REMARKETING AGREEMENT
BETWEEN
WASTE MANAGEMENT, INC.
(formerly known as USA Waste Services, Inc.)
AND
J.P. MORGAN SECURITIES INC.,
as Remarketing Dealer
TABLE OF CONTENTS
Page
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Section 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 2. Representations and Warranties. . . . . . . . . . . . . . . . 5
Section 3. Covenants of the Company. . . . . . . . . . . . . . . . . . . 6
Section 4. Appointment and Obligations of the Remarketing Dealer . . . . 9
Section 5. Fees and Expenses . . . . . . . . . . . . . . . . . . . . . .11
Section 6. Resignation of the Remarketing Dealer . . . . . . . . . . . .11
Section 7. Dealing in the Notes; Purchase of Notes by the Company. . . .12
Section 8. Conditions to Remarketing Dealer's Obligations . . . . . . .12
Section 9. Indemnification . . . . . . . . . . . . . . . . . . . . . . .15
Section 10. Termination of Agreement. . . . . . . . . . . . . . . . . . .18
Section 11. Remarketing Dealer's Performance; Duty of Care. . . . . . . .19
Section 12. Governing Law . . . . . . . . . . . . . . . . . . . . . . . .19
Section 13. Term of Agreement . . . . . . . . . . . . . . . . . . . . . .19
Section 14. Successors and Assigns. . . . . . . . . . . . . . . . . . . .20
Section 15. Headings. . . . . . . . . . . . . . . . . . . . . . . . . . .20
Section 16. Severability. . . . . . . . . . . . . . . . . . . . . . . . .20
Section 17. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . .20
Section 18. Amendments; Waivers . . . . . . . . . . . . . . . . . . . . .20
Section 19. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . .20
REMARKETING AGREEMENT
REMARKETING AGREEMENT dated as of July 17, 1998 (the "AGREEMENT")
between Waste Management, Inc. (formerly known as USA Waste Services, Inc.), a
Delaware corporation (the "COMPANY"), and J.P. Morgan Securities Inc.
("JPMSI") and, in its capacity as the remarketing dealer hereunder, the
"REMARKETING DEALER").
WHEREAS, the Company has issued $600,000,000 aggregate principal amount
of its 6 1/8% Mandatorily Tendered Notes (the "NOTES") due July 15, 2011 (the
"STATED MATURITY DATE") pursuant to an Indenture dated as of September 10,
1997, as supplemented (the "INDENTURE"), between the Company and Chase Bank
of Texas, National Association, as trustee (the "TRUSTEE"); and
WHEREAS, the Notes are being sold initially pursuant to an Underwriting
Agreement dated as of July 14, 1998 (the "UNDERWRITING AGREEMENT") between
the Company and Donaldson, Lufkin & Jenrette Securities Corporation, JPMSI
and others, as Underwriters; and
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement (No. 333-52197) under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), in connection
with the offering of debt securities, including the Notes, which registration
statement was declared effective by order of the Commission, and has filed
such amendments thereto and such amended or supplemented prospectuses as may
have been required to the date hereof, and will file such additional
amendments and supplements thereto and such additional amended or
supplemented prospectuses as may hereafter be required (such registration
statement, including any amendments and supplements thereto, and all
documents incorporated therein by reference, as from time to time amended or
supplemented pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), the Securities Act, or otherwise, are referred to herein as
the "REGISTRATION STATEMENT"); all preliminary and final prospectuses
relating to such Registration Statement used in connection with the offering
of Notes, including the documents incorporated by reference therein, are
referred to herein collectively as the "PROSPECTUS"; PROVIDED that, if any
new or revised prospectus shall be provided to the Remarketing Dealer by the
Company for use in connection with any remarketing of the Notes which differs
from the Prospectus filed with the Commission at the time of the initial
issuance of the Notes (whether or not such new or revised prospectus is
required to be filed by the Company pursuant to Rule 424(b) under the
Securities Act), the term "PROSPECTUS" shall refer to such new or revised
prospectus from and after the time it is first provided to the Remarketing
Dealer for such use, and the term "REGISTRATION STATEMENT" shall refer to the
Registration Statement as deemed amended by the prospectus so provided or any
new registration statement of which such prospectus is a part; and
WHEREAS, JPMSI is prepared to act as the Remarketing Dealer with respect
to the remarketing of the Notes on July 15, 2001 (the "REMARKETING DATE")
pursuant to the terms of, but subject to the conditions set forth in, this
Agreement;
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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.
(a) The following terms have the following meanings:
"BASE RATE" means 5.585% per annum.
"BUSINESS DAY" means any day other than a Saturday or Sunday or other
day on which banking institutions in the City of New York are authorized or
obligated by law, executive order or governmental decree to be closed.
