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EXHIBIT 4.7
[FACE OF NOTE]
This Security is issued in substitution for, and not in novation of,
that certain 6.40% Remarketable or Redeemable Note (ROARSSM) Due May 1, 2013
(Remarketing Date May 1, 2003), dated April 24, 1998, by the Company and payable
to Cede & Co, or registered assigns. Unless this certificate is presented by an
authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the issuer or its agent for registration of transfer,
exchange, or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee only
in the limited circumstances described in the Indenture, and no transfer of this
Security (other than a transfer of this Security as a whole by the Depository to
a nominee of the Depository or by a nominee of the Depository to the Depository
or another nominee of the Depository) may be registered except in such limited
circumstances.
STEWART ENTERPRISES, INC.
SECURED 6.40% REMARKETABLE OR REDEEMABLE SECURITIES (ROARS[SM])
DUE MAY 1, 2013
(REMARKETING DATE MAY 1, 2003)
No. CUSIP No: 860370AB1
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$99,897,000
Stewart Enterprises, Inc., a Louisiana corporation (herein called the
"Company," which term shall include any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of $99,897,000 (Ninety Nine
Million, Eight Hundred Ninety Seven Thousand Dollars) at the Company's office or
agency for said purpose in the Borough of Manhattan, the City of New York on May
1, 2013 (the "Stated Maturity Date") in such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts, and to pay interest thereon in like coin or currency
semi-annually on November 1 and May 1 of each year (each, an "Interest Payment
Date"), on said principal sum at the rate of 6.40% per annum (except that on and
after the Remarketing Date (defined below), such rate shall be the Interest Rate
to Maturity (defined below)) at said office or agency from the date of the
original issuance of the ROARS or from the most recent Interest Payment Date to
which interest on this ROARS has been paid or duly provided for until payment of
said principal sum has been made or duly provided for. The interest so payable
on any Interest Payment Date will, except as otherwise provided in the Indenture
referred to on the reverse hereof, be paid to the Person in whose name this
ROARS is registered at the close of business on the October 15 or April 15
preceding such November 1 or May 1, whether or not such day is a Business Day
(as defined below); provided, however, that interest payable on the Remarketing
Date and on the Stated Maturity Date will be payable to the Person to whom
principal shall be payable. Interest payments will be in the amount of interest
accrued from and including the next preceding Interest Payment Date (or from and
including the date of the original issuance of the ROARS if no interest
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has been paid or duly provided for with respect to the ROARS) to but excluding
the relevant Interest Payment Date, the Remarketing Date or the Stated Maturity
Date, as the case may be. Interest may be paid, at the option of the Company, if
this ROARS is no longer in the form of a Registered Security in global form, by
mailing a check therefor payable to the registered holder entitled thereto at
his last address as it appears on the Security Register (as defined in the
Indenture). Interest on this ROARS shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
On May 1, 2003 (the "Remarketing Date"), pursuant to the Remarketing
Agreement dated as of the date hereof (the "Remarketing Agreement"), between the
Company and Banc of America Securities LLC, or its successor, as Remarketing
Dealer (the "Remarketing Dealer"), the ROARS will either be (i) mandatorily
tendered to and purchased by the Remarketing Dealer, in which case the
Remarketing Dealer shall pay 100% of the principal amount of the ROARS and the
Company shall pay accrued and unpaid interest, if any, to the Remarketing Date,
or (ii) redeemed by the Company at 100% of the principal amount thereof plus
accrued and unpaid interest, if any, to the Remarketing Date. If the ROARS are
purchased by the Remarketing Dealer on the Remarketing Date, the ROARS shall
bear interest for the period on and after the Remarketing Date to the Stated
Maturity Date at the Interest Rate to Maturity determined in accordance with the
procedures set forth on the reverse hereof.
ADDITIONAL PROVISIONS OF THIS SECURITY ARE CONTAINED ON THE REVERSE HEREOF AND
SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET
FORTH AT THIS PLACE.
This Security shall not be entitled to any benefit under the Indenture
hereinafter referred to, or become valid or obligatory for any purpose, until
the Trustee under the Indenture shall have signed the form of certificate of
authentication endorsed hereon.
