-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TMlGeEGjIKwY6lvHKr3j5fuJ4kBhGcfOsJCvphvZOXExc14UXsxS9f9QhAtUpRS6 a9sA4BlS+U+nuooxmMx2WA== 0000950129-99-000159.txt : 19990118 0000950129-99-000159.hdr.sgml : 19990118 ACCESSION NUMBER: 0000950129-99-000159 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19990112 ITEM INFORMATION: FILED AS OF DATE: 19990115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BROWNING FERRIS INDUSTRIES INC CENTRAL INDEX KEY: 0000014827 STANDARD INDUSTRIAL CLASSIFICATION: REFUSE SYSTEMS [4953] IRS NUMBER: 741673682 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-06805 FILM NUMBER: 99506743 BUSINESS ADDRESS: STREET 1: 757 N ELDRIDGE CITY: HOUSTON STATE: TX ZIP: 77079 BUSINESS PHONE: 7138708100 8-K 1 BROWNING-FERRIS INDUSTRIES, INC. - DATED 01/12/99 1 - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report: January 12, 1999 (Date of earliest event reported) BROWNING-FERRIS INDUSTRIES, INC. (Exact name of registrant as specified in charter) Commission file number 1-6805 Delaware 74-1673682 (State of Incorporation) (I.R.S. Employer Identification No.) 757 N. Eldridge Houston, Texas 77079 (Address of Principal Executive Offices) (Zip Code) Registrant's telephone number, including area code: 713/870-8100. - -------------------------------------------------------------------------------- 2 ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS This Form 8-K is being filed in order to file certain exhibits to Registration Statement No. 33-65055 and such exhibits are being incorporated into Registration Statement No. 33-65055. EXHIBITS *1(a) Form of Underwriting Agreement (for debt securities). (Exhibit 1(b) to Registration Statement on Form S-3 No. 33-51879 is hereby incorporated by reference.) 1(b) Underwriting Agreement between Browning-Ferris Industries, Inc. and First Chicago Capital Markets, Inc., Chase Securities, Inc. and NationsBanc Montgomery Securities LLC, as the Underwriters, dated January 12, 1999. 1(c) Remarketing and Interest Calculation Agreement among Browning-Ferris Industries, Inc., The First National Bank of Chicago and First Chicago Capital Markets, Inc. 4(k) Form of 6.08% Market Value Put security. * Incorporated by reference. Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereto duly authorized. SIGNATURE BROWNING-FERRIS INDUSTRIES, INC. ("Registrant") January 14, 1999 By: /s/ Edward C. Norwood --------------------------------- Edward C. Norwood Vice President and Secretary -2- 3 EXHIBIT INDEX Number Description - ------ ----------- *1(a) Form of Underwriting Agreement (for debt securities). (Exhibit 1(b) to Registration Statement on Form S-3 No. 33-51879 is hereby incorporated by reference.) 1(b) Underwriting Agreement between Browning-Ferris Industries, Inc. and First Chicago Capital Markets, Inc., Chase Securities, Inc. and NationsBanc Montgomery Securities LLC, as the Underwriters, dated January 12, 1999. 1(c) Remarketing and Interest Calculation Agreement among Browning-Ferris Industries, Inc., The First National Bank of Chicago and First Chicago Capital Markets, Inc. 4(k) Form of 6.08% Market Value Put security. * Incorporated by reference. 3 EX-1.B 2 FORM OF UNDERWRITING AGREEMENT 1 EXHIBIT 1(b) BROWNING-FERRIS INDUSTRIES, INC. $250,000,000 6.08% MARKET VALUE PUT SECURITIES(SM) UNDERWRITING AGREEMENT January 12, 1999 Browning-Ferris Industries, Inc. 757 N. Eldridge Houston, Texas 77079 Dear Sirs: We (the "Underwriters") understand that Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"), proposes to issue and sell $250,000,000 aggregate principal amount of its 6.08% Market Value Put securities(SM) (the "Underwritten Securities"). Subject to the terms and conditions set forth herein or incorporated by reference herein, the underwriters named below (the "Underwriters") offer to purchase, severally and not jointly, the principal amounts of Underwritten Securities set forth below opposite their respective names: - -------------------------------------- ---------------------
UNDERWRITER PRINCIPAL AMOUNT First Chicago Capital Markets, Inc..................... $ 125,000,000 Chase Securities Inc................................... 67,500,000 NationsBanc Montgomery Securities LLC.................. 67,500,000 ------------- Total......................................... $ 250,000,000 =============
The Underwritten Securities shall be issued under the Restated Indenture, dated as of September 1, 1991, as amended (the "Indenture"), between the Company and Chase Bank of Texas, National Association (successor to Texas Commerce Bank National Association, as successor trustee to First City, Texas--Houston, National Association, formerly First City National Bank of Houston), as trustee (the "Trustee"), and shall have the terms set forth in the form of the Underwritten Security attached hereto as Exhibit A. Delivery Date and closing location: The Underwritten Securities will be delivered in book-entry form only through the facilities of The Depository Trust Company, on January 15, 1999 (the third business date following the date of this Underwriting Agreement), with the closing of such transaction to take place at the offices of the Company indicated above. Public offering price: The Underwriters will sell the Underwritten Securities to the public at varying prices relating to prevailing market prices at the time of sale. Purchase price: 100.43% of the principal amount of the Underwritten Securities (0.58% of which is payable solely by First Chicago Capital Markets, Inc.), plus accrued interest, if any, from January 15, 1999 to the Delivery Date (payable in same-day funds). Arrangements, if any, with respect to Delayed Delivery Contracts: None - ------------------------ "Market Value Put securities(SM)" is a service mark owned by First Chicago Capital Markets, Inc. 2 Information in the Interim Prospectus and the Prospectus (each as hereinafter defined) which has been furnished by Underwriters for inclusion therein: The information in the first sentence of the penultimate paragraph on the cover page of both the Interim Prospectus and the Prospectus relating to the price to the public and the information set forth in the second, third and fourth paragraphs under the caption "Underwriting" in both the Interim Prospectus and the Prospectus. Other terms and conditions: All references to "Registration Statement" in this Underwriting Agreement and in the Underwriting Agreement Provisions attached hereto as Exhibit B (the "Underwriting Agreement Provisions") shall mean the Registration Statement on Form S-3 (No. 33-65055) filed with the Securities and Exchange Commission (the "Commission") on December 15, 1995 (including all documents incorporated by reference), as amended or supplemented at the date of this Underwriting Agreement. Similarly, all references to "Prospectus" in this Underwriting Agreement and in the Underwriting Agreement Provisions shall mean the Basic Prospectus of the Company dated January 11, 1996, as supplemented by the Prospectus Supplement of the Company dated January 12, 1999 (including in each case all documents incorporated therein by reference), in the form filed with the Commission pursuant to Rule 424 of the Rules and Regulations, and all references to the "Interim Prospectus" in this Underwriting Agreement and in the Underwriting Agreement Provisions shall mean such Basic Prospectus as supplemented by the preliminary prospectus supplement of the Company dated January 6, 1999 (including in each case all documents incorporated therein by reference), in the form filed with the Commission pursuant to such Rule 424. The references to "Preliminary Prospectus" in clause (iii) of the proviso to Section 8(a) of the Underwriting Agreement Provisions shall be deemed to be references to the Interim Prospectus. Notwithstanding Section 7(j) of the Underwriting Agreement Provisions, the Company hereby agrees to pay all fees and expenses of counsels to the Underwriters in connection with the offering and sale of the Underwritten Securities. The legal opinions to be delivered pursuant to Sections 10(c) and 10(e) of the Underwriting Agreement Provisions shall include, in addition to those opinions contemplated by such Section, the following opinions relating to the Underwritten Securities: "The Remarketing and Interest Calculation Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the Call Holder and the Calculation Agent, constitutes, under the laws of the State of New York, a legal, valid and binding agreement of the Company, enforceable in accordance with its terms, except (A) as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws affecting creditors' rights generally, (B) that the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and (C) as such enforceability may be subject to limitations on rights to indemnity or contribution or both by federal or state securities laws or the public policies underlying such laws." "The Underwritten Securities are in a form contemplated by the Indenture and have been authorized by all necessary corporate action by the Company, and, when the Underwritten Securities have been duly executed, authenticated and delivered against payment therefor in accordance with the Indenture and the Underwriting Agreement, the Underwritten Securities will be legal, valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except (A) as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws affecting creditors' rights generally and (B) that the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable -2- 3 defenses and to the discretion of the court before which any proceeding therefor may be brought." The letter of Arthur Andersen LLP referred to in Section 10(f) of the Underwriting Agreement Provisions shall be dated the Delivery Date, and the "subsequent specified date" referred to in Section 10(f)(iii)(B) of the Underwriting Agreement Provisions shall be January 12, 1999. All references in the Underwriting Agreement Provisions to "Representatives" shall be deemed to refer to the Underwriters named herein. Any notice by the Company to the Underwriters given pursuant to this Underwriting Agreement shall be addressed to the Underwriters, c/o First Chicago Capital Markets, Inc., One First National Plaza, Suite 0595, Chicago, Illinois 60670 (Attention: Corporate Securities Structuring). All the provisions contained in the Underwriting Agreement Provisions, as modified by the terms and provisions set forth above, are herein incorporated by reference in their entirety and shall be deemed to be a part of this Underwriting Agreement to the same extent as if such provisions had been set forth in full herein. Terms defined in such document are used herein as therein defined. Please accept this offer no later than 7:00 o'clock P.M. on January 12, 1999, by signing a copy of this Underwriting Agreement in the space set forth below and returning the signed copy to us. Very truly yours, FIRST CHICAGO CAPITAL MARKETS, INC. CHASE SECURITIES INC. NATIONSBANC MONTGOMERY SECURITIES LLC By: FIRST CHICAGO CAPITAL MARKETS, INC. By: /s/ Evonne W. Taylor Vice President Accepted: BROWNING-FERRIS INDUSTRIES, INC. By: /s/ Ronald E. Long Treasurer -3- EX-1.C 3 REMARKETING & INTEREST CALCULATION AGREEMENT 1 EXHIBIT 1(c) REMARKETING AND INTEREST CALCULATION AGREEMENT REMARKETING AND INTEREST CALCULATION AGREEMENT, dated as of January 15, 1999 (the "Remarketing and Interest Calculation Agreement"), among Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"), The First National Bank of Chicago (the "Bank" and, in its capacity as the call holder hereunder, the "Call Holder") and First Chicago Capital Markets, Inc. ("FCCM" and, in its capacity as calculation agent hereunder, the "Calculation Agent"). WHEREAS, the Company has issued $250,000 aggregate principal amount of its 6.08% Market Value Put securities ("MVPs") pursuant to a Restated Indenture, dated as of September 1, 1991 (the "Senior Indenture"), between the Company and Chase Bank of Texas, National Association (successor to Texas Commerce Bank National Association as successor trustee to First City, Texas-Houston, National Association, which was formerly First City National Bank of Houston) (the "Trustee"); and WHEREAS, the MVPs have been sold and delivered initially pursuant to an underwriting agreement, dated January 12, 1999, between the Company and FCCM, Chase Securities Inc. and NationsBanc Montgomery Securities LLC (the "Underwriting Agreement"); and WHEREAS, the Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (No. 33-65055) under the Securities Act of 1933, as amended (the "Securities Act"), in connection with the offering of, among other securities, Debt Securities of the Company, which registration statement was declared effective by order of the Commission on January 11, 1996, and has filed such amendments thereto and such amended prospectuses as may have been required to the date hereof, and will file such additional amendments thereto and such additional amended prospectuses as may hereafter be required; and WHEREAS, FCCM has transferred without recourse, for fair market value, to the Bank its right to remarket the MVPs on the Remarketing Date, and the Bank is prepared to act as the Call Holder and FCCM is prepared to act as the Calculation Agent, in each case, with respect to the remarketing of the MVPs on January 18, 2000 (the "Remarketing Date") and, if applicable, on the Additional Remarketing Date thereafter, pursuant to the terms of, but subject to the conditions set forth in, this Agreement; NOW, THEREFORE, for and in consideration of the covenants herein made, and subject to the conditions herein set forth, the parties hereto agree as follows: - ---------------------- "Market Value Put securities" and "MVPs" are service marks owned by First Chicago Capital Markets, Inc. 2 Section 1. Definitions. Capitalized terms used and not defined in this Agreement shall have the meanings assigned to them in the Senior Indenture and in the form of the MVPs. Unless the context otherwise requires, the Call Holder, as used herein, shall also include the Calculation Agent. "Adjusted Dollar Price" shall mean, with respect to the Additional Remarketing Date, the Dollar Price as of the Remarketing Date (determined by the Calculation Agent on the third Business Day prior to the Remarketing Date) plus the product of (i) such Dollar Price less the aggregate principal amount of the MVPs outstanding as of the Remarketing Date, (ii) the weighted average per annum Interim Period Interest Rate for the Interim Period, and (iii) the number of days in the Interim Period divided by 360. "Additional Remarketing Date" shall have the meaning assigned to it in Section 4 hereof. "Applicable Spread" shall mean the lowest bid, expressed as a spread (in the form of a percentage or in basis points) above the Base Rate, obtained by the Calculation Agent on the Determination Date from the bids quoted by up to five Reference Corporate Dealers for the full aggregate principal amount of the MVPs at the Dollar Price, but assuming (i) an issue date equal to the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of an Interim Period), with settlement on such date without accrued interest, (ii) a maturity date equal to the Maturity Date of the MVPs, and (iii) a stated annual interest rate, payable semi-annually on the Interest Payment Dates for the MVPs, equal to the Base Rate plus the spread bid by the applicable Reference Corporate Dealer. "Bank" shall mean The First National Bank of Chicago. "Base Rate" shall mean 4.68% per annum. "Basic Spread" shall mean the lowest firm commitment bid expressed as a spread (in the form of a percentage or a number of basis points (plus or minus)) with respect to the Reference Rate, obtained by the Calculation Agent on the third Business Day prior to the Interim Period Remarketing Date from the bids quoted from up to five Reference Money Market Dealers on such date for the full aggregate principal amount of the MVPs at a dollar price equal to par, but assuming (i) that the purchase date is the Interim Period Remarketing Date, with settlement on such date without accrued interest, (ii) that the maturity date is the day