FORM OF
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, dated as of December __, 1997 (the ""), between New England Telephone and Telegraph Company, a New York
corporation (the "Company"), and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇" and, in its capacity as the remarketing dealer
hereunder, the "Remarketing Dealer").
WHEREAS, the Company has issued $175,000,000 aggregate principal amount of
its 6.30% MandatOry Par Put Remarketed Securities(SM)* ("MOPPRS(SM)") pursuant
to an indenture, dated as of October 1, 1992 (the "Indenture"), from the Company
to State Street Bank and Trust Company, as successor trustee (the "Trustee");
and
WHEREAS, the MOPPRS are being sold initially pursuant to a purchase
agreement, dated December 10, 1997 (the "Purchase Agreement"), between the
Company and ▇▇▇▇▇▇▇ ▇▇▇▇▇; and
WHEREAS, the Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 33-49533) and a registration
statement (No. 33- 50631) under the Securities Act of 1933, as amended (the
"1933 Act"), in connection with the offering of Debt Securities, including the
MOPPRS, each of which registration statements was declared effective by order of
the Commission, and has filed such amendments thereto and such amended
prospectuses as may have been required to the date hereof, and will file such
additional amendments thereto and such additional amended prospectuses as may
hereafter be required (such registration statement (No. 33-49533) and such
registration statement (No. 33-50631), each including any amendments and
supplements thereto, and (in the case of such latter registration statement)
including any preliminary or final prospectus relating to the offering of MOPPRS
by the Company constituting a part thereof, and all documents incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), the 1933 Act,
or otherwise, are referred to herein as the "Initial Registration Statement,"
the "Last Registration Statement" and the "Prospectus," respectively, except
that if any revised prospectus shall be provided to the Remarketing Dealer by
the Company for use in connection with the remarketing of the MOPPRS which
differs from the Prospectus on file at the Commission at the time the Last
Registration Statement became effective (whether or not such revised prospectus
is required to be filed by the Company pursuant to Rule 424(b) of the rules and
regulations under the 1933 Act (the "1933 Act Regulations")), the term
"Prospectus" shall refer to such revised prospectus from and after the time it
is first provided to the Remarketing Dealer for such use, and the Initial
Registration Statement and the
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* (sm) "MandatOry Par Put Remarketed Securities" and "MOPPRS" are service
marks of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
Last Registration Statement are referred to herein each singly as a
"Registration Statement" and collectively as the "Registration Statements"); and
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ is prepared to act as the Remarketing Dealer with
respect to the remarketing of the MOPPRS on December 16, 2002 (the "Remarketing
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
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 MOPPRS).
Section 2. Representations and Warranties. (a) The Company represents and
warrants to the Remarketing Dealer as of the date hereof, the Notification Date
(as defined below), the Determination Date (as defined below), the Remarketing
Date and each date thereafter, if any, of delivery of MOPPRS by the Remarketing
Dealer (each of the foregoing dates 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 rules and regulations
thereunder (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 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, (iii) the applicable Remarketing Materials
(as defined herein) will not, as of the Remarketing Date and each date
thereafter, if any, of delivery of MOPPRS by the Remarketing Dealer, 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, (iv) no
consent, approval, authorization, order or decree of any court or governmental
agency or body, including as to an effective registration statement under the
1933 Act with respect to the MOPPRS, is required for the consummation by the
Company of the transactions contemplated by this Agreement or in connection with
the remarketing of MOPPRS pursuant hereto, except such as have been or shall
have been obtained or rendered, as the case may be, and (v) the representations
and warranties contained in the Purchase Agreement are true and correct with the
same force and effect as though expressly made at and as of the date hereof.
(b) The Company further represents and warrants to the Remarketing
Dealer as of each Representation Date as follows:
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(i) The accountants who certified the financial statements and
supporting schedules included or incorporated by reference in the 1934 Act
Documents are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(ii) The financial statements included or incorporated by reference
in the 1934 Act Documents, together with the related schedules and notes,
present fairly the financial condition and results of operations of the
Company and its consolidated subsidiaries, if any, at the dates and for
the periods indicated; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved. The supporting
schedules included or incorporated by reference in the 1934 Act Documents
present fairly in accordance with GAAP the information required to be
stated therein. The pro forma financial statements and the related notes
thereto included or incorporated by reference in the 1934 Act Documents
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(iii) Since the respective dates as of which information is given in
the 1934 Act Documents, except as otherwise stated therein, there has been
no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries, if any, considered as one enterprise, whether or not
arising in the ordinary course of business (a "Material Adverse Effect").
(iv) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of New York; and the
Company is duly qualified to do business and in good standing as a foreign
corporation in each jurisdiction in which its ownership of property or
conduct of its business requires such qualification, except where the
failure to so qualify would not have a Material Adverse Effect, and has
power and authority necessary to own or hold its properties, to conduct
the business in which it is engaged and to enter into and perform its
obligations under this Agreement.