"CALL PRICE" means the fair market value of the embedded interest rate
option implicit in the Remarketing Dealer's right to purchase at par and
remarket on the Remarketing Date, pursuant to this Agreement, of any Notes
not purchased (due to the prior termination of this Agreement or otherwise)
by the Remarketing Dealer on the Remarketing Date (such principal amount of
Notes, the "UNPURCHASED NOTES"). This amount shall equal:
(i) if the Remarketing Dealer's request for the Call Price payment
is made before the Determination Date, the Commercially Reasonable Option
Value on the date of such request;
(ii) if the Remarketing Dealer's request for the Call Price payment
is made on or after the Determination Date, the amount, if positive, equal
to: (x) the Dollar Price less the Original Amount of Notes, multiplied by
(y) a fraction, the numerator of which is the Unpurchased Notes and the
denominator of which is the Original Amount of Notes.
"COMMERCIALLY REASONABLE OPTION VALUE" means, on any date, the amount
determined by the Remarketing Dealer on such date under Section 6(e) of the
Master Agreement on a "Market Quotation" basis in respect of the embedded
interest rate option implicit in the Remarketing Dealer's option to purchase
at par the Unpurchased Notes on the Remarketing Date, as if a "Termination
Event" had occurred on such specified date under such interest rate option
with respect to the Company under the Master Agreement and the Company was
the "Affected Party". The determination of the Commercially Reasonable Option
Value shall be made using the provisions of the Master Agreement regardless
of any termination of the Master Agreement.
"COMPARABLE TREASURY ISSUE" means the United States Treasury security
selected by the Remarketing Dealer as having an actual maturity on the
Determination Date (or the United States Treasury securities selected by the
Remarketing Dealer to derive an interpolated yield to maturity on such
Determination Date) comparable to the remaining term of the Notes.
"COMPARABLE TREASURY PRICE" means (a) the offer price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount) on the
Determination Date, as set forth on Telerate Page 500 (as defined below),
adjusted to reflect settlement on the Remarketing Date, if
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prices quoted on Telerate Page 500 are for settlement on any date other than
the Remarketing Date, or (b) if such page (or any successor page) is not
displayed or does not contain such offer prices on such Business Day, (i) the
average of five Reference Treasury Dealer Quotations (as defined below) for
the Remarketing Date, excluding the highest and lowest of such Reference
Treasury Dealer Quotations (unless there is more than one highest or lowest
quotation, in which case only one such highest and/or lowest quotation shall
be excluded), or (ii) if the Remarketing Dealer obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such Reference
Treasury Dealer Quotations. The Remarketing Dealer shall have the discretion
to select the time at which the Comparable Treasury Price is determined on
the Determination Date.
"DOLLAR PRICE" means the discounted present value to the Remarketing
Date of the cash flows on a bond
(i) with a principal amount equal to the aggregate principal
amount of the Notes,
(ii) maturing on the Stated Maturity Date, and
(iii) bearing interest at a rate equal to the Base Rate,
using a discount rate equal to the Treasury Rate (defined below), payable
semi-annually (assuming a 360-day year consisting of twelve 30-day months) on
the interest payment dates of the Notes from and including the Remarketing
Date to but excluding the Stated Maturity Date.
"MASTER AGREEMENT" means the ISDA Master Agreement dated as of
June 30, 1995 between the Company and JPMSI, as amended.
"ORIGINAL AMOUNT OF NOTES" means the principal amount of the Notes
issued by the Company on the date hereof.
"REFERENCE CORPORATE DEALER" means JPMSI; Donaldson, Lufkin & Jenrette
Securities Corporation; BancAmerica Robertson Stephens; Chase Securities,
Inc.; and Deutsche Bank Securities. If any of such persons shall cease to be
a leading dealer of publicly-traded debt securities of the Company, then the
Remarketing Dealer may replace, with the approval of the Company (not to be
unreasonably withheld), such person with any other leading dealer of
publicly-traded debt securities of the Company.
"REFERENCE TREASURY DEALER" means a primary U.S. Government securities
dealer in The City of New York (which may include the Remarketing Dealer)
selected by the Remarketing Dealer.
"REFERENCE TREASURY DEALER QUOTATIONS" means, with respect to each
Reference Treasury Dealer, the offer price(s) for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) for settlement on
the Remarketing Date, quoted in writing to the Remarketing Dealer by such
Reference Treasury Dealer by 3:30 p.m., New York City time, on the
Determination Date.
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"STATED MATURITY DATE" means July 15, 2011.
"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 clause (a) of the definition of Comparable Treasury Price as may
replace Dow Jones Markets Limited.
"TREASURY RATE" means the annual rate equal to the semi-annual
equivalent yield to maturity or interpolated (on a 30/360 day count basis)
yield to maturity on the Determination Date of the Comparable Treasury Issue
(defined above) for value on the Remarketing Date, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price (as defined above).
