Exhibit 4.1
REMARKETING
AGREEMENT
REMARKETING AGREEMENT, dated as of
March 17, 2009 (the “Agreement”), between Wells
Fargo & Company, a Delaware corporation, and Morgan
Stanley & Co. Incorporated (“Morgan Stanley”)
and Goldman, Sachs & Co. (“Goldman
Sachs”).
WHEREAS, the Company (as defined
below) has issued $3,000,000,000 aggregate original principal
amount of its Floating Rate Convertible Senior Debentures due 2033,
now referred to as its Remarketed Senior Debentures due 2033 (the
“Debentures”), pursuant to an indenture, dated as of
April 15, 2003, between the Company and Citibank, N.A., as
trustee (the “Trustee”), as amended by the First
Supplemental Indenture, dated as of November 8, 2004, the
Second Supplemental Indenture, dated as of April 1, 2008 and
the Third Supplemental Indenture, dated as of May 6, 2008
(together, the “Indenture”); and
WHEREAS, the Company has requested
that Morgan Stanley and Goldman Sachs act as Remarketing Agents (as
defined below) with respect to the remarketing of the Debentures
tendered for remarketing in connection with the Remarketing Reset
Date (as defined below) and as such to perform the services
described herein; and
WHEREAS, Morgan Stanley and Goldman
Sachs, severally and not jointly, are prepared to act as the
Remarketing Agents with respect to the remarketing of the
Debentures in connection with the Remarketing Reset Date pursuant
to the terms of, but subject to the conditions set forth in, this
Agreement;
NOW, THEREFORE, for and in
consideration of the covenants herein made, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the conditions herein set
forth, the parties hereto agree as follows:
Section 1. Definitions .
Capitalized terms used and not defined in this Agreement shall have
the meanings assigned to them in the Indenture (including the form
of the Debentures).
“Accreted Principal
Amount” shall have the meaning assigned to such term in the
Indenture.
“Applicable Time” shall
mean, in connection with a successful remarketing, the Reset Yield
Determination Date and time of sale of Debentures in the
remarketing on such date as specified by the Remarketing Agents to
the Company in the notice provided pursuant to Section 4(f) of
this Agreement.
“Beneficial Owners”
means the owners at any time of beneficial interests in the
Debentures.
“Business Day” shall
have the meaning assigned to such term in the Indenture.
“Closing Date” shall
mean, in connection with a successful remarketing, the date
specified by the Remarketing Agents to the Company in the notice
provided pursuant to Section 4(f) of this Agreement, which
shall be the later of (i) May 1, 2009 and (ii) the
third Business Day following a successful remarketing in connection
with the Remarketing Reset Date.
“Commission” means the
Securities and Exchange Commission.
“Company” means Wells
Fargo & Company and its successors under this
Agreement.
“Depositary” means The
Depository Trust Company and its successors.
“Failed Remarketing”
shall have the meaning assigned to such term in Section 4(j)
of this Agreement.
“Final Term Sheet” shall
have the meaning assigned to such term in Section 3(b)(i) of
this Agreement.
“FINRA” means the
Financial Industry Regulatory Authority.
“Free Writing
Prospectus” means a free writing prospectus, as defined in
Rule 405 under the 1933 Act.
“Hold Notice” means a
notice from a Holder to the Paying Agent stating that such Holder
has elected not to have all or a specified Original Principal
Amount of its Debentures remarketed.
“Holders” shall have the
meaning assigned to such term in the Indenture.
“Issuer Free Writing
Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act
Regulations (“Rule 433”), relating to the remarketing
of the Debentures that (i) is required to be filed with the
Commission by the Company, or (ii) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of
the Debentures or of the remarketing that does not reflect the
final terms, in each case in the form filed or required to be filed
with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule
433(g).
“1933 Act” means the
Securities Act of 1933, as amended.
“1933 Act Regulations”
means the rules and regulations promulgated by the Commission from
time to time under the 1933 Act.
“1934 Act” means the
Securities Exchange Act of 1934, as amended.
“1934 Act Documents”
shall have the meaning assigned to such term in Section 2(a)
of this Agreement.
“1934 Act Regulations”
means the rules and regulations promulgated by the Commission from
time to time under the 1934 Act.
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“1939 Act” means the
Trust Indenture Act of 1939, as amended.
“1939 Act Regulations”
means the rules and regulations promulgated by the Commission from
time to time under the 1939 Act.
“Nationally Recognized
Statistical Rating Organization” shall have the meaning
assigned to such term in Section 3(a) of this
Agreement.
“Original Principal
Amount” shall have the meaning assigned to such term in the
Indenture.
“Paying Agent” means
Wells Fargo Bank, N.A. and its successors.
“Prospectus” shall have
the meaning assigned to such term in Section 2(a) of this
Agreement.
