Exhibit 4(c)
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of October 21, 1998 (the
"REMARKETING AGREEMENT"), among Texas Utilities Company, a Texas
corporation (the "COMPANY"), and Salomon Smith Barney Inc.
("SALOMON SMITH BARNEY" and, in its capacity as the remarketing
dealer hereunder, the "REMARKETING DEALER").
WHEREAS, the Company will issue $375,000,000 aggregate
principal amount of its 5.94% MAndatory Putable/remarketable
Securities (the "MAPS SM"), pursuant to an Indenture (For
Unsecured Debt Securities Series F), dated as of October 1, 1998
(together with any amendments or supplements thereto, the
"INDENTURE"), between the Company and The Bank of New York, as
trustee (the "TRUSTEE"); and
WHEREAS, the MAPS are being sold initially pursuant to an
underwriting agreement, dated October 14, 1998 (the "UNDERWRITING
AGREEMENT"), between the Company and the underwriters specified
therein; and
WHEREAS, the Company has filed with the Securities and
Exchange Commission (the "COMMISSION") a registration statement
on Form S-3 (No. 333-56055) under the Securities Act of 1933, as
amended (together with the rules and regulations of the
Commission thereunder (the "SECURITIES ACT")), in connection with
the offering of securities, including the MAPS, which
registration statement, as amended, was declared effective by
order of the Commission on June 29, 1998, has filed Post-
Effective Amendment No. 1 to such registration statement, which
Post-Effective Amendment No. 1 became effective on July 13, 1998,
has filed Post-Effective Amendment No. 2 to such registration
statement, which Post-Effective Amendment No. 2 became effective
on July 21, 1998, 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 and any amendments thereto including
any prospectus relating to the offering of MAPS 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 (together with the rules and regulations of the
Commission thereunder (the "EXCHANGE ACT")), the Securities Act,
or otherwise, are referred to herein as the "REGISTRATION
STATEMENT" and the "PROSPECTUS," respectively, except that if
(i) any new registration statement shall be filed by the Company
with respect to the remarketing of the MAPS, the term
"Registration Statement" shall refer to such registration
statement from and after the date it is declared effective by the
Commission and (ii) any prospectus shall be provided to the
Remarketing Dealer by the Company for use in connection with the
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"MAPS SM" is a service mark owned by Salomon Smith Barney Inc.
remarketing of the MAPS which differs from the Prospectus filed
with the Commission in connection with the initial sale of the
MAPS (whether or not such revised prospectus is required to be
filed by the Company pursuant to Rule 424 of the Securities Act)
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
WHEREAS, Salomon Smith Barney will pay a premium to the
Company for, and the Company will grant to Salomon Smith Barney,
the right to purchase from the holders and remarket the MAPS on
October 15, 2001 and, if the Company elects October 15, 2001 to
be the Interim Period Remarketing Date (as defined herein), on
the Final Period Remarketing Date (as defined herein) (each, a
"REMARKETING DATE"); and
WHEREAS, Salomon Smith Barney is prepared to act as the
Remarketing Dealer with respect to the remarketing of the MAPS on
any Remarketing Date in accordance with the terms and 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 MAPS) or the
Underwriting Agreement, as applicable.
SECTION 2. Representations and Warranties. (a) The Company
represents and warrants to the Remarketing Dealer as of the date
hereof that the representations and warranties contained in the
Underwriting 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 the Notification Date (as defined
herein), the Determination Date (as defined herein), the second
Business Day prior to October 15, 2001 (if October 15, 2001 is
the Interim Period Remarketing Date), October 15, 2001 and the
Final Period Remarketing Date:
(i) the applicable Remarketing Materials (as defined
herein) will, as of any Remarketing Date, comply as to form
in all material respects with the Securities Act, the
Exchange Act and the Trust Indenture Act and will not, as of
any Remarketing Date, include an untrue statement of
material fact or omit to state a material fact required to
be stated therein or necessary in order to make the
statements therein, in light of the circumstances under
which they were made, not misleading;
(ii) the consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will
not result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed
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of trust, charter, by-laws or other agreement or instrument
to which the Company is now a party; and
(iii) each direct and indirect material subsidiary of
the Company has been incorporated and is validly existing as
a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own, lease and operate its properties and
to conduct its business as presently conducted and as set
forth in or contemplated by the Prospectus, and is qualified
as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the
failure to so qualify or be in good standing would not have
a material adverse effect on the business, property or
financial condition of the Company and its subsidiaries,
considered as a whole; except as otherwise set forth in or
contemplated by the Remarketing Materials, all of the issued
and outstanding shares of capital stock of direct and
indirect material subsidiaries of the Company have been
authorized and validly issued, are fully paid and non-
assessable and (except for any directors' qualifying shares)
are owned by the Company, directly or through its
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; and
none of the outstanding shares of capital stock of such
material subsidiaries was issued in violation of preemptive
or other similar rights arising by operation of law, under
the charter or by-laws of any subsidiary or under any
agreement to which the Company or any subsidiary is a party.
(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 MAPS shall be deemed a
representation and warranty as of the date thereof 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 (i) if,
during the Remarketing Period (as defined herein), the Company's
senior unsecured debt shall be rated below "Baa3" in the case of
Moody's Investors Service and "BBB-" by Standard & Poor's Ratings
Group or the equivalent thereof by each such rating agency at
that time, (ii) of the occurrence at any time of any event set
forth in Sections 8(c)(i), (iii) and (vi) of this Agreement or
(iii) of the occurrence during the Remarketing Period of any
event relating specifically to the Company set forth in Sections
8(c)(ii), (iv) and (vii) of this Agreement.