that is 26 weeks from the Interim Period Remarketing Date, (iii) that the MVPs are callable by the Call Holder on a weekly basis after the Interim Period Remarketing Date, (iv) that the MVPs will be repurchased by the Company at par on the day that is 26 weeks from the Interim Period Remarketing Date if not previously called by the Call Holder, and (v) a stated annual interest rate, payable on the Additional Remarketing Date, equal to the Reference Rate plus the spread bid by the applicable Reference Money Market Dealer. "Business Day" shall mean any day other than a Saturday, a Sunday or a day on which banking institutions in The City of New York, Houston, Texas or Chicago, Illinois are authorized 2 3 or obligated by law, regulation or executive order to close and, in the case of the determination of the Reference Rate that is based upon deposits in U.S. dollars in London, the City of London. "Calculation Agent" shall mean FCCM, in its capacity as the calculation agent under this Agreement, and its successors and assigns. "Call Holder" shall mean the Bank, in its capacity as the call holder under this Agreement, and its successors and assigns. "Call Price" shall have the meaning assigned to it in Section 12 hereof. "Call Price Determination Date" shall have the meaning assigned to it in Section 12 hereof. "Commission" shall mean the United States Securities and Exchange Commission. "Company" shall mean Browning-Ferris Industries, Inc. and its successors under this Agreement. "Comparable Treasury Issues" shall mean the United States Treasury security selected by the Calculation Agent as having an actual or interpolated maturity on the Determination Date comparable to the remaining term of the MVPs. "Comparable Treasury Price" shall mean, (a) the offer price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) on the third Business Day prior to the Remarketing Date, as set forth on Telerate Page 500 (as defined below), adjusted to reflect settlement on the Remarketing Date if 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 price on such Business Day, (i) the average of five Reference Treasury Dealer Quotations (as defined below) for such 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 Calculation Agent 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 Bridge Telerate, Inc. (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 Bridge Telerate, Inc. The Calculation Agent shall have the discretion to select the time at which the Comparable Treasury Price is determined on the third Business Day prior to the Remarketing Date. "Determination Date" shall mean the third Business Day preceding the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of an Interim Period), subject to Section 12(c) hereof. 3 4 "Dollar Price" shall mean, with respect to the MVPs, the present value, as of the Remarketing Date, of the Remaining Scheduled Payments 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, except that in the case of the Additional Remarketing Date, the Dollar Price will be the Adjusted Dollar Price. "DTC" shall mean The Depository Trust Company. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Exchange Act Documents" shall have the meaning assigned to it in Section 2 hereof. "Exchange Act Regulations" shall mean the rules and regulations promulgated under the Exchange Act. "FCCM" shall mean First Chicago Capital Markets, Inc. "Interest Determination Date" shall have the meaning assigned to it in Section 5 hereof. "Interim Period" shall mean the period, if any, from and including the Remarketing Date to but excluding the Additional Remarketing Date. "Interim Period Interest Rate" shall have the meaning assigned to it in Section 5 hereof. "Interim Period Remarketing Date" shall have the meaning assigned to it in Section 4 hereof. "Material Adverse Effect" shall have the meaning assigned to it in Section 2 hereof. "Maturity Date" shall mean January 18, 2002 or the later date determined in accordance with Section 4 hereof. "MVPs" shall mean the 6.08% Market Value Put securities of the Company. "Notification Date" shall have the meaning assigned to it in Section 4 hereof. "Optional Redemption Price" shall mean the sum of (i) the greater of (a) 100% of the principal amount of the MVPs and (b) the Dollar Price (which if such remarketing date is the Additional Remarketing Date, will equal the Adjusted Dollar Price), plus (ii) in the case of either (a) or (b), accrued and unpaid interest on the principal amount being redeemed to the date of payment in respect of such redemption. "Prospectus" shall have the meaning assigned to it in Section 3 hereof. "Reference Corporate Dealers" shall mean each of FCCM, its successors and four other leading dealers of publicly traded debt securities of the Company selected by the Call Holder. 4 5 The "Reference Rate" shall mean, with respect to the Interim Period, one of the following reference rates selected by the Company and notified to the Calculation Agent no later than four Business Days prior to the Interim Period Remarketing Date: (i) the per annum rate for deposits in U.S. dollars for a period of one week shown on Telerate page 3750 (or any successor page) at 11:00 a.m., London time, on the applicable Interest Determination Date, (ii) the per annum rate equal to the average of the federal funds rates shown on Telerate page 5 (or any successor page) as of 11:00 a.m., New York City time, on the applicable Interest Determination Date and each of the four Business Days prior to such Interest Determination Date, or (iii) the one-week "AA" non-financial commercial paper rate shown on the Internet world wide web page of the Board of Governors of the Federal Reserve System at www.bog.frb.fed.us/releases/CP/ (or any successor page) as of 11:00 a.m., New York City time, on the applicable Interest Determination Date. If the reference rate on the applicable designated page (or successor page) is not published on the specified page by the specified time on the applicable date or dates, then the reference rate determined as of the applicable Interest Determination Date shall be the reference rate in effect on such Interest Determination Date. "Reference Money Market Dealers" shall mean each of FCCM, Chase Securities Inc., NationsBanc Montgomery Securities LLC, Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated and their respective successors; provided, however, that if any of the foregoing or its affiliates shall cease to be a leading dealer of publicly traded debt securities of the Company and a leading dealer in money market instruments (a "Primary Money Market Dealer"), the Calculation Agent shall substitute therefor another Primary Money Market Dealer. "Reference Treasury Dealer" shall mean each of FCCM, Chase Securities Inc., NationsBanc Montgomery Securities LLC, Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer (a "Primary Treasury Dealer"), the Calculation Agent shall substitute therefor another Primary Treasury Dealer. "Reference Treasury Dealer Quotations" shall mean, with respect to each Reference Treasury Dealer, the offer price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) for settlement on the Remarketing Date quoted in writing to the Calculation Agent by such Reference Treasury Dealer by 3:30 p.m. on the third Business Day prior to the Remarketing Date. "Registration Statement" shall have the meaning assigned to it in Section 3 hereof. "Remaining Scheduled Payments" shall mean, with respect to the MVPs, the remaining scheduled payments of the principal thereof and interest thereon, calculated at the Base Rate only and assuming (i) a maturity date equal to January 18, 2002, and (ii) that the Company did not elect the Remarketing Date to be the Interim Period Remarketing Date. "Remarketing Date" shall mean January 18, 2000, which such date shall be an Interest Payment Date. 5 6 "Remarketing Materials" shall have the meaning assigned to it in Section 3 hereof. "Representation Date" shall have the meaning assigned to it in Section 2 hereof. "Securities Act" shall mean the Securities Act of 1933, as amended. "Securities Act Regulations" shall mean the rules and regulations promulgated under the Securities Act. "Senior Indenture" shall mean the Restated Indenture dated as of September 1, 1991 between the Company and the Trustee, as amended, modified or supplemented from time to time. "Treasury Rate" shall mean 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 (as 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). "Trustee" shall mean Chase Bank of Texas, National Association (formerly known as Texas Commerce Bank National Association as successor trustee to First City, Texas-Houston, National Association, which was formerly First City National Bank of Houston), and its successors as trustees under the Senior Indenture. "Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as amended. "Underwriting Agreement" shall mean the underwriting agreement, dated January 12, 1999, between the Company and FCCM, Chase Securities Inc. and NationsBanc Montgomery Securities LLC pursuant to which the MVPs have been sold and delivered initially. Section 2. Representations and Warranties. (a) The Company represents and warrants to the Call Holder as of the date hereof, the Notification Date, the date, if any, on which the Remarketing Date is designated the Interim Period Remarketing Date, the Determination Date, the Remarketing Date and, if applicable, the Additional Remarketing Date (each such date being hereinafter referred to as a "Representation Date"), that (i) it has or shall have made all the filings with the Commission that it is required to make under the Exchange Act and the Exchange Act Regulations within the 12-month period prior to the Representation Date (the filings made within the 12-month period of a Representation Date being referred to as the "Exchange Act Documents", with respect to such Representation Date), (ii) each Exchange Act Document complies in all material respects with the requirements of the Exchange Act and Exchange Act Regulations, and each Exchange Act Document (as modified or superseded by subsequently filed documents at or prior to such date) as of each Representation Date will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iii) the applicable Remarketing Materials will not, as of their 6 7 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, and (iv) no consent, approval, authorization, order or decree of any court or governmental agency or body, including as to an effective registration statement under the Securities Act with respect to the MVPs, is required for the consummation by the Company of the transactions contemplated by this Agreement or in connection with the remarketing of MVPs pursuant hereto, except such as have been or shall have been obtained or rendered, as the case may be. (b) The Company further represents and warrants to the Call Holder as of each Representation Date as follows: (i) This Agreement has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery thereof by each of the Call Holder and the Calculation Agent, constitutes a legal, valid and binding agreement of the Company, enforceable in accordance with its terms, except (A) as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other laws affecting creditors' rights generally, (B) that the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought, and (C) as such enforceability may be subject to limitations on rights to indemnity or contribution or both by Federal or state securities laws or the public policies underlying such laws. (ii) The Senior Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act, and, assuming it has been duly executed and delivered by the Trustee, constitutes a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). (iii) The MVPs have been duly authorized and executed by the Company and authenticated, issued and delivered in the manner provided for in the Senior Indenture and delivered against payment of the purchase price therefor as provided in the Underwriting Agreement, and constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is 7 8 considered in a proceeding in equity or at law), and are in the form contemplated by, and entitled to the benefits of, the Senior Indenture. (iv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the performance by the Company of its obligations hereunder, in connection with the remarketing of the MVPs hereunder or the consummation of the transactions contemplated by this Agreement or for the due execution, delivery or performance of the Senior Indenture by the Company, except such as have been already obtained or shall have been obtained prior to such remarketing. (v) The MVPs are rated A- by Standard & Poor's Ratings Services, Baa1 by Moody's Investors Service, Inc. and A- Duff & Phelps Credit Rating Co. or such other rating as to which the Company shall have most recently notified the Call Holder pursuant to Section 3(a) hereof. (vi) The accountants who have certified or shall certify the financial statements of the Company included in the Company's most recent Annual Report on Form 10-K are independent accountants, as required by the Securities Act and the Securities Act Regulations. (vii) The consolidated financial statements filed as part of or incorporated by reference in the Remarketing Materials present fairly the financial position, results of operations, stockholders' equity and cash flow of the entities purported to be shown thereby, as of the respective dates of, and for the respective periods covered by, such financial statements, all in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved and comply and will comply as to form in all material respects with the Securities Act, the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations. The term "financial statements" includes the financial statements and the accompanying notes and schedules. (viii) There has not been any material adverse change in the financial condition, results of operations, business or properties of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect") from that on the latest dates as of which or during the latest period for which such financial condition, results of operations, business or properties is set forth in the Exchange Act Documents. (ix) The Company and each of its consolidated subsidiaries have been duly incorporated, are validly existing as corporations in good standing under the laws of their respective jurisdictions of incorporation, are duly qualified to do business and are in good standing as foreign corporations in each jurisdiction in which their respective ownership of property or the conduct of their respective businesses requires qualification (except where the failure to be in good standing or to qualify would not have a Material Adverse Effect). The Company has all requisite power and authority necessary to enter 8 9 into this Agreement and the Senior Indenture, and to carry out the provisions and conditions hereof and thereof. (x) There is no action, suit, proceeding, inquiry or investigation before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any subsidiary, which is required to be disclosed in the Exchange Act Documents (other than as disclosed therein), or which might reasonably be expected to result in a Material Adverse Effect, or which might reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder; the aggregate of all pending legal or governmental proceedings to which the Company or any subsidiary is a party or of which any of their respective property or assets is the subject which are not described in the Exchange Act Documents, including ordinary routine litigation incidental to the business, could not reasonably be expected to result in a Material Adverse Effect. (xi) Neither the Company nor any of its consolidated subsidiaries is in violation of its corporate charter or by-laws or in default under any agreement, indenture or instrument, the effect of which violation or default would be material to the Company and its consolidated subsidiaries taken as a whole. (xii) The execution, delivery and performance by the Company of this Agreement and compliance by the Company