“Purchase Agreement”
means the purchase agreement, dated April 9, 2003, between the
Company and the initial purchasers party thereto relating to the
initial issuance and sale of the Debentures.
“Registration Statement”
shall have the meaning assigned to such term in Section 2(a)
of this Agreement.
“Remarketing Agents”
means Morgan Stanley and Goldman Sachs, acting severally and not
jointly, in their capacity as remarketing agents hereunder, and its
successors and assigns.
“Remarketing Materials”
shall have the meaning assigned to such term in Section 3(c)
of this Agreement.
“Remarketing Period”
means the period from and including April 17, 2009 to and
including May 1, 2009.
“Remarketing Purchase
Price” shall have the meaning assigned to such term in the
Indenture.
“Remarketing Reset Date”
means May 1, 2009.
“Representation Date”
shall have the meaning assigned to such term in Section 2(a)
of this Agreement.
“Required Remarketing”
shall have the meaning assigned to such term in Section 4(h)
of this Agreement.
“Reset Yield” shall have
the meaning assigned to such term in Section 4(c) of this
Agreement.
“Reset Yield Determination
Date” means the Business Day, if any, during the Remarketing
Period on which the Remarketing Agents establish the Reset Yield
effective from and including the Remarketing Reset Date.
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“Underwriting Agreement”
means the form of underwriting agreement attached as Annex II to
this Agreement.
Section 2. Representations and
Warranties . (a) The Company has filed with the
Commission, and there has become effective, a registration
statement on Form S-3 (File No.: 333-135006), including the
form of prospectus therein relating to senior debt securities,
including the Debentures, and other securities. Such Registration
Statement, as amended, and the documents incorporated or deemed to
be incorporated by reference therein, and including any prospectus
supplement relating to the Debentures that is filed with the
Commission pursuant to Rule 424(b) under the 1933 Act and deemed
part of such registration statement pursuant to Rule 430B under the
1933 Act, are hereinafter called, collectively, the
“Registration Statement”; the form of prospectus
therein dated June 19, 2006, relating to senior debt
securities, including the Debentures, and other securities,
including the documents incorporated or deemed to be incorporated
by reference therein, and any preliminary prospectus supplement
relating to the Debentures, are hereinafter called, collectively,
the “preliminary prospectus”; and the related
prospectus dated June 19, 2006, including the documents
incorporated or deemed to be incorporated by reference therein, and
prospectus supplement to be dated the Reset Yield Determination
Date, relating to the Debentures, are hereinafter called,
collectively, the “Prospectus.” The Company represents
and warrants to the Remarketing Agents as of the date hereof, the
Applicable Time and the Closing Date (each such time and/or date
being hereinafter referred to as a “Representation
Date”), that (i) it has made all the filings with the
Commission that it is required to make under the 1934 Act and the
1934 Act Regulations (collectively, the “1934 Act
Documents”), (ii) each 1934 Act Document complies in all
material respects with the requirements of the 1934 Act and 1934
Act Regulations, and each 1934 Act Document did not at the time of
filing with the Commission, and as of each Representation Date, as
modified or superseded by any subsequently filed 1934 Act Document
on or prior to such Representation Date, will not, include an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading and (iii) the applicable
Remarketing Materials, as of each Representation Date after the
date hereof, as modified or superseded by any subsequently filed
1934 Act Document on or prior to such Representation Date (or, if
applicable, by any Issuer Free Writing Prospectus or other document
filed pursuant to the 1933 Act and the 1933 Act Regulations), will
not include an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading (and, if applicable, any
such Issuer Free Writing Prospectus, as of its issue date and at
all subsequent times through the completion of the remarketing of
the Debentures or until any earlier date that the Company notifies
the Remarketing Agents as described in Section 3(c), will not
include any information that will conflict with the information
contained in the Remarketing Materials, including any document
incorporated by reference therein and any preliminary or other
prospectus deemed to be a part thereof that has not been superseded
or modified).
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(b) The Company further represents
and warrants to the Remarketing Agents as of each Representation
Date as follows:
(i) This Agreement has been duly
authorized, executed and delivered by the Company and, assuming it
has been duly executed and delivered by the Remarketing Agents,
constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as the
enforcement thereof may be subject to limitations on rights to
indemnity or contribution or both by Federal or state securities
laws or the public policies underlying such laws.
(ii) The Indenture has been duly
authorized, executed and delivered by the Company and duly
qualified under the Trust Indenture Act of 1939, as amended (the
“1939 Act”), and, assuming it has been duly executed
and delivered by the Trustee, constitutes a valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at
law).
(iii) The Debentures have been duly
authorized and executed by the Company and authenticated, issued
and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as
provided in the Purchase Agreement, and constitute valid and
binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
are in the form contemplated by, and entitled to the benefits of,
the Indenture.