(v) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X), if any (each a "Subsidiary" and,
collectively, the "Subsidiaries"), has been duly incorporated, is validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, is duly qualified to do business and in good standing as a
foreign corporation in each jurisdiction in which its ownership of
property or conduct of its business requires such qualification, and has
power and authority necessary to own or hold its properties, to conduct
the business in which it is engaged; except as otherwise disclosed in the
1934 Act Documents, all of the issued and
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outstanding capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of
such Subsidiary.
(vi) This Agreement has been duly authorized, executed and
delivered by the Company.
(vii) The Indenture has been validly 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 the legally binding
obligation of the Company.
(viii) The MOPPRS have been validly 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 legally
binding obligations of the Company entitled to the benefits of the
Indenture.
(ix) Neither the Company nor any of its subsidiaries (if any) is in
violation of its corporate charter or by-laws or in default under any
agreement, indenture or instrument, except for such defaults that would
not result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement, the Indenture and the MOPPRS and the
consummation of the transactions contemplated herein and in the Prospectus
(including the issuance and sale of the MOPPRS and the use of the proceeds
from the sale thereof as described in the Prospectus under the caption
"Use of Proceeds") have been duly authorized by all necessary corporate
action and do not and will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any such
subsidiary pursuant to, any material agreement, indenture or instrument to
which the Company or any such subsidiary is a party or by which it is
bound or to which any of its property or assets is subject, nor will such
action result in a material violation of the charter or by-laws of the
Company or any such subsidiary or any order, rule or regulation of any
court or governmental agency having jurisdiction over the Company or any
such subsidiary or its property.
(x) There is no material action, suit or proceeding before 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 1934
Act Documents (other than as disclosed therein), or which might reasonably
be expected to result in a Material Adverse Effect, or which might
reasonably be expected to materially and adversely affect the properties
or assets
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thereof or the consummation of the transactions contemplated in this
Agreement or the performance by the Company of its obligations hereunder.
(xi) No consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the
execution, delivery and performance by the Company of this Agreement and
the Indenture or the consummation of the transactions contemplated hereby
and thereby, except such as have been already obtained.
(xii) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended.
(xiii) The MOPPRS are rated at least "Aa2" by Moody's Investor's
Service Inc., at least "AA" by Standard & Poor's Ratings Group, a division
of ▇▇▇▇▇▇-▇▇▇▇, Inc., and at least "AA" by Duff & ▇▇▇▇▇▇ Credit Rating
Co., or, in each case, such other rating as to which the Company shall
have most recently notified the Remarketing Dealer pursuant to Section
3(a) hereof.
(c) Additional Certifications. Any certificate signed by any director or
officer of the Company and delivered to the Remarketing Dealer or to counsel for
the Remarketing Dealer in connection with the remarketing of the MOPPRS shall be
deemed a representation and warranty by the Company to the Remarketing Dealer as
to the matters covered thereby.
Section 3. Covenants of the Company. The Company covenants with the
Remarketing Dealer 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 Dealer of (i) any notification or announcement by a "nationally
recognized statistical rating agency" (as defined by the Commission for purposes
of Rule 436(g)(2) under the ▇▇▇▇ ▇▇▇) 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 9(c) of this Agreement.
(b) The Company will furnish to the Remarketing Dealer:
(i) each Registration Statement and the Prospectus relating to the
MOPPRS (including in each case any amendment or supplement thereto and
each document incorporated therein by reference);
(ii) each 1934 Act Document filed after the date hereof; and
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(iii) in connection with the remarketing of MOPPRS, such other
information as the Remarketing Dealer may reasonably request from time to
time.
The Company agrees to provide the Remarketing Dealer with as many copies
of the foregoing written materials and other Company-approved information as the
Remarketing Dealer may reasonably request for use in connection with the
remarketing of MOPPRS and consents to the use thereof for such purpose.
(c) If, at any time during which the Remarketing Dealer 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 MOPPRS shall occur which could reasonably be expected to cause any of the
reports, documents, materials or information referred to in paragraph (b) above
or any document incorporated therein by reference (collectively, the
"Remarketing Materials") to contain an untrue statement of a material fact or
omit to state a material fact, the Company shall promptly notify the Remarketing
Dealer in writing of the circumstances and details of such event or condition.