(b) The Company will furnish to the Remarketing Dealer:
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(i) the Registration Statement and the Prospectus
(including in each case any amendment or supplement thereto
and each document incorporated therein by reference); and
(ii) each document filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
("EXCHANGE ACT DOCUMENT") after the date hereof.
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 MAPS and
consents to the use thereof for such purpose.
(c) If, at any time during the period commencing 15 days
prior to the first day which could be the Notification Date (as
defined herein) to the later of (i) October 15, 2001, (ii) if
October 15, 2001 is the Interim Period Remarketing Date, the
Final Period Remarketing Date or (iii) such later date, if any,
as Remarketing Materials (as defined herein) may be required to
be delivered in connection with the remarketing of MAPS by the
Remarketing Dealer (the "REMARKETING PERIOD"), any event or
condition known to the Company relating to or affecting the
Company, any subsidiary thereof or the MAPS shall occur which
could reasonably be expected to cause any Registration Statement
with respect to, or any Prospectus to be delivered in connection
with, any remarketing of the MAPS or any of the reports,
documents, materials or information referred to in paragraph
3(b)(ii) above or any document incorporated therein by reference
(collectively, the "REMARKETING MATERIALS") to contain an untrue
statement of a material fact or omit to state a material fact,
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 MAPS are outstanding, the Company will
file all documents required to be filed with the Commission
pursuant to the Exchange Act within the time periods required by
the Exchange Act.
(e) In connection with any remarketing of the MAPS, if and
to the extent required (in the opinion of counsel for either the
Remarketing Dealer or the Company) by applicable law, regulations
or interpretations in effect at the time of such remarketing, the
Company (i) shall use its reasonable efforts to have a
Registration Statement relating to the MAPS declared effective
under the Securities Act no later than the applicable Remarketing
Date and (ii) shall furnish a current Prospectus and/or
Prospectus supplement to be used in such remarketing by the
Remarketing Dealer; if a new Registration Statement or a new,
amended or supplemented Prospectus is required, the Company also
shall furnish to the Remarketing Dealer an officer's certificate,
opinions of Company counsel and letters of the Company's
independent accountants, in each case, in form and substance
reasonably satisfactory to counsel for the Remarketing Dealer, of
the same tenor as the officer's certificate, opinions of counsel
and letters of independent accountants delivered pursuant to the
Underwriting Agreement, but modified to relate to such new
Registration Statement or new, amended or supplemented
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Prospectus. If during such period of time (not exceeding nine
months) after any Remarketing Date as in the opinion of counsel
for the Remarketing Dealer a prospectus is required by the
Securities Act to be delivered in connection with sales of the
MAPS, any event known to the Company relating to or affecting the
Company or of which the Company shall be advised in writing by
the Remarketing Dealer shall occur that in the Company's
reasonable opinion after consultation with counsel for the
Remarketing Dealer should be set forth in a supplement to, or an
amendment of, the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances when it is delivered
to a purchaser, the Company will, at its expense, amend or
supplement the Prospectus by either (i) preparing and furnishing
to you at the Company's expense a reasonable number of copies of
a supplement or supplements or an amendment or amendments to the
Prospectus or (ii) making an appropriate filing pursuant to the
Exchange Act, which will supplement or amend the Prospectus so
that, as supplemented or amended, it will not contain 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 when the Prospectus is delivered to a
purchaser, not misleading; provided that should such event relate
solely to the activities of the Remarketing Dealer, then the
Remarketing Dealer shall assume the expense of preparing and fur-
nishing any such amendment or supplement. In case the
Remarketing Dealer is required to deliver a prospectus after the
expiration of nine months from the applicable Remarketing Date,
the Company, upon the Remarketing Dealer's request, will furnish
to the Remarketing Dealer, at its expense, a reasonable quantity
of a supplemental prospectus or supplements to the Prospectus
complying with Section 10(a) of the Securities Act.
(f) The Company agrees that neither it nor any of its
subsidiaries or affiliates shall defease, purchase or otherwise
acquire, or enter into any agreement to defease, purchase or
otherwise acquire, any of the MAPS prior to the remarketing
thereof by the Remarketing Dealer on October 15, 2001 (if such
date is not the Interim Period Remarketing Date) or the Final
Period Remarketing Date (if October 15, 2001 is the Interim
Period Remarketing Date), or other than pursuant to Section 4(h)
or 4(i) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth
in the Indenture, the Company shall, prior to the end of the
Remarketing Period, (i) use its best efforts to maintain the MAPS
in book-entry form with The Depository Trust Company ("DTC") or
any successor thereto and to appoint a successor depositary to
the extent necessary to maintain the MAPS in book-entry form, and
(ii) waive any discretionary right it otherwise has under the
Indenture to cause the MAPS to be issued in certificated form.
(h) In connection with any remarketing, the Company will
furnish such proper information as may be lawfully required and
otherwise cooperate in qualifying the MAPS for offer and sale
under the blue-sky laws of such jurisdictions as the Remarketing
Dealer may designate, provided that the Company shall not be
required to qualify as a foreign corporation or dealer in se-
curities, to file any consents to service of process under the
laws of any jurisdiction, or to meet any other requirements
deemed by the Company to be unduly burdensome.
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(i) The Company will, except as herein provided, pay all
fees, expenses and taxes (except transfer taxes) in connection
with (i) the preparation and any filing by it of any new
Registration Statement or Prospectus required pursuant to Section
3(e) hereof, (ii) the qualification of the MAPS under blue-sky
laws (including counsel fees not to exceed $7,500) and (iii) the
printing and delivery to the Remarketing Dealer of reasonable
quantities of such new Registration Statement and Prospectus and,
except as provided in Section 3(e) hereof, of any amendments or
supplements thereto. The Company shall not, however, be required
to pay any amount for any expenses of the Remarketing Dealer,
except as set forth in Section 10(d) hereof.
