Company.
SECTION 4. Fees.
(a) In the event of a Successful Remarketing of the Remarketed Senior
Notes prior to the Final Remarketing Date, the Remarketing Agent may retain as a
remarketing fee (the "Remarketing Fee") an amount equal to 25 basis points
(0.25%) of the sum of the Treasury Portfolio Purchase Price and the Separate
Senior Note Purchase Price.
(b) In the event of a Successful Final Remarketing, the Remarketing Agent
may retain as the Remarketing Fee an amount equal to 25 basis points (0.25%), of
the principal amount of the Remarketed Senior Notes.
SECTION 5. Covenants Of The Company. If and to the extent the Remarketed
Senior Notes are required (in the view of counsel, which need not be in the form
of a written opinion, for either the Remarketing Agent or the Company) to be
registered under the Securities Act as in effect at the time of the Remarketing,
the Company covenants and agrees as follows:
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(a) The Company shall prepare the Registration Statement and the
Prospectus, in a form approved by the Remarketing Agent, shall file any such
Prospectus pursuant to the Securities Act within the period required by the
Securities Act and the rules and regulations thereunder and shall use its best
efforts to cause the Registration Statement to be declared effective by the
Commission prior to the second Business Day immediately preceding the applicable
Remarketing Date.
(b) The Company shall file promptly with the Commission any amendment to
the Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the reasonable judgment of the Company or the Remarketing Agent, be
required by the Securities Act or requested by the Commission.
(c) The Company shall 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.
(d) The Company shall 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 Notes.
(e) The Company shall 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 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.
(f) The Company shall furnish promptly to the Remarketing Agent such
copies of the following documents as the Remarketing Agent shall reasonably
request: (A) conformed copies of the Registration Statement as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits); (B) the Preliminary Prospectus and any amended or supplemented
Preliminary Prospectus, (C) the Prospectus and any amended or supplemented
Prospectus; and (D) any document incorporated by reference in the Prospectus
(excluding exhibits thereto); and, if at any time when delivery of a prospectus
is required in connection with the Remarketing, 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
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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 Remarketing Agent may from time to time
reasonably request of an amended or supplemented Prospectus that will correct
such statement or omission or effect such compliance.
(g) Prior to filing with the Commission (A) any amendment to the
Registration Statement or supplement to the Prospectus or (B) any Prospectus
pursuant to Rule 424 under the Securities Act, the Company shall furnish a copy
thereof to the Remarketing Agent and counsel to the Remarketing Agent; and shall
not file any such amendment or supplement that shall be reasonably disapproved
by the Remarketing Agent promptly after reasonable notice;
(h) As soon as practicable, but in any event not later than eighteen
months, after the effective date of the Registration Statement, the Company
shall make "generally available to its security holders" an "earnings statement"
of the Company and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the rules and regulations thereunder
(including, at the option of the Company, Rule 158 under the Securities Act).
The terms "generally available to its security holders" and "earnings statement"
shall have the meanings set forth in Rule 158 under the Securities Act; and
(i) The Company shall take such action as the Remarketing Agent may
reasonably request in order to qualify the Remarketed Senior 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 required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction.
(j) The Company shall furnish the Remarketing Agent with such information
and documents as the Remarketing Agent may reasonably request in connection with
the transactions contemplated hereby, and to make reasonably available to the
Remarketing Agent and any accountant, attorney or other advisor retained by the
Remarketing Agent such information that parties would customarily require in
connection with a due diligence investigation conducted in accordance with
applicable securities laws and to cause the Company's officers, directors,
employees and accountants to participate in all such discussions and to supply
all such information reasonably requested by any such Person in connection with
such investigation.