(iv) Other than as disclosed in the
Registration Statement and the Prospectus, there is no action,
suit, proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company, threatened, against
or affecting the Company or any subsidiary, which is required to be
disclosed in the Registration Statement and Prospectus, in each
case including the documents incorporated by reference therein, or
which might reasonably be expected to result in a material adverse
change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or which might
reasonably be expected to materially and adversely affect the
properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by
the Company of its obligations hereunder.
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(v) The Debentures are rated AA by
Standard & Poor’s Rating Services and Aa3 by
Moody’s Investor Services, Inc. or such other rating as to
which the Company shall have most recently notified the Remarketing
Agents pursuant to Section 3(a) hereof.
(vi) Consistent with the applicable
provisions in the Indenture, on or prior to the Remarketing Reset
Date, the Company shall have removed from the remarketed Debentures
any legend relating to restrictions on transfer of the remarketed
Debentures and provided for the “unrestricted” CUSIP to
apply to all of the remarketed Debentures.
(c) Subject to Section 2(d)
below, the following provisions of the form of Underwriting
Agreement attached as Annex II hereto are incorporated by
reference, mutatis mutandis , herein: Sections 1(a), (b)(i),
(d) and (e); Sections 4(a), (b), (c), (d) and (e); and
Sections 5(a) and (d)(ii); and the Company hereby makes the
representations and warranties, and agrees to comply with the
covenants and obligations, set forth in the provisions of the
Underwriting Agreement incorporated by reference herein, as
modified by the provisions of Section 2(d) below; provided,
however that any requirements relating to the filing of the
Prospectus with the Commission, as set forth in the Underwriting
Agreement, shall be modified to require such filing no later than
the close of business on the second Business Day after the Reset
Yield Determination Date.
(d) With respect to the provisions
of the form of Underwriting Agreement incorporated herein, for the
purposes hereof, (i) all references therein to the
“Underwriter,” the “Underwriters,” the
“Representative” or the “Representatives”
shall be deemed to refer to the Remarketing Agents; (ii) all
references therein to the “Securities” shall be deemed
to refer to the Debentures; (iii) all references therein to
this “Agreement,” the “Underwriting
Agreement,” “hereof,” “herein” and
all references of similar import, shall be deemed to mean and refer
to this Agreement; (iv) all references therein to “the
date hereof,” “the date of this Agreement” and
all similar references shall be deemed to refer to the date of this
Agreement; (v) all references therein to the “Applicable
Time” and “Closing Date” shall be deemed to refer
to the Applicable Time and Closing Date as defined in this
Agreement; (vi) all references therein to the
“Registration Statement,” the “Preliminary Final
Prospectus” or the “Final Prospectus” shall be
deemed to refer to the Registration Statement, the preliminary
prospectus and the Prospectus, respectively, as defined in this
Agreement; (vii) all references therein to “Basic
Prospectus” shall be deemed to refer to the form of
prospectus relating to senior debt securities, including the
Debentures, and other securities included in the Registration
Statement; (viii) all references therein to “Disclosure
Package” shall be deemed to refer collectively to the
preliminary prospectus and any Issuer Free Writing Prospectus, each
as defined in this Agreement; (ix) all references therein to
“Issuer Free Writing Prospectus” shall be deemed to
refer to the Issuer Free Writing Prospectus as defined in this
Agreement; (x) all references therein to “Blood
Letter” shall be deemed to refer to the letter from the
Remarketing Agents dated the Closing Date which describes
information in the Registration Statement or Prospectus that is to
be furnished by the Remarketing Agents; (xi) all references
therein to “Act” and “Exchange Act” shall
be deemed to refer to the Securities Act of 1933 and the Securities
Exchange Act of 1934, respectively; and (xii) all references
therein to “Indenture” shall be deemed to refer to the
Indenture as defined in this Agreement.
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(e) Any certificate signed by any
director or officer of the Company and delivered to the Remarketing
Agents or to counsel for the Remarketing Agents in connection with
the remarketing of the Debentures shall be deemed a representation
and warranty by the Company to the Remarketing Agents as to the
matters covered thereby.
Section 3. Covenants of the
Company . The Company covenants with the Remarketing Agents as
follows:
(a) The Company will provide prompt
notice by telephone, confirmed in writing (which may include
facsimile or other electronic transmission), to the Remarketing
Agents of (i) any notification or announcement by a
“Nationally Recognized Statistical Rating Organization”
(as defined in Section 3(a)(62) of the 1934 Act) with regard
to the ratings of any securities of the Company, including, without
limitation, notification or announcement of a downgrade in or
withdrawal of the rating of any security of the Company or
notification or announcement of the placement of any rating of any
securities of the Company under surveillance or review, including
placement on CreditWatch or on Watch List with
negative implications, or (ii) the occurrence at any time of
any event set forth in Section 8(b)(ii), (iii)(A), (v) or
(vi) of this Agreement.