with the provisions of the MVPs and the Senior Indenture will not conflict with, result in the creation or imposition of any lien, security interest or other encumbrance upon any of the assets of the Company or any of its consolidated subsidiaries pursuant to the terms of, or constitute a default under, any agreement, indenture or instrument to which the Company is a party or by which it is bound where any such default would be material to the Company and its consolidated subsidiaries taken as a whole or result in a violation of the corporate charter or by-laws of the Company or any of its consolidated subsidiaries or, to the best knowledge of the Company, any law applicable to the Company or its consolidated subsidiaries the penalties for violations of which would be material singly or in the aggregate to the Company and its consolidated subsidiaries taken as a whole. (c) Any certificate signed by the Chairman of the Board or the President or a Vice President and the chief financial officer of the Company and delivered to the Call Holder or to counsel for the Call Holder in connection with the remarketing of the MVPs shall be deemed a representation and warranty by the Company to the Call Holder as to the matters covered thereby. Section 3. Covenants of the Company. The Company covenants with the Call Holder as follows: 9 10 (a) The Company will provide prompt notice by telephone, confirmed in writing (which may include facsimile or other electronic transmission), to the Call Holder of (i) any notification or announcement by a "nationally recognized statistical rating organization" (as defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act) with regard to the ratings of any securities of the Company, including, without limitation, notification or announcement of a downgrade in or withdrawal of the rating of any security of the Company or notification or announcement of the placement of any rating of any securities of the Company under surveillance or review, including placement on CreditWatch or on Watch List with negative implications, or (ii) the occurrence at any time of any event set forth in Section 9(b)(i), (ii), (iii)(A), (v), (vi) or (viii) of this Agreement. (b) The Company will furnish to the Call Holder: (i) if required as provided in paragraph (e) below for purposes of the remarketing, a then currently effective registration statement (or equivalent document) under the Securities Act and a then current prospectus (or equivalent document) relating to the MVPs to be used by the Call Holder for remarketing and resale of the MVPs (such registration statement and any amendments thereto, including any such prospectus relating to the MVPs constituting a part thereof, and all documents incorporated therein by reference, as from time to time amended or supplemented pursuant to the Exchange Act, the Securities Act, or otherwise, are referred to herein as the "Registration Statement" and the "Prospectus," respectively, except that if any revised prospectus shall be provided to the Call Holder by the Company for use in connection with the remarketing of the MVPs which differs from the Prospectus on file at the Commission at the time the Registration Statement becomes effective (whether or not such revised prospectus is required to be filed by the Company pursuant to Rule 424(b) of the Securities Act Regulations), the term "Prospectus" shall refer to such revised prospectus from and after the time it is first provided to the Call Holder for such use); (ii) each Exchange Act Document filed within 12 months of the Remarketing Date, and, in the event of an Interim Period, the Additional Remarketing Date; (iii) in connection with the remarketing of MVPs, such other information as the Call Holder may reasonably request from time to time; and (iv) each document publicly filed by the Company with the Commission pursuant to the Securities Act or the Exchange Act (to the extent not covered by (ii) above) or otherwise after the date hereof. The Company agrees to provide the Call Holder with as many copies of the foregoing written materials and other Company approved information as the Call Holder may reasonably request for use in connection with the remarketing of MVPs, and consents to the use thereof for such purpose. 10 11 (c) If, at any time during which either the Call Holder or the Calculation Agent would be obligated to take any action under this Agreement, any event or condition known to the Company relating to or affecting the Company, any subsidiary thereof or the MVPs shall occur which could reasonably be expected to cause any of the reports, documents, materials or information referred to in paragraph (b) (i), (ii) or (iii) above or any document incorporated therein by reference (collectively, the "Remarketing Materials") to contain an untrue statement of a material fact or omit to state a material fact, the Company shall promptly notify the Call Holder in writing of the circumstances and details of such event or condition. (d) So long as the MVPs 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 Exchange Act Regulations. (e) The Company will comply with the Securities Act and the Securities Act Regulations, the Exchange Act and the Exchange Act Regulations and the Trust Indenture Act and the rules and regulations of the Commission thereunder so as to permit the completion of the remarketing of the MVPs as contemplated in this Agreement and in the prospectus relating to the initial issuance of the MVPs. In furtherance of the foregoing, if it shall be necessary, in the opinion of counsel for the Call Holder or for the Company to have a currently effective Registration Statement and a current Prospectus in order to comply with the requirements of the Securities Act or the Securities Act Regulations and the Commission's interpretations of the Securities Act and the Securities Act Regulations, or if at any time when a prospectus (or equivalent document) is required by the Securities Act to be delivered in connection with sales of the MVPs, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Call Holder or for the Company, to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to a purchaser, the Company, at its expense, will promptly: (i) prepare and file with the Commission such Registration Statement and Prospectus or such amendment or supplement as may be necessary to correct such statement or omission as referred to above or to make the Registration Statement or the Prospectus comply with such requirements as referred to above; (ii) furnish to the Call Holder such number of copies of such Registration Statement and Prospectus or such amendment, supplement or other document as the Call Holder may reasonably request; (iii) furnish to the Call Holder an officers' certificate, an opinion, including a statement as to the absence of material misstatements in or omissions from the Registration Statement and Prospectus, as amended or supplemented, of counsel for the Company satisfactory to the Call Holder and a "comfort letter" from the Company's independent accountants, in each case in form and substance satisfactory to the Call Holder, of the same tenor as the officers' certificate, opinion and comfort letter, 11 12 respectively, delivered pursuant to the Underwriting Agreement, but modified to relate to the Registration Statement and Prospectus as amended or supplemented to the date thereof; and (iv) provide to the Call Holder and any other securities dealer participating in the remarketing of the MVPs the opportunity to conduct an underwriter's due diligence investigation of the Company in a scope customarily provided in connection with a public offering of the Company's debt securities. (f) The Company agrees that neither it nor any of its subsidiaries or affiliates shall defease, purchase or otherwise acquire, or enter into any agreement to defease, purchase or otherwise acquire, any of the MVPs prior to the remarketing thereof by the Call Holder, other than pursuant to Section 4(f) or 4(g) of this Agreement. (g) Notwithstanding any provision to the contrary set forth in the Senior Indenture, the Company shall (i) use its best efforts to maintain the MVPs in book-entry form with DTC or any successor thereto and to appoint a successor depositary to the extent necessary to maintain the MVPs in book-entry form, and (ii) waive any discretionary right it otherwise has under the Senior Indenture to cause the MVPs to be issued in certificated form. (h) To the extent that a Registration Statement and current Prospectus are required as contemplated in paragraph (e) above, the Company shall make representations and warranties and comply with covenants of the same tenor as those set forth in the Underwriting Agreement, but modified to relate to the Registration Statement and the Prospectus. (i) In connection with the remarketing, the Company will endeavor to qualify the MVPs for offer and sale under the securities laws of such jurisdictions as the Call Holder may reasonably request, provided that the Company shall not be required to register or qualify as a foreign corporation nor, except as to matters relating to the remarketing of the MVPs, take any action which would subject it to service of process generally in any jurisdiction, or to the imposition of any taxes based on, or measured by, all or any part of the income of the Company, in any jurisdiction where it is not at such date so subject. (j) During the five Business Day period ending on any remarketing date, the Company will not, without the consent of the Call Holder, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any debt securities or warrants (other than commercial paper in the ordinary course of business during such five Business Day period in the case of the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of the Interim Period)). Section 4. Appointment and Obligations of the Call Holder. (a) Unless this Agreement is otherwise terminated in accordance with Section 12 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the Company hereby appoints the Bank, and the Bank hereby accepts such appointment, as the exclusive Call Holder with respect to $250,000 aggregate principal amount of MVPs and agrees, subject to the conditions set forth herein, to 12 13 remarket the MVPs, subject further to repurchase or redemption of the MVPs in accordance with clause (f) or (g), respectively, of this section. (b) It is expressly understood and agreed by the parties hereto that the obligations of the Call Holder and the Calculation Agent hereunder with respect to the MVPs to be remarketed on the Remarketing Date and the Additional Remarketing Date, if applicable, are conditioned on the Call Holder's election on the Notification Date to purchase the MVPs for remarketing on the Remarketing Date. It is further expressly understood and agreed by and between the parties hereto that, if the Call Holder has elected to remarket the MVPs pursuant to clause (c) below, the Call Holder shall not be obligated to remarket any MVPs or to perform any of the other duties set forth herein at any time after the Notification Date that (i) any of the conditions set forth in clause (a) of Section 9 hereof shall not have been fully and completely met to the reasonable satisfaction of the Call Holder, or (ii) any of the events set forth in clause (b) of Section 9 hereof shall have occurred. (c) On a Business Day not less than five Business Days prior to the Remarketing Date, the Call Holder shall notify the Company and the Trustee as to whether it elects to purchase the MVPs on the Remarketing Date (the "Notification Date"). If, and only if, the Call Holder so elects, the MVPs shall be subject to mandatory tender to the Call Holder, and the Call Holder shall be obligated to purchase the MVPs at a price equal to 100% of the principal amount thereof, for remarketing on the Remarketing Date and, in the event of an Interim Period, on the Additional Remarketing Date thereafter, subject in each case to the conditions described herein. (d) Provided that the Call Holder gives notice of its intention to purchase the MVPs in accordance with clause (c) of this section, not later than 4:00 p.m., New York City time, on the fourth Business Day prior to January 18, 2000, the Company, after consultation with the Call Holder, may notify the Call Holder, the Trustee and DTC by telephone, confirmed in writing that it elects January 18, 2000 to be the Interim Period Remarketing Date (the "Interim Period Remarketing Date"). The Company will be eligible to make such notification if at such time its senior unsecured debt is rated at least "Baa3" by Moody's Investors Service, Inc. and "BBB-" by Standard & Poor's Ratings Services (or the equivalent thereof by each such rating agency) at the time of such notification or if the Call Holder waives this requirement in its sole discretion. If the Company does not provide such notification, January 18, 2000 will be the only remarketing ate and the Maturity Date will be January 18, 2002. If the Company provides such notification, then (i) the Additional Remarketing Date will be one of the 26 following one-week anniversary dates of January 18, 2000 (or if any such day is not a Business Day, the next succeeding Business Day) designated by the Company not later than the fifth Business Day prior to such one-week anniversary date (the "Additional Remarketing Date") except that, if the Company fails to so designate the Additional Remarketing Date, the Additional Remarketing Date will be the date that is the 26th week anniversary of January 18, 2000 (or if such day is not a Business Day, the next following Business Day) and (ii) the Maturity Date of the MVPs will be the date that is the two-year anniversary of the Additional Remarketing Date (whether or not a Business Day). 13 14 (e) In the event that the MVPs are remarketed as provided herein, the Call Holder shall make, or cause the Trustee to make, payment to the DTC Participant of each tendering Beneficial Owner of MVPs subject to remarketing, by book entry through DTC by the deadline on the applicable remarketing date then in effect under DTC's rules and regulations against delivery through DTC of such Beneficial Owner's tendered MVPs, of 100% of the principal amount of the tendered MVPs that have been purchased for remarketing by the Call Holder. The Company shall make, or cause the Trustee to make, payment of interest to each Beneficial Owner of MVPs due on the applicable remarketing date by book entry through DTC by the close of business on such remarketing date. (f) Subject to Section 12(c) of this Agreement, in the event that (i) the Calculation Agent for any reason does not notify the Company of (A) the Interest Rate to Maturity by 4:00 p.m., New York City time, on the Determination Date or (B) in the event of the Interim Period, the Interim Period Interest Rate which will initially be in effect, by 4:00 p.m. on the second Business Day prior to January 18, 2000, or (ii) prior to any remarketing date, the Call Holder has resigned and no successor has been appointed (A) on or before the Determination Date or, (B) in the event of the Interim Period, the second Business Day prior to January 18, 2000, or (iii) at any time after the Call Holder elects on the Notification Date to remarket the MVPs any event as set forth in Section 9 or Section 12 of this Agreement shall have occurred, or (iv) the Call Holder for any reason does not elect to purchase the MVPs for remarketing on the Remarketing Date, or (v) the Call Holder for any reason does not purchase all tendered MVPs on any remarketing date, or (vi) a Reference Corporate Dealer shall fail to purchase all of the MVPs from the Call Holder on the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of the Interim Period), or (vii) in the event of the Interim Period, a Reference Money Market Dealer shall fail to purchase all of the MVPs on the Interim Period Remarketing Date, then the Company shall repurchase the MVPs as a whole on the remarketing date relating to such event (which, in the case of the event described in clause (iii) that occurs during the Interim Period shall be the Additional Remarketing Date) at a price equal to 100% of the principal amount of the MVPs plus all accrued and unpaid interest, if any, on the MVPs to such remarketing date. In any such case, payment will be made by the Company through the Trustee to the DTC Participant of each tendering Beneficial Owner of MVPs, by book-entry through DTC by the close of business on the applicable remarketing date against delivery through DTC of such Beneficial Owner's tendered MVPs. (g) If the Call Holder elects to remarket the MVPs as provided in clause (c) above, then not later than the fourth Business Day immediately preceding the Remarketing Date or the Additional Remarketing Date, if any, the Company may notify the Call Holder and the Trustee if the Company irrevocably elects to exercise its right to redeem the MVPs, in whole but not in part, from the Call Holder on the remarketing date immediately following such notification at the Optional Redemption Price. If the Company elects to redeem the MVPs, it shall pay the Optional Redemption Price therefor in same-day funds on such remarketing date by wire transfer to an account designated by the Call Holder. 