In Witness Whereof, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: June 29, 2001 STEWART ENTERPRISES, INC.
By:
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Kenneth C. Budde
Chief Financial Officer,
President-Corporate Division and
Executive Vice President
Attest:
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Lisa T. Winningkoff
Assistant Secretary
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By:
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Authorized Signatory
[REVERSE OF NOTE]
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STEWART ENTERPRISES, INC.
Secured 6.40% Remarketable Or Redeemable Securities (ROARS[SM])
due May 1, 2013
(Remarketing Date May 1, 2003)
1. INDENTURE. (a) This Security is one of a duly authorized issue of
debt securities of the Company designated as its Secured 6.40% Remarketable Or
Redeemable Securities (ROARS[SM]) due May 1, 2013 (Remarketing Date May 1, 2003)
(the "ROARS"), limited to the aggregate principal amount of $200,000,000 (Two
Hundred Million Dollars) (except as otherwise provided in the Indenture
mentioned below), issued or to be issued pursuant to an indenture dated as of
December 1, 1996, duly executed and delivered by the Company to Citibank, N.A.,
as trustee (herein called the "Trustee," which term includes any successor
trustee under the Indenture), as supplemented by the First Supplemental
Indenture dated April 24, 1998 between the Company and the Trustee and the
Second Supplemental Indenture dated June 29, 2001 between the Company and the
Trustee, as the same shall be further amended and supplemented from time to time
as provided in the Indenture (as so amended and supplemented, the "Indenture").
The terms of the ROARS include those in the Indenture. Reference is hereby made
to the Indenture and all other indentures supplemental thereto for a complete
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the ROARS.
Capitalized terms used but not defined herein which are defined in the Indenture
have the meanings assigned to them in the Indenture.
(b) If an Event of Default with respect to Securities of this
series shall occur and be continuing, the principal of the Securities of this
series may be declared due and payable in the manner and with the effect
provided in the Indenture. The Indenture provides that under certain
circumstances a declaration of acceleration and its consequences may be
rescinded and annulled by the Holders of a majority in principal amount of the
Outstanding Securities of the series.
(c) The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series to be affected (acting as one class).
The Indenture provides that the Holders of a majority in principal amount of the
Outstanding Securities of any series (or, in certain cases, of all Outstanding
Securities) may, on behalf of the Holders of all the Securities of such series
(or, in certain cases, of all Securities under the Indenture) waive certain past
defaults under the Indenture. The Indenture also provides that the Holders of a
majority in principal amount of the Outstanding Securities of all series
affected (acting as one class) may waive compliance by the Company with certain
restrictive provisions of the Indenture. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued in exchange
or substitution or hereof upon registration of transfer hereof whether or not
notation of such consent or waiver is made upon this Security or such other
Securities.
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(d) The Indenture contains provisions for the legal defeasance
at any time of the entire indebtedness of the Company on this Security upon
compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security after the Remarketing Date. Upon compliance
with such provisions, the Company shall be deemed to have paid and discharged
the entire indebtedness on this Security and the Company's obligation to pay the
principal of (and premium, if any) and interest on this Security shall cease,
terminate and be completely discharged.
(e) The Indenture provides that no Holder of any Securities
may enforce any remedy under the Indenture except in the case of refusal or
neglect of the Trustee to act after notice of default and request by the Holders
of 25% in principal amount of Outstanding Securities in the series for which a
remedy is sought to be enforced and the offer to the Trustee of reasonable
indemnity.
(f) The ROARS do not have the benefit of any sinking fund
obligation and are redeemable only as provided herein.
(g) No reference herein to the Indenture and no provision of
the ROARS or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on the ROARS at the place, times and rate, and in the currency, herein
prescribed.