(j) The Company will comply with any reasonable request of
the Remarketing Dealer pursuant to Section 4(i) hereof to modify
the tender and settlement procedures set forth in the Indenture.
(k) During the Remarketing Period, the Company will furnish
to the Remarketing Dealer such 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, information with respect to the financial condition
of the Company or any material subsidiary thereof.
SECTION 4. Appointment and Obligations of the Remarketing
Dealer. (a) Unless this Agreement is otherwise terminated in
accordance with Section 10 hereof, in accordance with the terms,
but subject to the conditions, of this Agreement, the Company
hereby appoints Salomon Smith Barney, and Salomon Smith Barney
hereby accepts such appointment, as the exclusive Remarketing
Dealer with respect to $375,000,000 aggregate principal amount of
MAPS, subject further to repurchase of the MAPS in accordance
with clause (h) of this section or redemption of the MAPS in
accordance with clause (i) of this section. In consideration of
the right to require mandatory tender of the MAPS in accordance
with the terms of the Indenture, Salomon Smith Barney will pay
the Company the premium set forth in Schedule I to the
Underwriting Agreement in accordance with Section 4 of the
Underwriting Agreement.
(b) It is expressly understood and agreed by the parties
hereto that the obligations of the Remarketing Dealer hereunder
with respect to the MAPS to be remarketed on any Remarketing Date
are conditioned on (i) the issuance and delivery of such MAPS
pursuant to the terms and conditions of the Underwriting
Agreement and (ii) the Remarketing Dealer's election on the
Notification Date to purchase the MAPS 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 MAPS pursuant to clause (c) below and
except as otherwise set forth in Section 10 of this Agreement,
the Remarketing Dealer shall not be obligated to set a new
interest rate on the MAPS (the "INTEREST RATE TO MATURITY") for
the period from and including October 15, 2001 (if such date is
not the Interim Period Remarketing Date) or the Final Period
Remarketing Date (if October 15, 2001 is the Interim Period
Remarketing Date) or a new interest rate on the MAPS (the
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"INTERIM PERIOD INTEREST RATE") for the period from and including
October 15, 2001 (if such date is the Interim Period Remarketing
Date) to but excluding the Final Period Remarketing Date (the
"INTERIM PERIOD"), to remarket any MAPS or to perform any of the
other duties set forth herein at any time after the Notification
Date if this Agreement shall have been terminated pursuant to
Section 10(b) hereof.
(c) On a Business Day which is not earlier than 15 nor
later than five Business Days prior to October 15, 2001 (the
"NOTIFICATION DATE"), the Remarketing Dealer will notify the
Company and the Trustee as to whether it elects to purchase the
MAPS on October 15, 2001. If, and only if, the Remarketing
Dealer so elects, the MAPS shall be subject to mandatory tender
to the Remarketing Dealer for remarketing on the October 15,
2001 and, if the Company elects pursuant to clause (d) below that
October 15, 2001 be the Interim Period Remarketing Date, on the
Final Period Remarketing Date subject to the conditions described
herein.
(d) If the Remarketing Dealer gives notice of its intention
to purchase the MAPS on October 15, 2001, then not later than
4:00 p.m., New York City time, on the fourth Business Day prior
to October 15, 2001, the Company may notify the Remarketing
Dealer, the Trustee and DTC by telephone, confirmed in writing
that it elects October 15, 2001 to be the Interim Period
Remarketing Date. The Company will be eligible to make such
notification if at such time its senior unsecured debt is rated
at least "Baa3" by Moody's Investors Service and "BBB-" by
Standard & Poor's Ratings Group or the equivalent thereof by such
rating agency at the time of such notification or if the
Remarketing Dealer waives this requirement in its sole
discretion. If the Company does not provide such notification,
October 15, 2001 will be the only Remarketing Date and the
Maturity Date will be October 15, 2011. If the Company provides
such notification, then (i) the Final Period Remarketing Date
will be one of the 26 following one-week anniversary dates of
October 15, 2001 (or if any such day is not a Business Day, the
next following Business Day) designated by the Company not later
than the fifth Business Day prior to such one-week anniversary
date (the "FINAL PERIOD REMARKETING DATE") except that, if the
Company fails to so designate the Final Period Remarketing Date,
the Final Period Remarketing Date will be the date that is 26
weeks after October 15, 2001 (or if such day is not a Business
Day, the next following Business Day) and (ii) the Maturity Date
of the MAPS will be the date that is the tenth anniversary of the
Final Period Remarketing Date (whether or not a Business Day).
(e) Subject to the Remarketing Dealer's election to
remarket the MAPS as provided in clause (c) above, (i) from and
including October 15, 2001 (if such date is not the Interim
Period Remarketing Date) or the Final Period Remarketing Date (if
October 15, 2001 is the Interim Period Remarketing Date), to but
excluding the Maturity Date, the MAPS will bear interest at the
Interest Rate to Maturity and (ii) during the Interim Period, if
any, the MAPS will bear interest at the Interim Period Interest
Rate.
The Interest Rate to Maturity will be determined by the
Remarketing Dealer by 3:30 p.m., New York City time, on the third
Business Day immediately preceding October 15, 2001 (if such date
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is not the Interim Period Remarketing Date) or the Final Period
Remarketing Date (if October 15, 2001 is the Interim Period
Remarketing Date) (the "DETERMINATION DATE"), to the nearest one
hundred-thousandth (0.00001) of one percent per annum, and will
be equal to the sum of 4.59% per annum (the "BASE RATE") plus the
Applicable Spread (as defined herein).