14 15 (h) On the Determination Date, the Call Holder shall enter into a binding contract to sell the MVPs to the Reference Corporate Dealer that provided the lowest bid for settlement on the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of an Interim Period). In addition, on the third business day preceding the Interim Period Remarketing Date, the Call Holder shall enter into a binding contract to sell the MVPs to the Reference Money Market Dealer that provided the lowest bid for settlement on the Interim Period Remarketing Date. In either case, however, if FCCM does not provide the lowest of such bids, FCCM may match the lowest of such bids and, thereupon, the Call Holder shall enter into a binding contract to sell the MVPs to FCCM. Likewise, in either case, in the event that more than one equal bid is received, the Call Holder shall select the purchasing Reference Corporate Dealer or Reference Money Market Dealer, as the case may be, at its discretion. The winning bidder will bear all of its own expenses in connection with the remarketing. In the event that such Reference Corporate Dealer or Reference Money Market Dealer fails to purchase the MVPs on the applicable remarketing date for any reason, all of the obligations of the Call Holder hereunder, including any obligation to purchase and remarket the MVPs on such remarketing date, shall be terminated. (i) The Call Holder may, without the consent of the Holders and Beneficial Owners, modify the tender and settlement procedures set forth in the Senior Indenture in order to facilitate the tender and settlement process; and if requested by the Call Holder, the Company shall cooperate with the Call Holder to effect such modification and enforce, for the benefit of the Call Holder, compliance by the Holders and Beneficial Owners of the MVPs with the terms of the MVPs relating to the purchase rights of the Call Holder. (j) The tender and settlement procedures described above, including provisions for payment by purchasers of MVPs in the remarketing or for payment to Beneficial Owners of tendered MVPs, may be modified to the extent required by DTC or, if agreed to by the Call Holder in accordance with Section 9(b)(viii) of this Agreement, to the extent required to facilitate the tender and remarketing of MVPs in certificated form, if the book-entry system is no longer available for the MVPs at the time of the remarketing. Section 5. Appointment and Obligations of the Calculation Agent. (a) Unless this Agreement is otherwise terminated in accordance with Section 12 hereof, in accordance with the terms, but subject to the conditions, of this Agreement, the Company hereby appoints FCCM, and FCCM hereby accepts such appointment, as the exclusive Calculation Agent with respect to the MVPs. All determinations provided for below, other than the Applicable Spread, shall be made in good faith by the Calculation Agent. (b) Subject to the Call Holder's election to remarket the MVPs as provided in clause (c) of Section 4 hereof and to the termination provisions provided in Section 12(b) hereof, from and including the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of an Interim Period), the MVPs shall bear interest at the Interest Rate to Maturity. During the Interim Period, if any, the MVPs shall bear interest at the Interim Period Interest Rate. 15 16 (i) The Interest Rate to Maturity shall be determined by the Calculation Agent by 3:30 p.m., New York City time, on the Determination Date to the nearest one hundred-thousandth (0.00001) of one percent per annum by soliciting firm committed bids, expressed as a spread over the Base Rate, to purchase all outstanding MVPs at the Dollar Price, and by selecting the lowest such firm committed bid (regardless of whether each of the Reference Corporate Dealers actually submits bids). The Interest Rate to Maturity will be equal to the sum of the Base Rate plus the Applicable Spread. The Interest Rate to Maturity announced by the Calculation Agent, absent manifest error, shall be binding and conclusive upon the Beneficial Owners and Holders of the MVPs, the Call Holder, the Company and the Trustee. (ii) The interest rate for the Interim Period, if any, will be reset on each Interest Reset Date during the Interim Period and will be equal to the Reference Rate in respect of the applicable Interest Reset Date plus the Basic Spread, in each case as calculated by the Calculation Agent (the "Interim Period Interest Rate"). The Wednesday of each week during the Interim Period will be an "Interest Reset Date." The "Interest Determination Date" applicable to an Interest Reset Date will be the second Business Day preceding such Interest Reset Date. The interest rate in effect from and including the Interim Period Remarketing Date (which is the first day of the Interim Period) to but excluding the first Interest Reset Date during such Interim Period will be determined as if the Interim Period Remarketing Date were an Interest Reset Date and the Interest Determination Date for such Interest Reset Date were the second Business Day prior to the Interim Period Remarketing Date. The Interim Period Interest Rate and the amount of interest payable on the Additional Remarketing Date shall each be determined by the Calculation Agent and, absent manifest error, shall be binding and conclusive upon the Beneficial Owners and Holders of the MVPs, the Call Holder, the Company and the Trustee. (c) Subject to the Call Holder's election to remarket the MVPs as provided in Section 4(c), the Calculation Agent shall notify 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 MVPs effective from and including the Remarketing Date (if such date has not been designated as the Interim Period Remarketing Date) or Additional Remarketing Date (in the event of an Interim Period). In the event of an Interim Period, the Calculation Agent shall provide the Company, the Trustee and DTC notice in accordance with the preceding sentence, on the second Business Day prior to the Interim Period Remarketing Date of the Interim Period Interest Rate which will initially be in effect. (d) It is expressly understood and agreed by the parties hereto that the obligations of the Calculation Agent hereunder with respect to the MVPs to be remarketed are conditioned on the Call Holder's election on the Notification Date to purchase the MVPs for remarketing. It is further expressly understood and agreed by and between the parties hereto that, if the Call Holder has elected to remarket the MVPs pursuant to clause (c) of Section 4 hereof, the Calculation 16 17 Agent shall not be obligated to perform any of the duties set forth herein at any time after the Notification Date that (i) any of the conditions set forth in clause (a) of Section 9 hereof shall not have been fully and completely met to the reasonable satisfaction of the Call Holder, or (ii) any of the events set forth in clause (b) of Section 9 hereof shall have occurred. Section 6. Fees and Expenses. Subject to Section 12 of this Agreement, for its services in performing its duties set forth herein, each of the Call Holder and the Calculation Agent will not receive any fees or reimbursement of expenses from the Company. Section 7. Resignation of the Call Holder and Calculation Agent. Each of the Call Holder and the Calculation Agent may resign and be discharged from its duties and obligations hereunder at any time, such resignation to be effective 10 days after delivery of a written notice to the Company and the Trustee of such resignation, provided that no such resignation shall occur under this sentence after the Notification Date. Each of the Call Holder and the Calculation Agent also may resign and be discharged from its duties and obligations hereunder at any time, such resignation to be effective immediately, upon termination of this Agreement in accordance with Section 12(b) hereof. The Company shall have the right, but not the obligation, to appoint a successor Call Holder; provided, however, that the Call Holder may appoint a successor Calculation Agent in the event of the resignation of the Calculation Agent in the absence of a concurrent resignation of the Call Holder. Section 8. Dealing in the MVPs; Purchase of MVPs by the Company. (a) The Bank, or FCCM in their individual or any other capacity, may, to the extent permitted by law, buy, sell, hold and deal in any of the MVPs. The Bank, as Holder or Beneficial Owner of the MVPs, 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 MVPs may be entitled to exercise or take pursuant to the Senior Indenture with like effect as if it did not act in any capacity hereunder. The Call Holder and the Calculation Agent, in their respective capacities as either principal or agent, may also engage in or have an interest in any financial or other transaction with the Company as freely as if they did not act in any capacity hereunder. (b) The Company or its affiliates may purchase MVPs in the remarketing on the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of the Interim Period), provided that the Interest Rate to Maturity established with respect to MVPs is not different from the interest rate that would have been established if the Company or its affiliates had not purchased such MVPs. In accordance with Section 3(f) hereof, under no circumstances may the Company purchase MVPs in the remarketing on the Interim Period Remarketing Date. Section 9. Conditions to Call Holder's Obligations. The obligations of the Call Holder under this Agreement have been undertaken in reliance on, and shall be subject to, (a) the due performance in all material respects by the Company of its obligations and agreements as set forth in this Agreement and the accuracy in all material respects as of the dates specified herein of the representations and warranties in this Agreement and any certificate delivered pursuant hereto, and (b) the further condition that none of the following events shall have occurred at any 17 18 time since the date hereof (provided, that with respect to termination of the Call Holder's obligations hereunder after the Call Holder elects on the Notification Date to remarket the MVPs due to events that occur or arise prior to the Call Holder's election on the Notification Date to remarket the MVPs, only to the extent that, in the reasonable judgment of the Call Holder, the effect thereof is to make it illegal or commercially impractical for the Call Holder to remarket the MVPs on the applicable remarketing date): (i) the rating of any securities of the Company shall have been down-graded or put under surveillance or review, including being put on CreditWatch or Watch List with negative implications, or withdrawn by a nationally recognized statistical rating agency; (ii) without the prior written consent of the Call Holder, the Senior Indenture (including the MVPs) 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 reasonable judgment of the Call Holder materially changes the nature of the MVPs or the remarketing procedures (it being understood that, notwithstanding the provisions of this clause (ii), the Company shall not be prohibited from amending the Senior Indenture); (iii) (A) trading in any securities of the Company shall have been suspended or materially limited by the Commission or the New York Stock Exchange, or (B) if trading generally on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq National Market shall have been suspended or materially limited, or (C) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices shall have been required, by any of said exchanges or by such system or by order of the Commission, the National Association of Securities Dealers, Inc. or any other governmental authority, or (D) if a banking moratorium shall have been declared by either Federal or New York authorities; (iv) there shall have occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the reasonable judgment of the Call Holder, impracticable to remarket the MVPs or to enforce contracts for the sale of the MVPs; (v) an Event of Default (as defined in the Senior Indenture), or any event which, with the giving of notice or passage of time, or both, would constitute an Event of Default, with respect to the MVPs shall have occurred and be continuing; (vi) a material adverse change, or any development involving a prospective material adverse change, in the financial condition, results of operations, business or properties of the Company and its subsidiaries taken as a whole whether or not arising in the ordinary course of business, shall have occurred which has a material 18 19 adverse effect on the investment quality of the MVPs or which, in the reasonable judgment of the Call Holder, has had or may have materially adverse consequences for the Company or which makes it impractical or inadvisable, in the reasonable judgment of the Call Holder, to proceed with the remarketing or the delivery of the MVPs; (vii) if the Prospectus is required under the Securities Act to be delivered in connection with any remarketing of the MVPs, the Company shall fail to furnish to the Call Holder on the Remarketing Date and, in the event of the Interim Period, on the Additional Remarketing Date the officers' certificate, opinion and comfort letter referred to in Section 3(e) of this Agreement and such other documents and opinions as counsel for the Call Holder may reasonably require for the purpose of enabling such counsel to pass upon the sale of MVPs in the remarketing as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; (viii) the MVPs are not maintained in book-entry form with DTC or any successor thereto; provided, that the Call Holder, subject to receipt of an opinion of counsel for the Company reasonably satisfactory to the Call Holder, shall waive the foregoing condition if in the Call Holder's reasonable judgment (x) the Senior Indenture and the MVPs can be amended, and they are amended, so as to permit the remarketing of the MVPs in certificated form and (y) it is practical to remarket the MVPs with the same effect and on the same terms as otherwise contemplated herein; (ix) the Treasury Rate used to determine the Dollar Price on the third Business Day prior to the Remarketing Date exceeds the Base Rate; or (x) the Calculation Agent shall not have received by the required time on the Remarketing Date or the Additional Remarketing Date, if applicable, any firm committed bids to purchase all of the MVPs; or (xi) a Reference Corporate Dealer shall fail to purchase the MVPs from the Call Holder on the Remarketing Date or the Additional Remarketing Date (in the event of the Interim Period); and the Call Holder shall have received on the Remarketing Date and the Additional Remarketing Date (in the event of an Interim Period) a certificate of the Chairman of the Board or the President or a Vice President and the chief financial officer of the Company, dated as of the applicable remarketing date to the effect that (i) the representations and warranties in this Agreement are true and correct with the same force and effect as though expressly made at and as of the applicable remarketing date, (ii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the applicable remarketing date, and (iii) none of the events specified in the preceding clauses (b)(i) through (viii) has occurred. 