(b) The following additional terms are defined in the following
Sections:
Defined Term Section
- ------------ -------
Commission Preamble
Company Preamble
Determination Date 4(d)
Notes Preamble
DTC 4(e)
Exchange Act Preamble
Exchange Act Documents 2(b)
Indemnified Person 9(c)
Indemnifying Person 9(c)
Indenture Preamble
Interest Rate to Maturity 4(d)
Investment Grade 8(c)
JPMSI Preamble
Moody's 8(c)
Notification Date 4(c)
Prospectus Preamble
Rating Agency 8(c)
Registration Statement Preamble
Remarketing Date Preamble
Remarketing Dealer Preamble
Remarketing Materials 3(b)
Representation Date 2(b)
S&P 8(c)
Securities Act Preamble
Trustee Preamble
Underwriting Agreement Preamble
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(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
Notes shall be deemed a representation and warranty by the Company to the
Remarketing Dealer as to the matters covered thereby.
SECTION 2. REPRESENTATIONS AND WARRANTIES. (a) The Company represents
and warrants to the Remarketing Dealer as of the date hereof, the
Notification Date (as defined below), the Determination Date (as defined
below) and the Remarketing Date (each of the foregoing dates being
hereinafter referred to as a "REPRESENTATION DATE"), as follows:
(i) It has filed all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act (collectively, the "EXCHANGE ACT DOCUMENTS").
(ii) The applicable Remarketing Materials (as defined below) will
not, as of their date or the Remarketing Date, include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(iii) The representations and warranties contained in the
Underwriting Agreement are true and correct in all material respects with
the same force and effect as though expressly made at and as of each
Representation Date; PROVIDED that, for purposes of this Agreement,
representations and warranties in the Underwriting Agreement shall be
deemed modified by the Exchange Act Documents, as well as any new or
revised registration statement and new or revised prospectus required by
subsection 3(f) hereof, and the date as of which such representations and
warranties are made shall include each Representation Date.
(iv) Since the respective dates as of which information is given in
the Remarketing Materials or the Exchange Act Documents, there has not been
any material change in the capital stock or long-term debt of the Company
or any of its subsidiaries, or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, business, prospects, management, financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Remarketing Materials or the Exchange Act Documents.
Except as set forth or contemplated in the Remarketing Materials or the
Exchange Act Documents, neither the Company nor any of its subsidiaries has
entered into any transaction or agreement (whether or not in the ordinary
course of business) material to the Company and its subsidiaries, taken as
a whole.
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
(vi) The issue and sale of the Notes and the performance by the
Company of all of its obligations under the Notes, the Indenture and this
Agreement and the consummation
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of the transactions herein and therein contemplated will not (i) conflict
with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any violation
of the provisions of the Certificate of Incorporation or the By-Laws of
the Company or (iii) result in a violation of any applicable law or statute
or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company, its subsidiaries or any of their
respective properties, except in the case of clause (i) or (iii) above
where such breach or violation (other than a violation of federal or state
securities laws) will not result in a material adverse change in the
general affairs, business, prospects, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole. No consent, approval, authorization,
order, license, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Notes
or the consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as have already been obtained and
except as may be required under the blue sky laws of any jurisdiction.
(vii) The Notes conform in all material respects to the description
thereof contained in the Prospectus.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), to
the Remarketing Dealer of the occurrence:
(i) at any time of any event set forth in clause (i), (ii) or
(iii) of subsection 8(c), or of any amendment to the Indenture (including
the Notes); and
(ii) on or after the Notification Date, of any event set forth in
clauses (i) or (ii) of subsection 8(d).
(b) The Company will furnish to the Remarketing Dealer upon request:
(i) each Registration Statement and the Prospectus relating to the
Notes (including in each case any amendment or supplement thereto and each
document incorporated therein by reference);
(ii) each Exchange Act Document filed after the date hereof; and
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(iii) such other information relating to the Company and the Notes
as the Remarketing Dealer may reasonably request from time to time for use
in connection with the remarketing of the Notes.
The Company agrees to provide the Remarketing Dealer with as many copies of
the foregoing written materials and information (collectively, the
"REMARKETING MATERIALS," including in each case any document incorporated by
reference therein) as the Remarketing Dealer may reasonably request for use
in connection with the remarketing of Notes and consents to the use thereof
for such purpose.
(c) If, at any time within three months of the Remarketing Date, any
event or condition known to the Company relating to or affecting the Company,
any subsidiary thereof or the Notes shall occur which could reasonably be
expected to cause any of 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 Notes 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 and the rules and
regulations thereunder.
(e) The Company will comply with the Securities Act, the Exchange Act,
the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), and
the rules and regulations of the Commission thereunder so as to permit the
completion of the remarketing of the Notes as contemplated in (i) this
Agreement, (ii) the Prospectus first used to confirm sales of the Notes when
the Notes were originally issued, and (iii) the prospectus, if any, used in
connection with the Remarketing.