SECTION 6. Payment Of Expenses. The Company agrees to pay (a) all costs
incident to the preparation and printing of the Registration Statement, if any,
any Prospectus and any other Remarketing Materials and any amendments or
supplements thereto, (b) all costs of distributing the Registration Statement,
if any, any Prospectus and any other Remarketing Materials and any amendments or
supplements thereto, (c) any fees and expenses of qualifying the Remarketed
Senior Notes under the securities laws of the several jurisdictions as provided
in Section 5(i) and of preparing, printing and distributing a Blue Sky
Memorandum, if any (including any related fees and expenses of counsel to the
Remarketing Agent), (d) all other costs and expenses incident to the performance
of the obligations of the Company hereunder and the Remarketing Agent hereunder
and (e) the reasonable fees and expenses of counsel to the Remarketing Agent in
connection with their duties hereunder.
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SECTION 7. Conditions To The Remarketing Agent's Obligation. The
obligations of the Remarketing Agent hereunder shall be subject to the following
conditions:
(a) The representations and warranties of the Company contained herein
shall be true and correct in all material respects on and as of the applicable
Remarketing Date and the settlement date for the applicable Remarketing Date,
and the Company, the Purchase Contract Agent and the Collateral Agent shall have
performed in all material respects all covenants and agreements contained herein
or in the Purchase Contract Agreement or Pledge Agreement to be performed on
their part at or prior to such date.
(b) (i) Trading generally shall not have been suspended or materially
limited on the New York Stock Exchange, (ii) trading of any securities of the
Company shall not have been materially suspended or limited on the New York
Stock Exchange, (iii) a general moratorium on commercial banking activities in
New York shall not have been declared by either Federal or New York State
authorities, or (iv) there shall not have occurred a material adverse change in
the financial markets, any outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency or
war or other calamity or crisis, if the effect of any such event specified in
this clause (b) in the judgment of the Remarketing Agent makes it impracticable
or inadvisable to proceed with the Remarketing or the delivery of the Remarketed
Senior Notes on the terms and in the manner contemplated in the Transaction
Documents.
(c) The Prospectus, if any, shall have been timely filed with the
Commission; no stop order suspending the effectiveness of the Registration
Statement, if any, or any part thereof 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.
(d) The Company shall have furnished to the Remarketing Agent a
certificate, dated the applicable Remarketing Date, of the Chief Executive
Officer and the Treasurer satisfactory to the Remarketing Agent stating that:
(1) no order suspending the effectiveness of the Registration Statement, if any,
or prohibiting the sale of the Remarketed Senior Notes is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of such
officers, threatened by the Commission; (2) the representations and warranties
of the Company in Section 3 are true and correct on and as of the applicable
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 such Remarketing Date; and (3) the Registration Statement, as of its
effective date, 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 and the Prospectus did not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) On the applicable 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
PricewaterhouseCoopers LLP, the independent
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accountants of the Company, containing statements and information of the type
ordinarily included in accountants' "comfort letters" with respect to certain
financial information contained in the Remarketing Materials, if any.
(f) The General Counsel for the Company shall have furnished to the
Remarketing Agent its opinion, addressed to the Remarketing Agent and dated the
Remarketing Date, in form and substance reasonably satisfactory to the
Remarketing Agent addressing such matters as are set forth in such counsel's
opinion furnished pursuant to Section 5(d) of the Underwriting Agreement,
adapted as necessary to relate to the securities being remarketed hereunder and
to the Remarketing Materials, if any, or to any changed circumstances or events
occurring subsequent to the date of this Agreement, such adaptations being
reasonably acceptable to counsel to the Remarketing Agent.
(g) Xxxxx Xxxx & Xxxxxxxx, counsel for the Remarketing Agent, shall have
furnished to the Remarketing Agent its opinion, addressed to the Remarketing
Agent and dated the applicable Remarketing Date, in form and substance
satisfactory to the Remarketing Agent.
(h) Subsequent to the execution and delivery of this Agreement and prior
to the applicable Remarketing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not indicate an
improvement, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(i) The Senior Notes shall not have been called for redemption following
the occurrence of a Special Event.
If any condition specified in this Section 7 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the Remarketing
Agent by notice to the Company at any time on or prior to the applicable
Remarketing Date, which termination shall be without liability on the part of
any party to any other party, except that Section 6, Section 8 and Section 9
shall at all times be effective and shall survive such termination.