(h) The Securities of this series are issuable only in
registered form without coupons in denominations of $100,000 and any integral
multiples of $1,000 in excess thereof. As provided in the Indenture and subject
to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
(i) As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of the ROARS is registrable in the
Security Register, upon surrender of the ROARS for registration of transfer at
the office or agency of the Company in any place where the principal of (and
premium, if any) and interest on the ROARS are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
(j) No service charge shall be made for any such registration
of transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
(k) Prior to surrender of the ROARS for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee,
may deem and treat the registered Holder hereof as the absolute owner of the
ROARS (whether or not the ROARS shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and interest hereon and for
all other purposes, and
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neither the Company nor the Trustee nor any agent of the Company or the Trustee
shall be affected by any notice to the contrary. Notwithstanding the foregoing,
payment of principal of and interest on any Security of this series in permanent
global form should be made in the manner provided in the arrangements of the
Company with the Depository.
(l) In order to secure the due and punctual payment of all
obligations payable by the Company under the Indenture and that certain Credit
Agreement by and among the Company, Empresas Stewart-Cementerios, Empresas
Stewart-Funeraris, Bank of America, N.A., as Collateral Agent, Administrative
Agent and Lender and the other Lenders, dated as of June 29, 2001, as amended,
restated, rearranged or otherwise modified from time to time, the Company and
its Subsidiaries have granted a first priority Lien (subject to certain
exceptions permitted by (i) that certain Security Agreement dated as of June 29,
2001 by and among the Company, certain of the Company's Subsidiaries and the
Collateral Agent; (ii) that certain Securities Pledge Agreement dated as of June
29, 2001 by and among the certain Subsidiaries of the Company and the Collateral
Agent; (iii) that certain Securities Pledge Agreement dated as of June 29, 2001
by and between the Company and the Collateral Agent; (iv) that certain
Intellectual Property Security Agreement dated as of June 29, 2001 by and among
the Company, certain of the Company's Subsidiaries, and the Collateral Agent;
and (v) that certain Assignment of Patents, Trademarks and Copyrights dated as
of June 29, 2001 by and among the Company, certain of the Company's
Subsidiaries, and the Collateral Agent (collectively, the "Collateral
Documents")) on and security interest in the Collateral owned by it to the
Collateral Agent for the pari passu benefit of (a) the Trustee and the Holders
of the Securities and (b) the Administrative Agent, the Collateral Agent and the
Lenders, pursuant to the Indenture and the Collateral Documents.
(m) The Indenture and the ROARS shall be governed by and
construed in accordance with the laws of the State of New York.
2. MANDATORY TENDER ON REMARKETING DATE; PURCHASE AND SETTLEMENT. (a)
If the Remarketing Dealer gives notice to the Company and the Trustee on the
fifth Business Day prior to the Remarketing Date (the "Notification Date") at no
later than 4:00 p.m. New York City time of its intention to purchase the ROARS
for remarketing, each ROARS will be automatically tendered, or deemed tendered,
to the Remarketing Dealer for purchase on the Remarketing Date in accordance
with Paragraph 2(b) below, except as set forth in Paragraphs 5 and 6 below. The
purchase price for the ROARS to be paid by the Remarketing Dealer will be equal
to 100% of the principal amount thereof, and the Company will pay accrued
interest, if any, to the Remarketing Date. If the ROARS are tendered for
remarketing, the Remarketing Dealer may remarket the ROARS for its own account
at varying prices to be determined by the Remarketing Dealer at the time of each
sale. From and after the Remarketing Date, the ROARS will bear interest at the
Interest Rate to Maturity (defined in Paragraph 4 below). If the Remarketing
Dealer elects to remarket the ROARS, the obligation of the Remarketing Dealer to
purchase the ROARS on the Remarketing Date is subject to the conditions set
forth in the Remarketing Agreement. If for any reason the Remarketing Dealer
does not purchase all ROARS on the Remarketing Date, the Company will be
required to redeem the ROARS on the Remarketing Date at a price equal to 100% of
the principal amount thereof plus all accrued and unpaid interest, if any, on
the ROARS to the Remarketing Date. No holders of beneficial interests in the
ROARS (the "Beneficial Owners") shall have any rights or claims under the
Remarketing Agreement or against the Company or the Remarketing Dealer as a
result of the Remarketing Dealer
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not purchasing the ROARS. Each Holder and Beneficial Owner of a ROARS by its
acceptance hereof agrees to deliver its ROARS on the Remarketing Date for either
purchase or redemption as provided herein.