(f) If a new or amended Registration Statement in respect of the Notes
is in the opinion of counsel for the Remarketing Dealer or for the Company
necessary to sell Notes on an unrestricted basis on the Remarketing Date,
then the Company, at its expense, will, on or before such Remarketing Date:
(i) prepare and file with the Commission such amended or new
Registration Statement (including a Prospectus) covering such sale of Notes
by the Remarketing Dealer, and cause such Registration Statement to become
effective on or prior to such Remarketing Date;
(ii) furnish to the Remarketing Dealer such number of copies of
such Prospectus as the Remarketing Dealer may reasonably request;
(iii) furnish to the Remarketing Dealer and any other securities
dealer participating in the remarketing of the Notes, an officers'
certificate, an opinion, including a statement as to the absence of
material misstatements in or omissions from the Registration Statement and
the Prospectus, of Liddell, Sapp, Zivley, Hill & LaBoon, L.L.P. or such
other
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counsel to the Company reasonably satisfactory to the Remarketing Dealer
and a "comfort letter" from the Company's independent accountants, in each
case dated as of such Remarketing Date and in form and substance
satisfactory to the Remarketing Dealer, of the same tenor as the officers'
certificate, opinion and comfort letter, respectively, delivered to satisfy
the closing conditions of the Underwriting Agreement, but modified to
relate to such new or amended Registration Statement and the Prospectus;
and
(iv) provide to the Remarketing Dealer and any other securities
dealer participating in the remarketing of the Notes the opportunity to
conduct an underwriters' due diligence investigation of the Company in a
scope customarily provided in connection with a public offering of the
Company's debt securities.
Furthermore, if at any time when, 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 Notes, any event shall occur or
condition shall exist as a result of which it is necessary to amend the
Registration Statement or amend or supplement the Prospectus in order that
such Prospectus will not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
it is delivered to a purchaser, or if it is necessary to amend or supplement
the Prospectus to comply with law, the Company, at its expense, will promptly
furnish to the Remarketing Dealer such amendments or supplements to the
Prospectus as may be needed so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus will comply with law.
The Company agrees to reimburse the Remarketing Dealer for all of its
reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) incurred in connection with any remarketing under
circumstances described in this subsection 3(f).
(g) The Company agrees that neither it nor any of its subsidiaries or
affiliates shall purchase or otherwise acquire, or enter into any agreement
to purchase or otherwise acquire, any of the Notes on or prior to the
Remarketing, other than (i) a repurchase of the Notes in accordance with
subsection 4(g) or (ii) a redemption of the Notes in accordance with
subsection 4(h).
(h) The Company will comply with each of the covenants set forth in the
Underwriting Agreement.
(i) In connection with the Remarketing, the Company will arrange for
the qualification of the Notes for sale under the laws of such jurisdictions
as the Remarketing Dealer may designate, and will maintain such
qualifications in effect so long as required for the Remarketing; the Company
will pay all expenses in connection with such qualification, including the
fees and disbursements of counsel for any dealers participating in the
Remarketing in connection with such qualification and in connection with blue
sky and legal investment surveys.
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(j) During the five Business Day period ending on the Remarketing
Date, the Company will not, without the consent of the Remarketing Dealer,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities, except debt
securities issued in connection with acquisitions by the Company or any of
its subsidiaries.
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 JPMSI, and JPMSI
hereby accepts such appointment, as the exclusive Remarketing Dealer with
respect to the Notes, subject further to (i) the obligation of the Company to
repurchase the Notes in accordance with subsection 4(g) or (ii) the option of
the Company to redeem the Notes in accordance with subsection 4(h) hereof.
(b) The obligations of the Remarketing Dealer hereunder to purchase the
tendered Notes on the Remarketing Date, to determine the Interest Rate to
Maturity pursuant to subsection 4(d) below and to remarket the Notes are
conditioned on:
(i) the issuance and delivery of such Notes pursuant to the terms
and conditions of the Underwriting Agreement;
(ii) the Remarketing Dealer's election on the Notification Date to
purchase the Notes for remarketing on the Remarketing Date; and
(iii) satisfaction on the Remarketing Date of all the conditions set
forth in Section 8 hereof, to the satisfaction of the Remarketing Dealer.
(c) On a Business Day not later than fifteen Business Days prior to
the Remarketing Date (the "NOTIFICATION DATE"), the Remarketing Dealer will
notify the Company and the Trustee as to whether it elects to purchase the
Notes on the Remarketing Date. If, and only if, the Remarketing Dealer so
elects, the Notes shall be subject to mandatory tender to the Remarketing
Dealer for purchase and remarketing on the Remarketing Date, upon the terms
and subject to the conditions described herein. The purchase price of the
Notes shall be equal to 100% of the principal amount thereof.
(d) The Remarketing Dealer shall determine a new stated interest rate
on the Notes as of the Remarketing Date (the "INTEREST RATE TO MATURITY") on
the third Business Day immediately preceding the Remarketing Date (the
"DETERMINATION DATE") by soliciting by 3:30 p.m., New York City time, the
Reference Corporate Dealers for firm, committed bids to purchase all
outstanding Notes at the Dollar Price and by selecting the lowest such firm,
committed bid (regardless of whether each of the Reference Corporate Dealers
actually submits a bid). Each bid shall be expressed in terms of the Interest
Rate to Maturity that the Notes would bear (quoted as a spread over the Base
Rate), based on the following assumptions:
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(i) the Notes would be sold to such Reference Corporate Dealer on
the Remarketing Date for settlement on the same day;
(ii) the Notes would mature on the Stated Maturity Date; and
(iii) the Notes would bear interest from and including the
Remarketing Date to but excluding the Stated Maturity Date at a stated rate
equal to the Interest Rate to Maturity bid by such Reference Corporate
Dealer, payable semi-annually on the interest payment dates for the Notes.
