EXHIBIT 4-11
FORM OF REMARKETING AGREEMENT
FORM OF REMARKETING AGREEMENT, dated as of ___________, ____ (the
"Remarketing Agreement") by and between Arvin Industries, Inc., an
Indiana corporation (the "Company"), and ______ not individually but
solely as Purchase Contract Agent and as attorney-in-fact of the
holders of Purchase Contracts (each as defined in the Purchase
Contract Agreement (as defined herein)), and _____________________
(the "Remarketing Agent").
WITNESSETH:
WHEREAS, the Company will issue an aggregate Stated Amount
$_________ of its Securities (the "Securities") under the Purchase
Contract Agreement, dated as of ______________, ____, by and between
the Purchase Contract Agent and the Company (the "Purchase Contract
Agreement"); and
WHEREAS, the Securities will initially consist of ________ units
referred to as "Type A Securities," each such security consisting of a
___% Senior Note due _______ issued by the Company in the principal
amount of $______ (a "Debt Security") and a Purchase Contract issued
by the Company ("Purchase Contract") pursuant to the Purchase Contract
Agreement and _____ units referred to as "Type B Securities," each
such security consisting of certain U.S. Treasury Securities and a
Purchase Contract.
WHEREAS, the Debt Securities will be pledged pursuant to the
Pledge Agreement (the "Pledge Agreement"), dated as of _________,
____, by and between the Company, ______________________, as
Collateral Agent, Securities Intermediary and Custodial Agent (the
"Collateral Agent") and the Purchase Contract Agent, to secure a Type
A Security holder's obligations under the related Purchase Contract on
the Purchase Contract Settlement Date; and
WHEREAS, the Debt Securities of such holders electing to have
their Debt Securities that are not pledged pursuant to the Pledge
Agreement remarketed, or of such Type A Security holders who have
elected not to settle the Purchase Contracts related to their Type A
Security from the proceeds of a Cash Settlement and who have not early
settled their Purchase Contracts, will be remarketed by the
Remarketing Agent on the third Business Day immediately preceding the
Purchase Contract Settlement Date; and
WHEREAS, the applicable interest rate on the Debt Securities that
remain outstanding on and after the Purchase Contract Settlement Date
will be reset on the third Business Day immediately preceding the
Purchase Contract Settlement Date, to the Reset Rate to be determined
by the Reset Agent as the rate that such Debt Securities should bear
in order to have an approximate market value of ____% of the
aggregate principal amount of the Debt Securities on the third
Business Day immediately preceding the Purchase Contract Settlement
Date, provided that in the determination of such Reset Rate, the
Company may limit the Reset Spread (a component of the Reset Rate) to
be no higher than ____ basis points; and
WHEREAS, the Company has requested _________________
("__________________") to act as the Reset Agent and as the
Remarketing Agent and as such to perform the services described
herein; and
WHEREAS, ________________ is willing to act as Reset Agent and
Remarketing Agent and as such to perform such duties on the terms and
conditions expressly set forth herein;
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 Purchase Contract Agreement or, if not therein stated, the Pledge
Agreement.
