Exhibit 1.1
ST&B
Draft 2/3/99
NIPSCO INDUSTRIES, INC.
NIPSCO CAPITAL MARKETS, INC.
NIPSCO CAPITAL TRUST I
Trust Preferred Securities
REMARKETING AGREEMENT
February __, 1999
LEHMAN BROTHERS INC.
Three World Financial Center
New York, New York 10285
Ladies and Gentlemen:
NIPSCO Capital Trust I, a Delaware statutory business trust (the
"Trust"), is issuing today Trust Preferred Securities (stated liquidation amount
$50 per Trust Preferred Security) (the "Preferred Securities") pursuant to the
Amended and Restated Declaration of Trust, dated as of February __, 1999 (the
"Declaration"), and guaranteed (the "Guarantee"; together with the Preferred
Securities, the "Securities") by NIPSCO Capital Markets, Inc., an Indiana
corporation ("Capital Markets"), to the extent set forth in the Guarantee
Agreement, dated as of February __, 1999 (the "Guarantee Agreement"), between
Capital Markets and The Chase Manhattan Bank, as Guarantee Trustee (the
"Guarantee Trustee"). Capital Markets will be the owner of all of the beneficial
ownership interests represented by Common Securities (the "Common Securities";
together with the Preferred Securities, the "Trust Securities") of the Trust.
Concurrently with the issuance of the Securities and Capital Market's purchase
of all of the beneficial ownership interests represented by Common Securities of
the Trust, the Trust will invest the proceeds of each thereof in Capital
Market's Debentures (the "Debentures"). The Debentures are to be issued pursuant
to the Indenture, dated as of February 14, 1997 (the "Indenture"), among NIPSCO
Industries, Inc., an Indiana corporation and the parent of Capital Markets (the
"Company"), Capital Markets and The Chase Manhattan Bank, as Indenture Trustee
(the "Indenture Trustee"). Capitalized terms used and not defined in this
Agreement shall have the meanings set forth in the Declaration or the Indenture,
as the case may be.
The Remarketing (as defined below) of the Securities is provided for
in the Declaration and, if the Debentures have been distributed to holders of
the Preferred Securities in liquidation of the Trust, the Indenture. As used in
this Agreement, the term "Remarketed Securities" means the Securities or
Debentures subject to the Remarketing as notified by the Indenture Trustee on
the fifth Business Day prior to the Purchase Contract Settlement Date; the term
"Remarketing Procedures" means the procedures in connection with the Remarketing
of the Securities described
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in Section 7.13 of the Declaration and [Article Twelve] of the Indenture(1), as
the case may be; and the term "Remarketing" means the remarketing of the
Remarketed Securities pursuant to the Remarketing Procedures.
Section 1. Appointment and Obligations of the Remarketing Agent. (a)
The Company, Capital Markets and the Trust (collectively, the "Issuers") hereby
appoint Lehman Brothers Inc. as exclusive remarketing agent (the "Remarketing
Agent"), and Lehman Brothers Inc. hereby accepts appointment as Remarketing
Agent for the purpose of (i) Remarketing Remarketed Securities on behalf of the
holders thereof and (ii) performing such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with and
pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees (i) to use commercially reasonable
efforts to remarket the Remarketed Securities tendered or deemed tendered to the
Remarketing Agent in the Remarketing, (ii) to notify the Issuers promptly of the
Reset Rate and (iii) to carry out such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures, all in accordance with the
provisions of the Remarketing Procedures.
(c) On the third Business Day immediately preceding the Purchase
Contract Settlement Date (the "Remarketing Date"), the Remarketing Agent shall
use commercially reasonable efforts to remarket, at a price equal to 100% of the
aggregate liquidation or principal amount thereof, Remarketed Securities
tendered or deemed tendered for purchase.
(d) If none of the holders of Remarketed Securities elect to have
Remarketed Securities held by them remarketed in the Remarketing, the
Remarketing Agent shall determine the Reset Rate which shall be the rate that
would have been established had a Remarketing been held on the Remarketing Date.