The Interest Rate to Maturity announced by the Remarketing Dealer as a
result of such process will be quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum and, absent manifest error, will be
binding and conclusive upon holders of the Notes, the Company and the
Trustee. Subject only to subsection 4(e) below, the Remarketing Dealer shall
have the discretion to select the time at which the Interest Rate to Maturity
is determined on the Determination Date.
The Remarketing Dealer shall have the right in its sole discretion to
either (i) remarket the Notes for its own account or (ii) sell the Notes to
the Reference Corporate Dealer submitting the lowest firm, committed bid
pursuant to this subsection 4(d). If two or more Reference Corporate Dealers
submit equivalent bids which constitute the lowest firm, committed bid, the
Remarketing Dealer may in its sole discretion elect to sell the Notes to any
such Reference Corporate Dealer.
(e) If the Remarketing Dealer has elected to remarket the Notes as
provided in subsections 4(c) and 4(d), then it shall notify the Company, the
Trustee and The Depository Trust Company ("DTC") by telephone, confirmed in
writing (which may include facsimile or other electronic transmission), by
5:00 p.m., New York City time, on the Determination Date of the Interest Rate
to Maturity applicable to the Notes effective from and including the
Remarketing Date.
(f) If the Notes are Remarketed as provided herein, then, subject to
Section 8 hereof, the Remarketing Dealer will make, or cause the Trustee to
make, payment to DTC by the close of business on the Remarketing Date
against delivery through DTC of the Notes tendered in such Remarketing, of
the purchase price for all of the tendered Notes. The purchase price of the
tendered Notes will be equal to 100% of the principal amount thereof and
shall be paid in immediately available funds.
(g) If the Remarketing Dealer (i) does not elect to purchase the Notes
for Remarketing pursuant to subsection 4(c); (ii) shall not have received by
the required time on the Determination Date any firm, committed bids to
purchase all of the Notes pursuant to subsection 4(d); or (iii) for any
reason does not purchase all of the Notes on the Remarketing Date, then the
Company shall repurchase on the Remarketing Date any Notes that have not been
purchased by the Remarketing Dealer at a price equal to 100% of the principal
amount of such Notes plus all accrued interest, if any, on such Notes to (but
excluding) the Remarketing Date. The Remarketing Dealer shall notify the
Company promptly about the occurrence of circumstances set forth in clause
(ii) or (iii) above.
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(h) If the Remarketing Dealer has elected to remarket the Notes on the
Remarketing Date in accordance with subsection 4(c) hereof, the Company may
irrevocably elect to exercise its right to redeem the Notes, in whole but not
in part, from the Remarketing Dealer on the Remarketing Date, by giving
written notice of such election to the Remarketing Dealer no later than the
later of
(i) the Business Day immediately prior to the Determination Date
or
(ii) if fewer than three Reference Corporate Dealers submit firm,
committed bids in accordance with subsection 4(d) hereof, immediately after
the deadline set by the Remarketing Dealer for receiving such bids has
passed;
and by paying the amount equal to the greater of (x) 100% of the aggregate
principal amount of the Notes and (y) the Dollar Price with respect to such
Notes.
In either such case, the Company shall pay such redemption price for the
Notes in same-day funds by wire transfer on the Remarketing Date to an
account designated by the Remarketing Dealer. For purposes of calculating
the Dollar Price, the Remarketing Dealer shall be deemed to have made the
request for the Dollar Price on the date the Company makes its election to
redeem the Notes.
If the Company exercises its right to redeem the Notes pursuant to
clause 4(h)(ii) above, it shall promptly reimburse the Remarketing Dealer for
any and all expenses (including any and all hedge losses resulting from
intra-day hedging associated with the determination of the Dollar Price on
the Determination Date by the Remarketing Dealer) incurred by the Remarketing
Dealer in connection with its having to break such associated intra-day
hedging transactions to enable the Company to exercise such redemption right.
If any such broken hedges result in a profit to the Remarketing Dealer, the
Remarketing Dealer shall promptly pay such profit over to the Company. The
amount of any hedge losses or profits shall be calculated by the Remarketing
Dealer on a reasonable basis.
(i) In accordance with the terms and provisions of the Notes, the
tender and settlement procedures set forth in this Section 4 shall be subject
to modification without the consent of the holders of the Notes, to the
extent required by DTC or, if the book-entry system is no longer available
for the Notes at the time of the Remarketing, to the extent required to
facilitate the tendering and remarketing of Notes in certificated form. In
addition, the Remarketing Dealer may, without the consent of the holders of
the Notes, modify the settlement procedures set forth in the Indenture and/or
the Notes in order to facilitate the settlement process.