SECTION 8. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Agent, its officers and employees, and each person, if any, who controls the
Remarketing Agent within the meaning of the Securities Act and the Exchange Act
against any loss, claim, damage, liability or expense, as incurred, to which the
Remarketing Agent or such controlling person may become subject, under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or actions
in respect thereof as contemplated below) arises out of or is based (i) upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including any information
deemed to be a part thereof under the Securities Act, or the omission or alleged
omission therefrom of a material fact, in each case, required to be stated
therein or necessary to make the statements
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therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Prospectus or any other Remarketing Materials (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact, in
each case, necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; or (iii) in whole
or in part upon any inaccuracy in the representations and warranties of the
Company contained herein; or (iv) in whole or in part upon any failure of the
Company to perform its obligations hereunder or under law; or (v) any act or
failure to act or any alleged act or failure to act by the Remarketing Agent in
connection with, or relating in any manner to, the Remarketed Senior Notes or
the Remarketing contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out of or
based upon any matter covered by clause (i) or (ii) above, and to reimburse the
Remarketing Agent and each such controlling person for any and all expenses
(including the fees and disbursements of counsel chosen by the Remarketing
Agent) as such expenses are reasonably incurred by the Remarketing Agent or such
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that the foregoing indemnity agreement shall not
apply to any loss, claim, damage, liability or expense to the extent, but only
to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the Remarketing
Agent expressly for use in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any other Remarketing Materials (or any amendment
or supplement thereto); and provided, further, that with respect to any
Preliminary Prospectus, the foregoing indemnity agreement shall not inure to the
benefit of the Remarketing Agent if the person asserting any loss, claim,
damage, liability or expense purchased Remarketed Senior Notes, or any person
controlling the Remarketing Agent, if copies of the Prospectus were timely
delivered to the Remarketing Agent and a copy of the Prospectus (as then amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of the Remarketing
Agent to such person, if required by law so to have been delivered, at or prior
to the written confirmation of the sale of the Remarketed Senior Notes to such
person, and if the Prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or expense. The
indemnity agreement set forth in this Section 8(a) shall be in addition to any
liabilities that the Company may otherwise have.
(b) The Remarketing Agent agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company, or any such director,
officer or controlling person may become subject, under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Remarketing Agent),
insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based upon any untrue or
alleged untrue statement of a material fact contained in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any other Remarketing
Materials (or any amendment or supplement thereto), or arises out of or is based
upon the omission or alleged omission to state
11
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any other Remarketing Materials (or any amendment
or supplement thereto), in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agent expressly for use
therein; and to reimburse the Company, or any such director, officer or
controlling person for any legal and other expense reasonably incurred by the
Company, or any such director, officer or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim,
damage, liability, expense or action. The Company hereby acknowledges that the
only information that the Remarketing Agent has furnished to the Company
expressly for use in the Registration Statement, any Preliminary Prospectus, the
Prospectus or any other Remarketing Materials (or any amendment or supplement
thereto) is the information set forth in a certificate to be provided by the
Remarketing Agent on or prior to the Remarketing Date. The indemnity agreement
set forth in this Section 8(b) shall be in addition to any liabilities that each
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 8 or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent that
it shall elect, jointly with all other indemnifying parties similarly notified,
by written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party; provided,
however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded that a conflict may arise between the positions of the indemnifying
party and the indemnified party in conducting the defense of any such action or
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (the Remarketing Agent in the case
of Section 8(b)), representing the indemnified parties who are parties to such
action) or (ii) the
12
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, in each of which cases the fees and
expenses of counsel shall be at the expense of the indemnifying party.
(d) The indemnifying party under this Section 8 shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there is a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 8(c) hereof, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement, compromise or consent to the entry
of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was
or could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent (x) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding and (y) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
SECTION 9. Contribution.