Section 2. APPOINTMENT AND OBLIGATIONS OF RESET AGENT AND
REMARKETING AGENT. The Company hereby appoints _____________, and
________ hereby accepts such appointment, (i) as the Reset Agent to
determine, and in consultation with the Company and in the manner
provided for in the Indenture, the Reset Rate, that in the opinion of
the Reset Agent, will, when applied to the Debt Securities, enable the
Debt Securities, to have an approximate market value of approximately
____% of the aggregate principal amount of such Debt Securities,
provided that the Company may limit such Reset Rate to be no higher
than the rate on the Two-Year Benchmark Treasury plus ____ basis
points, and (ii) as the exclusive Remarketing Agent to remarket the
Debt Securities (a) of Debt Securities holders electing to have their
Debt Securities remarketed, or (b) of Type A Security holders who have
not early settled the related Purchase Contracts and have failed to
notify the Purchase Contract Agent, on or prior to the fifth Business
Day immediately preceding the Purchase Contract Settlement Date, of
their intention to settle the related Purchase Contracts through Cash
Settlement, for settlement on the Purchase Contract Settlement Date,
pursuant to the Remarketing Underwriting Agreement attached hereto as
Exhibit A, among the Company, the Purchase Contract Agent and the
Remarketing Agent (with such changes as the Company, the Purchase
Contract Agent and the Remarketing Agent may agree upon, it being
understood that changes may be necessary in the representations,
warranties, covenants and other provisions of the Remarketing
Underwriting Agreement due to changes in law or facts and
circumstances). Pursuant to the Remarketing Underwriting Agreement,
the Remarketing Agent, either as the sole remarketing underwriter or
as the representative of a syndicate including the Remarketing Agent
and one or more other remarketing underwriters designated by the
Remarketing Agent, will agree, subject to the terms and conditions set
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forth therein, that the Remarketing Agent and any such other
remarketing underwriters will purchase, severally, the Debt Securities
to be sold by the holder or holders of Debt Securities or Type A
Securities on the third Business Day immediately preceding the
Purchase Contract Settlement Date and will use their reasonable
efforts to remarket such Debt Securities (such purchase and
remarketing being hereinafter referred to as the "Remarketing"), at a
price of approximately _______% of the aggregate principal amount of
such Debt Securities plus any accrued and unpaid interest (including
any deferred interest). Notwithstanding the preceding sentence, the
Remarketing Agent shall not remarket any Debt Securities for a price
less than 100% of the aggregate principal amount of such Debt
Securities, plus accrued and unpaid interest and shall not be required
to purchase any Debt Securities not remarketed. The proceeds of such
remarketing shall be paid to the Collateral Agent in accordance with
Section 4.6 of the Pledge Agreement and Section 5.4 of the Purchase
Contract Agreement (both of which Sections are incorporated herein by
reference).
Section 3. FEES. With respect to the Remarketing, the
Remarketing Agent shall retain as Remarketing Fee an amount not
exceeding ____ basis points, of the aggregate principal amount of the
remarketed securities from any amount received in connection with such
Remarketing in excess of aggregate principal amount of such remarketed
Debt Securities plus any accrued and unpaid interest (including any
deferred interest). In addition, the Reset Agent shall receive from
the Company a reasonable and customary fee for acting as the Reset
Agent (the "Reset Agent Fee"); provided, however, that if the
Remarketing Agent shall also act as the Reset Agent, then the Reset
Agent shall not be entitled to receive any such Reset Agent Fee.
Payment of such Reset Agent Fee shall be made by the Company on the
third Business Day immediately preceding the Purchase Contract
Settlement Date in immediately available funds or, upon the
instructions of the Reset Agent, by certified or official bank check
or checks or by wire transfer.
Section 4. REPLACEMENT AND RESIGNATION OF REMARKETING AGENT
AND RESET AGENT. (a) The Company may in its absolute discretion
replace _____________ as the Remarketing Agent and/or as the Reset
Agent in its capacity hereunder by giving notice prior to 3:00 p.m.,
__________________ time, on the eleventh Business Day immediately
prior to the Purchase Contract Settlement Date. Any such replacement
shall become effective upon the Company's appointment of a successor
to perform the services that would otherwise be performed hereunder by
the Remarketing Agent and/or the Reset Agent. Upon providing such
notice, the Company shall use all reasonable efforts to appoint such a
successor and to enter into a remarketing agreement with such
successor as soon as reasonably practicable.
(b) _____________ may resign at any time and be discharged from
its duties and obligations hereunder as the Remarketing Agent and/or
as the Reset Agent by giving notice prior to 3:00 p.m.,
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_________________________ time, on the eleventh Business Day
immediately prior to the Purchase Contract Settlement Date. Any such
resignation shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed
hereunder by the Remarketing Agent and/or the Reset Agent. Upon
receiving notice from the Remarketing Agent and/or the Reset Agent
that it wishes to resign hereunder, the Company shall appoint such a
successor and enter into a remarketing agreement with it as soon as
reasonably practicable.