(d) So long as the MOPPRS are outstanding, 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
rules and regulations of the Commission thereunder so as to permit the
completion of the remarketing of the MOPPRS as contemplated in this Agreement
and in each Prospectus. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the MOPPRS, any event shall
occur or condition shall exist as a result of which it is necessary, in the
reasonable opinion of counsel for the Remarketing Dealer or for the Company, to
amend any Registration Statement or amend or supplement any Prospectus in order
that such Prospectus will not include any untrue statements of a material fact
or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend any Registration Statement or file a new
registration statement or amend or supplement any Prospectus or issue a new
prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations and the Commission's interpretations of the 1933 Act and the
1933 Act Regulations, the Company, at its expense, will promptly (i) prepare and
file with the Commission such amendment or supplement as may be necessary to
correct such statement or omission or to make any such Registration Statement or
any such Prospectus comply with such requirements, or prepare and file any such
new registration statement and prospectus as may be necessary for such purpose,
(ii) furnish to the Remarketing Dealer such number of copies of such amendment,
supplement or other document as the Remarketing Dealer may reasonably request
and (iii) furnish to the Remarketing Dealer an officers' certificate, an
opinion, including a statement as to the absence of material misstatements in or
omissions from each Registration Statement and each Prospectus, as amended or
supplemented, of counsel for the
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Company satisfactory to the Remarketing Dealer and a "comfort letter" from the
Company's independent accountants, in each case in form and substance
satisfactory to the Remarketing Dealer, of the same tenor as the officers'
certificate, opinion and comfort letter, respectively, delivered pursuant to the
Purchase Agreement, but modified to relate to the Registration Statements and
each Prospectus as amended or supplemented to the date thereof or such new
registration statement and prospectus.
(f) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall purchase or otherwise acquire, or enter into any agreement to
purchase or otherwise acquire, any of the MOPPRS prior to the remarketing
thereof by the Remarketing Dealer, other than pursuant to Section 4(g) or 4(h)
of this Agreement.
(g) The Company will comply with each of the covenants set forth in the
Purchase Agreement.
Section 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 12
hereof, in accordance with the terms, but subject to the conditions, of this
Agreement, the Company hereby appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ hereby
accepts such appointment, as the exclusive Remarketing Dealer with respect to
$175,000,000 aggregate principal amount of MOPPRS, subject further to repurchase
of the MOPPRS in accordance with clause (g) of this Section 4 or redemption of
the MOPPRS in accordance with clause (h) of this Section 4.
(b) It is expressly understood and agreed by the parties hereto that the
obligations of the Remarketing Dealer hereunder with respect to the MOPPRS to be
remarketed on the Remarketing Date are conditioned on (i) the issuance and
delivery of such MOPPRS pursuant to the terms and conditions of the Purchase
Agreement and (ii) the Remarketing Dealer's election on the Notification Date to
purchase the MOPPRS for remarketing on the Remarketing Date. It is further
expressly understood and agreed by and between the parties hereto that, if the
Remarketing Dealer has elected to remarket the MOPPRS pursuant to clause (c)
below, the Remarketing Dealer shall not be obligated to set the Interest Rate to
Maturity (as defined below) on any MOPPRS, to remarket any MOPPRS or to perform
any of the other duties set forth herein at any time after the Notification Date
that (i) any of the conditions set forth in clause (a) or (b) of Section 9
hereof shall not have been fully and completely met to the satisfaction of the
Remarketing Dealer, or (ii) any of the events set forth in clause (c) of Section
9 hereof shall have occurred.
(c) On a Business Day not later than five Business Days prior to the
Remarketing Date, the Remarketing Dealer will notify the Company and the Trustee
as to whether it elects to purchase the MOPPRS on the Remarketing Date (the
"Notification Date"). If, and only if, the Remarketing Dealer so elects, the
MOPPRS shall be subject to mandatory tender to the Remarketing Dealer for
purchase and remarketing on the Remarketing Date, upon the terms and subject to
the conditions described herein. The purchase price of such tendered MOPPRS
shall be equal to 100% of the principal amount thereof.
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(d) Subject to the Remarketing Dealer's election to remarket the MOPPRS
as provided in clause (c) above, by 3:30 p.m., New York City time, on the third
Business Day immediately preceding the Remarketing Date (the "Determination
Date"), the Remarketing Dealer shall determine the Interest Rate to Maturity to
the nearest one hundred-thousandth (0.00001) of one percent per annum. The
"Interest Rate to Maturity" shall be equal to the sum of 5.905% (the "Base
Rate") and the Applicable Spread (as defined below), which will be based on the
Dollar Price (as defined below) of the MOPPRS.
The "Applicable Spread" shall be the lowest bid indication, expressed as a
spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i)
an issue date that is the Remarketing Date, with settlement on such date without
accrued interest, (ii) a maturity date that is the Stated Maturity Date and
(iii) a stated annual interest rate equal to the Base Rate plus the spread bid
by the applicable Reference Corporate Dealer. If fewer than five Reference
Corporate Dealers bid as described above, then the Applicable Spread shall be
the lowest of such bid indications obtained as described above. The Interest
Rate to Maturity announced by the Remarketing Dealer, absent manifest error,
shall be binding and conclusive upon the actual purchasers of the MOPPRS
("Beneficial Owners") and Holders of the MOPPRS, the Company and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value, as of
the Remarketing Date, of the Remaining Scheduled Payments (as defined below)
discounted to the Remarketing Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate (as defined
below).