The "APPLICABLE SPREAD" shall be the lowest firm commitment
bid, expressed as a spread (in the form of a percentage or number
of 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 herein) for the full
aggregate principal amount of the MAPS at the Dollar Price (as
defined herein), but assuming (i) that the purchase date is
October 15, 2001 (if such date is not the Interim Period
Remarketing Date) or the Final Period Remarketing Date (if
October 15, 2001 is the Interim Period Remarketing Date) with
settlement on such date without accrued interest, (ii) that the
maturity date is the Maturity Date of the MAPS, and (iii) a
stated annual interest rate, payable semi-annually, 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 firm commitment bids obtained as described above;
provided, however, that the Remarketing Dealer shall obtain bids
from at least three Primary Corporate Dealers. The Interest Rate
to Maturity announced by the Remarketing Dealer, absent manifest
error, shall be binding and conclusive upon the beneficial owners
and Holders of the MAPS, the Company and the Trustee.
"DOLLAR PRICE" means, with respect to the MAPS, the present
value, as of October 15, 2001, of the Remaining Scheduled
Payments (as defined herein) discounted to October 15, 2001 on a
semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Treasury Rate (as defined herein), except
that (i) in the case of the Final Period Remarketing Date, the
Dollar Price will be the Adjusted Dollar Price (as defined
herein) and (ii) in the case of October 15, 2001 or the Final
Period Remarketing Date, the Dollar Price may be any other amount
agreed to in writing by the Remarketing Dealer and the Company.
"ADJUSTED DOLLAR PRICE" means, with respect to the Final
Period Remarketing Date, the Dollar Price as of October 15, 2001
(determined by the Remarketing Dealer on the third Business Day
prior to October 15, 2001) plus the product of (i) such Dollar
Price less the aggregate principal amount of MAPS outstanding as
of October 15, 2001, (ii) the weighted average per annum Interim
Period Interest Rate for the Interim Period, and (iii) the number
of days in the Interim Period divided by 360.
"REFERENCE CORPORATE DEALERS" means each of Salomon Smith
Barney Inc., CIBC Oppenheimer Corp., Lehman Brothers Inc., Morgan
Stanley & Co. Incorporated and a fifth Reference Corporate Dealer
to be selected by the Company 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 ("PRIMARY
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CORPORATE DEALER"), the Remarketing Dealer shall substitute
therefor another Primary Corporate Dealer.
"REMAINING SCHEDULED PAYMENTS" means, with respect to the
MAPS, the remaining scheduled payments of the principal thereof
and interest thereon calculated at the Base Rate only, that would
be due after October 15, 2001 to and including October 15, 2011,
assuming that the Company did not elect October 15, 2001 to be
the Interim Period Remarketing Date; provided, however, that if
October 15, 2001 is not an Interest Payment Date with respect to
the MAPS, 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 October 15, 2001.
"TREASURY RATE" means 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 herein), assuming a price for the Comparable Treasury
Issues (expressed as a percentage of its principal amount), equal
to the Comparable Treasury Price (as defined herein).
"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 MAPS being purchased.
"COMPARABLE TREASURY PRICE" means (a) the offer prices for
the Comparable Treasury Issues (expressed in each case as a
percentage of its principal amount) on the third business day
prior to October 15, 2001, as set forth on Telerate Page 500 (as
defined herein) or (b) if such page (or any successor page) is
not displayed or does not contain such offer prices on such date,
(i) the average of the Reference Treasury Dealer Quotations,
after excluding the highest and lowest of 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 Jones 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 Jones Markets Limited.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect
to each Reference Treasury Dealer, 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 Salomon Smith
Barney Inc., CIBC Oppenheimer Corp., Lehman Brothers Inc., Morgan
Stanley & Co. Incorporated and a fifth Reference Treasury Dealer
to be selected by the Company and their respective successors;
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provided, however, that if any of the foregoing or their
affiliates shall cease to be a primary United States Government
securities dealer in The City of New York ("PRIMARY TREASURY
DEALER"), the Remarketing Dealer shall substitute therefor
another Primary Treasury Dealer.
The Interim Period Interest Rate for the Interim Period, if
any, will be reset on each Interest Reset Date (as defined
herein) during the Interim Period and will be equal to the
Reference Rate (as defined herein) in respect of the applicable
Interest Reset Date plus the Basic Spread (as defined herein), in
each case as calculated by the Remarketing Dealer. The Wednesday
of each week during the Interim Period will be an "INTEREST RESET
DATE." The "INTEREST DETERMINATION DATE" applicable to an
Interest Reset Date will be the second Business Day preceding
such Interest Reset Date. The interest rate in effect from and
including October 15, 2001 (which is the first day of any Interim
Period) to but excluding the first Interest Reset Date during
such Interim Period will be determined as if October 15, 2001
were an Interest Reset Date and the Interest Determination Date
for such Interest Reset Date were the second Business Day prior
to October 15, 2001.
The "REFERENCE RATE" means one of the following reference
rates selected by the Company and notified to the Remarketing
Dealer no later than four Business Days prior to October 15,
2001: (i) the per annum rate for deposits in U.S. dollars for a
period of one week shown on Telerate page 3750 (or any successor
page) at 11:00 a.m., London time, on the applicable Interest
Determination Date, (ii) the per annum rate equal to the average
of the federal funds rates shown on Telerate page 5 (or any
successor page) as of 11:00 a.m., New York City time, on the
applicable Interest Determination Date and each of the four
Business Days prior to such Interest Determination Date, or (iii)
the one-week "AA" non-financial commercial paper rate shown on
the Internet world wide web page of the Board of Governors of the
Federal Reserve System at www.bog.frb.fed.us/releases/CP/ (or any
successor page) as of 11:00 a.m., New York City time, on the
applicable Interest Determination Date.