(b) The Company, at its expense,
will furnish to the Remarketing Agents:
(i) (A) a manually executed copy of
the Registration Statement, including all exhibits thereto, in the
form it became effective and all amendments thereto, any
preliminary prospectus and the Prospectus, (B) a final term
sheet (the “Final Term Sheet”) reflecting the final
terms of the Debentures being remarketed, in form and substance
satisfactory to the Remarketing Agents, and (C) any other
Issuer Free Writing Prospectus relating to the remarketing of the
Debentures;
(ii) each 1934 Act Document filed
after the date hereof;
(iii) in connection with the
remarketing of Debentures, such other information as the
Remarketing Agents may reasonably request from time to time;
and
(iv) an officers’ certificate,
a favorable opinion (including a statement as to the absence of
material misstatements in or omissions from the then-current
Remarketing Materials relating to the remarketing of the
Debentures) of Mary E. Schaffner, Esq., counsel for the Company, a
favorable opinion of Faegre & Benson LLP, as special tax
counsel to the Company, as to certain tax matters and a
“comfort letter” or letters from the Company’s
independent accountants, in each case in form and substance
satisfactory to the Remarketing Agents, of the same tenor as the
officers’ certificate, opinions and comfort letter,
respectively, delivered in connection with the remarketing of the
Debentures that occurred in May 2008, but modified to relate to the
then-current Remarketing Materials relating to the remarketing of
the Debentures, and in each case as of the date or dates and times
specified by the Remarketing Agents in Annex I hereto.
The Company agrees to provide the
Remarketing Agents with as many copies of the foregoing written
materials and other Company-approved information as the Remarketing
Agents may reasonably request for use in connection with the
remarketing of Debentures and consents to the use thereof for such
purpose.
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(c) If, at any time during which the
Remarketing Agents would be obligated to take any action under this
Agreement, any event or condition known to the Company relating to
or affecting the Company, any subsidiary thereof or the Debentures
shall occur which could reasonably be expected to cause any of the
reports, documents, materials or information referred to in
paragraph (b)(i) or (ii) above or any document incorporated
therein by reference (collectively, the “Remarketing
Materials”) to contain an untrue statement of a material fact
or omit to state a material fact, or, in the case of any Issuer
Free Writing Prospectus, if applicable, forming part of the
Remarketing Materials, as a result of which such Issuer Free
Writing Prospectus would conflict with the information otherwise
contained in the Remarketing Materials, the Company shall promptly
notify the Remarketing Agents in writing of the circumstances and
details of such event or condition; and the Company, at its
expense, shall promptly prepare and provide to the Remarketing
Agents such report or other document as may be necessary to
eliminate or correct such statement, omission or conflict, and, if
required, will file such report or other document with the
Commission and will forward to the Remarketing Agents copies
thereof a reasonable amount of time prior to the proposed
filing.
(d) So long as the Debentures are
outstanding and the Remarketing Agents would be obligated to take
any action under this Agreement, the Company will file all
documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the
1934 Act Regulations.
(e) The Company will comply with the
1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations so as
to permit the completion of the remarketing of the Debentures as
freely transferable securities, as contemplated in this Agreement
and in the offering memorandum relating to the initial issuance of
the Debentures. The Company shall timely pay any required
Commission filing fees relating to the remarketing of the
Debentures and update the “Calculation of Registration
Fee” table in accordance with the 1933 Act
Regulations.
(f) The Company shall provide to the
Remarketing Agents and any other broker-dealer participating in the
remarketing of the Debentures the opportunity to conduct an
underwriter’s due diligence investigation of the Company in a
scope customarily provided in connection with a public offering of
the Company’s debt securities.
(g) The Company agrees that, unless
it obtains the prior written consent of the Remarketing Agents, and
each Remarketing Agent, severally and not jointly, agrees with the
Company that, unless it has obtained or will obtain, as the case
may be, the prior written consent of the Company, it has not made
and will not make any offer relating to the Debentures that would
constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a Free Writing Prospectus required to be filed
with the Commission or retained by the Company under Rule 433 under
the 1933 Act. Any such Free Writing Prospectus consented to by the
Remarketing Agents or the Company is hereinafter referred to as a
“Permitted Free Writing Prospectus.” The Company agrees
that (x) it has treated and will treat, as the case may be,
each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (y) it has complied
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and will comply, as the case may be,
with the requirements of Rules 164 and 433 under the 1933 Act
applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record
keeping.
(h) The Company will arrange for the
qualification of the Debentures for sale under the laws of such
jurisdictions as the Remarketing Agents may designate, will
maintain such qualifications in effect so long as required to
complete the remarketing of the Debentures; provided ,
however , that the Company shall not be required 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 general or
unlimited service of process in any jurisdiction where it is not
now so subject or subject itself to taxation in any jurisdiction
where it is not now so subject.
Section 4. Appointment and
Obligations of the Remarketing Agents . (a) Unless this
Agreement is otherwise terminated in accordance with
Section 11 hereof, in accordance with the terms, but subject
to the conditions, of this Agreement, the Company hereby appoints
Morgan Stanley and Goldman Sachs, and Morgan Stanley and Goldman
Sachs, acting severally and not jointly, hereby accept such
appointment, to use their reasonable best efforts to remarket the
Debentures in accordance with the Indenture and this Agreement as
the exclusive Remarketing Agents with respect to the Debentures not
subject to a duly submitted (and not timely withdrawn) Hold Notice.
The Company agrees that a Remarketing Agent shall have the right
(with the agreement of the other Remarketing Agent), on prior
notice to the Company, to appoint one or more additional
remarketing agents so long as any such additional remarketing
agents shall be reasonably acceptable to the Company. Upon any such
appointment, the parties shall enter into an appropriate amendment
to this Agreement to reflect the addition of any such remarketing
agent.
(b) It is expressly understood and
agreed by and between the parties hereto that the Remarketing
Agents shall not be obligated to set the Reset Yield on any
Debentures, to remarket any Debentures or to perform any of the
other duties set forth herein at any time that (i) any of the
conditions set forth in clause (a) of Section 8 hereof
shall not have been fully and completely met to the satisfaction of
the Remarketing Agents, or (ii) any of the events set forth in
clause (b) of Section 8 hereof shall have occurred or be
continuing.
(c) The yield on the Debentures will
be reset by the Remarketing Agents on the Reset Yield Determination
Date to the yield (the “Reset Yield”) for the period
from and including the Remarketing Reset Date to but excluding
May 1, 2010 (or, if such day is not a Business Day, the
immediately succeeding Business Day) necessary for the proceeds
from the remarketing of the Debentures, net of any fee to the
Remarketing Agents, to be 100% of the Accreted Principal Amount, as
of such Remarketing Reset Date, of the Debentures remarketed;
provided that the Reset Yield shall not exceed the maximum rate
permitted by law and shall not be less than 0% per
annum.
(d) The Company confirms that the
deadline for delivering a Hold Notice to the Paying Agent is
5:00 p.m., New York City time, on April 16,
2009.
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(e) Notwithstanding the foregoing,
if (i) Holders of less than $50 million aggregate Original
Principal Amount of Debentures have elected or are deemed to have
elected to have their Debentures remarketed in connection with the
Remarketing Reset Date pursuant to Section 15.03 of the
Indenture or (ii) a Failed Remarketing occurs on the
Remarketing Reset Date, the Reset Yield shall be the yield
necessary, in the judgment of the Remarketing Agents based on bids
from at least three independent nationally recognized securities
dealers selected by the Remarketing Agents, for the Debentures to
trade at a price equal to 100% of the Accreted Principal Amount
thereof as of such Remarketing Reset Date. If the Remarketing
Agents are not able to obtain bids from at least three independent
nationally recognized securities dealers on the Remarketing Reset
Date, the Reset Yield shall be 3.55175%. If the Reset Yield is
established on the Remarketing Reset Date but a Failed Remarketing
occurs after such date, such Reset Yield will continue to apply to
the Debentures notwithstanding such Failed Remarketing.
(f) By approximately 4:30 p.m., New
York City time, on the Reset Yield Determination Date, the
Remarketing Agents shall notify the Company, the Trustee, the
Paying Agent and the Depositary by telephone, confirmed in writing
(which may include facsimile or other electronic transmission), of
the Reset Yield and the Closing Date and the Company only of the
Applicable Time or, if applicable, a Failed Remarketing. The
Company shall issue a press release stating such Reset Yield and
publish such information on its website on the World Wide Web. The
Reset Yield, determined as provided in this Section 4, shall
be conclusive and binding on the Holders and Beneficial Owners of
the Debentures.
(g) As early as practicable, and, in
any event, by 5:00 p.m., New York City time, on April 16,
2009, the Company shall notify the Remarketing Agents and the
Trustee by telephone, confirmed in writing (which may include
facsimile or other electronic transmission), of the Original
Principal Amount of Debentures that is not subject to a duly
submitted (and not timely withdrawn) Hold Notice.
(h) If Holders of at least $50
million aggregate Original Principal Amount of Debentures have
elected or are deemed to have elected to have their Debentures
remarketed with respect to the Remarketing Reset Date (a
“Required Remarketing”), the Remarketing Agents shall
use their reasonable best efforts to conduct such remarketing on
any Business Day during the Remarketing Period as selected by the
Remarketing Agents in accordance with the terms of this Agreement
and the Indenture in consultation with the Company.
(i) If the Debentures are
successfully remarketed by the Remarketing Agents on the
Remarketing Reset Date, the Remarketing Agents shall deduct the fee
specified in Annex I to this Agreement from the proceeds of such
remarketing and remit the remaining proceeds, which shall be at
least 100% of the Accreted Principal Amount of the Debentures
remarketed as of the Remarketing Reset Date, to the Holders who
elected or are deemed to have elected to participate in such
remarketing on the Closing Date.
(j) If, by 4:00 p.m., New York City
time, on the Remarketing Reset Date with respect to a Required
Remarketing, a Required Remarketing is not conducted for any reason
or the Remarketing Agents are unable to remarket all Debentures for
which an election to remarket has been made or deemed to have been
made or if, at any time prior to delivery of and payment for the
Debentures on the Closing Date, a condition precedent in this
Agreement shall not have been fulfilled, a failed remarketing
(“Failed Remarketing”) shall be deemed to have
occurred. In the event of a Failed Remarketing, the Company shall
issue a press release regarding such Failed
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Remarketing and stating the
aggregate Original Principal Amount of Debentures that the Company
will repurchase as required pursuant to Section 15.04(a) of
the Indenture and publish such information on its website on the
World Wide Web.
(k) The Company will request, not
later than 20 Business Days prior to April 16, 2009 (the date
by which Holders are required to give notice pursuant to
Section 15.03(a) of the Indenture), that the Depositary notify
its participants of the potential remarketing of the Debentures,
the identities of the Remarketing Agents, the procedures a
Beneficial Owner must follow to deliver a Hold Notice, the date by
which such Hold Notice must be delivered and the right of the
Beneficial Owners of Debentures to require the Company to purchase
Debentures if there is a Failed Remarketing or upon the other
circumstances provided in the Indenture. The Company will also
issue a press release and publish such information on its website
on the World Wide Web.
(l) It is understood and agreed that
the Remarketing Agents shall not have any obligation whatsoever to
purchase any Debentures, whether in the remarketing or otherwise,
and shall in no way be obligated to provide funds to make payment
upon tender of Debentures for remarketing or to otherwise expend or
risk their own funds or incur or be exposed to financial liability
in the performance of their respective duties under this
Agreement.
(m) If a Holder of Debentures whose
Debentures were sold in the remarketing contemplated by this
Agreement does not receive payment for such Debentures (with
respect to such Holder, a “Failed Settlement”), such
Holder will have the right to require the Company to purchase for
cash on the date of the Failed Settlement all or a portion of such
Debentures at the Remarketing Purchase Price. Such Holder shall
notify the Company as promptly as possible of the occurrence of the
Failed Settlement. Upon receipt of confirmation of the Failed
Settlement from a Remarketing Agent, the Company shall purchase
such Debentures for which an election is made as promptly as
possible following the Failed Settlement.
Section 5. Fees and Expenses
. The Company agrees that the fees to be paid to the Remarketing
Agents in connection with the remarketing will be as set forth in
Annex I hereto. The Company will pay all expenses of the
Remarketing Agents in connection with this Agreement, including:
(a) the preparation, filing (if applicable), printing and
delivery of the Registration Statement, any preliminary prospectus
and the Prospectus, and any amendments or supplements thereto, in
connection with the remarketing of the Debentures; (b) the
preparation and delivery of this Agreement and such other documents
as may be required in connection with the remarketing of the
Debentures; (c) the fees and disbursements of the
Company’s accountants, counsel and other advisors or agents
and of the fees and disbursements of the Trustee and Paying Agent;
(d) the fees charged by Nationally Recognized Statistical
Rating Organizations for the rating of the Debentures; and
(e) the reasonable fees and disbursements of counsel to the
Remarketing Agents (including for advice with respect to Rule 2a-7
under the Investment Company Act of 1940).
Section 6. Resignation or Removal
of the Remarketing Agents . (a) A Remarketing Agent may
resign and be discharged from its duties and obligations hereunder
at any time, such resignation to be effective 10 days after
delivery of a written notice to the Company and the Trustee of such
resignation.
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(b) A Remarketing Agent also may
resign and be discharged from its duties and obligations hereunder
at any time, such resignation to be effective immediately, upon
termination of this Agreement as to such Remarketing Agent in
accordance with Section 11(b) hereof.
(c) The Company may remove a
Remarketing Agent by giving not less than 10 days’ prior
written notice to the Remarketing Agents , such removal to
be effective upon the expiration of such notice period and the
Company’s appointment of a successor Remarketing Agent. In
such case, the Company will use its best efforts to appoint a
successor Remarketing Agent and amend this Agreement accordingly or
enter into a remarketing agreement with such person as soon as
reasonably practicable.
(d) It shall be the sole
responsibility of the Company to appoint successor Remarketing
Agents.
Section 7. Dealing in the
Debentures; Purchase of Debentures by the Company .
(a) Morgan Stanley and Goldman Sachs, when acting as the
Remarketing Agents or in their individual or any other capacity,
may, to the extent permitted by law, buy, sell, hold and deal in
any of the Debentures. Morgan Stanley and Goldman Sachs, as Holders
or Beneficial Owners of the Debentures, may exercise any vote or
join as a Holder or Beneficial Owner, as the case may be, in any
action which any Holder or Beneficial Owner of Debentures may be
entitled to exercise or take pursuant to the Indenture with like
effect as if they did not act in any capacity hereunder. The
Remarketing Agents, in their 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 they did not act in
any capacity hereunder.
(b) The Company may purchase
Debentures in the remarketing, provided that, in the event that any
Beneficial Owners of Debentures have elected not to participate in
the remarketing by delivering and not timely withdrawing a Hold
Notice, the Reset Yield established with respect to Debentures in
the remarketing is not different from the Reset Yield that would
have been established if the Company had not purchased such
Debentures.
Section 8. Conditions to
Remarketing Agents’ Obligations . The obligations of the
Remarketing Agents under this Agreement have been undertaken in
reliance on, and shall be subject to:
(a) the due performance by the
Company of its obligations and agreements as set forth in this
Agreement and the accuracy of the representations and warranties in
this Agreement and any certificate delivered pursuant hereto;
and
(b) the further condition that none
of the following events shall have occurred at any time during
which the Remarketing Agents would otherwise be obligated to take
any action under this Agreement, as determined by the Remarketing
Agents in their sole judgment:
(i) (A) there shall have
occurred any downgrading, or any notice shall have been given of
any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of the
Company’s securities or in the rating outlook for the Company
by any Nationally Recognized Statistical Rating Organization or
(B) the rating assigned to the Debentures shall be lower than
Aa3 (or the equivalent) or withdrawn by any Nationally Recognized
Statistical Rating Organization;
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(ii) without the prior written
consent of the Remarketing Agents, (A) the Indenture
(including the Debentures) shall have been amended in any manner,
or otherwise contain any provision not contained therein as of the
date hereof, that in either case was not approved by the
Remarketing Agents and in the judgment of the Remarketing Agents
materially change the nature of the Debentures or the remarketing
procedures or (B) any person shall succeed to, or the Company
shall otherwise assign, transfer or convey, the obligations of the
Company under the Indenture and the Debentures (it being understood
that, notwithstanding the provisions of this clause (ii), the
Company shall not be prohibited from amending the
Indenture);
(iii) (A) trading in any securities
of the Company shall have been suspended or materially limited on
any exchange or in any over-the-counter market; or (B) trading
generally on the New York Stock Exchange shall have been suspended
or materially limited, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices shall have been
required, by said exchange or by order of the Commission, FINRA or
any other governmental authority, or a material disruption has
occurred in commercial banking or securities settlement or
clearance services in the United States, or a banking moratorium
shall have been declared by Federal, California or New York
authorities;
(iv) there shall have occurred any
material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or
any change or development involving a prospective change in
national or international political, financial or economic
conditions, in each case the effect of which is such as to make it,
in the judgment of the Remarketing Agents, impracticable to
remarket the Debentures or to enforce contracts for the sale of the
Debentures;
(v) an Event of Default, or any
event which, with the giving of notice or passage of time, or both,
would constitute an Event of Default, with respect to the
Debentures shall have occurred and be continuing;
(vi) a material adverse change in
the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, shall have occurred; or
(vii) the Company shall fail to
furnish to the Remarketing Agents on the Closing Date (or other
date specified in Annex I) the officers’ certificate,
opinions and comfort letter(s), in each case as referred to in
Section 3(b) of this Agreement, and such other documents and
opinions as counsel for the Remarketing Agents may reasonably
require for the purpose of enabling such counsel to pass upon the
sale of Debentures in the remarketing as herein contemplated and
related proceedings, or in order to evidence
13
the accuracy and completeness of any
of the representations and warranties, or the fulfillment of any of
the conditions, herein contained, or the Remarketing Agents shall
not have received on the Closing Date a favorable opinion
(including a statement as to the absence of material misstatements
in or omissions from the then-current Remarketing Materials
relating to the remarketing of the Debentures) of counsel for the
Remarketing Agents;
and the Remarketing Agents shall
have received on the Reset Yield Determination Date such a
certificate of the Company, signed by any Senior Vice President or
Executive Vice President and the principal financial officer or
accounting officer of the Company, dated as of such date, to the
effect that (i) the representations and warranties in this
Agreement are true and correct with the same force and effect as
though expressly made at and as of such date, (ii) the Company
has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to such date and
(iii) none of the events specified in this clause (b) has
occurred; and
(c) In the event of the failure of
any of the foregoing conditions, the Remarketing Agents may
terminate their obligations under this Agreement as provided in
Section 11.
Section 9. Indemnification .
(a) The Company agrees to indemnify and hold harmless each of
the Remarketing Agents and their affiliates, officers, directors
and employees and each person, if any, who controls each of the
Remarketing Agents within the meaning of Section 20 of the
1934 Act as follows:
(i) against any loss, liability,
claim, damage and expense whatsoever, as incurred, arising out of,
(A) the failure to have an effective Registration Statement
under the 1933 Act relating to the Debentures or the failure to
satisfy the prospectus delivery requirements of the 1933 Act
because the Company failed to provide the Remarketing Agents with
the Prospectus or Final Term Sheet for delivery, or the failure by
the Company to timely pay any required Commission filing fees
relating to the remarketing of the Debentures or to make any
related required filing with the Commission, or (B) any untrue
statement or alleged untrue statement of a material fact contained
in any of the Remarketing Materials (including any incorporated
documents), or (C) the omission or alleged omission therefrom
of a material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading,
or (D) any violation by the Company of, or any failure by the
Company to perform any of its obligations under, this Agreement, or
(E) the acts or omissions of the Remarketing Agents in
connection with their duties and obligations to determine the Reset
Yield hereunder except that are finally judicially determined to be
due to their gross negligence, willful misconduct or bad
faith;
(ii) against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever
arising out of, or based upon, any of items (A) through
(E) in clause (i) above; provided that such settlement is
effected with the written consent of the Company; and
14
(iii) against any and all expense
whatsoever, as incurred (including the fees and disbursements of
counsel chosen by the Remarketing Agents), reasonably incurred in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever arising out of, or
based upon, any of items (A) through (E) in clause
(i) above to the extent that any such expense is not paid
under (i) or (ii) above;
provided , however , that the foregoing indemnity
shall not apply to any losses, liabilities, claims, damages and
expenses to the extent arising out of any untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Company by the Remarketing Agents
expressly for use in the Remarketing Materials.
(b) The Remarketing Agents,
severally and not jointly, agree to indemnify and hold harmless the
Company, its directors and any of its officers who signed the
Registration Statement, from and against any loss, liability,
claim, damage and expense, as incurred, but only with respect to
untrue statements or omissions made in the Remarketing Materials in
reliance upon and in conformity with information furnished to the
Company in writing by the Remarketing Agents expressly for use in
such Remarketing Materials. The indemnity agreement in this
paragraph shall extend upon the same terms and conditions to each
person, if any, who controls the Company within the meaning of
Section 20 of the 1934 Act.
(c) Each indemnified party shall
give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially
prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account
of this indemnity agreement. In the case of parties indemnified
pursuant to clause (a) above, counsel to the indemnified
parties shall be selected by the Remarketing Agents and, in the
case of parties indemnified pursuant to clause (b) above,
counsel to the indemnified parties shall be selected by the
Company. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it shall wish, jointly, with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party). In any such
proceeding, any indemnified party shall have the right to obtain
its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties)
include both the indemnified party and the indemnifying party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential conflicts of interests
between them. In no event shall the indemnifying parties be liable
for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. An indemnifying party shall
not be liable for any settlement of any proceeding effected without
its
15
prior written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reasons
of such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld or delayed), settle or
compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution
could be sought under this Section 9 or Section 10 hereof
(whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) The indemnity agreements
contained in this Section 9 shall remain operative and in full
force and effect, regardless of any investigation made by or on
behalf of the Remarketing Agents, and shall survive the termination
or cancellation of this Agreement and the remarketing of any
Debentures hereunder.
Section 10. Contribution . If
the indemnification provided for in Section 9 hereof is for
any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the
Company on the one hand and each Remarketing Agent on the other
hand from the remarketing of the Debentures pursuant to this
Agreement or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the
Company on the one hand and of each Remarketing Agent on the other
hand in connection with the acts, failures to act, statements or
omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by
the Company on the one hand and each Remarketing Agent on the other
hand in connection with the remarketing of the Debentures pursuant
to this Agreement shall be deemed to be in the same respective
proportions as (i) the aggregate accreted principal amount of
the Debentures, and (ii) the fee received by such Remarketing
Agent in connection with the remarketing of the Debentures in
connection with the Remarketing Reset Date.
The relative fault of the Company on
the one hand and each Remarketing Agent on the other hand shall be
determined by reference to, among other things, the responsibility
hereunder of the applicable party for any act or failure to act
relating to the losses, liabilities, claims, damages or expenses
incurred or, in the case of any losses, liabilities, claims,
damages or expenses arising out of any untrue or alleged untrue
statement of a material fact contained in any of the Remarketing
Materials or the omission or alleged omission to state a material
fact therefrom, whether any such untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or by
the Remarketing Agents and the parties’ relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
16
The Company and the Remarketing
Agents agree that it would not be just and equitable if
contribution pursuant to this Section 10 were determined by
pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above
in this Section 10. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 10
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or
proceeding by any governmental age