"Reference Corporate Dealers" means each of CS First Boston Corporation,
▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated and Salomon Brothers Inc and their respective
successors; provided, however, that if any of the foregoing or their affiliates
shall cease to be a leading dealer of publicly traded debt securities of the
Company in The City of New York (a "Primary Corporate Dealer"), the Remarketing
Dealer shall substitute therefor another Primary Corporate Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date; provided, however, that if the
Remarketing Date is not an Interest Payment Date with respect to the MOPPRS, the
amount of the next succeeding scheduled interest payment thereon, calculated at
the Base Rate only, will be reduced by the amount of interest accrued thereon,
calculated at the Base Rate only, to the Remarketing Date.
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"Treasury Rate" means, with respect to the Remarketing Date, the rate per
annum equal to the semi-annual equivalent yield to maturity or interpolated (on
a day count basis) yield to maturity of the Comparable Treasury Issues (as
defined below), assuming a price for the Comparable Treasury Issues (expressed
as a percentage of its principal amount), equal to the Comparable Treasury Price
(as defined below) for the Remarketing Date.
"Comparable Treasury Issues" means the United States Treasury security or
securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being remarketed.
"Comparable Treasury Price" means, with respect to the Remarketing Date,
(a) the offer prices for the Comparable Treasury Issues (expressed in each case
as a percentage of its principal amount) on the Determination Date, as set forth
on "Telerate Page 500" (or such other page as may replace Telerate Page 500), or
(b) if such page (or any successor page) is not displayed or does not contain
such offer prices on the Determination Date, (i) the average of the Reference
Treasury Dealer Quotations for the Remarketing Date, after excluding the highest
and lowest such Reference Treasury Dealer Quotations, or (ii) if the Remarketing
Dealer obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations. "Telerate Page 500"
means the display designated as "Telerate Page 500" on Dow ▇▇▇▇▇ Markets Limited
(or such other page as may replace Telerate Page 500 on such service) or such
other service displaying the offer prices specified in (a) above as may replace
Dow ▇▇▇▇▇ Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted in writing to the Remarketing Dealer by such Reference
Treasury Dealer by 3:30 p.m., on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated and Salomon Brothers Inc and their respective successors; provided,
however, that if any of the foregoing or their affiliates shall cease to be a
primary U.S. Government securities dealer in The City of New York (a "Primary
Treasury Dealer"), the Remarketing Dealer shall substitute therefor another
Primary Treasury Dealer.
(e) Subject to the Remarketing Dealer's election to remarket the MOPPRS
as provided in clause (c) above, the Remarketing Dealer shall notify the
Company, the Trustee and The Depository Trust Company ("DTC") by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission), by 4:00 p.m., New York City time, on the Determination Date of
the Interest Rate to Maturity applicable to the MOPPRS effective from and
including the Remarketing Date.
(f) In the event that the MOPPRS are remarketed as provided herein, the
Remarketing Dealer shall make, or cause the Trustee to make, payment to the DTC
participant of each
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tendering Beneficial Owner of MOPPRS subject to remarketing, by book entry
through DTC by the close of business on the Remarketing Date against delivery
through DTC of such Beneficial Owner's tendered MOPPRS, of the purchase price
for such tendered MOPPRS that have been purchased for remarketing by the
Remarketing Dealer. The purchase price of such tendered MOPPRS shall be equal to
100% of the principal amount thereof. The Company shall make, or cause the
Trustee to make, payment of interest to each Beneficial Owner of MOPPRS due on
the Remarketing Date by book entry through DTC by the close of business on the
Remarketing Date.
(g) Subject to Section 12(c) of this Agreement, in the event that (i)
the Remarketing Dealer for any reason does not notify the Company of the
Interest Rate to Maturity by 4:00 p.m., New York City time, on the Determination
Date, or (ii) prior to the Remarketing Date, the Remarketing Dealer has resigned
and no successor has been appointed on or before the Determination Date, or
(iii) at any time after the Remarketing Dealer elects on the Notification Date
to remarket the MOPPRS, any event as set forth in Section 9 or Section 12 of
this Agreement shall have occurred, or (iv) the Remarketing Dealer for any
reason does not elect, by notice to the Company and the Trustee not later than
the Notification Date, to purchase the MOPPRS for remarketing on the Remarketing
Date, or (v) the Remarketing Dealer for any reason does not purchase all
tendered MOPPRS on the Remarketing Date, the Company shall repurchase the MOPPRS
as a whole on the Remarketing Date at a price equal to 100% of the principal
amount of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS
to the Remarketing Date. In any such case, payment will be made by the Company
through the Trustee to the DTC participant of each tendering Beneficial Owner of
MOPPRS, by book-entry through DTC by the close of business on the Remarketing
Date against delivery through DTC of such Beneficial Owner's tendered MOPPRS.