(b) Following the Notification Date, the tender and purchase
of the ROARS provided for in Paragraph 2(a) above shall be effected as follows,
subject to Paragraphs 5 and 6 below:
(i) All of the ROARS shall be delivered automatically
to the account of the Trustee, by book-entry through The
Depository Trust Company or any successor thereto ("DTC")
pending payment of the purchase price therefor, on the
Remarketing Date.
(ii) The Remarketing Dealer shall deliver the
purchase price for the ROARS to the Trustee by 3:00 p.m. New
York City time on the Business Day immediately preceding the
Remarketing Date for payment to the DTC participant (each, a
"Participant") of each Beneficial Owner of ROARS, through DTC
in accordance with the procedures of DTC, against delivery or
deemed delivery through DTC of such Beneficial Owner's ROARS.
The Company will make, or cause the Trustee to make, payment
of interest due on the Remarketing Date to DTC for
distribution to each Beneficial Owner of ROARS by book-entry
through DTC by the close of business on the Remarketing Date.
3. MAINTENANCE OF BOOK-ENTRY SYSTEM. (a) The tender and settlement
procedures set forth in Paragraph 2(b) above shall be subject to modification to
the extent required by DTC or, if the book-entry system is no longer available
for the ROARS at the time of the remarketing, to the extent required to
facilitate the tendering and remarketing of ROARS in a form other than global
form. In addition, the Remarketing Dealer may modify (with the consent of the
Trustee to the extent required by the Indenture) the settlement procedures set
forth herein in order to facilitate the settlement process in any manner not
contrary to the Indenture or adverse to the interests of the Holders of the
ROARS; provided that such procedures must, in the reasonable opinion of the
Company, allow the Company sufficient time to fund the redemption of the ROARS
on the Remarketing Date.
(b) The Company hereby agrees with the Trustee and the Holders
of the ROARS that at all times, (i) it will use its best efforts to maintain the
ROARS in book-entry form with DTC or any successor thereto and to appoint a
successor depository to the extent necessary to maintain the ROARS in book-entry
form and (ii) it will waive any discretionary right that it otherwise may have
under the Indenture to cause the ROARS to be issued in a form other than global
form.
4. DETERMINATION OF INTEREST RATE TO MATURITY; NOTIFICATION THEREOF. If
the Remarketing Dealer elects to remarket the ROARS as provided in Paragraph
2(a), by 3:30 p.m. New York City time, on the third Business Day immediately
preceding the Remarketing Date (the "Determination Date"), the Remarketing
Dealer shall determine the Interest Rate to Maturity to the nearest one
thousandth (0.001) of one percent per annum. The "Interest Rate to Maturity"
shall be equal to the sum of 5.44% per annum (the "Base Rate") and the
Applicable Spread (as defined below), which will be based on the Dollar Price
(as defined below) of the ROARS.
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"Applicable Spread" shall be the lowest bid indication,
expressed as a spread (in the form of a percentage or in basis points)
above the Base Rate, obtained by the Remarketing Dealer on the
Determination Date from the bids quoted by five Reference Corporate
Dealers (as defined below) for the full aggregate principal amount of
the ROARS at the Dollar Price, but assuming (i) an issue date that is
the Remarketing Date, with settlement on such date without accrued
interest, (ii) a maturity date that is the Stated Maturity Date and
(iii) a stated annual interest rate equal to the Base Rate plus the
spread bid by the applicable Reference Corporate Dealer. If fewer than
five Reference Corporate Dealers bid as described above, then the
Applicable Spread shall be the lowest of such bid indications obtained
as described above. THE INTEREST RATE TO MATURITY ANNOUNCED BY THE
REMARKETING DEALER, ABSENT MANIFEST ERROR, SHALL BE BINDING AND
CONCLUSIVE UPON THE BENEFICIAL OWNERS AND HOLDERS OF THE ROARS, THE
COMPANY AND THE TRUSTEE.