The "BASIC SPREAD" will be the lowest firm commitment bid
expressed as a spread (in the form of a percentage or a number of
basis points) above the Reference Rate, obtained by the
Remarketing Dealer on the third Business Day prior to October 15,
2001 from the bids quoted from five Reference Money Market
Dealers (as defined herein) on such date for the full aggregate
principal amount of the MAPS at a dollar price equal to par, but
assuming (i) that the purchase date is October 15, 2001, with
settlement on such date without accrued interest, (ii) that the
maturity date is the day that is 26 weeks from October 15, 2001,
(iii) that the MAPS are callable by the Remarketing Dealer on a
weekly basis after October 15, 2001, (iv) that the MAPS will be
repurchased by the Company at par on the day that is 26 weeks
from October 15, 2001 if not previously called by the Remarketing
Dealer, and (v) a stated annual interest rate, payable on the
Final Period Remarketing Date, equal to the Reference Rate plus
the spread bid by the applicable Reference Money Market Dealer.
"REFERENCE MONEY MARKET DEALERS" means each of Salomon Smith
Barney Inc., CIBC Oppenheimer Corp., Lehman Brothers Inc., Morgan
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Stanley & Co. Incorporated and a fifth Reference Money Market
Dealer to be selected by the Company 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
which is also a leading dealer in money market instruments
("PRIMARY MONEY MARKET DEALER"), the Remarketing Dealer shall
substitute therefor another Primary Money Market Dealer.
The Interim Period Interest Rates and the amount of interest
payable on the Final Period Remarketing Date shall each be
determined by the Remarketing Dealer and, absent manifest error,
shall be binding and conclusive upon the beneficial owners and
Holders of the MAPS, the Company and the Trustee.
(f) Subject to the Remarketing Dealer's election to
remarket the MAPS as provided in clause (c) above, the
Remarketing Dealer will notify the Company, the Trustee and DTC
by telephone, confirmed in writing, by 4:00 p.m., New York City
time, on the Determination Date, of the Interest Rate to Maturity
and, if October 15, 2001 is the Interim Period Remarketing Date,
the Remarketing Dealer will notify the Company, the Trustee and
DTC by telephone, confirmed in writing, by 4:00 p.m., New York
City time, on the second Business Day prior to October 15, 2001,
of the Interim Period Interest Rate which will initially be in
effect.
(g) In the event that the MAPS are remarketed as provided
herein, the Remarketing Dealer shall make, or cause the Trustee
to make, payment of the purchase price for such MAPS through DTC
by the close of business on each Remarketing Date against
delivery through DTC of MAPS. The purchase price for the MAPS
will be equal to 100% of the principal amount thereof. The
Company shall make, or cause the Trustee to make, payment of
interest due on any Remarketing Date by book entry through DTC by
the close of business on such Remarketing Date.
(h) Subject to Section 10(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 or the
Interim Period Interest Rate by, (A) in the case of the Interest
Rate to Maturity, 4:00 p.m., New York City time, on the
Determination Date, or (B) in the case of the Interim Period
Interest Rate, 4:00 p.m. New York City time, on the second
business day prior to October 15, 2001, or (ii) prior to the
fifth Business Day immediately preceding October 15, 2001, the
Remarketing Dealer has resigned and no successor has been
appointed on or before the third Business Day prior to October
15, 2001, or (iii) at any time after the Remarketing Dealer
elects on the Notification Date to remarket MAPS this Agreement
is terminated by the Remarketing Dealer pursuant to Section 10
hereof, or (iv) the Remarketing Dealer for any reason does not
elect, by notice to the Company and the Trustee not later than
the fifth Business Day immediately preceding October 15, 2001,
to purchase the MAPS for remarketing on October 15, 2001, or
(v) the Remarketing Dealer for any reason does not purchase all
MAPS tendered (or deemed to have been tendered) to it on any
Remarketing Date, the Company shall repurchase the MAPS as a
whole on any Remarketing Date at a price equal to 100% of the
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principal amount of the MAPS plus all accrued and unpaid
interest, if any, on the MAPS to such Remarketing Date. In any
such case, payment will be made by the Company by book-entry
through DTC by the close of business on such Remarketing Date
against delivery through DTC of the MAPS.
(i) If the Remarketing Dealer elects to remarket the MAPS
as provided in clause (c) above, then not later than the fourth
Business Day immediately preceding the applicable Remarketing
Date, the Company shall notify the Remarketing Dealer and the
Trustee if the Company irrevocably elects to exercise its right
to redeem the MAPS, in whole but not in part, from the
Remarketing Dealer on such Remarketing Date at the Optional
Redemption Price. The "OPTIONAL REDEMPTION PRICE" shall be the
greater of (i) 100% of the principal amount of the MAPS and
(ii) the Dollar Price as of the applicable Remarketing Date, plus
in either case accrued and unpaid interest from the applicable
Remarketing Date on the principal amount being redeemed to the
date of redemption. If the Company elects to redeem the MAPS, it
shall pay the Optional Redemption Price to the Remarketing Dealer
by book-entry transfer through DTC by the close of business on
such Remarketing Date against delivery through DTC of the MAPS.
The Remarketing Dealer will determine the Optional Redemption
Price and notify the Company, the Trustee and DTC by telephone,
confirmed in writing, by 4:00 p.m., New York City time, on the
third Business Day prior to the applicable Remarketing Date of
the Optional Redemption Price. Absent manifest error, the
Optional Redemption Price determined by the Remarketing Dealer
shall be binding upon the beneficial owners and Holders of the
MAPS, the Company and the Trustee.