(h) If the Remarketing Dealer elects to remarket the MOPPRS as provided
in clause (c) above, then not later than the Business Day immediately preceding
the Determination Date, the Company shall notify the Remarketing Dealer and the
Trustee if the Company irrevocably elects to exercise its right to redeem the
MOPPRS, in whole but not in part, from the Remarketing Dealer on the Remarketing
Date at the Optional Redemption Price. The "Optional Redemption Price" shall be
the greater of (i) 100% of the principal amount of the MOPPRS and (ii) the sum
of the present values of the Remaining Scheduled Payments thereon, as determined
by the Remarketing Dealer, discounted to the Remarketing Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Treasury Rate, plus in either case accrued and unpaid interest from the
Remarketing Date on the principal amount being redeemed to the date of
redemption. If the Company elects to redeem the MOPPRS, it shall pay the
redemption price therefor in same-day funds by wire transfer to an account
designated by the Remarketing Dealer on the Remarketing Date.
(i) In accordance with the terms and provisions of the MOPPRS, the
tender and settlement procedures set forth in this Section 4, including
provisions for payment by purchasers of MOPPRS in the remarketing or for payment
to selling Beneficial Owners of tendered MOPPRS, shall be subject to
modification, notwithstanding any provision to the contrary set forth in the
Indenture, to the extent required by DTC or, if the book-entry system is no
longer
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available for the MOPPRS at the time of the remarketing, to the extent required
to facilitate the tendering and remarketing of MOPPRS in certificated form. In
addition, the Remarketing Dealer may, notwithstanding anything to the contrary
contained in the Indenture, modify the settlement procedures set forth in the
Indenture and/or the MOPPRS in order to facilitate the settlement process.
(j) In accordance with the terms and provisions of the MOPPRS, the
Company hereby agrees that at all times, notwithstanding any provision to the
contrary set forth in the Indenture, (i) it will use its best efforts to
maintain the MOPPRS in book-entry form with DTC or any successor thereto and to
appoint a successor depository to the extent necessary to maintain the MOPPRS in
book-entry form and (ii) it will waive any discretionary right it otherwise may
have under the Indenture to cause the MOPPRS to be issued in certificated form.
Section 5. Fees and Expenses. Subject to Section 12 of this Agreement, for
its services in performing its duties set forth herein, the Remarketing Dealer
will not receive any fees or reimbursement of expenses from the Company.
Section 6. Resignation of the Remarketing Dealer. The Remarketing Dealer
may resign and be discharged from its duties and obligations hereunder at any
time, such resignation to be effective 10 business days after delivery of a
written notice to the Company and the Trustee of such resignation. The
Remarketing Dealer 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 in accordance with Section 12(b) hereof. It
shall be the sole obligation of the Company to appoint a successor Remarketing
Dealer.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the Company. (a)
▇▇▇▇▇▇▇ ▇▇▇▇▇, when acting as the Remarketing Dealer or in its individual or any
other capacity, may, to the extent permitted by law, buy, sell, hold and deal in
any of the MOPPRS. ▇▇▇▇▇▇▇ ▇▇▇▇▇, as Holder or Beneficial Owner of the MOPPRS,
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 MOPPRS may be entitled
to exercise or take pursuant to the Indenture with like effect as if it did not
act in any capacity hereunder. The Remarketing Dealer, in its capacity either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity hereunder.
(b) The Company may purchase MOPPRS in the remarketing, provided that
the Interest Rate to Maturity established with respect to MOPPRS in the
remarketing is not different from the Interest Rate to Maturity that would have
been established if the Company had not purchased such MOPPRS.
Section 8. Information. (a) The Company agrees to furnish to the
Remarketing Dealer: (i) copies of each report or other document mailed or filed
by the Company with the Commission, including each Registration Statement and
any Prospectus relating to the MOPPRS (including in each case any documents
incorporated therein by reference), (ii) notice of the
11
occurrence of any of the events set forth in clause (c) of Section 9 hereof, and
(iii) in connection with the remarketing, such other information as the
Remarketing Dealer may reasonably request from time to time, in such form as the
Remarketing Dealer may reasonably request, including, but not limited to, the
financial condition of the Company or any material subsidiary thereof. The
Company agrees to provide the Remarketing Dealer with as many copies of the
foregoing materials and information as the Remarketing Dealer may reasonably
request for use in connection with the remarketing and consents to the use
thereof for such purpose.
(b) If, at any time during the term of this Agreement, any event or
condition known to the Company relating to or affecting the Company, any
subsidiary thereof or the MOPPRS shall occur which might cause any of the
reports, documents, materials or information referred to in clause (i) of
paragraph (a) above or any document incorporated therein by reference
(collectively, the "Remarketing Materials") to include an untrue statement of a
material fact or omit to state a material fact, the Company shall promptly
notify the Remarketing Dealer in writing of the circumstances and details of
such event or condition.
Section 9. Conditions to Remarketing Dealer's Obligations. The obligations
of the Remarketing Dealer under this Agreement have been undertaken in reliance
on, and shall be subject to, (a) the due performance in all material respects by
the Company of its obligations and agreements as set forth in this Agreement and
the accuracy of the representations and warranties in this Agreement and any
certificate delivered pursuant hereto, (b) the due performance in all material
respects by the Company of its obligations and agreements set forth in, and the
accuracy in all material respects as of the dates specified therein of the
representations and warranties contained in, the Purchase Agreement, and (c) the
further condition that none of the following events shall have occurred after
the Remarketing Dealer elects on the Notification Date to remarket the MOPPRS:
(i) the rating of any securities of the Company shall have been
down-graded or put under surveillance or review with negative
implications, including being put on what is commonly termed a "watch
list," or withdrawn by a nationally recognized statistical rating agency;
(ii) without the prior written consent of the Remarketing Dealer,
the Indenture (including the MOPPRS) shall have been amended in any
manner, or otherwise contain any provision not contained therein as of the
date hereof, that in either case in the judgment of the Remarketing Dealer
materially changes the nature of the MOPPRS or the remarketing procedures
(it being understood that, notwithstanding the provisions of this clause
(ii), the Company shall not be prohibited from amending the Indenture);
(iii) trading in any securities of the Company or ▇▇▇▇ Atlantic
Corporation shall have been suspended or materially limited by the
Commission, or if trading generally on the American Stock Exchange or the
New York Stock Exchange or in the Nasdaq National Market shall have been
suspended or materially limited, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices shall
12
have been required, by any of said exchanges or by such system or by order
of the Commission, the National Association of Securities Dealers, Inc. or
any other governmental authority, or if a banking moratorium shall have
been declared by either Federal or New York authorities;
(iv) there shall have occurred any material adverse change in the
financial markets in the United States, 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 Dealer,
impracticable to remarket the MOPPRS or to enforce contracts for the sale
of the MOPPRS;
(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 MOPPRS 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, if any, considered as one enterprise,
whether or not arising in the ordinary course of business, the effect of
which is such as to make it, in the judgment of the Remarketing Dealer,
impracticable to remarket the MOPPRS or to enforce contracts for the sale
of the MOPPRS, shall have occurred since the Notification Date or since
the respective dates as of which information is given in the 1934 Act
Documents; or
(vii) if a prospectus is required under the 1933 Act to be delivered
in connection with the remarketing of the MOPPRS, the Company shall fail
to furnish to the Remarketing Dealer on the Remarketing Date the officers'
certificate, opinion and comfort letter referred to in Section 3(e) of
this Agreement and such other documents and opinions as counsel for the
Remarketing Dealer may reasonably require for the purpose of enabling such
counsel to pass upon the sale of MOPPRS in the remarketing as herein
contemplated and related proceedings, or in order to evidence the accuracy
and completeness of any of the representations and warranties, or the
fulfillment of any of the conditions, herein contained;
and the Remarketing Dealer shall have received on the Remarketing Date a
certificate of the Chairman of the Board, the President, the Chief Financial
Officer or a Vice President of the Company, and the Treasurer or an Assistant
Treasurer of the Company, dated as of the Remarketing 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 the
Remarketing 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
the Remarketing Date and (iii) none of the events specified in the preceding
clause (c) has occurred.
13
(d) In furtherance of the foregoing, the effectiveness of the
Remarketing Dealer's election on the Notification Date to remarket the MOPPRS
shall be subject to the condition that the Remarketing Dealer shall have
received a certificate of the Chairman of the Board, the President, the Chief
Financial Officer or a Vice President of the Company, and the Treasurer or an
Assistant Treasurer of the Company, dated as of the Notification Date, to the
effect that (i) the Company has, prior to the Remarketing Dealer's election on
the Notification Date to remarket the MOPPRS, provided the Remarketing Dealer
with notice of all events as required under Section 3(a) of this Agreement, (ii)
the representations and warranties in this Agreement are true and correct at and
as of the Notification Date and (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Notification Date. Such certificate shall be delivered by the
Company to the Remarketing Dealer as soon as practicable following notification
by the Remarketing Dealer to the Company on the Notification Date of its
election to remarket the MOPPRS and in any event prior to the Determination
Date.
In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement or
redetermine the Interest Rate to Maturity as provided in Section 12.
Section 10. Indemnification. (a) The Company agrees to indemnify and hold
harmless the Remarketing Dealer and its officers, directors and employees and
each person, if any, who controls the Remarketing Dealer 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
MOPPRS, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to notify the
Remarketing Dealer of such delivery requirement or failed to provide the
Remarketing Dealer with an updated Prospectus for delivery, or (B) any
untrue statement or alleged untrue statement of a material fact contained
in any of the Remarketing Materials (including any incorporated
documents), or (C) the omission or alleged omission 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 Dealer in connection with its duties and obligations
hereunder except to the extent finally judicially determined to be due to
its gross negligence or willful misconduct;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever arising out of, or based upon, any of items (A) through (E) in
clause (i) above; provided that (subject to clause (d) below) such settle-
14
ment is effected with the written consent of the Company, which consent
shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by the Remarketing Dealer),
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 Dealer expressly
for use in the Remarketing Materials.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and each of its officers who signed any 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 Dealer expressly for use
in such Remarketing Materials. The indemnity agreement in this clause (b) 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
clause (b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. 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. No
indemnifying party shall, without the prior written consent of the indemnified
parties, 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 10 or Section 11 hereof (whether or not the indemnified parties are
15
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 or fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by clause (a) (ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) The indemnity agreements contained in this Section 10 shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of the Remarketing Dealer, and shall survive the termination or
cancellation of this Agreement and the remarketing of any MOPPRS hereunder.
Section 11. Contribution. If the indemnification provided for in Section
10 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 the Remarketing Dealer on the other hand from the remarketing of the
MOPPRS 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 the Remarketing Dealer
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 the
Remarketing Dealer on the other hand in connection with the remarketing of the
MOPPRS pursuant to this Agreement shall be deemed to be in the same respective
proportions as (i) the aggregate principal amount of the MOPPRS, and (iii) the
aggregate positive difference, if any, between the price paid by the Remarketing
Dealer for the MOPPRS tendered on the Remarketing Date and the price at which
the MOPPRS are sold by the Remarketing Dealer in the remarketing.
The relative fault of the Company on the one hand and the Remarketing
Dealer 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
16
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 Dealer and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Remarketing Dealer agree that it would not be just and
equitable if contribution pursuant to this Section 11 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 11. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 11 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 agency or body, commenced or
threatened, or any claim whatsoever based upon any such act or failure to act or
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 11, the Remarketing Dealer
shall not be required to contribute any amount in excess of the amount by which
the total price at which the MOPPRS remarketed by it and resold to the public
were sold to the public exceeds the amount of any damages which the Remarketing
Dealer has otherwise been required to pay by reason of any act or failure to act
for which it is responsible hereunder or any untrue or alleged untrue statement
or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 11, each person, if any, who controls the
Remarketing Dealer within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Remarketing
Dealer, and each director of the Company, each officer of the Company who signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as the Company.
Section 12. Termination of or Redetermination of
Interest Rate to Maturity. (a) This Agreement shall terminate as to the
Remarketing Dealer on the effective date of the resignation of the Remarketing
Dealer pursuant to Section 6 hereof or the repurchase of the MOPPRS by the
Company pursuant to Section 4(g) hereof or the redemption of the MOPPRS by the
Company pursuant to Section 4(h) hereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any time on or before the Remarketing Date,
in the event that: (i) any of the conditions referred to
17
or set forth in Section 9(a) or (b) hereof have not been met or satisfied in
full, (ii) any of the events set forth in Section 9(c) shall have occurred after
the Remarketing Dealer elects on the Notification Date to remarket the MOPPRS or
(iii) the Remarketing Dealer determines, in its sole discretion, after
consultation with the Company, that it shall not have received all of the
information, whether or not specifically referenced herein, necessary to fulfill
its obligations under this Agreement.
(c) Notwithstanding any provision herein to the contrary, in lieu of
terminating this Agreement pursuant to Section 12(b) above, upon the occurrence
of any of the events set forth therein, the Remarketing Dealer, in its sole
discretion at any time between the Determination Date and 3:30 p.m., New York
City time, on the Business Day immediately preceding the Remarketing Date, may
elect to purchase the MOPPRS for remarketing and determine a new Interest Rate
to Maturity in the manner provided in Section 4(d) of this Agreement, except
that for purposes of determining the new Interest Rate to Maturity pursuant to
this paragraph the Determination Date referred to therein shall be the date of
such election and redetermination. The Remarketing Dealer shall notify the
Company, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by 4:00 p.m., New York City
time, on the date of such election, of the new Interest Rate to Maturity
applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity shall
supersede and replace any Interest Rate to Maturity previously determined by the
Remarketing Dealer and, absent manifest error, shall be binding and conclusive
upon the Beneficial Owners and Holders of the MOPPRS on and after the
Remarketing Date, the Company and the Trustee; provided, however, that the
Remarketing Dealer, by redetermining the Interest Rate to Maturity upon the
occurrence of any event set forth in Section 12(b) as set forth above, shall not
thereby be deemed to have waived its right to determine a new Interest Rate to
Maturity or terminate this Agreement upon the occurrence of any other event set
forth in Section 12(b).
(d) If this Agreement is terminated pursuant to this Section 12, such
termination shall be without liability of any party to any other party, except
that, in the case of termination pursuant to Section 12(b) of this Agreement,
the Company shall reimburse the Remarketing Dealer for all of its reasonable
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Remarketing Dealer, and except further as set forth in Section
12(e) below. Sections 1, 10, 11, 12(d) and 12(e) shall survive such termination
and remain in full force and effect.