19 20 (c) In furtherance of the foregoing, the effectiveness of the Call Holder's election on the Notification Date to remarket the MVPs shall be subject to the condition that the Call Holder shall have received a certificate of the Chairman of the Board or the President or a Vice President and the chief financial officer of the Company, dated as of the Notification Date, to the effect that (i) the Company has, prior to the Call Holder's election on the Notification Date to remarket the MVPs, provided the Call Holder with notice of all events as required under Section 3(a) of this Agreement, (ii) the representations and warranties in this Agreement are true and correct at and as of the Notification Date and (iii) the Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Notification Date. Such certificate shall be delivered by the Company to the Call Holder as soon as practicable following notification by the Call Holder to the Company on the Notification Date of its election to remarket the MVPs and in any event prior to the third Business Day prior to the Remarketing Date. In the event of the failure of any of the foregoing conditions, the Call Holder may terminate its obligations under this Agreement or redetermine the Interest Rate to Maturity as provided in Section 12 hereof. Section 10. Indemnification. (a) The Company shall indemnify and hold harmless the Call Holder and its officers, directors and employees and each person, if any, who controls the Call Holder within the meaning of Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject, as incurred, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon, (i) the failure to have an effective registration statement under the Securities Act relating to the MVPs, if required, or the failure to satisfy the prospectus delivery requirements of the Securities Act because the Company failed to notify the Call Holder of such delivery requirement or failed to provide the Call Holder with an updated Prospectus for delivery, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any of the Remarketing Materials (including any incorporated documents), or (iii) the omission or alleged omission therefrom of a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, or (iv) any violation by the Company of, or any failure by the Company to perform any of its obligations under, this Agreement, or (v) the acts or omissions of the Calculation Agent in connection with its duties and obligations hereunder except that are finally judicially determined to be due to its gross negligence or willful misconduct, and reimburse each such indemnified party upon demand for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action and shall, if requested by any such indemnified party, assume the defense of such indemnified party in any action based upon allegations of any such loss, claim, damage or liability, with counsel satisfactory to such indemnified party; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Call Holder expressly for use in connection with the preparation of the Remarketing 20 21 Materials. This indemnity agreement will be in addition to any liability which the Company may otherwise have. (b) The Call Holder shall indemnify and hold harmless the Company, each of its directors, each of its officers who has signed the Registration Statement and each person, if any, who controls the Company within the meaning of Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject, as incurred, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Remarketing Materials, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that the same was made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Call Holder specifically for use in connection with the preparation of the Remarketing Materials, and reimburse each such indemnified party upon demand for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnity agreement will be in addition to any liability which the Call Holder may otherwise have. (c) Promptly after receipt by an indemnified party under this Section 10 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 10, notify the indemnifying party in writing of the commencement of such action in sufficient time to permit the indemnifying party to assume the defense thereof, but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under this Section 10. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will (i) if it is so required under subparagraph (a) of this Paragraph, assume the defense of such action with counsel satisfactory to such indemnified party, or (ii) if not required to assume the defense under such paragraph (a), will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel satisfactory to such indemnified party; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses (in which case the indemnifying party shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), but the indemnifying party shall not, in connection with any one such action, or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses with respect to any period during the pendency of such action or similar or related actions of more than one separate firm of attorneys for all indemnified parties so named, designated in writing by the Call Holder if the indemnifying party is the Company or by the 21 22 Company if the indemnifying party is the Call Holder. Upon the assumption by the indemnifying party of the defense of such action pursuant to clause (i) or clause (ii) of this subparagraph (c), and approval by the indemnified party of counsel, the indemnifying party shall not be liable to such indemnified party under this Section 10 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof (other than reasonable costs of investigation) unless (x) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence, (y) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time, or (z) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party. The indemnifying party shall not be liable for any settlement of any action or claim effected without its consent which consent shall not be unreasonably withheld. (d) The respective indemnity and contribution agreements of the Company and the Call Holder contained in this Section 10 and Section 11, and the representations and warranties of the Company contained in Section 2 hereof, shall remain operative and in full force and effect, regardless of any termination or cancellation of this Agreement or any investigation made by or on behalf of the Call Holder or the Company or any director or officer or any controlling person referred to in this Section 10, and such agreement, representations and warranties, as well as the other covenants contained herein, shall survive any remarketing of the MVPs and any successor of the Call Holder or of the Company or any legal representative of any such director or officer or of any such controlling person, as the case may be, shall be entitled to the benefits of the respective indemnity and contribution agreements. Section 11. Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in subparagraph (a) or (b) of Section 10 is for any reason held to be unavailable from an indemnifying party, then the Company and the Call Holder shall contribute to the aggregate losses, claims, damages and liabilities (including any investigation, legal and other expenses incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claims asserted) to which the Company and the Call Holder may be subject in such proportion so that the Call Holder is responsible for that portion represented by the percentage that the aggregate positive difference, if any, between the price paid by the Call Holder for the MVPs (the "Aggregate Positive Difference") tendered on the Remarketing Date or the Additional Remarketing Date, as the case may be, and the price at which MVPs bearing the Interest Rate to Maturity are sold by the Call Holder bears to the aggregate principal amount of the MVPs, and the Company is responsible for the balance; provided, however, that (y) in no case shall the Call Holder be responsible for any amount in excess of the Aggregate Positive Difference and (z) 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. For purposes of this Section 11, each person, if any, who controls the Call Holder within the meaning Section 20 of the Exchange Act shall have the same rights to contribution as the Call Holder, and each person, if any, who controls the Company within the meaning of Section 20 of the 22 23 Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to clauses (y) and (z) of this Section 11. Any party entitled to contribution will, promptly after receipt of notice of commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties under this Section 11, notify such party or parties from whom contribution may be sought, but the omission so to notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any other obligation it or they may have hereunder or otherwise than under this Section 11. Section 12. Termination of Remarketing and Interest Calculation Agreement or Redetermination of Interest Rate to Maturity. (a) This Agreement shall terminate as to the Call Holder on the effective date of the resignation of the Call Holder pursuant to Section 7 hereof or if the Call Holder does not elect to remarket the MVPs pursuant to Section 4(c) hereof, or upon the notification of the Call Holder by the Company of its election to redeem the MVPs pursuant to Section 4(g) hereof. (b) In addition, the Call Holder 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 such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of the Interim Period), in the event that: (i) any of the conditions referred to or set forth in Section 9 (a) hereof have not been met or satisfied in full, (ii) any of the events set forth in Section 9(b) hereof shall have occurred, or (iii) the Call Holder determines, in its discretion, after consultation with the Company, that it shall not have received all of the information, whether or not specifically referenced herein, reasonably necessary to remarket the MVPs under this Agreement. (c) Notwithstanding any provision herein to the contrary, in lieu of terminating this Agreement pursuant to Section 12(b) above, upon the occurrence of any of the events set forth therein, the Call Holder, in its sole discretion at any time between the Determination Date and 3:30 p.m., New York City time, on the Business Day immediately preceding the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of the Interim Period), may elect to purchase the MVPs for remarketing and cause the Calculation Agent to determine a new Interest Rate to Maturity in the manner provided in Section 5(b) of this Agreement, except that for purposes of determining the new Interest Rate to Maturity pursuant to this paragraph, the Determination Date referred to therein shall be the date of such election and redetermination of the Interest Rate to Maturity. The Calculation Agent shall notify the Company, the Trustee and DTC by telephone, confirmed in writing (which may include facsimile or other electronic transmission), by 4:00 p.m., New York City time, on the date of such election, of the new Interest Rate to Maturity applicable to the MVPs. Thereupon, such new Interest Rate to Maturity shall supersede and replace any Interest Rate to Maturity previously determined by the Calculation Agent and, absent manifest error, shall be 23 24 binding and conclusive upon the Beneficial Owners and Holders of the MVPs on or after the Remarketing Date or Additional Remarketing Date, as the case may be, the Company and the Trustee; provided, however, that the Call Holder, by redetermining the Interest Rate to Maturity upon the occurrence of any event set forth in Section 12(b) hereof as set forth above, shall not thereby be deemed to have waived its right to determine a new Interest Rate to Maturity or terminate this Agreement upon the occurrence of any other event set forth in Section 12(b) hereof. (d) If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to any other party, except that, in the case of termination pursuant to Section 12(b) of this Agreement, the Company shall reimburse the Call Holder for all of its out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Call Holder in connection with the remarketing, and except further as set forth in Section 12(e) below. Sections 1, 10, 11, 12(d) and 12(e) hereof shall survive such termination and remain in full force and effect. (e) In the case of either (A) termination of this Agreement pursuant to Section 12(b) hereof after the Call Holder's election on the Notification Date to remarket the MVPs, or (B) the occurrence, prior to the Call Holder's election on the Notification Date to remarket the MVPs, of any event set forth in Section 9(b)(ii), (v) or (viii) hereof, upon the request of the Call Holder, the Company, in each case, shall immediately following the Call Price Determination Date pay the Call Holder, in same-day funds by wire transfer to an account designated by the Call Holder, the fair market value, calculated as set forth below, of the Call Holder's embedded interest rate option implicit in the Call Holder's right to purchase and remarket the MVPs pursuant to this Agreement (the "Call Price"). Payment of the Call Price, in any case, shall be made by the Company within five Business Days of the Call Holder's request pursuant to this paragraph. (i) In the case of termination of this Agreement pursuant to Section 12(b) hereof on or after the Notification Date, the Call Price shall be equal to the excess, if any, of (i) the Dollar Price determined as provided in Section 5 (which, in the event of termination after commencement of the Interim Period, shall be the Adjusted Dollar Price) over (ii) the aggregate principal amount of the MVPs. (ii) In the case of the occurrence, prior to the Call Holder's election on the Notification Date to remarket the MVPs, of any event set forth in Section 9(b)(ii) or (v) or (viii), the Call Price shall be determined in the following manner: the Calculation Agent shall select five reference market dealers reasonably acceptable to the Company. The Calculation Agent shall request each reference market dealer to provide a quotation, as of the same time and date, of the value of the Call Price, determined on a commercially reasonable basis by reference, among other factors, to the formulation described in the preceding paragraph. The Call Price shall be equal to the average of the three quotations remaining after disregarding the highest and lowest of such quotations. If fewer than five quotations are obtained, the average of the quotations shall be used. 24 25 In the case of either (i) or (ii) above, the Call Holder shall determine the applicable Call Price on the Business Day immediately following the date of termination or notification of the occurrence, prior to the Call Holder's election on the Notification Date to remarket the MVPs, of any event set forth in Section 9(b)(ii), (v) or (viii) hereof, as the case may be, or as soon as practicable thereafter (the "Call Price Determination Date"). The Call Holder shall promptly notify the Company of the Call Price Determination Date and the Call Price by telephone, confirmed in writing (which may include facsimile or other electronic transmission). The Call Price, absent manifest error, shall be binding and conclusive upon the parties hereto. (f) This Agreement shall not be subject to termination by the Company. Section 13. Call Holder's Performance; Duty of Care. The duties and obligations of the Call Holder shall be determined solely by the express provisions of this Agreement and the Senior Indenture. No implied covenants or obligations of or against the Call Holder shall be read into this Agreement or the Senior Indenture. In the absence of bad faith on the part of the Call Holder, the Call Holder may conclusively rely upon any document furnished to it, which purports to conform to the requirements of this Agreement and the Senior Indenture, as to the truth of the statements expressed in any of such documents. The Call Holder 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 Call Holder or the Calculation Agent shall incur no liability to any Beneficial Owner or Holder of MVPs in their individual capacity or otherwise for any action or failure to act in connection with the remarketing or otherwise. The Calculation Agent shall incur no liability to the Company except as a result of gross negligence or willful misconduct on its part. Section 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN SUCH STATE. Section 15. Term of Agreement. Unless otherwise terminated in accordance with the provisions hereof, this Agreement shall remain in full force and effect from the date hereof until the earlier of the first day thereafter on which no MVPs are outstanding or the completion of the remarketing of the MVPs. Regardless of any termination of this Agreement pursuant to any of the provisions hereof, the obligations of the Company pursuant to Sections 10 and 12 hereof shall remain operative and in full force and effect until fully satisfied. Section 16. Successors and Assigns. The rights and obligations of the Company hereunder may not be assigned or delegated to any other person without the prior written consent of each of the Call Holder and the Calculation Agent. The rights and obligations of the Call Holder and the Calculation Agent hereunder may be assigned or delegated to any affiliate thereof without the consent of the Company, and to any other person only with the prior written consent of the Company. This Agreement shall inure to the benefit of and be binding upon the Company, the Call Holder and the Calculation Agent and their respective successors and assigns, and will not confer any benefit upon any other person, partnership, association or corporation 25 26 other than persons, if any, controlling the Call Holder or the Calculation Agent within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, or any indemnified party to the extent provided in Section 10 hereof, or any person entitled to contribution to the extent provided in Section 11 hereof. The terms "successors" and "assigns" shall not include any purchaser of any MVPs merely because of such purchase. Section 17. Headings. Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provisions of this Agreement. Section 18. Severability. If any provision of this Agreement shall be held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any or all jurisdictions because it conflicts with any provision of any constitution, statute, rule or public policy or for any other reason, such circumstances shall not have the effect of rendering the provision in question invalid, inoperative or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provision or provisions of this Agreement invalid, inoperative or unenforceable to any extent whatsoever. Section 19. Counterparts. This Agreement may be executed in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document. Section 20. Amendments. This Agreement may be amended by any instrument in writing signed by each of the parties hereto so long as this Agreement as amended is not inconsistent with the Senior Indenture as in effect as of the date of any such amendment. Section 21. Notices. Unless otherwise specified, any notices, requests, consents or other communications given or made hereunder or pursuant hereto shall be made in writing (which may include facsimile or other electronic transmission) and shall be deemed to have been validly given or made when transmitted, delivered or mailed, registered or certified mail, return receipt requested and postage prepaid, addressed as follows: (a) to the Company: Browning-Ferris Industries, Inc. 757 N. Eldridge Houston, TX 77079 Attention: Corporate Secretary Facsimile No.: (281) 870-7825 (b) to the Bank: The First National Bank of Chicago One First National Plaza, Suite 0045 26 27 Attention: Vince Herman Facsimile No.: (312) 732-0220 (c) to FCCM: First Chicago Capital Markets, Inc. One First National Plaza, Suite 0595 Attention: Corporate Securities Structuring Facsimile No.: (312) 732-4172 or to such other address as the Company, the Call Holder or the Calculation Agent shall specify in writing. 27 28 IN WITNESS WHEREOF, each of the Company, the Call Holder and the Calculation Agent has caused this Remarketing and Interest Calculation 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. BROWNING-FERRIS INDUSTRIES, INC. By /s/ Ronald E. Long --------------------------------------- Name: Ronald E. Long Title: Treasurer FIRST CHICAGO CAPITAL MARKETS, INC. By /s/ Evonne W. Taylor --------------------------------------- Name: Evonne W. Taylor Title: Vice President THE FIRST NATIONAL BANK OF CHICAGO By /s/ Evonne W. Taylor --------------------------------------- Name: Evonne W. Taylor Title: Vice President 28 EX-4.K 4 FORM OF 6.08% MARKET VALUE PUT SECUITY 1 EXHIBIT 4(k) UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE SENIOR INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE SENIOR INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF SUCH DEPOSITARY OR BY A NOMINEE OF SUCH DEPOSITARY TO SUCH DEPOSITARY OR ANOTHER NOMINEE OF SUCH DEPOSITARY OR BY SUCH DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF SUCH DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR. REGISTERED REGISTERED PRINCIPAL No. AMOUNT: $ CUSIP No.: 115885 AN 5 BROWNING-FERRIS INDUSTRIES, INC. 6.08% Market Value Put securities(SM) ("MVPs"SM) ORIGINAL ISSUE DATE: January 15, 1999 INTEREST RATE TO REMARKETING DATE: 6.08% REMARKETING DATE: January 18, 2000 MATURITY DATE: January 18, 2002, subject to adjustment as set forth herein and reflected in the records of the Trustee. ADDITIONAL REMARKETING DATE: INTEREST PAYMENT DATE(S): To be determined as set forth herein and reflected in the records of the Trustee. January 18 and July 15 until January 18, 2000 and thereafter, as set forth herein and reflected in the records of the Trustee. - ------------------------- "Market Value Put securities" and "MVPs" are service marks owned by First Chicago Capital Markets, Inc. 2 INTERIM PERIOD INTEREST RATE: AUTHORIZED DENOMINATIONS: To be determined as set forth herein and $1,000 and integral multiples reflected in the records of the Trustee. thereof. INTEREST RATE TO MATURITY: To be determined as set forth herein and reflected in the records of the Trustee. 2 3 Browning-Ferris Industries, Inc., a Delaware corporation (the "Company"), which term includes any successor under the Senior Indenture hereinafter referred to, for value received, hereby promises to pay to Cede & Co., a nominee of The Depository Trust Company ("DTC"), or its registered assigns, the principal amount of Two Hundred Million Dollars ($200,000,000), on the Maturity Date specified above (or any earlier redemption date or repurchase date) (each such Maturity Date, redemption date or repurchase date being hereinafter referred to as the "Maturity Date" with respect to the principal repayable on such date) and to pay interest thereon, at the Interest Rate per annum specified above to January 18, 2000 (the "Remarketing Date"), and thereafter, subject to the terms and conditions set forth herein, at the Interest Rate determined by the Calculation Agent (as defined below) in accordance with the procedures set forth below, until the principal hereof is paid or duly made available for payment. The Company will pay interest in arrears on each Interest Payment Date, if any, specified above, commencing with the first Interest Payment Date next succeeding the Original Issue Date specified above, and on the Maturity Date; provided, however, that if the Original Issue Date occurs between a Record Date (as defined below) and the related Interest Payment Date, interest payments will commence on the Interest Payment Date immediately following the next succeeding Record Date to the holder of this MVPs on such next succeeding Record Date. Interest on the MVPs accruing during the period from and including the Original Issue Date to but excluding the Remarketing Date will be payable semi-annually on January 18 and July 15 of each year, commencing July 15, 1999. Interest on the MVPs accruing from the Remarketing Date (if such date is not the Interim Period Remarketing Date (as defined herein)) or the Additional Remarketing Date (as defined herein) (if the Remarketing Date is the Interim Period Remarketing Date) will be payable semi-annually on each day that is a six-month anniversary of such date. Interest on the MVPs accruing during the period from and including the Remarketing Date (if that date is the Interim Period Remarketing Date) to but excluding the Additional Remarketing Date (the "Interim Period"), if applicable, will be payable only on the Additional Remarketing Date. Each day on which interest is scheduled to be paid is herein referred to as an "Interest Payment Date." Interest on this MVPs will be computed on the basis of a 360-day year of twelve 30-day months, except that interest accruing during the Interim Period, if any, will be computed on the basis of the actual number of days in such period over a 360-day year. If, pursuant to the Remarketing and Interest Calculation Agreement, dated as of the date hereof (the "Remarketing and Interest Calculation Agreement"), among The First Chicago National Bank, as Call Holder (the "Call Holder"), First Chicago Capital Markets, Inc., as Calculation Agent (the "Calculation Agent"), and the Company, the Call Holder elects to remarket the MVPs, then, except as otherwise set forth herein, (i) this MVPs shall be subject to mandatory tender to the Call Holder for remarketing on the Remarketing Date and, in the event of the Interim Period, on the Additional Remarketing Date, on the terms and subject to the conditions set forth herein, and (ii) on and after the Remarketing Date, this MVPs shall bear interest at the rate or rates determined by the Calculation Agent in accordance with the procedures set forth in Section 4 herein. The Remarketing Date and the Additional Remarketing Date shall be the remarketing dates for the MVPs. The duties of each of the Calculation Agent and the Call Holder set forth herein shall be performed pursuant to the Remarketing and Interest Calculation Agreement. Interest on this MVPs will accrue from, and including, the immediately preceding Interest Payment Date to which interest has been paid or duly provided for (or from, and including, the 3 4 Original Issue Date, if no interest has been paid or duly provided for) to, but excluding, the applicable Interest Payment Date or the Maturity Date, as the case may be. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date or the Maturity Date will, subject to certain exceptions described herein, be paid to the person in whose name this MVPs (or one or more predecessor MVPs) is registered at the close of business on the fifteenth calendar day (whether or not a Business Day, as defined below) immediately preceding such Interest Payment Date or the Maturity Date except that, in the case of the Interest Payment Date relating to the Interim Period, interest will be payable to the persons to whom principal is payable on the Additional Remarketing Date (each such date, a "Record Date"). Any such interest not so punctually paid or duly provided for ("Defaulted Interest") will forthwith cease to be payable to the Holder on any Record Date, and shall be paid to the person in whose name this MVPs is registered at the close of business on a special record date (the "Special Record Date") for the payment of such Defaulted Interest to be fixed by the Trustee hereinafter referred to, notice whereof shall be given to the Holder of this MVPs by the Trustee not less than 10 calendar days prior to such Special Record Date or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which this MVPs may be listed, and upon such notice as may be required by such exchange, all as more fully provided for in the Senior Indenture. Principal of and premium, if any, on this MVPs will be payable when due upon presentation and surrender of this MVPs at the corporate trust office of the Trustee maintained for that purpose in the City of Dallas, Texas currently located at 1201 Main Street, 18th Floor, Dallas, Texas 75202, or at such other paying agency in the Borough of Manhattan, The City of New York, as the Company may determine. Payment of interest due on any Interest Payment Date or the Maturity Date will be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register maintained at the aforementioned office of the Trustee; provided, however, that a holder of U.S. $10,000,000 or more in aggregate principal amount of MVPs will be entitled to receive interest payments on such Interest Payment Date or the Maturity Date by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Trustee not less than 15 calendar days prior to such Interest Payment Date or the Maturity Date. Any such wire transfer instructions received by the Trustee shall remain in effect until revoked by such holder. Notwithstanding the foregoing or any provision hereof, if this MVPs is a Global Security (as evidenced by the legend first set forth above and provided in the Senior Indenture), and is held in book-entry form through the facilities of DTC, payments on this MVPs will be made to DTC or its nominee in accordance with the arrangements then in effect between the Trustee and DTC. If any Interest Payment Date or the Maturity Date falls on a day that is not a Business Day, the required payment of principal, premium, if any, and/or interest, shall be made on the next succeeding Business Day with the same force and effect as if it were made on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date, as the case may be, to the date of payment on the next succeeding Business Day. As used herein, "Business Day" means any day other than a Saturday, a Sunday or a day on which banking institutions in The City of New York, Houston, Texas or Chicago, Illinois are authorized or obligated by law, regulation or executive order to close and, in the case of the 4 5 determination of the Reference Rate (as defined below) that is based upon deposits in U.S. dollars in London, the City of London. The Company is obligated to make payment of principal, premium, if any, and interest in respect of this MVPs in United States dollars. Reference is hereby made to the further provisions of this MVPs set forth following the Trustee's Certificate of Authentication (the "Certificate of Authentication") set forth below. Unless the Certificate of Authentication hereon has been executed by the Trustee by manual signature, this MVPs shall not be entitled to any benefit under the Senior Indenture or be valid or obligatory for any purpose. 5 6 IN WITNESS WHEREOF, Browning-Ferris Industries, Inc. has caused this MVPs to be duly executed. BROWNING-FERRIS INDUSTRIES, INC. as Issuer By: -------------------------------- Name: Title: [Corporate Seal] Attest: - --------------------------------- Name: Title: TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated herein referred to in the within-mentioned Senior Indenture. Dated: January 15, 1999 CHASE BANK OF TEXAS, NATIONAL ASSOCIATION as Trustee By: -------------------------------- Authorized Officer 6 7 BROWNING-FERRIS INDUSTRIES, INC. 6.08% Market Value Put securities(SM) ("MVPs"SM) 1. Senior Indenture. (a) This MVPs is one of a duly authorized series of Securities of the Company issued under a Restated Indenture, dated as of September 1, 1991 (as amended, modified or supplemented from time to time, the "Senior Indenture"), between the Company and Chase Bank of Texas, National Association (formerly known as Texas Commerce Bank National Association as successor trustee to First City, Texas-Houston, National Association, which was formerly First City National Bank of Houston) (the "Trustee," which term includes any successor trustee under the Senior Indenture), to which Senior Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the MVPs, and of the terms upon which the MVPs are authenticated and delivered. The MVPs are limited to $250,000,000 aggregate principal amount and are designated "6.08% Market Value Put securities" ("MVPs") subject to the provisions of the Senior Indenture. All terms used but not defined in this MVPs shall have the meanings assigned to such terms in the Senior Indenture. Except where the context otherwise requires, all references in this MVPs to "this MVPs," "this Security," "herein" or "hereof" or similar terms shall include the Senior Indenture. (b) This MVPs is issuable only in registered form without coupons in minimum denominations of U.S. $1,000 and integral multiples thereof. (c) This MVPs will not be subject to any sinking fund. 2. Mandatory Tender. Provided that on a Business Day not later than five Business Days prior to the Remarketing Date the Call Holder notifies the Company and the Trustee of its election to purchase the MVPs on the Remarketing Date for remarketing (the "Notification Date"), the MVPs shall be subject to mandatory tender to the Call Holder, and the Call Holder shall be obligated to purchase the MVPs, for remarketing on the Remarketing Date and, if such date is designated as the Interim Period Remarketing Date, the Additional Remarketing Date thereafter, subject in each case to the conditions described herein and set forth in the Remarketing and Interest Calculation Agreement. The purchase price for the tendered MVPs shall equal 100% of the principal amount thereof. From and including the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (if the Remarketing Date is the Interim Period Remarketing Date), the MVPs will bear interest at the Interest Rate to Maturity, determined pursuant to Section 4 hereof. During the Interim Period, if any, the MVPs will bear interest at the Interim Period Interest Rate determined pursuant to Section 4 hereof. If the Call Holder elects to remarket the MVPs, the obligation of the Call Holder to purchase the MVPs on any remarketing date is subject to the conditions specified in Section 9 of the Remarketing and Interest Calculation Agreement. If the Call Holder purchases MVPs on any remarketing date, it must purchase all of the MVPs. If for any reason the Call Holder does not purchase all of the MVPs on any remarketing date, the Company shall be required to repurchase from the Beneficial Owners thereof, and the Beneficial Owners will be required to sell to the Company, all the MVPs at a price equal to the principal amount thereof plus all accrued and unpaid interest, if any, on the MVPs to such remarketing date as provided in Section 6 hereof. 7 8 "Beneficial Owner" shall mean each person who acquires an interest in the MVPs which is reflected on the records of the DTC through its participants. 3. Remarketing Dates; Adjustment of Maturity Date. If the Call Holder gives notice of its intention to purchase the MVPs on January 18, 2000, then not later than 4:00 p.m., New York City time, on the fourth Business Day prior to January 18, 2000, the Company, after consultation with the Call Holder, may notify the Call Holder, the Trustee and DTC by telephone, confirmed in writing that it elects January 18, 2000 to be the Interim Period Remarketing Date (the "Interim Period Remarketing Date"). The Company will be eligible to make such notification if at such time its senior unsecured debt is rated at least "Baa3" by Moody's Investors Service, Inc. and "BBB-" by Standard & Poor's Ratings Services (or the equivalent thereof by each such rating agency) at the time of such notification or if the Call Holder waives this requirement in its sole discretion. If the Company does not provide such notification, January 18, 2000 will be the only remarketing date and the Maturity Date will be January 18, 2002. If the Company provides such notification, then (i) the Additional Remarketing Date will be one of the 26 following one-week anniversary dates of January 18, 2000 (or if any such day is not a Business Day, the next succeeding Business Day) designated by the Company not later than the fifth Business Day prior to such one-week anniversary date (the "Additional Remarketing Date") except that, if the Company fails to so designate the Additional Remarketing Date, the Additional Remarketing Date will be the date that is the 26th week anniversary of January 18, 2000 (or if such day is not a Business Day, the next following Business Day) and (ii) the Maturity Date of the MVPs will be the date that is the two-year anniversary of the Additional Remarketing Date (whether or not a Business Day). 4. Determination of Applicable Interest Rate. From and including the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (if the Remarketing Date is designated the Interim Period Remarketing Date) to but excluding the Maturity Date, the MVPs will bear interest at the Interest Rate to Maturity. During the Interim Period, if any, the MVPs will bear interest at the Interim Period Interest Rate. (a) Interest Rate to Maturity. Subject to the Call Holder's election to remarket the MVPs as provided in Section 2 hereof and subject further to Sections 4(c) and 7 hereof and the Remarketing and Interest Calculation Agreement, the Interest Rate to Maturity shall be determined by the Calculation Agent by 3:30 p.m., New York City time, on the third Business Day preceding the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of the Interim Period) (subject to Section 4(c) hereof, the "Determination Date") to the nearest one hundred-thousandth (0.00001) of one percent per annum by soliciting firm committed bids, expressed as a spread over the Base Rate, to purchase all outstanding MVPs at the Dollar Price, and by selecting the lowest such firm committed bid (regardless of whether each of the Reference Corporate Dealers actually submits bids). The Interest Rate to Maturity will be equal to the sum of 4.68% (the "Base Rate") plus the Applicable Spread. The Interest Rate to Maturity announced by the Calculation Agent, absent manifest error, shall be binding and conclusive upon the Beneficial Owners and Holders of the MVPs, the Call Holder, the Company and the Trustee. "Applicable Spread" shall mean the lowest bid expressed as a spread (in the form of a percentage or in basis points) above the Base Rate, obtained by the Calculation 8 9 Agent on the Determination Date from the bids quoted by up to five Reference Corporate Dealers for the full aggregate principal amount of the MVPs at the Dollar Price, but assuming (i) an issue date equal to the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of an Interim Period), with settlement on such date without accrued interest, (ii) a maturity date equal to the Maturity Date of the MVPs, and (iii) a stated annual interest rate, payable semi-annually, equal to the Base Rate plus the spread bid by the applicable Reference Corporate Dealer. "Dollar Price" shall mean, with respect to the MVPs, the present value, as of the Remarketing Date, of the Remaining Scheduled Payments 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, except that in the case of the Additional Remarketing Date, the Dollar Price will be the Adjusted Dollar Price. "Adjusted Dollar Price" shall mean, with respect to the Additional Remarketing Date, the Dollar Price as of the Remarketing Date (determined by the Calculation Agent on the third Business Day prior to the Remarketing Date) plus the product of (i) such Dollar Price less the aggregate principal amount of the MVPs outstanding as of the Remarketing Date, (ii) the weighted average per annum Interim Period Interest Rate for the Interim Period, and (iii) the number of days in the Interim Period divided by 360. "Reference Corporate Dealers" shall mean each of First Chicago Capital Markets, Inc., its successors and four other leading dealers of publicly traded debt securities of the Company selected by the Call Holder. "Treasury Rate" shall mean the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated (on a 30/360 day count basis) yield to maturity of the Comparable Treasury Issue 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. "Comparable Treasury Issue" shall mean the United States Treasury security selected by the Calculation Agent as having an actual or interpolated maturity comparable to the remaining term of the MVPs. "Comparable Treasury Price" shall mean, (a) the offer price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) on the third Business Day prior to the Remarketing Date, as set forth on Telerate Page 500 (as defined below), adjusted to reflect settlement on the Remarketing Date if 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 price on such Business Day, (i) the average of five Reference Treasury Dealer Quotations (as defined below) for such 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 Calculation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations. 9 10 "Telerate Page 500" means the display designated as "Telerate Page 500" on Bridge Telerate, Inc. (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 Bridge Telerate, Inc. The Calculation Agent shall have the discretion to select the time at which the Comparable Treasury Price is determined on the third Business Day prior to the Remarketing Date. "Reference Treasury Dealer Quotations" shall mean, with respect to each Reference Treasury Dealer, the offer price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) for settlement on the Remarketing Date quoted in writing to the Calculation Agent by such Reference Treasury Dealer by 3:30 p.m., on the third Business Day immediately preceding the Remarketing Date. "Reference Treasury Dealer" shall mean each of First Chicago Capital Markets, Inc., Chase Securities Inc., NationsBanc Montgomery Securities LLC, Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a primary U.S. Government securities dealer (a "Primary Treasury Dealer"), the Calculation Agent shall substitute therefor another Primary Treasury Dealer. "Remaining Scheduled Payments" shall mean, with respect to the MVPs, the remaining scheduled payments of the principal thereof and interest thereon, calculated at the Base Rate only and assuming (i) a maturity date equal to January 18, 2002, and (ii) that the Company did not elect the Remarketing Date to be the Interim Period Remarketing Date. (b) Determination of Interim Period Interest Rate. The interest rate for the Interim Period, if any, will be reset on each Interest Reset Date during the Interim Period and will be equal to the Reference Rate in respect of the applicable Interest Reset Date plus the Basic Spread, in each case as calculated by the Calculation Agent (the "Interim Period Interest Rate"). The Wednesday of each week during the Interim Period will be an "Interest Reset Date." The "Interest Determination Date" applicable to an Interest Reset Date will be the second Business Day preceding such Interest Reset Date. The interest rate in effect from and including the Interim Period Remarketing Date (which is the first day of the Interim Period) to but excluding the first Interest Reset Date during such Interim Period will be determined as if the Interim Period Remarketing Date were an Interest Reset Date and the Interest Determination Date for such Interest Reset Date were the second Business Day prior to the Interim Period Remarketing Date. The "Reference Rate" shall mean, with respect to the Interim Period, one of the following reference rates selected by the Company and notified to the Calculation Agent no later than four Business Days prior to the Interim Period Remarketing Date: (i) the per annum rate for deposits in U.S. dollars for a period of one week shown on Telerate page 3750 (or any successor page) at 11:00 a.m., London time, on the applicable Interest Determination Date, (ii) the per annum rate equal to the average of the federal funds rates shown on Telerate page 5 (or any successor page) as of 11:00 a.m., New York City time, on the applicable Interest Determination Date and each of the four Business Days prior to such Interest Determination Date, or (iii) the one-week "AA" non-financial commercial 10 11 paper rate shown on the Internet world wide web page of the Board of Governors of the Federal Reserve System at www.bog.frb.fed.us/releases/CP/ (or any successor page) as of 11:00 a.m., New York City time, on the applicable Interest Determination Date. If the reference rate on the applicable designated page (or successor page) is not published on the specified page by the specified time on the applicable date or dates, then the reference rate determined as of the applicable Interest Determination Date will be the reference rate in effect on such Interest Determination Date. The "Basic Spread" will be the lowest firm commitment bid expressed as a spread (in the form of a percentage or a number of basis points (plus or minus)) with respect to the Reference Rate, obtained by the Calculation Agent on the third Business Day prior to the Interim Period Remarketing Date from the bids quoted from up to five Reference Money Market Dealers on such date for the full aggregate principal amount of the MVPs at a dollar price equal to par, but assuming (i) that the purchase date is the Interim Period Remarketing Date, with settlement on such date without accrued interest, (ii) that the maturity date is the day that is 26 weeks from the Interim Period Remarketing Date, (iii) that the MVPs are callable by the Call Holder on a weekly basis after the Interim Period Remarketing Date, (iv) that the MVPs will be repurchased by the Company at par on the day that is 26 weeks from the Interim Period Remarketing Date if not previously called by the Call Holder, and (v) a stated annual interest rate, payable on the Additional Remarketing Date, equal to the Reference Rate plus the spread bid by the applicable Reference Money Market Dealer. "Reference Money Market Dealers" means each of First Chicago Capital Markets, Inc., Chase Securities Inc., NationsBanc Montgomery Securities LLC, Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated and their respective successors; provided, however, that if any of the foregoing or their affiliates shall cease to be a leading dealer of publicly traded debt securities of the Company and a leading dealer in money market instruments (a "Primary Money Market Dealer"), the Calculation Agent shall substitute therefor another Primary Money Market Dealer. The Interim Period Interest Rate and the amount of interest payable on the Additional Remarketing Date shall each be determined by the Calculation Agent and, absent manifest error, shall be binding and conclusive upon the Beneficial Owners and Holders of the MVPs, the Call Holder, the Company and the Trustee. (c) Redetermination of Interest Rate to Maturity. Notwithstanding any provision herein to the contrary, upon the occurrence, at any time after determination of the Interest Rate to Maturity on the Determination Date and prior to 3:30 p.m., New York City time, on the Business Day immediately preceding the Remarketing Date, of any event as specified in Section 12(b) of the Remarketing and Interest Calculation Agreement, the Call Holder, in its sole discretion at any time between the Determination Date and 3:30 p.m., New York City time, on the Business Day immediately preceding the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of the Interim Period), may elect to purchase the MVPs for remarketing and determine a new Interest Rate to Maturity in the manner provided in Section 4(a) hereof, except that for purposes of determining the new Interest Rate to Maturity pursuant to this paragraph, the Determination Date referred to therein shall be 11 12 the date of such election and redetermination. The Calculation Agent shall notify the Company, the Trustee and DTC by telephone, confirmed in writing (which may include facsimile or other electronic transmission), by 4:00 p.m., New York City time, on the date of such election, of the new Interest Rate to Maturity applicable to the MVPs. Thereupon, such new Interest Rate to Maturity shall supersede and replace any Interest Rate to Maturity previously determined by the Calculation Agent and, absent manifest error, shall be binding and conclusive upon the Beneficial Owners and Holders of the MVPs on or after the Remarketing Date, the Company and the Trustee. 