(e) If, as a result of the efforts described in Section 1(b), the
Remarketing Agent has determined that it will be able to remarket all Remarketed
Securities tendered or deemed tendered for purchase at a price of 100% of the
aggregate stated liquidation or principal amount of such Remarketed Securities
prior to 4:00 P.M., New York City time, on the Remarketing Date, the Remarketing
Agent shall determine the Reset Rate, which shall be the rate per annum (rounded
to the nearest one-thousandth (0.001) of one percent per annum) which the
Remarketing Agent determines, in its sole judgment, to be the lowest rate per
annum that will enable it to remarket all Remarketed Securities tendered or
deemed tendered for Remarketing.
(f) If, by 4:00 P.M., New York City time, on the Remarketing Date,
the Remarketing Agent is unable to remarket all Remarketed Securities tendered
or deemed tendered for purchase, a failed Remarketing ("Failed Remarketing")
shall be deemed to have occurred and the Remarketing
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1 Current version of Indenture does not provide for remarketing and will
need to be so amended in the Supplement.
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Agent shall so advise by telephone the Depositary, the Property Trustee, the
Debenture Trustee, the Company, the Trust and Capital Markets.
(g) By approximately 4:30 P.M., New York City time, on the
Remarketing Date, provided that there has not been a Failed Remarketing, the
Remarketing Agent shall advise, by telephone (i) the Depositary, the Property
Trustee, the Debenture Trustee, the Company, the Trust and Capital Markets of
the Reset Rate determined in the Remarketing and the number of Remarketed
Securities sold in the Remarketing, (ii) each purchaser (or the Depositary
Participant thereof) of the Reset Rate and the number of Remarketed Securities
such purchaser is to purchase and (iii) each purchaser to give instructions to
its Depositary Participant to pay the purchase price on the Purchase Contract
Settlement Date in same day funds against delivery of the Remarketed Securities
purchased through the facilities of the Depositary.
(h) The Remarketing Agent shall remit to the Collateral Agent all
proceeds of the Remarketed Securities subject to the Pledge Agreement.
2. Representations, Warranties and Agreements of the Company and
Capital Markets. The Company and Capital Markets jointly represent, warrant and
agree (i) on and as of the date hereof, (ii) on and as of the date the
Prospectus or other Remarketing Materials (each as defined in Section 2(a)
below) are first distributed in connection with the Remarketing (the
"Commencement Date"), (iii) on and as of the Remarketing Date, and (iv) on and
as of the Purchase Contract Settlement Date that:
(a) A registration statement or registration statements on Form S-3
(file No. 333-69279) and an amendment or amendments thereto with respect
to the Securities and the Debentures have (i) been prepared by the Issuers
in conformity with the requirements of the Securities Act of 1933 as
amended (the "Securities Act") and the rules and regulations (the "Rules
and Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act; a
registration statement on Form S-3, if required to be filed in connection
with the Remarketing, may also be prepared by the Issuers in conformity
with the requirements of the Securities Act and the Rules and Regulations
and filed with the Commission under the Securities Act; and the Indenture,
the Guarantee Agreement and the Declaration have each been qualified under
the Trust Indenture Act of 1939, as amended, (the "Trust Indenture Act").
Copies of such registration statement or registration statements that have
become effective and the amendment or amendments to such registration
statements have been delivered by the Issuers to you. As used in this
Agreement, "Effective Time" means the date and time as of which the last
of such registration statements that have become effective or may be
filed, or the most recent post-effective amendment thereto, if any, was
declared effective by the Commission; Effective Date means the date of the
Effective Time of such last registration statement; Preliminary Prospectus
means each prospectus included in such last registration statement, or
amendment thereto, before it became effective under the Securities Act and
any prospectus filed by the Issuers with your consent pursuant to Rule
424(a) of the Rules and Regulations; "Registration Statement"
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means such last registration statement, as amended at its Effective Time,
including documents incorporated by reference therein at such time and, if
applicable, all information contained in the final prospectus filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations,
including any information deemed to be part of such Registration Statement
as of the Effective Time pursuant to paragraph (b) of Rule 430A of the
Rules and Regulations; and "Prospectus" means such final prospectus, as
first filed pursuant to Rule 424(b) of the Rules and Regulations.