(j) In accordance with the terms and provisions of the Notes, the
Company hereby (i) agrees that at all times, it will use its best efforts to
maintain the Notes in book-entry form with DTC or any successor thereto and
to appoint a successor depositary to the extent necessary to maintain the
Notes in book-entry form and (ii) waives any discretionary right it otherwise
may have under the Indenture to cause the Notes to be issued in certificated
form.
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SECTION 5. FEES AND EXPENSES. Subject to subsection 3(f), the last
paragraph of subsection 4(h) and Section 10 hereof, the Remarketing Dealer
will not receive any fees or reimbursement of expenses from the Company for
its remarketing services set forth herein.
SECTION 6. RESIGNATION OF THE REMARKETING DEALER. The Remarketing
Dealer may resign and be discharged from its duties and obligations hereunder
at any time prior to its giving notice of its intention to remarket the
Notes, such resignation to be effective ten Business Days after delivery of a
written notice to the Company and the Trustee of such resignation. The
Remarketing Dealer also may resign and be discharged from its duties and
obligations hereunder at any time, such resignation to be effective
immediately, upon termination of this Agreement in accordance with subsection
10(b) hereof. The Company shall have the right, but not the obligation, to
appoint a successor Remarketing Dealer.
SECTION 7. DEALING IN THE NOTES; PURCHASE OF NOTES BY THE COMPANY.
(a) JPMSI, 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 Notes. JPMSI, as holder or beneficial owner of the
Notes, 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 Notes 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 Notes in the Remarketing, PROVIDED that
the Interest Rate to Maturity established with respect to Notes in the
Remarketing is not different from the Interest Rate to Maturity that would
have been established if the Company had not purchased such Notes in such
Remarketing.
SECTION 8. CONDITIONS TO REMARKETING DEALER'S OBLIGATIONS. The
obligations of the Remarketing Dealer to purchase the Notes on the
Remarketing Date in accordance with the provisions of this Agreement, to
determine the Interest Rate to Maturity pursuant to subsection 4(d), and to
remarket the Notes have been undertaken in reliance on, and are subject to,
the following conditions:
(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 in
all material respects 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;
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(c) none of the following events shall have occurred at any time on or
prior to the Remarketing Date:
(i) 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 thereunder, with respect to the Notes shall
have occurred and be continuing;
[(ii) an Event of Default or a Termination Event (each as defined in
the Master Agreement) shall have occurred and be continuing under the
Master Agreement (if the Master Agreement shall have terminated, then this
provision shall continue to have effect as if such agreement were still in
force and effect); or]
(iii) without the prior written consent of the Remarketing Dealer,
the Indenture (including the Notes) 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 Notes or the remarketing procedures;
(d) none of the following events shall have occurred after the
Remarketing Dealer elects on the Notification Date to purchase the Notes:
(i) there shall have occurred any downgrading, or any notice shall
have been given of (A) any downgrading, (B) any intended or potential
downgrading or (C) any review or possible change that does not indicate an
improvement, in the rating accorded any debt securities of, or guaranteed
by, the Company by any "nationally recognized statistical rating
organization", as such term is defined for purposes of Rule 436(g)(2) under
the Securities Act;
(ii) trading of any securities of, or guaranteed by, the Company
shall have been suspended on any exchange or in any over-the-counter
market;
(iii) a material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business, prospects, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as a
whole, the effect of which is such as to make it, in the judgment of the
Remarketing Dealer, impracticable or inadvisable to remarket the Notes or
to enforce contracts for the sale of the Notes;
(iv) if a prospectus is required under the Securities Act to be
delivered in connection with the Remarketing, the Company shall fail to
furnish to the Remarketing Dealer on the Remarketing Date the officers'
certificate, opinion and comfort letter referred to in subsection 3(f) 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 Notes in the Remarketing as herein
contemplated and related
13
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;
(v) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange,
the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade; or a general moratorium on
commercial banking activities in New York shall have been declared by
either Federal or New York State authorities;
(vi) there shall have occurred any outbreak or escalation of
hostilities or any change in financial markets or any calamity or crisis
that, in the judgment of the Remarketing Dealer, is material and adverse
and which, in the judgment of the Remarketing Dealer, makes it
impracticable to remarket the Notes or to enforce contracts for the sale of
the Notes;
(vii) the Treasury Rate used to determine the Dollar Price on the
Determination Date exceeds the Base Rate; or
(viii) the Remarketing Dealer shall not have received by the required
time on the Determination Date any firm, committed bids to purchase all of
the Notes in accordance with subsection 4(d) hereof,
(e) the Remarketing Dealer shall have received (as soon as practicable
following notification by the Remarketing Dealer to the Company on the
Notification Date of its election to purchase the Notes and in any event
prior to the Determination Date) a certificate of any of the Chief Financial
Officer, the Treasurer, or the Controller of the Company, satisfactory to the
Remarketing Dealer, dated as of the Notification Date, to the following
effect:
(i) the Company has, prior to the Remarketing Dealer's election on
the Notification Date to remarket the Notes, provided the Remarketing
Dealer with notice of all events as required under subsection 3(a) of this
Agreement;
(ii) the representations and warranties in this Agreement are true
and correct in all material respects at and as of the Notification Date;
and
(iii) the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its
part to be performed or satisfied at or prior to the Notification Date; and
(f) the Remarketing Dealer shall have received on the Remarketing Date
a certificate of any of the Chief Financial Officer, the Treasurer or the
Controller of the Company, satisfactory to the Remarketing Dealer, dated as
of Remarketing Date, to the following effect:
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(i) the representations and warranties in this Agreement are true
and correct in all material respects with the same force and effect as
though expressly made at and as of the Remarketing Date;
(ii) the Company has complied in all material respects with all
agreements and satisfied in all material respects all conditions on its
part to be performed or satisfied respects at or prior to the Remarketing
Date;
(iii) no material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
business prospects, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, taken as a
whole, shall have occurred since the date of the most recent financial
statements of the Company filed with the Commission; and
(iv) the conditions specified in clauses (i), (ii) and (iii) of
subsection 8(c) and clauses (i) and (ii) of subsection 8(d) of this
Agreement have been satisfied.
