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EXHIBIT 10.2
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of March 31, 1998 (the "Remarketing
Agreement"), between MCN Investment Corporation, a Michigan corporation (the
"Company") and a wholly-owned subsidiary of MCN Energy Group Inc. ("MCN"), a
Michigan corporation, and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch" and, in its capacity as the remarketing dealer hereunder, the
"Remarketing Dealer").
WHEREAS, the Company has issued $100,000,000 aggregate principal amount
of its 6.35% MandatOry Par Put Remarketed Securities(SM) due April 2, 2012 (the
"MOPPRS(SM)"), pursuant to an Indenture, dated as of September 1, 1995 (the
"Indenture"), between the Company and NBD Bank, as trustee (the "Trustee"); and
WHEREAS, the MOPPRS are being sold initially pursuant to a purchase
agreement, dated March 26, 1998 (the "Purchase Agreement"), between the Company
and Merrill Lynch, Chase Securities Inc. and J.P. Morgan Securities Inc.; and
WHEREAS, the MOPPRS will have the benefit of a Support Agreement, dated
as of September 1, 1995 (the "Support Agreement"), between the Company and MCN;
and
WHEREAS, the Company and MCN have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3 (No.
333-47137) under the Securities Act of 1933, as amended (the "1933 Act"), in
connection with the offering of Debt Securities, including the MOPPRS, and the
obligations pursuant to the Support Agreement, which registration statement was
declared effective by order of the Commission on March 18, 1998, and has filed
such amendments thereto and such amended prospectuses as may have been required
to the date hereof, and will file such additional amendments thereto and such
additional amended prospectuses as may hereafter be required; and
WHEREAS, Merrill Lynch is prepared to act as the Remarketing Dealer
with respect to the remarketing of the MOPPRS on April 2, 2002 (the "Remarketing
Date") 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:
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"MandatOry Par Put Remarketed Securities(SM)" and "MOPPRS(SM)" are
service marks owned by Merrill Lynch & Co., Inc.
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Section 1. Definitions. Capitalized terms used and not defined
in this Agreement shall have the meanings assigned to them in the Indenture
(including the form of the MOPPRS).
Section 2. Representations and Warranties. (a) Each of the
Company and MCN represents and warrants to the Remarketing Dealer as of the date
hereof, the Notification Date (as defined below), the Determination Date (as
defined below) and the Remarketing Date (each such date being hereinafter
referred to as a "Representation Date"), that (i) it has made all the filings
with the Commission that it is required to make under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), and the rules and regulations
thereunder (the "1934 Act Regulations") (collectively, the "1934 Act
Documents"), (ii) each 1934 Act Document complies in all material respects with
the requirements of the 1934 Act and 1934 Act Regulations, and each 1934 Act
Document did not at the time of filing with the Commission, and as of each
Representation Date, as modified or superseded by any subsequently filed 1934
Act Document on or prior to such 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 and (iii)
the applicable Remarketing Materials (as defined herein), as of each
Representation Date after the date hereof, as modified or superseded by any
subsequently filed 1934 Act Document on or prior to such Representation Date
(or, if applicable, by any document filed pursuant to the 1933 Act and the rules
and regulations thereunder (the "1933 Act Regulations")), 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.
(b) Each of the Company and MCN further represents and warrants to
the Remarketing Dealer as of each Representation Date as follows:
(i) The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the 1934 Act Documents are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(ii) The financial statements included or
incorporated by reference in the 1934 Act Documents, together with the
related schedules and notes, present fairly the financial position of
MCN and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of MCN and
its consolidated subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included or
incorporated by reference in the 1934 Act Documents present fairly in
accordance with GAAP the information required to be stated therein. The
pro forma financial statements and the related notes thereto, if any,
included or incorporated by reference in the 1934 Act Documents present
fairly the information shown therein, have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements
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and have been properly compiled on the bases described therein, and the
assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(iii) Since the respective dates as of which
information is given in the 1934 Act Documents, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of the Company or MCN and their respective
subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or MCN or
any of their respective subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company or
MCN and their respective subsidiaries considered as one enterprise, and
(C) except for regular dividends on the common stock, par value $.01
per share, of MCN in amounts per share that are consistent with past
practice, there has been no dividend or distribution of any kind
declared, paid or made by MCN on any class of its capital stock.
(iv) Each of the Company and MCN has been duly
organized and is validly existing as a corporation in good standing
under the laws of the State of Michigan and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the 1934 Act Documents and to enter into and
perform its obligations under this Agreement; and each of the Company
and MCN is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(v) Each subsidiary of the Company and MCN has
been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the 1934 Act Documents and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the 1934 Act Documents, all of the
issued and outstanding capital stock of each such subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable
and is owned by the Company or MCN, as the case may be, directly or
through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any such subsidiary was issued
in violation of the preemptive or similar rights of any securityholder
of such subsidiary.
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(vi) This Agreement has been duly authorized,
executed and delivered by the Company and MCN.
(vii) The Indenture has been duly authorized,
executed and delivered by the Company and duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 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) (the "Bankruptcy Exceptions").
(viii) The Support Agreement has been duly and
validly authorized, executed and delivered by each of the Company and
MCN, and constitutes a valid and legally binding instrument,
enforceable against the Company and MCN in accordance with its terms
except to the extent that the enforcement thereof may be limited by the
Bankruptcy Exceptions.
(ix) The MOPPRS have been duly authorized and
executed by the Company and authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of
the purchase price therefor as provided in the Purchase 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 considered in a proceeding in equity or at law),
and are in the form contemplated by, and entitled to the benefits of,
the Indenture.
(x) None of the Company, MCN nor any of their
respective subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or MCN or any of their respective
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or MCN or any
subsidiary is subject (collectively, "Agreement and Instruments")
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement,
the Indenture, the Support Agreement and the MOPPRS and the
consummation of the transactions contemplated herein and in the
registration statement relating to the initial issuance of the MOPPRS
(including the issuance and sale of the
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MOPPRS and the use of the proceeds from the sale of the MOPPRS as
described in the prospectus relating to the initial issuance of the
MOPPRS under the caption "Use of Proceeds") and compliance by the
Company and MCN with its obligations hereunder and under the Indenture
and the MOPPRS have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or MCN or any subsidiary pursuant
to, the Agreements and Instruments (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not result in
a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
MCN or any subsidiary or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or MCN or any subsidiary or any of their assets, properties
or operations. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf)
the right to require the repurchase, redemption or repayment of all or
a portion of such indebtedness by the Company or any subsidiary.
(xi) 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 or MCN, threatened, against or affecting the Company or MCN or
any subsidiary, which is required to be disclosed in the 1934 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 or MCN
of its obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or MCN 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 1934 Act Documents,
including ordinary routine litigation incidental to the business, could
not reasonably be expected to result in a Material Adverse Effect.
(xii) 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 or MCN of its obligations hereunder, in
connection with the remarketing of the MOPPRS hereunder or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture by the
Company, except such as have or shall have been already obtained.
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(xiii) No labor dispute with the employees of the
Company or MCN or any of their respective subsidiaries exists or, to
the knowledge of the Company or MCN, is imminent, and neither the
Company nor MCN is aware of any existing or imminent labor disturbance
by the employees of any of its or any of its subsidiary's principal
suppliers, manufacturers, customers or contractors which, in either
case, may reasonably be expected to result in a Material Adverse
Effect.
(xiv) Each of the Company, MCN and their respective
subsidiaries has good and marketable title to all real property owned
by each of them and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind except such
as (A) are described in the 1934 Act Documents or (B) do not, singly or
in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company and MCN or any of their respective
subsidiaries; and all of the leases and subleases material to the
business of the Company, MCN and their respective subsidiaries, as the
case may be, considered as one enterprise, and under which the Company
or MCN or any of their respective subsidiaries holds properties are in
full force and effect, and none of the Company, MCN or any of their
respective subsidiaries has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or MCN or any of their respective subsidiaries under any of the
leases or subleases mentioned above, or affecting or questioning the
rights of the Company or MCN or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease; the pipeline, distribution main and underground gas storage
easements enjoyed by the Company or MCN or their respective
subsidiaries are valid, subsisting and enforceable easements with such
exceptions as are not material and do not materially interfere with the
conduct of the business of the Company, MCN and their respective
subsidiaries.
(xv) The Company, MCN and their respective
subsidiaries possess all licenses, franchises, permits, certificates,
approvals, consents, orders and other authorizations (collectively, the
"Governmental Licenses") issued by the appropriate federal, state,
local or foreign regulatory agencies or bodies necessary for the
ownership or lease of the material properties owned or leased by each
of them and to conduct the business now operated by each of them; the
Company, MCN and their respective subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except
where the failure to so comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not have a Material Adverse Effect;
and none of the Company, MCN or any of their respective subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
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aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xvi) Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) none of the Company, MCN or any of
their respective subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance or code,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, the "Environmental
Laws"), (B) the Company, MCN and their respective subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are in compliance with their requirements, and
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company, MCN or any of
their respective subsidiaries.
(xvii) MCN is presently exempt from the provisions
of the Public Utility Holding Company Act of 1935 (except Section 9
thereof) which would otherwise require it to register thereunder.
(xviii) The Company and MCN have complied with, and
are and will be in compliance with, the provisions of that certain
Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder.
(xix) Neither the Company nor MCN is an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
(xx) The MOPPRS are rated Baa2 by Moody's
Investors Service, Inc. and BBB+ by Standard & Poor's Rating Services,
a division of the McGraw-Hill Companies, Inc. or such other rating as
to which the Company shall have most recently notified the Remarketing
Dealer pursuant to Section 3(a) hereof.
References in the foregoing representations and warranties to the 1934
Act Documents shall be deemed to refer to the Registration Statement (as defined
in Section 3(b) below) and Prospectus
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(as defined in Section 3(b) below), in each case including the documents
incorporated by reference therein, if such are required pursuant to Section 3(e)
hereof.
(c) Additional Certifications. Any certificate signed by any director
or officer of the Company or MCN and delivered to the Remarketing Dealer or to
counsel for the Remarketing Dealer in connection with the remarketing of the
MOPPRS shall be deemed a representation and warranty by the Company or MCN, as
the case may be, to the Remarketing Dealer as to the matters covered thereby.
Section 3. Covenants of the Company. Each of the Company and
MCN covenants with the Remarketing Dealer as follows:
(a) The Company will provide prompt notice by telephone, confirmed
in writing (which may include facsimile or other electronic transmission), to
the Remarketing Dealer of (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 1933 Act) with regard to the ratings of any
securities of the Company or MCN, including, without limitation, notification or
announcement of a downgrade in or withdrawal of the rating of any security of
the Company or MCN or notification or announcement of the placement of any
rating of any securities of the Company or MCN 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 8(b) of
this Agreement.
(b) The Company will furnish to the Remarketing Dealer:
(i) if required as provided in paragraph (e) below for
purposes of the remarketing, a then currently effective registration
statement under the 1933 Act and a then current prospectus relating to
the MOPPRS to be used by the Remarketing Dealer for remarketing and
resale of the MOPPRS (such registration statement (whether consisting
of the registration statement relating to the initial issuance of the
MOPPRS, or any amendment thereto or a new registration statement) and
any amendments thereto, including any such prospectus (whether
consisting of the prospectus relating to the initial issuance of the
MOPPRS or any amendment or supplement thereto or a new prospectus)
relating to the MOPPRS constituting a part thereof, and all documents
incorporated therein by reference, as from time to time amended or
supplemented pursuant to the 1934 Act, the 1933 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 Remarketing Dealer by the Company for use in
connection with the remarketing of the MOPPRS which differs from the
Prospectus on file at the Commission at the time the Registration
Statement becomes effective, the term "Prospectus" shall refer to such
revised prospectus from and after the time it is first provided to the
Remarketing Dealer for such use); and
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(ii) in connection with the remarketing of MOPPRS, such
other information as the Remarketing Dealer may reasonably request from
time to time.
The Company agrees, at its expense, to provide the Remarketing Dealer
with as many copies of the foregoing written materials and other Company
approved information as the Remarketing Dealer may reasonably request for use in
connection with the remarketing of MOPPRS and consents to the use thereof for
such purpose.
(c) If, at any time during which the Remarketing Dealer would be
obligated to take any action under this Agreement, any event or condition known
to the Company or MCN relating to or affecting the Company or MCN, any
subsidiary thereof or the MOPPRS shall occur which could reasonably be expected
to cause any of the reports, documents, materials or information referred to in
paragraph (b) 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 or MCN shall
promptly notify the Remarketing Dealer in writing of the circumstances and
details of such event or condition.
(d) So long as the MOPPRS are outstanding, MCN will file all
documents required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act Regulations.
(e) The Company and MCN will comply with the 1933 Act and the 1933
Act Regulations, the 1934 Act and the 1934 Act Regulations and the 1939 Act and
the rules and regulations of the Commission thereunder so as to permit the
completion of the remarketing of the MOPPRS as freely transferable securities,
as contemplated in this Agreement and in the prospectus relating to the initial
issuance of the MOPPRS. In furtherance of the foregoing, if it shall be
necessary, in the opinion of counsel for the Remarketing Dealer or for the
Company to have a Registration Statement and a Prospectus in order to comply
with the requirements of the 1933 Act or the 1933 Act Regulations and the
Commission's interpretations of the 1933 Act and the 1933 Act Regulations, or if
at any time when a Prospectus is required by the 1933 Act to be delivered in
connection with remarketing and resales of the MOPPRS, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Remarketing Dealer 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 and MCN, 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 Remarketing Dealer such number of copies of such Registration Statement and
Prospectus or such amendment, supplement or other document as the Remarketing
Dealer may reasonably request and (iii) furnish to the Remarketing Dealer an
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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 Remarketing Dealer and a "comfort letter" from MCN's independent
accountants, in each case in form and substance satisfactory to the Remarketing
Dealer, of the same tenor as the officers' certificate, opinion and comfort
letter, respectively, delivered pursuant to the Purchase Agreement, but modified
to relate to the Registration Statement and Prospectus as amended or
supplemented to the date thereof.
(f) Each of the Company and MCN 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
MOPPRS prior to the remarketing thereof by the Remarketing Dealer, other than
pursuant to Section 4(g) or 4(h) of this Agreement.
(g) Notwithstanding any provision to the contrary set forth in the
Indenture, the Company shall (i) use its best efforts to maintain the MOPPRS in
book-entry form with The Depository Trust Company ("DTC") or any successor
thereto and to appoint a successor depositary to the extent necessary to
maintain the MOPPRS in book-entry form, and (ii) waive any discretionary right
it otherwise has under the Indenture to cause the MOPPRS to be issued in
certificated form.
(h) To the extent that a Registration Statement and a Prospectus
are required as contemplated in paragraph (e) above, the Company and MCN will
comply with covenants of the same tenor as those set forth in the Purchase
Agreement, but modified to relate to the Registration Statement and Prospectus.
Section 4. Appointment and Obligations of the Remarketing Dealer. (a)
Unless this Agreement is otherwise terminated in accordance with Section 11
hereof, in accordance with the terms, but subject to the conditions, of this
Agreement, the Company hereby appoints Merrill Lynch, and Merrill Lynch hereby
accepts such appointment, as the exclusive Remarketing Dealer with respect to
$100,000,000 aggregate principal amount of MOPPRS, subject further to repurchase
of the MOPPRS in accordance with clause (g) of this section or redemption of the
MOPPRS in accordance with clause (h) of this section.
(b) It is expressly understood and agreed by the parties hereto
that the obligations of the Remarketing Dealer hereunder with respect to the
MOPPRS to be remarketed on the Remarketing Date are conditioned on (i) the
issuance and delivery of such MOPPRS pursuant to the terms and conditions of the
Purchase Agreement and (ii) the Remarketing Dealer's election on the
Notification Date to purchase the MOPPRS for remarketing on the Remarketing
Date. It is further expressly understood and agreed by and between the parties
hereto that, if the Remarketing Dealer has elected to remarket the MOPPRS
pursuant to clause (c) below, the Remarketing Dealer shall not be obligated to
set the Interest Rate to Maturity on any MOPPRS, to remarket any MOPPRS 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 8 hereof shall not have been fully and completely met
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to the reasonable satisfaction of the Remarketing Dealer, or (ii) any of the
events set forth in clause (b) of Section 8 hereof shall have occurred.
(c) On a Business Day not later than five Business Days prior to
the Remarketing Date, the Remarketing Dealer shall notify the Company and the
Trustee as to whether it elects to purchase the MOPPRS on the Remarketing Date
(the "Notification Date"). If, and only if, the Remarketing Dealer so elects,
the MOPPRS shall be subject to mandatory tender to the Remarketing Dealer for
remarketing on the Remarketing Date, subject to the conditions described herein.
(d) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in clause (c) above, the Interest Rate to Maturity shall be
determined by the Remarketing Dealer by 3:30 p.m., New York City time, on the
third Business Day immediately preceding the Remarketing Date (the
"Determination Date") to the nearest one hundred-thousandth (0.00001) of one
percent per annum, and will be equal to the sum of 5.668% (the "Base Rate") plus
the Applicable Spread (as defined below), which will be based on the Dollar
Price (as defined below) of the MOPPRS.
The "Applicable Spread" will be the lowest bid indication, expressed as
a spread (in the form of a percentage or in basis points) above the Base Rate,
obtained by the Remarketing Dealer on the Determination Date from the bids
quoted by five Reference Corporate Dealers (as defined below) for the full
aggregate principal amount of the MOPPRS at the Dollar Price, but assuming (i)
an issue date equal to the Remarketing Date, with settlement on such date
without accrued interest, (ii) a maturity date equal to the Stated Maturity Date
of the MOPPRS, and (iii) a stated annual interest rate, payable semiannually on
each Interest Payment Date for the MOPPRS, equal to the Base Rate plus the
spread bid by the applicable Reference Corporate Dealer. If fewer than five
Reference Corporate Dealers bid as described above, then the Applicable Spread
shall be the lowest of such bid indications obtained as described above. The
Interest Rate to Maturity announced by the Remarketing Dealer, absent manifest
error, shall be binding and conclusive upon the Beneficial Owners and Holders of
the MOPPRS, the Company and the Trustee.
"Dollar Price" means, with respect to the MOPPRS, the present value
determined by the Remarketing Dealer, as of the Remarketing Date, of the
Remaining Scheduled Payments (as defined below) discounted to the Remarketing
Date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months), at the Treasury Rate (as defined below).
"Reference Corporate Dealers" means leading dealers of publicly traded
debt securities of the Company in The City of New York (which may include the
Remarketing Dealer or one of its affiliates) selected by the Remarketing Dealer
after consultation with the Company.
"Treasury Rate" means, with respect to the Remarketing Date, the rate
per annum equal to the semiannual equivalent yield to maturity or interpolated
(on a day count basis) yield to maturity of the Comparable Treasury Issues (as
defined below), assuming a price for the Comparable Treasury
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Issues (expressed as a percentage of its principal amount), equal to the
Comparable Treasury Price (as defined below) for the Remarketing Date.
"Comparable Treasury Issues" means the United States Treasury security
or securities selected by the Remarketing Dealer as having an actual or
interpolated maturity or maturities comparable to the remaining term of the
MOPPRS being remarketed.
"Comparable Treasury Price" means, with respect to the Remarketing
Date, (a) the offer prices for the Comparable Treasury Issues (expressed in each
case as a percentage of its principal amount) on the Determination Date, as set
forth on "Telerate Page 500" (or such other page as may replace Telerate Page
500), or (b) if such page (or any successor page) is not displayed or does not
contain such offer prices on the Determination Date, (i) the average of the
Reference Treasury Dealer Quotations for the Remarketing Date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or (ii) if the
Remarketing Dealer obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations.
"Telerate Page 500" means the display designated as "Telerate Page 500" on Dow
Jones Markets Limited (or such other page as may replace Telerate Page 500 on
such service) or such other service displaying the offer prices specified in (a)
above as may replace Dow Jones Markets Limited.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and the Remarketing Date, the offer prices for the
Comparable Treasury Issues (expressed in each case as a percentage of its
principal amount) quoted to the Remarketing Dealer by such Reference Treasury
Dealer by 3:30 p.m., New York City time, on the Determination Date.
"Reference Treasury Dealer" means each of Credit Suisse First Boston
Corporation, Lehman Brothers Inc., Merrill Lynch, Morgan Stanley & Co.
Incorporated and Salomon Brothers Inc (or their respective affiliates which are
primary U.S. Government securities dealers) 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 in The City of New York (a
"Primary Treasury Dealer"), the Remarketing Dealer shall substitute therefor
another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to the MOPPRS, the
remaining scheduled payments of the principal thereof and interest thereon,
calculated at the Base Rate only, that would be due after the Remarketing Date
to and including the Stated Maturity Date, as determined by the Remarketing
Dealer; provided, however, that if the Remarketing Date is not an Interest
Payment Date with respect to the MOPPRS, the amount of the next succeeding
scheduled interest payment thereon, calculated at the Base Rate only, will be
reduced by the amount of interest accrued thereon, calculated at the Base Rate
only, to the Remarketing Date.
(e) Subject to the Remarketing Dealer's election to remarket the
MOPPRS as provided in clause (c) above, the Remarketing Dealer shall notify the
Company, the Trustee and DTC by telephone, confirmed in writing (which may
include facsimile or other electronic transmission), by
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4:00 p.m., New York City time, on the Determination Date of the Interest Rate to
Maturity applicable to the MOPPRS effective from and including the Remarketing
Date.
(f) In the event that the MOPPRS are remarketed as provided herein,
the Remarketing Dealer shall make, or cause the Trustee to make, payment to the
DTC Participant of each tendering Beneficial Owner of MOPPRS subject to
remarketing, by book-entry through DTC by the close of business on the
Remarketing Date against delivery through DTC of such Beneficial Owner's
tendered MOPPRS, of 100% of the principal amount of the tendered MOPPRS that
have been purchased for remarketing by the Remarketing Dealer. The Company shall
make, or cause the Trustee to make, payment of interest to each Beneficial Owner
of MOPPRS due on the Remarketing Date by book-entry through DTC by the close of
business on the Remarketing Date.
(g) Subject to Section 11(c) of this Agreement, in the event that
(i) the Remarketing Dealer for any reason does not notify the Company of the
Interest Rate to Maturity by 4:00 p.m., New York City time, on the Determination
Date, or (ii) prior to the Remarketing Date, the Remarketing Dealer has resigned
and no successor has been appointed on or before the Determination Date, or
(iii) the Remarketing Dealer has terminated this Agreement pursuant to Section 8
or Section 11 hereof at any time after the Remarketing Dealer elects on the
Notification Date to remarket the MOPPRS, or (iv) the Remarketing Dealer for any
reason does not elect, by notice to the Company, and the Trustee not later than
the Notification Date, to purchase the MOPPRS for remarketing on the Remarketing
Date, or (v) the Remarketing Dealer for any reason does not purchase all
tendered MOPPRS on the Remarketing Date, the Company shall repurchase the MOPPRS
as a whole on the Remarketing Date at a price equal to 100% of the principal
amount of the MOPPRS plus all accrued and unpaid interest, if any, on the MOPPRS
to the 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
MOPPRS, by book-entry through DTC by the close of business on the Remarketing
Date against delivery through DTC of such Beneficial Owner's tendered MOPPRS.
(h) If the Remarketing Dealer elects to remarket the MOPPRS as
provided in clause (c) above, then not later than the close of business on the
Business Day immediately preceding the Determination Date, the Company shall
notify the Remarketing Dealer and the Trustee if the Company irrevocably elects
to exercise its right to redeem the MOPPRS, in whole but not in part, from the
Remarketing Dealer on the Remarketing Date at the Optional Redemption Price. The
"Optional Redemption Price" shall be the greater of (i) 100% of the principal
amount of the MOPPRS and (ii) the sum of the present values of the Remaining
Scheduled Payments thereon, as determined by the Remarketing Dealer, discounted
to the Remarketing Date on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate, plus in either case
accrued and unpaid interest from the Remarketing Date on the principal amount
being redeemed to the date of redemption. If the Company elects to redeem the
MOPPRS, it shall pay the redemption price therefor in same-day funds by wire
transfer to an account designated by the Remarketing Dealer on the Remarketing
Date.
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(i) The Remarketing Dealer may, with the consent of the Company
which shall not be unreasonably withheld, and in accordance with the terms of
the Indenture, modify the tender and settlement procedures set forth in the
Indenture in order to facilitate the tender and settlement process.
(j) The tender and settlement procedures described above, including
provisions for payment by purchasers of MOPPRS in the remarketing or for payment
to selling Beneficial Owners of tendered MOPPRS, may be modified, with the
consent of the Company which shall not be unreasonably withheld, to the extent
required by DTC or, if agreed to by the Remarketing Dealer in accordance with
Section 8(b)(viii) of this Agreement, to the extent required to facilitate the
tender and remarketing of MOPPRS in certificated form, if the book-entry system
is no longer available for the MOPPRS at the time of the remarketing.
Section 5. Fees and Expenses. Subject to Section 11 of this
Agreement, for its services in performing its duties set forth herein, the
Remarketing Dealer will not receive any fees or reimbursement of expenses from
the Company.
Section 6. Resignation of the Remarketing Dealer. The Remarketing
Dealer 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. The Remarketing
Dealer also may resign and be discharged from its duties and obligations
hereunder at any time, such resignation to be effective immediately, upon
termination of this Agreement in accordance with Section 11(b) hereof. It shall
be the sole responsibility of the Company to appoint a successor Remarketing
Dealer.
Section 7. Dealing in the MOPPRS; Purchase of MOPPRS by the
Company. (a) Merrill Lynch, when acting as the Remarketing Dealer or in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold and deal in any of the MOPPRS. Merrill Lynch, as Holder or Beneficial
Owner of the MOPPRS, 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
MOPPRS may be entitled to exercise or take pursuant to the Indenture with like
effect as if it did not act in any capacity hereunder. The Remarketing Dealer,
in its capacity either as principal or agent, may also engage in or have an
interest in any financial or other transaction with the Company as freely as if
it did not act in any capacity hereunder.
(b) The Company may purchase MOPPRS in the remarketing, provided
that the Interest Rate to Maturity established with respect to MOPPRS in the
remarketing is not different from the Interest Rate to Maturity that would have
been established if the Company had not purchased such MOPPRS.
Section 8. Conditions to Remarketing Dealer's Obligations. The
obligations of the Remarketing Dealer under this Agreement have been undertaken
in reliance on, and shall be subject
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to, (a) the due performance by the Company and MCN of its obligations and
agreements as set forth in this Agreement and the accuracy of the
representations and warranties in this Agreement and any certificate delivered
pursuant hereto, and (b) the further condition that none of the following events
shall have occurred at any time:
(i) the rating of any securities of the Company
or MCN 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 organization;
(ii) without the prior written consent of the
Remarketing Dealer, the Indenture (including the MOPPRS) shall have
been amended in any manner, or otherwise contain any provision not
contained therein as of the date hereof, that in either case in the
judgment of the Remarketing Dealer materially and adversely changes the
nature of the MOPPRS or the remarketing procedures (it being understood
that, notwithstanding the provisions of this clause (ii), the Company
shall not be prohibited from amending the Indenture);
(iii) trading in any securities of the Company or
MCN shall have been suspended or materially limited by the Commission
or the New York Stock Exchange, or 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 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 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 judgment of the Remarketing Dealer,
impracticable to remarket the MOPPRS or to enforce contracts for the
sale of the MOPPRS;
(v) Event of Default (as defined in the
Indenture), or any event which, with the giving of notice or passage of
time, or both, would constitute an Event of Default, with respect to
the MOPPRS shall have occurred and be continuing;
(vi) a material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or
business prospects of the Company or MCN and their
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respective subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, shall have occurred;
(vii) if a Prospectus is required under the 1933
Act to be delivered in cion with the remarketing of the MOPPRS, the
shall fail to furnish to the Remarketing Dealer on the 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 Remarketing Dealer may reasonably require for the
purpose of enabling such counsel to pass upon the sale of MOPPRS in the
remarketing as herein contemplated and related proceedings, or in order
to evidence the accuracy and completeness of any of the representations
and warranties, or the fulfillment of any of the conditions, herein
contained; or
(viii) the MOPPRS are not maintained in book-entry
form with DTC or any successor thereto; provided, that the Remarketing
Dealer, in its sole discretion and subject to receipt of an opinion of
counsel for the Company reasonably satisfactory to the Remarketing
Dealer, may waive the foregoing condition if in the Remarketing
Dealer's judgment the Indenture and the MOPPRS can be amended, and they
are amended, so as to permit the remarketing of the MOPPRS in
certificated form and otherwise as contemplated herein;
and the Remarketing Dealer shall have received on the Remarketing Date a
certificate of the President or a Vice President and of the Chief Financial
Officer or Chief Accounting Officer of each of the Company and MCN, dated as of
the 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 Remarketing Date, (ii) the Company and MCN have
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Remarketing Date and (iii) none of the
events specified in the preceding clause (b) has occurred.
(c) In furtherance of the foregoing, the effectiveness of the
Remarketing Dealer's election on the Notification Date to remarket the MOPPRS
shall be subject to the condition that the Remarketing Dealer shall have
received a certificate of the President or a Vice President and of the Chief
Financial Officer or Chief Accounting Officer of each of the Company and MCN,
dated as of the Notification Date, to the effect that (i) the Company has, prior
to the Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS, provided the Remarketing Dealer with notice of all events as required
under Section 3(a) of this Agreement, (ii) the representations and warranties in
this Agreement are true and correct at and as of the Notification Date and (iii)
the Company and MCN have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Notification Date. Such certificates shall be delivered by the Company to the
Remarketing Dealer as soon as practicable following notification by the
Remarketing Dealer to the Company and MCN on the Notification Date of its
election to remarket the MOPPRS and in any event prior to the Determination
Date.
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In the event of the failure of any of the foregoing conditions, the
Remarketing Dealer may terminate its obligations under this Agreement or
redetermine the Interest Rate to Maturity as provided in Section 11.
Section 9. Indemnification. (a) The Company and MCN jointly
agree to indemnify and hold harmless the Remarketing Dealer and its officers,
directors and employees and each person, if any, who controls the Remarketing
Dealer within the meaning of Section 20 of the 1934 Act as follows:
(i) against any loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of, (A) the failure to have an
effective Registration Statement under the 1933 Act relating to the
MOPPRS, if required, or the failure to satisfy the prospectus delivery
requirements of the 1933 Act because the Company failed to provide the
Remarketing Dealer with a Prospectus for delivery, or (B) any untrue
statement or alleged untrue statement of a material fact contained in
any of the Remarketing Materials (including any incorporated
documents), or (C) 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 (D) any
violation by the Company or MCN of, or any failure by the Company or
MCN to perform any of its obligations under, this Agreement, or (E) the
acts or omissions of the Remarketing Dealer in connection with its
duties and obligations to determine the Interest Rate to Maturity
hereunder except that are finally judicially determined to be due to
its gross negligence or willful misconduct;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever arising out of, or based upon, any of items (A)
through (E) in clause (i) above; provided that (subject to clause (d)
below) such settlement is effected with the written consent of the
Company, which consent shall not be unreasonably withheld; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Remarketing Dealer), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever arising out of, or based upon, any of items (A) through (E)
in clause (i) above to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that the foregoing indemnity shall not apply to any losses,
liabilities, claims, damages and expenses to the extent arising out of any
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company or MCN by the Remarketing Dealer
expressly for use in the Remarketing Materials; provided, further, that, if
applicable, the foregoing indemnity provided in Section 9(a) (i)(B) and (C)
hereof with respect to
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any preliminary prospectus shall not inure to the benefit of the Remarketing
Dealer (or any person controlling such Remarketing Dealer) from whom the person
asserting any such loss, liability, claim, damage or expense purchased any of
the MOPPRS which are the subject thereof if such person did not receive a copy
of the Prospectus (or the Prospectus as amended or supplemented) (in each case
exclusive of the documents from which information is incorporated by reference)
at or prior to the written confirmation of the sale of such MOPPRS to such
person in any case where the Company complied with its obligations under Section
3(b) hereof and any such untrue statement or omission or alleged untrue
statement or omission of a material fact contained in such preliminary
prospectus (or any amendment or supplement thereto) was corrected in the
Prospectus (or the Prospectus as amended or supplemented.
(b) The Remarketing Dealer agrees to indemnify and hold harmless
the Company, MCN, its directors and each of its officers who signed the
Registration Statement, from and against any loss, liability, claim, damage and
expense, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions made in the Remarketing Materials in
reliance upon and in conformity with information furnished to the Company or to
MCN in writing by the Remarketing Dealer expressly for use in such Remarketing
Materials. The indemnity agreement in this paragraph shall extend upon the same
terms and conditions to each person, if any, who controls the Company within
the meaning of Section 20 of the 1934 Act.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to clause 9 (a) above, counsel to the
indemnified parties shall be selected by Merrill Lynch, and, in the case of
parties indemnified pursuant to clause (b) above, counsel to the indemnified
parties shall be selected by the Company. An indemnifying party may participate
at its own expense in the defense of any such action; provided, however, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 9 or Section 10 hereof (whether
or not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
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investigation, proceeding or claim and (ii) does not include a statement as to
or an admission or fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by clause 9 (a) (ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) The indemnity agreements contained in this Section 9 shall
remain operative and in full force and effect, regardless of any investigation
made by or on behalf of the Remarketing Dealer, and shall survive the
termination or cancellation of this Agreement and the remarketing of any MOPPRS
hereunder.
Section 10. Contribution. If the indemnification provided for in
Section 9 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and MCN on the one hand and the Remarketing Dealer on the other hand
from the remarketing of the MOPPRS pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and MCN on the
one hand and of the Remarketing Dealer on the other hand in connection with the
acts, failures to act, statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and MCN on the one hand
and the Remarketing Dealer on the other hand in connection with the remarketing
of the MOPPRS pursuant to this Agreement shall be deemed to be in the same
respective proportions as (i) the aggregate principal amount of the MOPPRS, and
(ii) the aggregate positive difference, if any, between the price at which the
MOPPRS are sold by the Remarketing Dealer in the remarketing and the price paid
by the Remarketing Dealer for the MOPPRS tendered on the Remarketing Date.
The relative fault of the Company and MCN on the one hand and the
Remarketing Dealer on the other hand shall be determined by reference to, among
other things, the responsibility hereunder of the applicable party for any act
or failure to act relating to the losses, liabilities, claims, damages or
expenses incurred or, in the case of any losses, liabilities, claims, damages or
expenses arising out of any untrue or alleged untrue statement of a material
fact contained in any of the
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Remarketing Materials or the omission or alleged omission to state a material
fact therefrom, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or MCN or by the Remarketing Dealer and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company and MCN and the Remarketing Dealer agree that it would not
be just and equitable if contribution pursuant to this Section 10 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 10. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
10 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such act
or failure to act or untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 10, the Remarketing
Dealer shall not be required to contribute any amount in excess of the amount by
which the total price at which the MOPPRS remarketed by it and resold to the
public were sold to the public exceeds the amount of any damages which the
Remarketing Dealer has otherwise been required to pay by reason of any act or
failure to act for which it is responsible hereunder or any untrue or alleged
untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 10, each person, if any, who controls the
Remarketing Dealer within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Remarketing
Dealer, and each director of the Company and MCN, each officer of the Company
and MCN who signed the Registration Statement, and each person, if any, who
controls the Company or MCN within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company and MCN.
Section 11. Termination of Remarketing Agreement or Redetermination of
Interest Rate to Maturity. (a) This Agreement shall terminate as to the
Remarketing Dealer on the effective date of the resignation of the Remarketing
Dealer pursuant to Section 6 hereof or the repurchase of the MOPPRS by the
Company pursuant to Section 4(g) hereof or the redemption of the MOPPRS by the
Company pursuant to Section 4(h) hereof.
(b) In addition, the Remarketing Dealer may terminate all of its
obligations under this Agreement immediately by notifying the Company and the
Trustee of its election to do so, at any
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time on or before the Remarketing Date, in the event that: (i) any of the
conditions referred to or set forth in Section 8(a) hereof have not been met or
satisfied in full, (ii) any of the events set forth in Section 8(b) shall have
occurred at any time or (iii) the Remarketing Dealer determines, in its sole
discretion, after consultation with the Company, that it shall not have received
all of the information, whether or not specifically referenced herein, necessary
to fulfill its obligations under this Agreement.
(c) Notwithstanding any provision herein to the contrary, in lieu
of terminating this Agreement pursuant to Section 11(b) above, upon the
occurrence of any of the events set forth therein, the Remarketing Dealer, 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, may elect to purchase the MOPPRS for remarketing and determine a new
Interest Rate to Maturity in the manner provided in Section 4(d) 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. The Remarketing Dealer
shall notify the Company, the Trustee and DTC by telephone, confirmed in writing
(which may include facsimile or other electronic transmission), by 4:00 p.m.,
New York City time, on the date of such election, of the new Interest Rate to
Maturity applicable to the MOPPRS. Thereupon, such new Interest Rate to Maturity
shall supersede and replace any Interest Rate to Maturity previously determined
by the Remarketing Dealer and, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the MOPPRS on or after the
Remarketing Date, the Company and the Trustee; provided, however, that the
Remarketing Dealer, by redetermining the Interest Rate to Maturity upon the
occurrence of any event set forth in Section 11(b) 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 11(b).
(d) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
that, in the case of termination pursuant to Section 11(b) of this Agreement,
the Company and MCN shall reimburse the Remarketing Dealer for all of its
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Remarketing Dealer, and except further as set forth in Section
11(e) below. Sections 1, 9, 10, 11(d) and 11(e) shall survive such termination
and remain in full force and effect.
(e) In the case of either (i) termination of this Agreement after
the Remarketing Dealer's election on the Notification Date to remarket the
MOPPRS, pursuant to Section 11(b) or (ii) termination of this Agreement due to
the occurrence, prior to the Remarketing Dealer's election on the Notification
Date to remarket the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or
(viii), upon the request of the Remarketing Dealer, the Company shall
immediately following the Call Price Determination Date (as defined below) pay
the Remarketing Dealer, in same-day funds by wire transfer to an account
designated by the Remarketing Dealer, the fair market value,
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calculated as set forth below, of the Remarketing Dealer's right to purchase and
remarket the MOPPRS pursuant to this Agreement (the "Call Price").
In the case of termination of this Agreement pursuant to Section 11(b)
after the Remarketing Dealer elects on the Notification Date to remarket the
MOPPRS, the Call Price shall be equal to the excess of (i) the Dollar Price of
the MOPPRS determined as provided in Section 4 over (ii) the aggregate principal
amount of the MOPPRS.
In the case of termination of this Agreement due to the occurrence,
prior to the Remarketing Dealer's election on the Notification Date to remarket
the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or (viii), the Call
Price shall be determined in good faith by the Remarketing Dealer on a
commercially reasonable basis by reference to, among other factors, the
formulation set forth in the preceding paragraph.
The Remarketing Dealer shall determine the applicable Call Price on the
Business Day immediately following the date of termination or notification of
the occurrence, prior to the Remarketing Dealer's election on the Notification
Date to remarket the MOPPRS, of any event set forth in Section 8(b)(ii), (v) or
(viii), as the case may be, or as soon as practicable thereafter (the "Call
Price Determination Date"). The Remarketing Dealer shall promptly notify the
Company of the Call Price Determination Date and the Call Price by telephone,
confirmed in writing (which may include facsimile or other electronic
transmission). The Call Price, absent manifest error, shall be binding and
conclusive upon the parties hereto.
(f) This Agreement shall not be subject to termination by the
Company or MCN.
(g) Notwithstanding any provision herein to the contrary, upon the
occurrence of any of the events set forth in Section 8(b)(i), (iii), (iv) or
(vi) hereof, the Remarketing Dealer, in its sole discretion, may terminate all
of its obligations under this Agreement pursuant to Section 11(b) hereof upon
consultation with the Company.
Section 12. Remarketing Dealer's Performance; Duty of Care. The
duties and obligations of the Remarketing Dealer shall be determined solely by
the express provisions of this Agreement and the Indenture. No implied covenants
or obligations of or against the Remarketing Dealer shall be read into this
Agreement or the Indenture. In the absence of bad faith on the part of the
Remarketing Dealer, the Remarketing Dealer may conclusively rely upon any
document furnished to it, which purports to conform to the requirements of this
Agreement and the Indenture, as to the truth of the statements expressed in any
of such documents. The Remarketing Dealer shall be protected in acting upon any
document or communication reasonably believed by it to have been signed,
presented or made by the proper party or parties. The Remarketing Dealer shall
incur no liability hereunder to any Beneficial Owner or Holder of MOPPRS in its
individual capacity or as Remarketing Dealer for any action or failure to act in
connection with the remarketing or otherwise. The Remarketing Dealer shall incur
no liability to the Company or MCN with respect to calculation
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of the Interest Rate to Maturity, except as a result of gross negligence or
willful misconduct on its part.
Section 13. 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 14. 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 MOPPRS are outstanding or the completion of the remarketing of the
MOPPRS. Regardless of any termination of this Agreement pursuant to any of the
provisions hereof, the obligations of the Company and MCN pursuant to Sections
9, 10 and 11 hereof shall remain operative and in full force and effect until
fully satisfied.
Section 15. Successors and Assigns. The rights and obligations of
the Company and MCN hereunder may not be assigned or delegated to any other
person without the prior written consent of the Remarketing Dealer. This
Agreement shall inure to the benefit of and be binding upon the Company and MCN
and the Remarketing Dealer and their respective successors and assigns, and will
not confer any benefit upon any other person, partnership, association or
corporation other than persons, if any, controlling the Remarketing Dealer
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
or any indemnified party to the extent provided in Section 9 hereof, or any
person entitled to contribution to the extent provided in Section 10 hereof. The
terms "successors" and "assigns" shall not include any purchaser of any MOPPRS
merely because of such purchase.
Section 16. 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 17. 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 18. 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.
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Section 19. Amendments. This Agreement may be amended by any
instrument in writing signed by each of the parties hereto so long as this
Agreement as amended is not inconsistent with the Indenture in effect as of the
date of any such amendment.
Section 20. Notices. Unless otherwise specified, any notices,
requests, consents or other communications given or made hereunder or pursuant
hereto shall be made in writing (which may include facsimile or other electronic
transmission) and shall be deemed to have been validly given or made when
delivered or mailed, registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
(a) to the Company or MCN:
MCN Energy Group Inc.
500 Griswold Street
Detroit, Michigan 48226
Attention: Daniel L. Schiffer, Esq.,
Senior Vice President, General
Counsel and Secretary
Facsimile No.: (313) 965-0009
(b) to Merrill Lynch:
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281-1307
Attention: Swaps Option Desk
Facsimile No.: (212) 449-8920
With a copy to: Scott Primrose/Transaction Management
Group
Facsimile No.: (212) 449-2234
or to such other address as the Company or the Remarketing Dealer shall specify
in writing.
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IN WITNESS WHEREOF, each of the Company, MCN and the Remarketing Dealer
has caused this Remarketing Agreement to be executed in its name and on its
behalf by one of its duly authorized officers as of the date first above
written.
MCN INVESTMENT CORPORATION
By: /s/ Sebastian Coppola
----------------------------------
Name: Sebastian Coppola
Title: Vice President and Treasuer
MCN ENERGY GROUP INC.
By: /s/ Sebastian Coppola
----------------------------------
Name: Sebastian Coppola
Title: Senior Vice President,
Finance and Treasuer
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Anthony V. Leness
----------------------------------
Authorized Signatory
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