"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 ROARS being purchased by the Remarketing Dealer.
"Comparable Treasury Price" means, with respect to the
Remarketing Date, (a) the offer prices for the Comparable Treasury
Issues (expressed in each case as a percentage of its principal amount)
on the Determination Date, as set forth on "Telerate Page 500" (or such
other page as may replace Telerate Page 500), or (b) if such page (or
any successor page) is not displayed or does not contain such offer
prices on the Determination Date, (i) the average of the Reference
Treasury Dealer Quotations (defined below) for the Remarketing Date,
after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Remarketing Dealer obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations. "Telerate Page 500" means the
display designated as "Telerate Page 500" on Dow Jones Markets (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.
"Dollar Price" means, with respect to the ROARS, the present
value, as of the Remarketing Date, of the Remaining Scheduled Payments
(as defined below) discounted to the Remarketing Date on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate (as defined below).
"Reference Corporate Dealer" means each of Banc of America
Securities LLC, Bear Stearns & Co., Citicorp Securities, Inc., and two
other dealers to be selected by the Company and their respective
successors; provided that if any of the foregoing or their affiliates
shall cease to be a leading dealer of publicly traded debt securities
of the Company (a "Primary Corporate Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Corporate Dealer.
"Reference Treasury Dealer" means each of Banc of America
Securities LLC, Bear Stearns & Co., Citicorp Securities, Inc., and two
other dealers to be selected by the Company
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and their respective successors; provided that if any of the foregoing
or their affiliates shall cease to be a primary U.S. Government
securities dealer (a "Primary Treasury Dealer"), the Remarketing Dealer
shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and the Remarketing Date, the offer
prices for the Comparable Treasury Issues (expressed in each case as a
percentage of its principal amount) quoted in writing to the
Remarketing Dealer by such Reference Treasury Dealer by 3:30 p.m. on
the Determination Date.
"Remaining Scheduled Payments" means, with respect to the
ROARS, the remaining scheduled payments of the principal thereof and
interest thereon, calculated at the Base Rate only, that would be due
after the Remarketing Date to and including the Stated Maturity Date;
provided that if the Remarketing Date is not an Interest Payment Date
with respect to the ROARS, the amount of the next succeeding scheduled
interest payment thereon, calculated at the Base Rate only, will be
reduced by the amount of interest accrued thereon, calculated at the
Base Rate only, to the Remarketing Date.
"Treasury Rate" means, with respect to the Remarketing Date,
the rate per annum equal to the semi-annual equivalent yield to
maturity or interpolated (on a day count basis) yield to maturity of
the Comparable Treasury Issues, assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount),
equal to the Comparable Treasury Price for the Remarketing Date.
If the Remarketing Dealer elects to remarket the ROARS, the Remarketing
Dealer will 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 Determination Date of the Interest Rate to
Maturity applicable to the ROARS effective from and including the Remarketing
Date.
Upon the occurrence of certain termination events set forth in the
Remarketing Agreement, the Remarketing Dealer, in its sole discretion, in lieu
of terminating the Remarketing Agreement, at any time between the Determination
Date and 10:30 a.m. New York City time, on the Business Day immediately
preceding the Remarketing Date, may elect to purchase the ROARS for remarketing
and determine a new Interest Rate to Maturity in the manner set forth above in
this Paragraph 4, except that for purposes of determining the new Interest Rate
to Maturity pursuant to this provision, the Determination Date referred to above
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 11:00 a.m.