Reference made herein to any Preliminary Prospectus, the Prospectus or any
other information furnished by the Issuers to the Remarketing Agent for
distribution to investors in connection with the Remarketing (the
"Remarketing Materials") shall be deemed to refer to and include any
documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be, or, in the case of Remarketing
Materials, referred to as incorporated by reference therein, and any
reference to any amendment or supplement to any Preliminary Prospectus,
the Prospectus or the Remarketing Materials shall be deemed to refer to
and include any document filed under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), after the date of such Preliminary
Prospectus or the Prospectus or, if so incorporated, the Remarketing
Materials, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the
Company or Capital Markets filed with the Commission pursuant to Section
13(a) or 15(d) of the Exchange Act after the Effective Time that is
incorporated by reference in the Registration Statement.
(b) Giving effect to the interpretations of the requirements of the
Securities Act reflected in the Company's letter requesting "no-action"
submitted to the staff of the commission (the "Staff"), dated April 27,
1992, as supplemented by letters dated July 9, 1992 and September 21, 1992
(the "No-Action Request") and the Staff's response thereto dated September
25, 1992 (the "Staff Response"), the Registration Statement conforms (and
the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus, when they become effective or
are filed with the Commission, as the case may be, will conform) in all
respects to the requirements of the Securities Act and the Rules and
Regulations and the Registration Statement, the Prospectus and the
Remarketing Materials do not and will not, as of the Effective Date (as to
the Registration Statement and any amendment thereto), as of the
applicable filing date (as to the Prospectus and any amendment or
supplement thereto) and as of the Commencement Date, Remarketing Date and
Remarketing Settlement Date (as to any Remarketing Materials) contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; provided that no representation and warranty is made as to
the statement of eligibility and qualification on Form T-1 of the
Indenture Trustee, the Property Trustee or the Guarantee Trustee under the
Trust Indenture Act, or as to information contained in or omitted from the
Registration Statement, the Prospectus or the Remarketing Materials in
reliance upon and in conformity with written information furnished to the
Issuers by the Remarketing Agent specifically for inclusion therein; the
Indenture, the Declaration and the Guarantee Agreement each conform in all
material respects to the requirements of the Trust Indenture Act and the
applicable rules and
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regulations thereunder; and the Commission has not issued an order
preventing or suspending the use of the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Remarketing Materials.
(c) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents so filed and
incorporated by reference in the Prospectus, when such documents become
effective or are filed with Commission, as the case may be, will conform
in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) Each of the Company, Capital Markets, Northern Indiana Public
Service Company ("Northern Indiana"), Bay State Gas Company ("Bay State")
and IWC Resources Corporation ("IWCR" and, together with Northern Indiana
and Bay State, the "Significant Subsidiaries") has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus or in any Remarketing Materials, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to require
such qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such jurisdiction; and
each other subsidiary (as defined in Section 15 hereof) of the Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation.
(e) The Company has an authorized capitalization as set forth in the
Prospectus and in any Remarketing Materials; and all of the issued capital
shares of the Company and each wholly-owned subsidiary of the Company have
been duly and validly authorized and issued and are fully paid and
non-assessable; and except as set forth in Exhibit 21 to the most recent
Form 10-K of the Company, all of the issued common shares of Northern
Indiana and Indianapolis Water Company ("IWC") and all of the issued
capital shares of each other subsidiary of the Company (except for
directors' qualifying shares and except as set forth in the Prospectus)
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(f) Northern Indiana[, Bay State] and IWCR constitute the only
"significant subsidiaries" (as such term is defined in Rule 1-02 of
Regulation S-X) of the Company.
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(g) The Indenture has been duly authorized, executed and delivered
by the Company and Capital Markets, and (assuming due execution and
delivery by the Indenture Trustee) constitutes a valid and binding
agreement of each of the Company and Capital Markets enforceable against
the Company and Capital Markets in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing; and the Debentures have been duly authorized,
executed, issued and delivered by Capital Markets and (assuming due
authentication by the Indenture Trustee) constitute valid and binding
obligations of Capital Markets, entitled to the benefits of the Indenture
and the Support Agreement, dated April 4, 1989, as amended as of May 15,
1989, December 10, 1990 and February 14, 1991 (the "Support Agreement"),
between the Company and Capital Markets, and enforceable in accordance
with their terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(h) The Declaration has been duly authorized, executed and delivered
by Capital Markets and the Regular Trustees, and (assuming due execution
and delivery by the Property Trustee and the Delaware Trustee) constitutes
a valid and binding agreement of Capital Markets, enforceable against
Capital Markets in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
(i) The Guarantee Agreement has been duly authorized, executed and
delivered by Capital Markets and, (assuming due execution and delivery by
the Guarantee Trustee) constitutes a valid and binding agreement of
Capital Markets enforceable against Capital Markets in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(j) This Agreement has been duly authorized, executed and delivered
by the Company, Capital Markets and the Trust.