If the indemnification provided for in Section 8 is for any reason held to
be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount paid or payable by such indemnified party, as incurred, as a
result of any losses, claims, damages, liabilities or expenses referred to
therein (i) in such proportion as is 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 of the Remarketed Senior Notes pursuant to
this Agreement 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
hand, in connection with the statements or omissions or inaccuracies in the
representations and warranties herein which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one hand,
and the Remarketing Agent, on the other hand, in connection with the Remarketing
of the Remarketed Senior Notes pursuant to this Agreement shall be deemed to be
in the same respective proportions as the total net proceeds from the
Remarketing of the Remarketed Senior Notes pursuant to this Agreement (before
deducting expenses) received by the Company, and the total Remarketing Fee
received by the Remarketing Agent, in each case as set forth on the front cover
page of the Prospectus, bear to the aggregate Remarketing Price of the
Remarketed Senior Notes as set forth on such cover. The
13
relative fault of the Company, on the one hand, and the Remarketing Agent, on
the other hand, shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact or any such inaccurate or alleged
inaccurate representation or warranty relates to information supplied by the
Company, on the one hand, or the Remarketing Agent, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The provisions set forth in Section 8(c) with respect to notice of
commencement of any action shall apply if a claim for contribution is to be made
under this Section 9; provided, however, that no additional notice shall be
required with respect to any action for which notice has been given under
Section 8(c) for purposes of indemnification.
The Company and the Remarketing Agent agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, the Remarketing Agent
shall not be required to contribute any amount in excess of the amount by which
the Remarketing Fee exceeds the amount of any damages which the Remarketing
Agent has otherwise been required to pay by reason of such 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 9, each officer and
employee of the Remarketing Agent and each person, if any, who controls the
Remarketing Agent within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as the 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 the Securities Act and the Exchange Act shall have the same rights to
contribution as the Company.
SECTION 10. Resignation And Removal Of The Remarketing Agent.
Banc of America, CSFB or UBS (the "Remarketing Agent Candidates") may
resign and be discharged from their duties and obligations hereunder, and the
Company may remove any of the Remarketing Agent Candidates, by giving 30 days'
prior written notice, in the case of a resignation, to the Company and the
Depositary and, in the case of a removal, to the removed Remarketing Agent
Candidate and the Depositary; provided, however, that if only one Remarketing
Agent Candidate remains:
(a) such Remarketing Agent Candidate may not resign without reasonable
cause; and
14
(b) 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
Transaction Documents in all material respects.
In any such case, the Company will use commercially reasonable efforts to
appoint a successor Remarketing Agent and enter into such a with such person as soon as reasonably practicable. The provisions of
Section 8 and Section 9 shall survive the resignation or removal of any
Remarketing Agent Candidate pursuant to this Agreement.
SECTION 11. Dealing In Securities. 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
Notes, Corporate Units, Treasury Units or any of the securities of the Company
(together, the "Securities"). The Remarketing Agent may exercise any vote or
join in any action which any beneficial owner of such Securities 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 12. Remarketing Agent's Performance; Duty Of Care. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Agreement and the Transaction Documents. No implied covenants
or obligations of or against the Remarketing Agent shall be read into this
Agreement or any of the Transaction Documents. 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, 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 except as otherwise set
forth herein. The Remarketing Agent, acting under this Agreement, shall incur no
liability to the Company or to any holder of Remarketed Senior 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 its failure to comply with the
material terms of this Agreement or the gross negligence or willful misconduct
on its part. The provisions of this Section 12 shall survive the termination of
this Agreement and shall survive the resignation or removal of any Remarketing
Agent pursuant to this Agreement.
SECTION 13. Termination. This Agreement shall automatically terminate (i)
as to the Remarketing Agent on the effective date of the resignation or removal
of the Remarketing Agent pursuant to Section 10 and (ii) on the earlier of (x)
any Special Event Redemption Date and (y) the Purchase Contract Settlement Date.
If this Agreement is terminated pursuant to any of the other 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 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
15
all of its out-of-pocket expenses (including the fees and disbursements of its
counsel) reasonably incurred by it. Section 8, Section 9 and Section 12 hereof
shall survive the termination of this Agreement or the resignation or removal of
the Remarketing Agent.