SECTION 9. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Remarketing
Dealer and each person, if any, who controls the Remarketing Dealer within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, the reasonable legal fees and
other expenses incurred in connection with any suit, action or proceeding or
any claim asserted):
(i) arising out of the failure to have an effective registration
statement under the Securities Act relating to the Notes, if required, or
the failure to satisfy the prospectus delivery requirements of the
Securities Act because the Company failed to notify the Remarketing Dealer
of such delivery requirement or failed to provide the Remarketing Dealer
with a prospectus for delivery,
(ii) caused by any untrue statement or alleged untrue statement of
a material fact contained in any of the Remarketing Materials or caused by
any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities
are caused by any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with information
relating to the Remarketing Dealer furnished to the Company in writing by
the Remarketing Dealer expressly for use therein, or
(iii) any violation by the Company of, or any failure by the Company
to perform any of its obligations under, this Agreement, or
15
(iv) the acts or omissions of the Remarketing Dealer in connection
with its duties and obligations hereunder, except to the extent finally
judicially determined to be due primarily to its gross negligence or
willful misconduct.
(b) The Remarketing Dealer agrees to indemnify and hold harmless the
Company, its directors and its officers and each person who controls the
Company within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act, to the same extent as the foregoing indemnity from the
Company to the Remarketing Dealer in subsection 9(a)(ii) of this Agreement,
but only with reference to information relating to such Remarketing Dealer
furnished to the Company in writing by such Remarketing Dealer expressly for
use in any of the Remarketing Materials.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted
against any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "INDEMNIFIED
PERSON") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PERSON") in writing, and the Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person in
such proceeding and shall pay the reasonable fees and expenses of such
counsel related to such proceeding. In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless
(i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person, or
(iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
It is understood that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for
the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Remarketing Dealer and its directors and officers shall be designated in
writing by it and any such separate firm for the Company, its directors and
its officers who sign the Registration Statement and such control persons of
the Company or authorized representatives shall be designated in writing by
the Company. The Indemnifying Person shall not be liable for any settlement
of any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the
16
plaintiff, the Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such settlement or
judgment.
(d) Notwithstanding the foregoing subsection 9(c), if at any time an
Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by
such subsection 9(c), the Indemnifying Person agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such
Indemnifying Person of the aforesaid request and (ii) such Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with
such request prior to the date of such settlement; PROVIDED, HOWEVER, that
the Indemnifying Person shall not be liable for any settlement effected
without its consent pursuant to this sentence if the Indemnifying Person is
contesting in good faith the request for reimbursement and all other fees and
expenses of counsel not so contested shall have been reimbursed. No
Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter
of such proceeding.
(e) If the indemnification provided for in subsections 9(a) and 9(b) is
unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to, then each Indemnifying
Person, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a
result of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company,
on the one hand, and the Remarketing Dealer, on the other hand, from the
remarketing of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company, on the one hand, and
the Remarketing Dealer, on the other, in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company, on the one hand, and the Remarketing Dealer, on the
other, shall be deemed to be in the same respective proportions as the
aggregate principal amount of the Notes bears to the amount, if any, by which
the price at which the Notes are sold by the Remarketing Dealer in the
Remarketing exceeds the price paid by the Remarketing Dealer for the Notes
tendered on the Remarketing Date. The relative fault of the Company, on the
one hand, and the Remarketing Dealer, on the other, 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 the Company or by the
Remarketing Dealer and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(f) The Company and the Remarketing Dealer agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined
by PRO RATA allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in
17
the immediately preceding paragraph. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with investigating
or defending any such action or claim.
(g) Notwithstanding the provisions of this Section 9, in no event shall
the Remarketing Dealer be required to contribute any amount in excess of the
amount by which the total price at which the Notes remarketed by it and
distributed to the public were offered to the public exceeds the amount of
any damages that such Remarketing Dealer has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(h) The indemnity and contribution agreements of the Company and the
Remarketing Dealer contained in this Section 9 and the representations and
warranties of the Company set forth in this Agreement shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement and (ii) any investigation made by or on behalf of the Remarketing
Dealer or any person controlling the Remarketing Dealer or by or on behalf of
the Company, its officers or directors or any other person controlling the
Company.