(j) The Remarketing Dealer may request that the Company, in
accordance with the terms of the Indenture, modify the put and
settlement procedures described above, including provisions for
payment by purchasers of MAPS in the remarketing or for payment
to sellers of tendered MAPS, (i) to the extent required by DTC or
a successor securities depositary, (ii) if agreed to by the
Remarketing Dealer in accordance with Section 8(c)(vi) of this
Agreement, to the extent required to facilitate the remarketing
of MAPS in certificated form, if the book-entry system is no
longer available for the MAPS at the time of the remarketing, or
(iii) to the extent required in the reasonable opinion of the
Remarketing Dealer, to facilitate the settlement process .
SECTION 5. Fees and Expenses. Subject to Section 10 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. At its
option, the Remarketing Dealer may resign and be discharged from
its duties and obligations hereunder at any time prior to the
twentieth Business Day prior to October 15, 2001, 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,
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such resignation to be effective immediately, upon termination of
this Agreement in accordance with Section 10(b) hereof. It shall
be the sole obligation of the Company to appoint a successor
Remarketing Dealer.
SECTION 7. Dealing in the MAPS; Purchase of MAPS by the
Company. (a) Salomon Smith Barney, 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 MAPS. Salomon Smith Barney, as Holder or beneficial
owner of the MAPS, 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 MAPS 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 MAPS in the remarketing on
October 15, 2001 (if such date is not the Interim Period
Remarketing Date) or the Final Period Remarketing Date (if
October 15, 2001 is the Interim Period Remarketing Date),
provided that the Interest Rate to Maturity established with
respect to MAPS in such remarketing is not different from the
Interest Rate to Maturity that would have been established if the
Company had not purchased such MAPS.
SECTION 8. 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 Underwriting
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 MAPS:
(i) without the prior written consent of the
Remarketing Dealer, the Indenture (including the MAPS) 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 MAPS or the remarketing
procedures (it being understood that, notwithstanding the
provisions of this clause (i), the Company shall not be
prohibited from amending the Indenture);
(ii) (A) there shall have occurred any suspension or
material limitation of trading in any of the Company's
securities on the New York Stock Exchange, Inc. ("NYSE") or
any general suspension of trading in securities on the NYSE,
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the American Stock Exchange, Inc. ("AMEX") or the NASDAQ
Stock Market, Inc. ("NASDAQ") or there shall have been
established by the NYSE, AMEX or NASDAQ or by the Commission
or by any federal or state agency or by the decision of any
court, any general limitation on prices for such trading or
any general restrictions on the distribution of securities,
or a general banking moratorium declared by New York or
federal authorities, or (B) there shall have occurred any
(1) new material outbreak of hostilities or (2) new material
other national or international calamity or crisis,
including, but not limited to, an escalation of hostilities
that existed prior to the Notification Date or (3) material
adverse change in the financial markets in the United
States, and the effect of any such event specified in
clause (A) or (B) above on the financial markets of the
United States shall be such as to make it impracticable, in
the reasonable judgment of the Remarketing Dealer, for the
Remarketing Dealer to remarket the MAPS or to enforce
contracts for the sale of the MAPS;
(iii) an Event of Default (as defined in the
Indenture), 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 MAPS shall have occurred and be
continuing;
(iv) there shall have occurred since the Notification
Date or since the respective dates as of which information
is given in the Exchange Act Documents a material adverse
change in the business, property or financial condition of
the Company and its subsidiaries, considered as a whole,
whether or not in the ordinary course of business, that, in
the reasonable judgment of the Remarketing Dealer,
materially impairs the marketability of the MAPS;
(v) if a prospectus is required under the Securities
Act to be delivered in connection with any remarketing of
the MAPS, the Company shall fail to furnish to the
Remarketing Dealer on the applicable Remarketing Date the
officer's certificate, opinions and comfort letters 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 MAPS 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; or
(vi) prior to October 15, 2001 (if such date is not the
Interim Period Remarketing Date) or the Final Period
Remarketing Date (if October 15, 2001 is the Interim Period
Remarketing Date), the MAPS are not maintained in book-entry
form with DTC or any successor thereto; provided, that the
Remarketing Dealer, in its sole discretion and subject to
receipt of an opinion of counsel for the Company reasonably
satisfactory to the Remarketing Dealer, may waive the
foregoing condition if in the Remarketing Dealer's judgment
the Indenture and the MAPS can be amended, and they are
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amended, so as to permit the remarketing of the MAPS in
certificated form and otherwise as contemplated herein;
(vii) if, subsequent to the Notification Date, the
ratings of the MAPS shall have been downgraded or withdrawn
by any nationally recognized statistical rating agency.
and the Remarketing Dealer shall have received on each
Remarketing Date a certificate of an officer of the Company,
dated as of such Remarketing Date, to the effect that (i) the
representations and warranties in this Agreement are true and
correct at and as of such 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 such Remarketing
Date and (iii) none of the events specified in the preceding
clause (c) has occurred.
(d) In furtherance of the foregoing, the effectiveness of
the Remarketing Dealer's election on the Notification Date to
remarket the MAPS shall be subject to the condition that the
Remarketing Dealer shall have received a certificate of an
officer 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 MAPS,
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 MAPS and
in any event prior to the third Business Day prior to October 15,
2001.
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
or Interim Period Interest Rate as provided in Section 10.
SECTION 9. Indemnification. (a) The Company shall
indemnify, defend and hold harmless the Remarketing Dealer and
each person who controls the Remarketing Dealer within the mean-
ing of Section 15 of the Securities Act from and against any and
all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Securities
Act or any other statute or common law and shall reimburse the
Remarketing Dealer and controlling person for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Remarketing
Materials, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
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the statements therein in the light of the circumstances under
which they were made not misleading; provided, however, that the
indemnity agreement contained in this Section 9 shall not apply
to any such losses, claims, damages, liabilities, expenses or
actions arising out of, or based upon, any such untrue statement
or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon
and in conformity with information furnished in writing to the
Company by the Remarketing Dealer, or counsel for the Remarketing
Dealer, expressly for use in the Remarketing Materials; and
provided further, that if a Prospectus is required to be
delivered, the indemnity agreement contained in this Section 9
shall not inure to the benefit of the Remarketing Dealer (or of
any person controlling the Remarketing Dealer) on account of any
such losses, claims, damages, liabilities, expenses or actions
arising from the sale of the MAPS to any person if a copy of the
Prospectus (exclusive of any incorporated documents) shall not
have been given or sent to such person by or on behalf of the
Remarketing Dealer with or prior to the written confirmation of
the sale involved unless the alleged omission or alleged untrue
statement was not corrected in the Prospectus at the time of such
written confirmation, (ii) any acts or omissions of the
Remarketing Dealer in connection with its duties and obligations
to determine any of the Interest Rate to Maturity, the Interim
Period Interest Rates, the amount of interest, if any, payable on
the Final Period Remarketing Date, the Optional Redemption Price
or the Call Price hereunder except those that are due to its
negligence or willful misconduct and (iii) any violation by the
Company of, or any failure by the Company to perform any of its
obligations under, this Agreement, except those violations or
failures to perform that are due to the negligence or willful
misconduct of the Remarketing Dealer. The indemnity agreement of
the Company contained in this Section 9 hereof shall remain
operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made by or
on behalf of the Remarketing Dealer or any such controlling
person, and shall survive the delivery of the MAPS.
(b) The Remarketing Dealer shall indemnify, defend and hold
harmless the Company, its officers and directors, and each person
who controls the Company within the meaning of Section 15 of the
Securities Act, from and against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of
them may become subject under the Securities Act or any other
statute or common law and shall reimburse each of them for any
legal or other expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in connection
with investigating any such losses, claims, damages or
liabilities or in connection with defending any actions, insofar
as such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Remarketing
Materials, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, if such statement or
omission was made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf
of the Remarketing Dealer, for use in connection with the
preparation of the Remarketing Materials. The indemnity agree-
ment of the Remarketing Dealer contained in this Section 9 shall
remain operative and in full force and effect regardless of any
termination of this Agreement or of any investigation made by or
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on behalf of the Company, its directors or its officers, the
Remarketing Dealer, or any such controlling person, and shall
survive the delivery of the MAPS.
(c) The Company and the Remarketing Dealer each shall, upon
the receipt of notice of the commencement of any action against
it or any person controlling it as aforesaid, in respect of which
indemnity may be sought on account of any indemnity agreement
contained herein, promptly give written notice of the
commencement thereof to the party or parties against whom
indemnity shall be sought hereunder, but the failure so to notify
such indemnifying party or parties of any such action shall not
relieve such indemnifying party or parties from any liability
hereunder to the extent it is not materially prejudiced as a
result of such failure to notify and in any event shall not
relieve it from any liability that it or they may have to the
indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so
given, such indemnifying party shall be entitled to participate
at its own expense in the defense, or, if it so elects, to assume
(in conjunction with any other indemnifying parties) the defense
of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional
counsel retained by them; but if the indemnifying party shall
elect not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action
(including impleaded parties) include both the indemnified party
and the indemnifying party and counsel for the indemnifying party
shall have reasonably concluded that there may be a conflict of
interest involved in the representation by a single counsel of
both the indemnifying party and the indemnified party, the
indemnified party or parties shall have the right to select
separate counsel, satisfactory to the indemnifying party (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel (in
addition to local counsel) representing the indemnified parties
who are parties to such action). Each of the Company and the
Remarketing Dealer agrees that without the other party's prior
written consent, which consent shall not be unreasonably
withheld, it will not settle, compromise or consent to the entry
of any judgment in any claim in respect of which indemnification
may be sought under the indemnification provision of this
Agreement, unless such settlement, compromise or consent (i)
includes an unconditional release of such other party from all
liability arising out of such claim and (ii) does not include a
statement as to or an admission of fault, culpability or a
failure to act by or on behalf of such other party.
(d) If the indemnification provided for in subparagraph (a)
or (b) above shall be unenforceable under applicable law by an
indemnified party, each indemnifying party agrees to contribute
to such indemnified party with respect to any and all losses,
claims, damages, liabilities and expenses for which each such
indemnification provided for in subparagraph (a) or (b) above
shall be unenforceable, in such proportion as shall be
appropriate to reflect (i) the relative fault of each
indemnifying party on the one hand and the indemnified party on
the other in connection with the statements or omissions that
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have resulted in such losses, claims, damages, liabilities and
expenses, (ii) the relative benefits received by the Company on
the one hand and the Remarketing Dealer on the other hand from
the remarketing of the MAPS pursuant to this Agreement, and (iii)
any other relevant equitable considerations; provided, however,
that no indemnified party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any indemnifying party not
guilty of such fraudulent misrepresentation. Relative fault
shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or the
indemnified party and each such party's relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the
Remarketing Dealer agree that it would not be just and equitable
if contributions pursuant to this subparagraph (d) were to be
determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions
of this Section 9, the Remarketing Dealer shall not be required
to contribute in excess of the amount equal to the excess of (i)
the greater of the price at which the MAPS remarketed by it were
sold to the public on (A) October 15, 2001 or (B) the Final
Period Remarketing Date, whichever is applicable, over (ii) the
amount of any damages which the Remarketing Dealer has otherwise
been required to pay by reason of any such untrue or alleged
untrue statement or omission or alleged omission or any act or
failure to act for which the Remarketing Dealer is responsible
under this Agreement.