Section 5. DEALING IN THE SECURITIES. The Remarketing Agent,
when acting hereunder or under the Remarketing Underwriting Agreement
or acting in its individual or any other capacity, may, to the extent
permitted by law, buy, sell, hold or deal in any of the Debt
Securities. With respect to any Debt Securities owned by it, the
Remarketing Agent may exercise any vote or join in any action with
like effect as if it did not act in any capacity hereunder. The
Remarketing Agent, in its individual capacity, either as principal or
agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in
any capacity hereunder.
Section 6. REGISTRATION STATEMENT AND PROSPECTUS. In
connection with the Remarketing, if and to the extent required (in the
opinion of counsel for either the Remarketing Agent or the Company) by
applicable law, regulations or interpretations in effect at the time
of such Remarketing, the Company shall use its reasonable efforts to
have a registration statement relating to the Debt Securities
effective under the Securities Act of 1933 by the third Business Day
immediately preceding the Purchase Contract Settlement Date, shall
furnish a current prospectus and/or prospectus supplement to be used
in such Remarketing by the remarketing underwriter or underwriters
under the Remarketing Underwriting Agreement, and shall pay all
expenses relating thereto.
Section 7. CONDITIONS TO THE REMARKETING AGENT'S OBLIGATIONS.
(a) The obligations of the Remarketing Agent and any other remarketing
underwriters to purchase and remarket the Debt Securities, as the case
may be, shall be subject to the terms and conditions of the
Remarketing Underwriting Agreement.
(b) If at any time during the term of this Agreement, any Event
of Default (as defined therein) under the Indenture, or event that
with the passage of time or the giving of notice or both would become
an Event of Default under the Indenture, has occurred and is
continuing, then the obligations and duties of the Remarketing Agent
under this Agreement shall be suspended until such default or event
has been cured. The Company will cause the Trustee to give the
Remarketing Agent notice of all such defaults and events of which the
Trustee is aware.
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Section 8. TERMINATION OF REMARKETING AGREEMENT. This
Agreement shall terminate as to the Remarketing Agent on the effective
date of its replacement pursuant to Section 4(a) hereof or pursuant to
Section 4(b) hereof. Notwithstanding any such termination, the
obligations set forth in Section 3 hereof shall survive and remain in
full force and effect until all amounts payable under said Section 3
shall have been paid in full.
Section 9. REMARKETING AGENT'S PERFORMANCE; DUTY OF CARE.
The duties and obligations of the Remarketing Agent hereunder shall be
determined solely by the express provisions of this Agreement and the
Remarketing Underwriting Agreement.
Section 10. GOVERNING LAW. This Agreement shall be governed
by and construed in accordance with the laws of the State of
____________________.
Section 11. TERM OF AGREEMENT. Unless otherwise terminated in
accordance with the provisions hereof and except as otherwise provided
herein, this Agreement shall remain in full force and effect from the
date hereof until the first day thereafter on which no Debt Securities
are outstanding.
Section 12. 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
______________________ as the Remarketing Agent and the Purchase
Contract Agent. The rights and obligations of ___________ as the
Remarketing Agent and/or as the Reset Agent 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 as the ____________ Remarketing
Agent and/or as the Reset Agent and their respective successors and
assigns. The terms "successors" and "assigns" shall not include any
purchaser of Securities merely because of such purchase.
Section 13. 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 provision of this
Agreement.
Section 14. SEVERABILITY. If any provision of this Agreement
shall be held or deemed to be or shall, in fact, be invalid,
inoperative or unenforceable as applied in any particular case in any
or all jurisdictions because it conflicts with any provisions of any
constitution, statute, rule 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, circumstances or jurisdiction, or of rendering any other
provision or provisions of this Agreement invalid, inoperative or
unenforceable to any extent whatsoever.
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Section 15. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be regarded as an original and all
of which shall constitute one and the same document.
Section 16. AMENDMENTS. This Agreement may be amended by any
instrument in writing signed by the parties hereto.