SECTION 10. TERMINATION OF AGREEMENT.
(a) This Agreement shall terminate as to the Remarketing Dealer on the
earliest of:
(i) the effective date of the resignation of the Remarketing
Dealer pursuant to Section 6 hereof;
(ii) the date of the occurrence of any of the events described in
clause (i) or (ii) of subsection 4(g); or
(iii) the date the Company gives notice of its intention to redeem
all of the outstanding Notes in accordance with subsection 4(h).
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any time on or before the Remarketing
Date, if:
(i) any of the conditions referred to or set forth in subsection
8(a) or 8(b) hereof have not been met or satisfied in full or any of the
events set forth in subsection 8(c) or 8(d) shall have occurred; or
18
(ii) the Remarketing Dealer determines, in its sole discretion,
after consultation with the Company, that there is material, non-public
information about the Company that is not available to the Remarketing
Dealer which is necessary for it to fulfill its obligations under this
Agreement.
(c) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party,
except that, in the case of a termination resulting from a failure to observe
the conditions set forth in subsection 8(a) or 8(b), or the occurrence of any
of the events set forth in subsection 8(c) or any of clauses (i) through (iv)
of subsection 8(d), the Company shall reimburse the Remarketing Dealer for
all of its reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Remarketing Dealer. Section 9 and
subsections 4(h), 10(c) and 10(d) shall survive such termination and remain
in full force and effect.
(d) Upon the termination of this Agreement pursuant to subsection 10(b)
(except as a result of any event described in subsection 8(d)(vii) and
subject to the Remarketing Dealer's obligation to comply with Section 4(d)
hereof if the determination is on or after the Determination Date), then,
upon the request of the Remarketing Dealer, the Company shall pay the Call
Price to the Remarketing Dealer.
The Remarketing Dealer shall promptly notify the Company of the Call Price by
telephone, confirmed in writing (which may include facsimile or other
electronic transmission). The Call Price shall be paid in same-day funds by
wire transfer to an account designated by the Remarketing Dealer and shall be
paid as soon as practicable, and in any event not later than the earlier of
(x) three Business Days after written notification to the Company and (y) the
Remarketing Date.
The Remarketing Dealer's determination of the Call Price, absent
manifest error, shall be binding and conclusive upon the parties hereto.
(e) This Agreement shall not be subject to termination by the Company.
SECTION 11. REMARKETING DEALER'S PERFORMANCE; DUTY OF CARE. The duties
and obligations of the Remarketing Dealer shall be determined solely by the
express provisions of this Agreement and the Indenture. No implied covenants
or obligations of or against the Remarketing Dealer shall be read into this
Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of
this Agreement and the Indenture, as to the truth of the statements expressed
in any of such documents. The Remarketing Dealer shall be protected in acting
upon any document or communication reasonably believed by it to have been
signed, presented or made by the proper party or parties. The Remarketing
Dealer shall incur no liability to the Company or to any beneficial owner or
holder of Notes in its individual capacity or as Remarketing Dealer for any
action or failure to act in connection with the remarketing or otherwise,
except to the extent finally judicially determined to be due primarily to its
gross negligence or willful misconduct.
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SECTION 12. GOVERNING LAW. This agreement shall be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to the conflicts of laws provisions thereof.
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 Notes are outstanding or the completion of the Remarketing.
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 Section 9 and subsections 4(h), 10(c) and 10(d) 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 (other
than as specified in Article Eight of the Indenture) without the prior
written consent of the Remarketing Dealer. The rights and obligations of the
Remarketing Dealer hereunder may not be assigned or delegated to any other
person (other than an affiliate of the Remarketing Dealer, with the consent
of the Company, not to be unreasonably withheld) without the prior written
consent of the Company. This Agreement shall inure to the benefit of and be
binding upon the Company and the Remarketing Dealer and their respective
successors and assigns, and will not confer any benefit upon any other
person, partnership, association or corporation other than persons, if any,
controlling the Remarketing Dealer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act or any other indemnified
party to the extent provided in Section 9 hereof. The terms "successors" and
"assigns" shall not include any purchaser of any Notes 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; WAIVERS. This Agreement may be amended or
portions thereof may be waived by any instrument in writing signed by each of
the parties hereto so long as this
20
Agreement as amended or the provisions as so waived are not inconsistent with
the Indenture in effect as of the date of any such amendment or waiver.
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, if earlier, three days after it was mailed, registered or
certified mail, return receipt requested and postage prepaid, addressed as
follows:
(a) to the Company:
Waste Management, Inc.
1001 Fannin Street, Suite 4000
Houston, Texas 77002
Attention: Treasurer
Facsimile No.: (713) 209-9710
(b) to JPMSI:
J.P. Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention: Syndicate Department
Facsimile No.: 212/648-5909
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 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.
WASTE MANAGEMENT, INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
J. P. MORGAN SECURITIES INC.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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