SECTION 10. Termination of Remarketing Agreement 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 MAPS by the Company
pursuant to Section 4(h) hereof or the redemption of the MAPS by
the Company pursuant to Section 4(i) 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 any Remarketing Date, in the event that: (i) any of
the conditions referred to or set forth in Section 8(a) or (b)
hereof have not been met or satisfied in full, (ii) any of the
events set forth in Section 8(c) shall have occurred after the
Remarketing Dealer elects on the Notification Date to remarket
the MAPS or (iii) the Remarketing Dealer reasonably determines
after consultation with the Company, that it shall not have
received all of the information of a material nature, 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 10(b)
above, upon the occurrence of any of the events set forth
therein, the Remarketing Dealer, in its sole discretion may waive
its right to terminate this Agreement as a result of the
occurrence of such event and (i) in the case of the Interest Rate
to Maturity, at any time between the Determination Date and 3:30
p.m., New York City time, on the Business Day immediately
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preceding the applicable Remarketing Date and (ii) in the case of
the Interim Period Interest Rate, at any time between the second
Business Day prior to October 15, 2001 and 3:30 p.m., New York
City time, on the Business Day immediately preceding October 15,
2001, may elect to purchase the MAPS for remarketing and
determine a new Interest Rate to Maturity or Interim Period
Interest Rate, as the case may be, in the manner provided in
Section 4(d) of this Agreement, except that for purposes of
determining the new Interest Rate to Maturity or Interim Period
Interest Rate, as the case may be, pursuant to this paragraph the
Determination Date or Interest Determination Date, as the case
may be, 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 or Interim Period Interest
Rate, as the case may be, applicable to the MAPS. Thereupon,
such new Interest Rate to Maturity or Interim Period Interest
Rate, as the case may be, shall supersede and replace any
Interest Rate to Maturity or Interim Period Interest Rate
previously determined by the Remarketing Dealer and, absent
manifest error, shall be binding and conclusive upon the
beneficial owners and Holders of the MAPS on or after the
applicable Remarketing Date, the Company and the Trustee;
provided, however, that the Remarketing Dealer, by redetermining
the Interest Rate to Maturity or Interim Period Interest Rate, as
the case may be, upon the occurrence of any event set forth in
Section 10(b) as set forth above, shall not thereby be deemed to
have waived its right to determine a new Interest Rate to
Maturity or Interim Period Interest Rate, as the case may be, or
terminate this Agreement upon the later occurrence of any other
event set forth in Section 10(b).
(d) If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party
to any other party, except that, in the case of termination
pursuant to Section 10(b) of this Agreement, the Company shall
reimburse the Remarketing Dealer for its reasonable out-of-pocket
expenses, in an aggregate amount not exceeding $10,000, and the
reasonable fees and disbursements of counsel for the Remarketing
Dealer, and except further as set forth in Section 10(e) below.
Sections 1, 9, 10(d) and 10(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 10(b) or (ii) termination of this Agreement
due to the occurrence, prior to the Remarketing Dealer's election
on the Notification Date to remarket the MAPS, of any event set
forth in Section 8(c)(i), (iii) or (vi), upon the request of the
Remarketing Dealer, the Company shall immediately following the
Call Price Determination Date (as defined herein) 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 MAPS pursuant to this
Agreement (the "CALL PRICE").
In the case of termination of this Agreement pursuant to
Section 10(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 MAPS.
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In the case of the occurrence, prior to the Remarketing
Dealer's election on the Notification Date to remarket the MAPS,
of any event set forth in Section 8(c)(i), (iii) or (vi), the
Call Price shall be determined in good faith by the Remarketing
Dealer after consultation with the Company 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 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 11. Remarketing Dealer 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 MAPS 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 negligence or willful misconduct on its part.
SECTION 12. 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 13. 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 MAPS are
outstanding or the completion of the remarketing of the MAPS.
Regardless of any termination of this Agreement pursuant to any
of the provisions hereof, the obligations of the Company and the
Remarketing Dealer pursuant to Sections 9 and 10 hereof shall
remain operative and in full force and effect until fully
satisfied.
SECTION 14. 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
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of the Remarketing Dealer, except that the rights and obligations
of the Company may be assigned and delegated to any successor of
the Company permitted by the Indenture. 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 the Company's
officers and directors, persons, if any, controlling the
Remarketing Dealer or the Company within the meaning of Section
15 of the Securities Act, or any indemnified party, or any person
entitled to contribution to the extent provided in Section 9
hereof. The terms "SUCCESSORS" and "ASSIGNS" shall not include
any purchaser of any MAPS merely because of such purchase.
SECTION 15. 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 16. 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 17. 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 18. 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.
SECTION 19. 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:
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(a) to the Company:
Texas Utilities Company
Energy Plaza
1601 Bryan Street
Dallas, Texas 75201
Attention: Treasurer
Telephone No.: (214) 812-4646
Facsimile No.: (214) 812-2488
(b) to Salomon Smith Barney:
Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
and
Salomon Smith Barney Inc.
7 World Trade Center, 42nd Floor
New York, New York 10048
Attention: Kimberly Blue
Telephone No.: (212) 783-2655
Facsimile No.: (212) 783-2319
or to such other address as the Company or the Remarketing
Dealer shall specify in writing.
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IN WITNESS WHEREOF, each of the Company and the Remarketing
Dealer has caused this Remarketing Agreement to be executed in
its name and on its behalf by one of its duly authorized officers
as of the date first above written.
TEXAS UTILITIES COMPANY
By: /s/ Robert S. Shapard
---------------------------------------
Name: Robert S. Shapard
Title: Treasurer
SALOMON SMITH BARNEY INC.
By: /s/ Paul R. Bitler
-----------------------------------------
Name: Paul R. Bitler
Title: Vice President
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