Section 17. NOTICES. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or
pursuant hereto shall be made in writing or transmitted by any
standard form of telecommunication, including telephone, telegraph or
telecopy, and confirmed in writing. All written notices and
confirmations of notices by telecommunication shall be deemed to have
been validly given or made when delivered or mailed, registered or
certified mail, return receipt requested and postage prepaid. All
such notices, requests, consents or other communications shall be
addressed as follows: if to the Company, to Arvin Industries, Inc.,
One Noblitt Plaza, Box 3000, Columbus, Indiana 47202, Attention:
Treasurer; if to the Remarketing Agent or Reset Agent,
___________________; and if to the _________________ Purchase Contract
Agent, _____________________, or to such other address as any of the
above shall specify to the other in writing.
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IN WITNESS WHEREOF, each of the Company, the Remarketing Agent
and the Purchase Contract Agent has caused this 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.
ARVIN INDUSTRIES, INC.
By:___________________________
Name:
Title:
CONFIRMED AND ACCEPTED:
____________________________________________
____________________________________________
By:_________________________________________
Authorized Signatory
_______________________________________
not individually but solely as Purchase Contract Agent and as
attorney-in-fact for the holders of the Purchase Contracts
By:_____________________________________
Name:
Title:
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Exhibit A to
Remarketing Agreement
FORM OF REMARKETING UNDERWRITING AGREEMENT
________________________________________________ (the
"Remarketing Underwriter") hereby agrees, subject to the terms and
conditions herein set forth or incorporated herein, to purchase the
Debt Securities as set forth in Schedule I hereto, that have been
tendered by the holders of the Type A Securities for sale on
____________________.
1. Definitions. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to them in the purchase
contract agreement (the "Purchase Contract Agreement"), the pledge
agreement (the "Pledge Agreement"), the underwriting agreement, dated
_______________, between the Company and _______________________, as
underwriters with respect to the issuance and sale of the Securities
(the "Underwriting Agreement"), and the Indenture (For Unsecured Debt
Securities__________________), dated ______________________, between
______________ and the Company (the "Indenture").
2. REGISTRATION STATEMENT AND PROSPECTUS. If required (in the
opinion of counsel to either the Remarketing Underwriter or the
Company) by applicable law, the Company has filed with the Securities
and Exchange Commission, and there has become effective, a
registration statement on Form S-3 (No. 333-___), including a
prospectus, relating to the Debt Securities. Such registration
statement, as amended to the date of this Agreement, is hereinafter
referred to as the "Registration Statement", the prospectus included
in the Registration Statement is hereinafter referred to as the "Basic
Prospectus" and the Basic Prospectus, as amended or supplemented to
the date of this Agreement to relate to the Debt Securities and to the
remarketing of the Debt Securities, is hereinafter referred to as the
"Final Prospectus" (including in each case all documents incorporated
by reference).
3. PROVISIONS INCORPORATED BY REFERENCE.
(a) Subject to Section 3(b), the provisions of Sections
____ and ____ of the Underwriting Agreement shall be incorporated, as
applicable into this Agreement and made applicable to the obligations
of the Remarketing Underwriter, except as explicitly amended hereby.
(b) With respect to the provisions of the Underwriting
Agreement incorporated herein, for the purposes hereof, (i) all
references therein to the "Underwriter" or "Underwriters" or the
"Representative" or "Representatives", as the case may be, shall be
deemed to refer to the Remarketing Underwriter; (ii) all references
therein to the "Securities" which are the subject thereof shall be
deemed to refer to the Debt Securities as defined herein; (iii) all
references therein to the "Closing Date" shall be deemed to refer to
the Remarketing Closing Date specified in Schedule I hereto (the
"Remarketing Closing Date"); and (iv) all references therein to the
"Registration Statement", the "Basic Prospectus" and the "Final
Prospectus" shall be deemed to refer to the Registration Statement,
the Basic Prospectus and the Final Prospectus, respectively, as
defined herein.