(k) The Remarketed Securities, the Indenture, the Declaration, the
Guarantee Agreement and the Remarketing Agreement, when the Remarketed
Securities are delivered pursuant to this Agreement, will conform to the
descriptions thereof contained in the Prospectus and in any Remarketing
Materials.
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(l) The execution, delivery and performance of this Agreement, the
Indenture, the Declaration, the Guarantee Agreement and the Remarketing
Agreement by the Company and Capital Markets, as applicable, and the
consummation by the Issuers of the transactions contemplated hereby and
thereby and the issuance and delivery of the Debentures (the
"Transactions") did not and will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to
which any of the properties or assets of the Company or any of its
subsidiaries is subject, nor will such actions result in any violation of
the provisions of the charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties or assets; and
except for such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Act, Trust
Indenture Act, Exchange Act and applicable state securities laws in
connection with the initial distribution of the Preferred Securities or
the Remarketing, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body
is required for the Transactions.
(m) There are no contracts, agreements or understandings between (i)
the Company or Capital Markets and (ii) any person granting such person
the right to require the Company or Capital Markets to file a registration
statement under the Securities Act with respect to any securities of the
Company or Capital Markets owned or to be owned by such person or to
require the Company or Capital Markets to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company or Capital Markets under the Securities Act.
(n) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus or in any Remarketing
Materials, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or
decree, which could, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries taken as a whole or upon
the ability of the Issuers to perform their obligations under this
Agreement (a "Material Adverse Effect"), otherwise than as set forth or
contemplated in the Prospectus and in any Remarketing Materials; and,
since such date, there has not been any material change in the
consolidated share capital or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development involving
a prospective material adverse change, in or affecting the general
affairs, management, financial position, shareholders' equity or results
of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus and in any Remarketing Materials.
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(o) The financial statements filed as part of the Registration
Statement or incorporated by reference in the Prospectus or as presented
in any Remarketing Materials present fairly the financial condition and
results of operations of the entities purported to be shown thereby, at
the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved and, with respect to
financial statements included in periodic reports filed by the Company
pursuant to Section 13 or 15(d) of the Exchange Act with the Commission on
and after September 25, 1992, contain the information requested by the
Staff in the Staff Response to be so included; and the supporting
schedules included or incorporated by reference in the Prospectus or in
any Remarketing Materials present fairly the information required to be
stated therein.
(p) Arthur Andersen LLP, who have certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein or in any Remarketing Materials and who
have delivered the letter referred to in Section 6(h) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(q) The Company and each Significant Subsidiary has good and
marketable title in fee simple to such of its fixed assets as are real
property and good and marketable title to its other assets reflected in
the most recent consolidated balance sheet incorporated by reference in
the Prospectus or in any Remarketing Materials, except properties and
assets that are leased or that are sold or otherwise disposed of in the
ordinary course of business after the date of said balance sheet, subject
to no mortgages, liens, charges or encumbrances of any kind whatsoever
("Liens") other than Liens permitted under the Indenture.
(r) Other than as set forth or incorporated by reference in the
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or to which any
property or asset of the Company or any of its subsidiaries is the subject
which could reasonably be expected individually or in the aggregate to
have a Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(s) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(t) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted
by the Rules and Regulations.
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(u) None of the Company nor any Significant Subsidiary has any
material contingent liability which is not disclosed in the Prospectus.
(v) None of the Company nor any Significant Subsidiary (i) is in
violation of its charter or by-laws or similar constitutive documents,
(ii) is in default in any respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which it is a party or by which it is
bound or to which any of its properties or assets is subject, except where
such defaults, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect, or (iii) is in violation in
any material respect of any law, ordinance, governmental rule, regulation
or court decree to which it or its properties or assets may be subject or
has failed to obtain any material license, permit, certificate, franchise
or other governmental authorization or permit necessary to the ownership
of its properties or assets or to the conduct of its business, except
where such violations or failures, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect.
(w) Neither the Company nor any subsidiary of the Company is an
"investment company" within the meaning of such term under the Investment
Company Act of 1940, as amended (the "1940 Act"), and the rules and
regulations of the Commission thereunder; the Commission has issued an
order (the "Order") exempting Capital Markets from all of the provisions
of the 1940 Act; the Order is in full force and effect; and Capital
Markets will continue to comply with the terms and conditions of the
Order, or otherwise remain exempt from all of the provisions of the 1940
Act, so long as any Remarketed Securities are outstanding.
(x) The Support Agreement has been duly authorized by Capital
Markets and the Company and constitutes a valid and binding agreement of
each of Capital Markets and the Company enforceable against Capital
Markets and the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; the Company's obligations under the Support Agreement will
rank prior to the equity securities of the Company and equal with all
other unsecured and unsubordinated indebtedness of the Company, whether
now or hereafter outstanding; and the Debentures and the Guarantee will be
entitled to the benefits of the Support Agreement, the obligations of
Capital Markets under the Debentures and the Guarantees will be deemed to
be "Debt" (as defined in the Support Agreement) for purposes of the
Support Agreement and the holders of the Debentures and the Guarantee will
be entitled to the rights of "Lenders" (as defined in the Support
Agreement) under the Support Agreement.
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(y) Each of the Company and each Significant Subsidiary has
statutory authority, franchises and consents free from burdensome
restrictions and adequate for the conduct of the business in which it is
engaged.
(z) Except for the Company's ownership of the voting securities of
the Significant Subsidiaries, as and to the extent described in the
Prospectus, no person or corporation which is a "holding company" or a
"subsidiary company" of a "holding company" (as such terms are defined in
the Public Utility Holding Company Act of 1935, as amended (the "1935
Act")), directly or indirectly owns, controls or holds with power to vote
10% or more of the outstanding voting securities of the Company or any
Significant Subsidiary; the Company is a "holding company" (as such term
is defined in the 1935 Act) but is exempt from all provisions of the 1935
Act pursuant to Section 3(a)(1) thereof except Section 9(a)(2) thereof;
and none of the Significant Subsidiaries is a "holding company" as defined
in the 1935 Act.
(aa) The Prospectus accurately describes the most restrictive of the
existing limitations on the payment of dividends by Northern Indiana on
its common shares held by the Company.
3. Representations, Warranties and Agreements of the Company,
Capital Markets and the Trust. The Company, Capital Markets and the Trust,
jointly and severally, represent, warrant and agree, (i) on and as of the date
hereof, (ii) on and as of the Commencement Date, (iii) on and as of the
Remarketing Date and (iv) on and as of the Remarketing Settlement Date that:
(a) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of
the State of Delaware (the "Delaware Trust Act") with the trust power and
authority to own property and conduct its business as described in the
Prospectus, and has conducted and will conduct no business other than the
transactions contemplated by this Agreement as described in the Prospectus
or in any Remarketing Materials; the Trust is not a party to or bound by
any agreement or instrument other than this Agreement, the Declaration and
the other agreements entered into in connection with the transaction
contemplated hereby; the Trust has no liabilities or obligations other
than those arising out of the transactions contemplated by this Agreement
and the Declaration and described in the Prospectus or in any Remarketing
Materials; and the Trust is not a party to or subject to any action, suit
or proceeding of any nature.
(b) The Declaration has been duly authorized, executed and delivered
by Capital Markets, as Sponsor, and the Regular Trustees and (assuming due
authorization, execution and delivery by the Property Trustee and the
Delaware Trustee), constitutes a valid and binding obligation of the
Trust, enforceable against the Trust in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing, and will conform to the description thereof
contained in the Prospectus or in any Remarketing Materials.
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(c) The Trust Securities are duly authorized, validly issued, fully
paid and, in the case of the Preferred Securities, non-assessable and
conform to the descriptions contained in the Prospectus or in any
Remarketing Materials.
(d) This Agreement has been duly authorized, executed and delivered
by the Trust.
(e) The execution, delivery and performance of this Agreement, the
Declaration and the Trust Securities by the Trust, the purchase of the
Debentures by the Trust from Capital Markets, the distribution of the
Debentures upon the liquidation of the Trust in the circumstances
contemplated by the Declaration, and the consummation by the Trust of the
transactions contemplated herein and in the Declaration (the "Trust
Transactions"), did not and will not result in a violation of any statute
or order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Trust or any of its assets; and except for
such consents, approvals, authorizations, registrations or qualifications
as may be required under the Securities Act, Trust Indenture Act, Exchange
Act or under applicable state securities laws in connection with the
initial distribution of the Preferred Securities and the Remarketing, no
consent, approval, authorization or order of or filing or registration
with, any such court or governmental agency or body is required for the
Trust Transactions.
(f) The Trust is not an "investment company" within the meaning of
such term under the Investment Company Act and the rules and regulations
of the Commission thereunder.
4. Fees and Expenses. (a) For the performance of its services as
Remarketing Agent hereunder, Capital Markets shall pay to the Remarketing Agent
on the Purchase Contract Settlement Date, by wire transfer to an account
designated by the Remarketing Agent, an amount to be agreed upon by Capital
Markets and the Remarketing Agent.
(b) The Company and Capital Markets, jointly and severally, agree to
pay (i) the costs incident to the preparation and printing of the Registration
Statement, Prospectus and any Remarketing Materials and any amendments or
supplements thereto; (ii) the costs of distributing the Registration Statement,
Prospectus and any Remarketing Materials and any amendments or supplements
thereto; (iii) the fees and expenses of qualifying the Remarketed Securities
under the securities laws of the several jurisdictions as provided in Section
5(h) and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Remarketing Agent); (iv)
all other costs and expenses incident to the performance of the obligations of
the Company, Capital Markets and the Trust hereunder; and (v) the reasonable
fees and expenses of counsel to the Remarketing Agent in connection with their
duties hereunder. The Trust shall not be liable for any fees and expenses in
this Section.
5. Further Agreements of the Company and Capital Markets. The
Company and Capital Markets, jointly and severally, agree:
(a) To prepare any registration statement or prospectus, if
required, in connection with the Remarketing, in a form approved by the
Remarketing Agent and to file any such
12
prospectus pursuant to the Securities Act within the period required by
the Rules and Regulations; to advise the Remarketing Agent, promptly after
it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Remarketing Agent with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus
and for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Remarketed Securities; to advise the
Remarketing Agent, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of the Prospectus, of the suspension of the
qualification of any of the Remarketed Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Prospectus
or suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal.
(b) To furnish promptly to the Remarketing Agent and to counsel for
the Remarketing Agent a signed copy of the Registration Statement as
originally filed with the Commission, and each amendment thereto filed
with the Commission, including all consents and exhibits filed therewith.
(c) To deliver promptly to the Remarketing Agent in New York City
such number of the following documents as the Remarketing Agent shall
request: (i) conformed copies of the Registration Statement as originally
filed with the Commission and each amendment thereto (in each case
excluding exhibits other than this Agreement, the Indenture, the
Declaration and the Guarantee Agreement), (ii) the Prospectus and any
amended or supplemented Prospectus, (iii) any document incorporated by
reference in the Prospectus (excluding exhibits thereto) and (iv) any
Remarketing Materials; and, if the delivery of a prospectus is required at
any time in connection with the Remarketing and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Remarketing Agent and, upon its request,
to file such document and to prepare and furnish without charge to the
Remarketing Agent and to any dealer in securities as many copies as the
Remarketing Agent may from time to time request of an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance.
13
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Remarketing
Agent, be required by the Securities Act or requested by the Commission.
(e) Prior to filing with the Commission (i) any amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated by reference in the Prospectus or (ii) any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy
thereof to the Remarketing Agent and counsel for the Remarketing Agent;
and not to file any such amendment or supplement which shall be
disapproved by the Remarketing Agent promptly after reasonable notice.