New York City time, on the date of such election, of the new Interest Rate to
Maturity applicable to the ROARS. THEREUPON, SUCH NEW INTEREST RATE TO MATURITY
SHALL SUPERSEDE AND REPLACE ANY INTEREST RATE TO MATURITY PREVIOUSLY DETERMINED
BY THE REMARKETING DEALER AND, ABSENT MANIFEST ERROR, SHALL BE BINDING AND
CONCLUSIVE UPON THE BENEFICIAL OWNERS AND HOLDERS OF THE ROARS ON AND AFTER THE
REMARKETING DATE, THE COMPANY AND THE TRUSTEE. Notwithstanding the foregoing,
the Remarketing Dealer, by redetermining the Interest Rate to Maturity upon the
occurrence of any such termination event, shall not thereby be deemed to have
waived its right to determine a new Interest
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Rate to Maturity or to terminate the Remarketing Agreement upon the subsequent
occurrence of another such termination event. If the Remarketing Dealer elects
to purchase the ROARS and redetermine the Interest Rate to Maturity in
accordance with the foregoing provisions in this paragraph, the Company will
retain the right to redeem the ROARS as specified in Paragraph 6, provided that
such election shall be made no later than 12:30 p.m. New York City time on the
Business Day immediately preceding the Remarketing Date.
5. MANDATORY REDEMPTION. Subject to the Remarketing Dealer's right to
elect to purchase the ROARS and redetermine the Interest Rate to Maturity
described in the immediately preceding paragraph, the Company shall redeem the
ROARS as a whole on the Remarketing Date at a price equal to 100% of the
principal amount thereof plus all accrued and unpaid interest, if any, on the
ROARS to the Remarketing Date in the event that (a) the Remarketing Dealer for
any reason does not notify the Company of the Interest Rate to Maturity by 4:00
p.m. New York City time, on the Determination Date, (b) prior to the Remarketing
Date, the Remarketing Dealer has resigned and no successor has been appointed on
or before the Determination Date, (c) at any time after the Remarketing Dealer
elects on the Notification Date to remarket the ROARS, the Remarketing Dealer
shall have elected to terminate the Remarketing Agreement in accordance with the
terms thereof, (d) the Remarketing Dealer does not give notice to the Company
and the Trustee by 4:00 p.m. New York City time on the Notification Date of its
intention to purchase the ROARS on the Remarketing Date, (e) the Remarketing
Dealer for any reason fails to deliver the purchase price of the ROARS to the
Trustee by 3:00 p.m. New York City time on the Business Day immediately
preceding the Remarketing Date, or (f) the Company fails for any reason to
redeem the ROARS following its election to effect such redemption as specified
in Paragraph 6. In any such case, payment shall be made by the Company through
the Trustee to the Participant of each Beneficial Owner of ROARS, by book-entry
through DTC, by the close of business on the Remarketing Date against delivery
or deemed delivery through DTC of such Beneficial Owner's ROARS. No defense or
right against the Remarketing Dealer shall relieve the Company of its
obligations to the Holders of the ROARS to make such mandatory redemption.
6. OPTIONAL REDEMPTION. (a) Notwithstanding any election by the
Remarketing Dealer to remarket the ROARS, the tendering of the ROARS for
purchase by the Remarketing Dealer shall be subject to the right of the Company
to redeem the ROARS as provided in Paragraph 6(b) below.
(b) The Company, in its sole and absolute discretion, shall
have the right, upon notice to the Remarketing Dealer and the Trustee not later
than 4:00 p.m. New York City time on the Business Day immediately preceding the
Determination Date, to irrevocably elect to redeem the ROARS, in whole but not
in part, on the Remarketing Date. If the Remarketing Dealer elects to purchase
the ROARS and redetermine the Interest Rate to Maturity under the circumstances
described in the last paragraph of Paragraph 4 above, the Company will retain
the right to redeem the ROARS, provided that such election must be made by 12:30
p.m. New York City time on the Business Day immediately preceding the
Remarketing Date. If the Company gives such notice to the Remarketing Dealer and
the Trustee, then (i) the Remarketing Dealer will be deemed to have elected not
to remarket the ROARS, (ii) the Company shall redeem the ROARS from Holders as a
whole on the Remarketing Date at a price equal to 100% of the aggregate
principal amount of the ROARS plus all accrued and unpaid interest, if any, on
the ROARS to the Remarketing Date (such payment to be
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made by the Company through the Trustee to DTC for distribution to the DTC
Participant of each Beneficial Owner of ROARS, by the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's ROARS)
and (iii) the Company will pay to the Remarketing Dealer the Calculation Amount,
as defined in the Remarketing Agreement.
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