4. PURCHASE AND SALE; REMARKETING UNDERWRITING FEE. Subject to
the terms and conditions and in reliance upon the representations and
warranties herein set forth or incorporated herein, the Remarketing
Underwriter agrees to purchase from the registered holder or holders
thereof in the manner specified in Section 5 hereof, the principal
amount of remarketed Debt Securities set forth in Schedule I hereto at
a purchase price not less than 100% of the aggregate principal amount
of such Debt Securities, plus any accrued and unpaid interest thereon.
In connection therewith, the registered holder or holders thereof
agree, in the manner specified in Section 5 hereof, to pay to the
Remarketing Underwriter a Remarketing Underwriting Fee equal to an
amount not exceeding _____ basis points of the aggregate principal
amount of the remarketed Debt Securities, from any amount received
from such Remarketing in excess of the aggregate principal amount of
such remarketed Debt Securities, plus any accrued and unpaid interest.
5. DELIVERY AND PAYMENT. Delivery of payment for the
remarketed Debt Securities and payment of the Remarketing
Underwriting Fee shall be made on the Remarketing Closing Date at the
location and time specified in Schedule I hereto (or such later date
not later than five business days after such date as the Remarketing
representatives shall designate), which date and time may be postponed
by agreement between the Remarketing Underwriter, the Company, and the
registered holder or holders thereof. Delivery of the remarketed Debt
Securities and payment of the Remarketing Underwriting Fee shall be
made to the Remarketing Underwriter [to or upon the order of the
[registered holder or holders of the remarketed Debt Securities] by
certified or official bank check or checks drawn on or by a New York
Clearing House bank and payable in immediately available funds] [in
immediately available funds by wire transfer to an account or accounts
designated by the [Company] [registered holder or holders of the
remarketed Debt Securities]] or, if the remarketed Debt Securities are
represented by a Global Security, by any method of transfer agreed
upon by the Remarketing Underwriter and the Depositary for the Debt
Securities under the Indenture.
[It is understood that any registered holder or, if the Debt
Securities are represented by a Global Security, any beneficial owner,
that has an account at the Remarketing Underwriter and tenders its
Debt Securities through such account will not be required to pay any
fee or commission to the Remarketing Underwriter.]
If the Debt Securities are not represented by a Global Security,
certificates for the Debt Securities shall be registered in such names
and denominations as the Remarketing Underwriter may request not less
than three full business days in advance of the Remarketing Closing
Date, and the Company, and the [registered holder or holders thereof]
agree to have such certificates available for inspection, packaging
and checking by the Remarketing Underwriter in ____________________
not later than 1:00 p.m. on the Business Day prior to the Remarketing
Closing Date.
6. NOTICES. Unless otherwise specified, any notices, requests,
consents or other communications given or made hereunder or pursuant
hereto shall be made in writing or transmitted by any standard form of
telecommunication, including telephone, telegraph or telecopy, and
confirmed in writing. All written notices and confirmations of
notices by telecommunication shall be deemed to have been validly
given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices,
requests, consents or other communications shall be addressed as
follows: if to the Company, to Arvin Industries, Inc., One Noblitt
Plaza, Box 3000, Columbus, Indiana 47202, Attention: Treasurer; if to
the Remarketing Agent or Reset Agent, to __________; and if to the
Purchase Contract Agent, to __________________, or to such other
address as any of the above shall specify to the other in writing.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Remarketing Underwriters.
Very truly yours,
ARVIN INDUSTRIES, INC.
By:
------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
____________________________________________
____________________________________________
By:_________________________________________
Authorized Signatory
_________________________________________ not individually but solely
as Purchase Contract Agent and as attorney-in-fact for the holders of
the Purchase Contracts
By:__________________________________________
Name:
Title:
SCHEDULE I
Title of Securities: ____% Senior Notes due _____
Principal Amount of Securities: $___________________
Underwriting Agreement, dated as of ______________, ____, between the
Company and ___________________________________________
Remarketing [Underwriting] Fee:_____% ($______________)
Remarketing Closing Date, Time and Location: _____________________