5. Notification of Results; Settlement. Provided the Call Holder has previously notified the Company and the Trustee on the Notification Date of its intention to purchase all MVPs on January 18, 2000 and subject to Section 7 below, the Calculation Agent 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. If January 18, 2000 is the Interim Period Remarketing Date, the Calculation Agent will provide the Company, the Trustee and DTC notice in accordance with the preceding sentence, on the second Business Day prior to January 18, 2000, of the Interim Period Interest Rate which will initially be in effect. All of the outstanding MVPs shall be automatically delivered to the account of the Trustee, by book-entry through DTC pending payment of the purchase price therefor, on the applicable remarketing date. In the event that the Call Holder purchases the tendered MVPs on any remarketing date, the Call Holder shall make or cause the Trustee to make payment to the DTC Participant of each Beneficial Owner of MVPs, by book-entry through DTC no later than the close of business on the applicable remarketing date against delivery through DTC of such Beneficial Owner's tendered MVPs, of 100% of the principal amount of the tendered MVPs that have been purchased for remarketing by the Call Holder. If the Call Holder does not purchase all of the MVPs on any remarketing date, it shall be the obligation of the Company to make or cause to be made such payment for the MVPs, as provided in Section 6 hereof. In any case, the Company shall make or cause the Trustee to make payment of interest to each Beneficial Owner of MVPs due on any remarketing date by book-entry through DTC no later than the close of business on such remarketing date. "DTC Participant" shall mean any person that has an account with DTC through which Beneficial Owners acquire, directly or indirectly, an interest in the MVPs. The transactions set forth herein shall be executed through DTC in accordance with the procedures of DTC, and the accounts of the respective DTC Participants will be debited and credited and the MVPs delivered by book-entry as necessary to effect the purchases and sales thereof. The tender and settlement procedures set forth herein, including provisions for payment by purchasers of MVPs in the remarketing or for payment to selling Beneficial Owners of MVPs, may be modified, without the consent of the Beneficial Owners and Holders of the MVPs, to the extent required by DTC or to the extent required to facilitate the tender and remarketing of MVPs in certificated form, if the book-entry system is no longer available for the MVPs at the time of the remarketing. In addition, the Call Holder may, without the consent of Holders or 12 13 Beneficial Owners of the MVPs, modify the tender and settlement procedures set forth above in order to facilitate the tender and settlement process. As long as DTC's nominee holds the certificates representing any MVPs in the book-entry system of DTC, no certificates for such MVPs will be delivered by any selling Beneficial Owner to reflect any transfer of such MVPs effected in the remarketing. 6. Repurchase. In the event that (i) the Calculation Agent for any reason (other than redemption by the Company of the MVPs from the Call Holder pursuant to Section 7 hereof) does not notify the Company of (A) the Interest Rate to Maturity by 4:00 p.m., New York City time, on the Determination Date or (B) in the event of the Interim Period, the Interim Period Interest Rate which will initially be in effect, by 4:00 p.m. New York City time on the second Business Day prior to January 18, 2000, or (ii) prior to any remarketing date, the Call Holder has resigned and no successor has been appointed on or before (A) the Determination Date or (B) in the event of the Interim Period, the second Business Day prior to January 18, 2000, or (iii) at any time after the Call Holder elects on the Notification Date to remarket the MVPs, any event as set forth in Section 9 or Section 12 of the Remarketing and Interest Calculation Agreement shall have occurred, or (iv) the Call Holder for any reason does not elect to purchase the MVPs for remarketing on any remarketing date, (v) the Call Holder for any reason does not purchase all tendered MVPs on the Remarketing Date, or (vi) a Reference Corporate Dealer shall fail to purchase all of the MVPs from the Call Holder on the Remarketing Date (if such date is not the Interim Period Remarketing Date) or Additional Remarketing Date (in the event of the Interim Period), or (vii) in the event of the Interim Period, a Reference Money Market Dealer shall fail to purchase all of the MVPs on the Interim Period Remarketing Date, then the Company shall repurchase all the MVPs as a whole on the remarketing date relating to such event (which, in the case of clause (iii) that occurs during the Interim Period shall be the Additional Remarketing Date) at a price equal to 100% of the principal amount of the MVPs plus all accrued and unpaid interest, if any, on the MVPs to such remarketing date. In any such case, payment will be made by the Company through the Trustee to the DTC Participant of each tendering Beneficial Owner of MVPs, by book-entry through DTC no later than the close of business on the applicable remarketing date against delivery through DTC of such Beneficial Owner's tendered MVPs. 7. Redemption. If the Call Holder elects to remarket the MVPs in accordance with the terms of the Remarketing and Interest Calculation Agreement, then not later than four Business Days immediately preceding the Remarketing Date or the Additional Remarketing Date, if any, the Company may irrevocably elect to exercise its right to redeem the outstanding MVPs, in whole but not in part, from the Call Holder on the remarketing date immediately following such election at the Optional Redemption Price. The "Optional Redemption Price" shall be the sum of (i) the greater of (a) 100% of the principal amount of the MVPs and (b) the Dollar Price (which if such remarketing date is the Additional Remarketing Date, will equal the Adjusted Dollar Price), plus (ii) in the case of either (a) or (b), accrued and unpaid interest on the principal amount being redeemed to the date of payment in respect of such redemption. Provided that the MVPs have not been repurchased pursuant to Section 6 hereof or redeemed pursuant to the two immediately preceding paragraphs, following the remarketing of the MVPs on the Remarketing Date (if such date is not the Interim Period Remarketing Date) or 13 14 the Additional Remarketing Date (in the event of the Interim Period), the MVPs will be redeemable, in whole or from time to time in part, at the option of the Company after the Remarketing Date (if such date is not the Interim Period Remarketing Date) or the Additional Remarketing Date (in the event of the Interim Period) at a redemption price equal to the greater of (i) 100% of the principal amount of the MVPs to be redeemed and (ii) an amount (determined by the Quotation Agent (as defined below)) equal to the sum of the present values of the remaining scheduled payments of principal and interest on the MVPs to be redeemed (not including any portion of such payments of interest accrued as of the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (as defined below) plus 15 basis points, plus, in either case, accrued interest thereon to the date of redemption. "Adjusted Treasury Rate" means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. "Comparable Treasury Issue" means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining term of the MVPs to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such MVPs. "Comparable Treasury Price" means, with respect to any redemption date, (i) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the average of such Quotations, such average in any case to be determined by the Quotation Agent, or (iii) if only one Reference Treasury Dealer Quotation is received, such Quotation. "Quotation Agent" means the Reference Treasury Dealer appointed by the Company. "Reference Treasury Dealer" means (i) each of First Chicago Capital Markets, Inc., Chase Securities Inc., NationsBanc Montgomery Securities LLC, Goldman, Sachs & Co. and Morgan Stanley & Co. Incorporated and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer, and (ii) any other Primary Treasury Dealer(s) selected by the Company. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date. Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of the MVPs to be redeemed. Unless the Company defaults in payment of the redemption price, on and after the redemption date, interest will cease 14 15 to accrue on the MVPs or portions thereof called for redemption. If less than all of the MVPs are to be redeemed, the MVPs (or portions thereof) to be redeemed shall be selected by the Trustee by such method as the Trustee shall deem fair and appropriate. 8. Effect of Events of Default. If an Event of Default, as defined in the Senior Indenture, shall occur and be continuing, the principal of the MVPs may be declared due and payable in the manner and with the effect provided in the Senior Indenture. 9. Defeasance. Notwithstanding any provision to the contrary in the Senior Indenture or otherwise, prior to the Remarketing Date, neither the Company nor any of its subsidiaries or affiliates shall defease, purchase or otherwise acquire, or enter into any agreement to defease, purchase or otherwise acquire, any of the MVPs prior to the remarketing thereof by the Call Holder. 10. Maintenance in Book-Entry Form. Notwithstanding any provision to the contrary set forth in the Senior Indenture, the Company (i) shall use its best efforts to maintain the MVPs in book-entry form with DTC or any successor thereto and to appoint a successor depositary to the extent necessary to maintain the MVPs in book-entry form, and (ii) waives any discretionary right it otherwise has under the Senior Indenture to cause the MVPs to be issued in certificated form. 11. Amendment and Modification. The Senior 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 at any time by the Company and the Trustee with the consent of the Holders of not less than a majority of the aggregate principal amount of all Securities at the time outstanding of each series affected thereby. The Senior Indenture also contains provisions permitting the Holders of not less than a majority of the aggregate principal amount of the outstanding Securities of any series, on behalf of the Holders of all such Securities, to waive compliance by the Company with certain provisions of the Senior Indenture. Furthermore, provisions in the Senior Indenture permit the Holders of not less than a majority of the aggregate principal amount of the outstanding Securities of any series, in certain instances, to waive, on behalf of all of the Holders of Securities of such series, certain past defaults under the Senior Indenture and their consequences. Any such consent or waiver by the Holder of this MVPs shall be conclusive and binding upon such Holder and upon all future Holders of this MVPs and other MVPs issued upon the registration or transfer hereof or in exchange herefor or in lieu hereof, whether or not notation or such consent or waiver is made upon this MVPs. Without the consent of any Holder, (i) the Company and the Trustee may amend or supplement the Senior Indenture or the MVPs to cure any ambiguity, defect or inconsistency or to make certain other specified changes or any change that does not materially adversely affect the rights of any Holder and (ii) the tender and settlement procedures may be modified as provided in Section 3(b) above. Holders of MVPs may not enforce their rights pursuant to the Senior Indenture or the MVPs except as permitted in the Senior Indenture. 12. Obligation to Pay Principal, Premium, if any, and Interest. No reference herein to the Senior Indenture and no provision of this MVPs or of the Senior Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay principal, premium, if any, and interest in respect of this MVPs at the times, places and rate or formula, and in the manner and coin or currency, herein prescribed. 15 16 13. Transfer and Exchange. As provided in the Senior Indenture and subject to certain limitations therein and herein set forth (including without limitation the restrictions on transfer under the Senior Indenture in the event this MVPs is a Global Security as evidenced by the legend first set forth above and provided in the Senior Indenture), the transfer of this MVPs is registrable in the Security Register of the Company upon surrender of this MVPs for registration of transfer at the office or agency of the Security Registrar in Dallas, Texas designated for such purpose, 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 by his attorney duly authorized in writing, and thereupon one or more new MVPs, of authorized denominations and for the same aggregate principal amount and otherwise bearing identical terms and provisions, will be issued to the designated transferee or transferees. As provided in the Senior Indenture and subject to certain limitations therein and herein set forth (including without limitation the restrictions on transfer under the Senior Indenture in the event this MVPs is a global Security as evidenced by the legend first set forth above and provided in the Senior Indenture), this MVPs is exchangeable for a like aggregate principal amount of MVPs of different authorized denominations but otherwise having the same terms and conditions, as requested by the Holder hereof surrendering the same at the office or agency of the Security Registrar in Dallas, Texas designated for such purpose. No service charge shall be made for any such registration of transfer or exchange of MVPs, but the Company or the Security Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. Initially, the Trustee will act as Security Registrar and the office at which this MVPs must be surrendered for registration of transfer or exchange is currently the corporate trust department of the Trustee, 1201 Main Street, 18th Floor, Dallas, Texas 75202. Prior to due presentment of this MVPs for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this MVPs is registered as the owner thereof for all purposes, whether or not this MVPs be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. 14. Treatment for United States Federal Income Tax Purposes. Each Holder of this MVPs, by virtue of its purchase hereof, agrees, with respect to the period from the Original Issue Date to the Remarketing Date, to treat this MVPs as a fixed rate debt instrument that matures on the Remarketing Date for United States Federal income tax purposes. 15. Governing Law. The Senior Indenture and this MVPs shall be governed by and construed in accordance with the laws of the State of Texas. 16 17 ABBREVIATIONS The following abbreviations, when used in the inscription on the face of this MVPs, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT - __________ Custodian __________ (Cust) (minor) under Uniform Gifts to Minors Act ______________________ (State) TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common Additional abbreviations may also be used though not in the above list. -------------------------------------------- ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE _____________________________this MVPs and all (Please print or typewrite name and address including postal zip code of assignee) rights thereunder hereby irrevocably constituting and appointing________________ _________________________________________________Attorney to transfer this MVPs on the books of the Trustee, with full power of substitution in the premises. Dated: ------------------------------------------- Notice: The signature(s) on this Assignment must correspond with the name(s) as written upon the face of this MVPs in every particular, without alteration or enlargement or any change whatsoever. 17 -----END PRIVACY-ENHANCED MESSAGE-----