SECTION 14. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Remarketing Agent Candidates, shall be delivered or sent by
mail, telex or facsimile transmission to:
Banc of America Securities LLC
0 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Xxxx Xxxxxxxxx
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Legal Department
UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 000-000-0000
Attention: Legal Department
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxx International Inc., Xxx Xxxxxx Xxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Telecopier No.: 000-000-0000; Attention: General
Counsel; and
(c) if to the Purchase Contract Agent, shall be delivered or sent by mail,
telex or facsimile transmission to Bank One Trust Company, N.A., 1 Bank Xxx
Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0000; Telecopier No.:
000-000-0000; Attention: Corporate Trust Administration.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
SECTION 15. Persons Entitled To Benefit Of Agreement. This Agreement shall
inure to the benefit of and be binding upon each party hereto and its 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
16
contained in Section 8 of this Agreement shall be deemed to be for the benefit
of the Company's directors and officers who sign the Registration Statement, if
any, 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
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION 16. 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 any 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 17. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of New York, without regard to conflicts
of laws principles.
SECTION 18. Judicial Proceedings.
(a) Each party hereto expressly accepts and irrevocably submits to the
non-exclusive jurisdiction of the United States Federal or New York State court
sitting in the Borough of Manhattan, The City of New York, New York, over any
suit, action or proceeding arising out of or relating to this Agreement or the
Securities. To the fullest extent it may effectively do so under applicable law,
each party hereto irrevocably waives and agrees not to assert, by way of motion,
as a defense or otherwise, any claim that it is not subject to the jurisdiction
of any such court, any objection that it may now or hereafter have to the laying
of the venue of any such suit, action or proceeding brought in any such court
and any claim that any such suit, action or proceeding brought in any such court
has been brought in an inconvenient forum.
(b) Each party hereto agrees, to the fullest extent that it may
effectively do so under applicable law, that a judgment in any suit, action or
proceeding of the nature referred to in Section 18(a) brought in any such court
shall be conclusive and binding upon such party, subject to rights of appeal and
may be enforced in the courts of the United States of America or the State of
New York (or any other court the jurisdiction to which the Company is or may be
subject) by a suit upon such judgment.
SECTION 19. 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 20. 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.
SECTION 21. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provisions of any constitution, statute, rule
17
or public policy or for any other reason, then, to the extent permitted by law,
such circumstances shall not have the effect of rendering the provision in
question invalid, inoperative or unenforceable in any other case, circumstance
or jurisdiction, or of rendering any other provision or provisions of this
Agreement invalid, inoperative or unenforceable to any extent whatsoever.
SECTION 22. Amendments. This Agreement may be amended by an instrument in
writing signed by the parties hereto. The Company agrees that it will not enter
into, cause or permit any amendment or modification of the Transaction Documents
or any other instruments or agreements relating to the Senior Notes or the
Corporate Units that would in any way adversely affect the rights, duties or
obligations of any of Banc of America, CSFB or UBS, each as a potential
Remarketing Agent, without the prior written consent of Banc of America, CSFB
and UBS.
SECTION 23. 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 Banc of America, CSFB and UBS. The rights and
obligations of the Remarketing Agent hereunder may not be assigned or delegated
to any other Person (other than an affiliate of the Remarketing Agent) without
the prior written consent of the Company.
If the foregoing correctly sets forth the agreement by and between the Company,
the Remarketing Agent Candidates and the Purchase Contract Agent, please
indicate your acceptance in the space provided for that purpose below.
[SIGNATURES ON THE FOLLOWING PAGE]
18
Very truly yours,
XXXXXX INTERNATIONAL INC.
By: ______________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
BANC OF AMERICA SECURITIES LLC
By: ____________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: ____________________________
Name:
Title:
UBS WARBURG LLC
By: ____________________________
Name:
Title:
Bank One Trust Company, N.A.,
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the Holders of the Purchase Contracts
By: ____________________________
Name:
Title:
