Banc of America
Securities LLC
9 West 57/th/ Street
New York, New York 10019
Credit Suisse
First Boston Corporation
Eleven Madison Avenue
New York, NY 10010
UBS Warburg
LLC
299 Park Avenue
New York, NY 10171
Bank One Trust
Company, N.A.
1 Bank One Plaza
Suite IL1-0823
Chicago, IL 60670-0823
This Agreement is
dated as of December 17, 2002 (the “Agreement”)
among Baxter 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).
(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 Agreement.
“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.
2
“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.
3
(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
4
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 Remarketing Agreement and (vi) “the date
hereof”, “the date of this Agreement” and all
similar references shall be deemed to refer to the date of this
Remarketing Agreement.
(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
5
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.
(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:
6
(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
7
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.
8
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
9
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) Davis
Polk & Wardwell, 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
10
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
|