(e) In the case of either (i) termination of this Agreement pursuant to
Section 12(b) or (ii) the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 9(c)(ii) or (v), upon the request of the Remarketing Dealer, the Company
shall immediately following the Call Price Determination Date (as defined below)
pay the Remarketing Dealer, in same-day funds by wire transfer to an account
designated by the Remarketing Dealer, the fair market value, calculated as set
forth below, of the Remarketing Dealer's right to purchase and remarket the
MOPPRS pursuant to this Agreement (the "Call Price").
18
In the case of termination of this Agreement pursuant to Section 12(b),
the Call Price shall be equal to the excess of (i) the present value of the
Remaining Scheduled Payments determined as provided in Section 4 over (ii) the
aggregate principal amount of the MOPPRS.
In the case of the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MOPPRS, of any event set forth in
Section 9(c)(ii) or (v), the Call Price shall be determined in good faith by the
Remarketing Dealer on a commercially reasonable basis by reference to, among
other factors, the formulation set forth in the preceding paragraph.
The Remarketing Dealer shall determine the applicable Call Price on the
Business Day immediately following the date of termination or notification of
the occurrence, prior to the Remarketing Dealer's election on the Notification
Date to remarket the MOPPRS, of any event set forth in Section 9(c)(ii) or (v),
as the case may be, or as soon as practicable thereafter (the "Call Price
Determination Date"). The Remarketing Dealer shall promptly notify the Company
of the Call Price Determination Date and the Call Price by telephone, confirmed
in writing (which may include facsimile or other electronic transmission). The
Call Price, absent manifest error, shall be binding and conclusive upon the
parties hereto.
(f) This Agreement shall not be subject to termination by the Company.
Section 13. Remarketing Dealer's Performance; Duty of Care. The duties and
obligations of the Remarketing Dealer shall be determined solely by the express
provisions of this Agreement and the Indenture. No implied covenants or
obligations of or against the Remarketing Dealer shall be read into this
Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements expressed in any
of such documents. The Remarketing Dealer shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Dealer shall
incur no liability to the Company or to any Beneficial Owner or Holder of MOPPRS
in its individual capacity or as Remarketing Dealer for any action or failure to
act in connection with the remarketing or otherwise, except as a result of gross
negligence or willful misconduct on its part.
Section 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE.
Section 15. Term of Agreement. Unless otherwise terminated in accordance
with the provisions hereof, this Agreement shall remain in full force and effect
from the date hereof until the earlier of the first day thereafter on which no
MOPPRS are outstanding or the completion of the remarketing of the MOPPRS.
Regardless of any termination of this Agreement pursuant to
19
any of the provisions hereof, the obligations of the Company pursuant to
Sections 10, 11 and 12 hereof shall remain operative and in full force and
effect until fully satisfied.
Section 16. Successors and Assigns. The rights and obligations of the
Company hereunder may not be assigned or delegated to any other person without
the prior written consent of the Remarketing Dealer. The rights and obligations
of the Remarketing Dealer hereunder may not be assigned or delegated to any
other person without the prior written consent of the Company. This Agreement
shall inure to the benefit of and be binding upon the Company and the
Remarketing Dealer and their respective successors and assigns, and will not
confer any benefit upon any other person, partnership, association or
corporation other than persons, if any, controlling the Remarketing Dealer
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
or any indemnified party to the extent provided in Section 10 hereof, or any
person entitled to contribution to the extent provided in Section 11 hereof. The
terms "successors" and "assigns" shall not include any purchaser of any MOPPRS
merely because of such purchase.
Section 17. Headings. Section headings have been inserted in this
Agreement as a matter of convenience of reference only, and it is agreed that
such section headings are not a part of this Agreement and will not be used in
the interpretation of any provisions of this Agreement.
Section 18. Severability. If any provision of this Agreement shall be held
or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as
applied in any particular case in any or all jurisdictions because it conflicts
with any provision of any constitution, statute, rule or public policy or for
any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case,
circumstance or jurisdiction, or of rendering any other provision or provisions
of this Agreement invalid, inoperative or unenforceable to any extent
whatsoever.
Section 19. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be regarded as an original and all of which
shall constitute one and the same document.
Section 20. Amendments. This Agreement may be amended by any instrument in
writing signed by each of the parties hereto so long as this Agreement as
amended is not inconsistent with the Indenture in effect as of the date of any
such amendment.
20
Section 21. Notices. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant hereto
shall be made in writing (which may include facsimile or other electronic
transmission) and shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) to the Company:
New England Telephone and Telegraph Company
c/▇ ▇▇▇▇ Atlantic Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) to ▇▇▇▇▇▇▇ ▇▇▇▇▇:
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Dollar Options Desk
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Transaction Management Group
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the Company or the Remarketing Dealer shall specify
in writing.
21
IN WITNESS WHEREOF, each of the Company and the Remarketing Dealer has
caused this to be executed in its name and on its behalf
by one of its duly authorized officers as of the date first above written.
NEW ENGLAND TELEPHONE AND TELEGRAPH
COMPANY
By
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Name:
Title:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By
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Authorized Signatory