(f) As soon as practicable after the Effective Date of the
Registration Statement to make generally available to the Company's
security holders and to deliver to the Remarketing Agent an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(g) During a period of five years following the effective date of
the Registration Statement, to deliver to the Remarketing Agent copies of
all reports or other communications (financial or other) furnished to
shareholders of the Company, and deliver to the Remarketing Agent, (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed by the Company or Capital Markets with the
Commission or any national securities exchange on which any of the
Remarketed Securities or any class of securities of the Company or Capital
Markets may be listed; and (ii) such additional information concerning the
business and financial condition of the Company or Capital Markets as the
Remarketing Agent may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Company and its subsidiaries are consolidated in reports furnished to the
Company's shareholders generally or to the Commission).
(h) Promptly from time to time to take such action as the
Remarketing Agent may reasonably request to qualify any of the Remarketed
Securities and the obligations of the Company under the Support Agreement
for offering and sale under the securities laws of such jurisdictions as
the Remarketing Agent may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the
Securities and the obligations of the Company pursuant to the Support
Agreement; provided that in connection therewith, neither the Company nor
Capital Markets shall be required to qualify as a foreign corporation or
to file a general consent to service of process in any jurisdiction.
6. Conditions to the Remarketing Agent's Obligations. The
obligations of the Remarketing Agent hereunder are subject to the accuracy, on
and as of the date when made, of the representations and warranties of the
Company, Capital Markets and the Trust contained herein, to
14
the performance by the Company, Capital Markets and the Trust of their
respective obligations hereunder, and to each of the following additional terms
and conditions:
(a) The Prospectus shall have been timely filed with the Commission;
no stop order suspending the effectiveness of the Registration Statement
or any part thereof or suspending the qualification of the Indenture, the
Guarantee Agreement or the Declaration shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise
shall have been complied with.
(b) The Remarketing Agent shall not have discovered and disclosed to
the Company on or prior to the Remarketing Date that the Prospectus, the
Registration Statement, or the Remarketing Materials or any amendment or
supplement thereto contains any untrue statement of a fact which, in the
opinion of counsel for the Remarketing Agent, is material or omits to
state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Declaration,
the Indenture, the Remarketed Securities, the Guarantee Agreement, the
Preferred Securities, the Common Securities, the Prospectus, the
Registration Statement, the Remarketing Materials and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Remarketing Agent, and the Issuers shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Counsel to the Company and Capital Markets shall have furnished
to the Remarketing Agent its written opinion, as counsel to the Company
and Capital Markets, addressed to the Remarketing Agent and dated the
Remarketing Date, in form and substance satisfactory to the Remarketing
Agent, to the effect that:
(i) The Company and each of its Significant Subsidiaries have
been duly incorporated and are validly existing as corporations in
good standing under the laws of their respective jurisdictions of
incorporation, with respective power and authority (corporate and
other) to own their respective properties and conduct their
businesses as described in the Prospectus.
(ii) The Company has an authorized capitalization as set forth
in the Prospectus and in any Remarketing Materials, all of the
issued capital shares of the Company and each Significant Subsidiary
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable; and all of the issued common
shares of Northern Indiana and all of the issued capital shares of
each other Significant Subsidiary (except for directors' qualifying
shares and as set forth or incorporated by reference in the
Registration Statement) are owned directly or
15
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(iii) The Company and each Significant Subsidiary has been
duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any
business, so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction.
(iv) There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of
the Debentures pursuant to the Company's or Capital Markets' charter
or by-laws or any agreement or other instrument known to such
counsel.
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus or in any Remarketing Materials, there
are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or to which any
property or asset of the Company or any of its subsidiaries is
subject which could reasonably be expected individually or in the
aggregate to have a material adverse effect on the consolidated
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries; and, to the best of such counsel's
knowledge and other than as set forth in the Prospectus, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(vi) The Registration Statement was declared effective under
the Securities Act, and the Indenture, the Declaration and the
Guarantee Agreement were qualified under the Trust Indenture Act, as
of the date and time specified in such opinion, the Prospectus was
filed with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such opinion on the
date specified therein and, to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission.
(vii) Giving effect to the interpretations of the requirements
of the Securities Act reflected in the No-Action Request and the
Staff Response, the Registration Statement, as of its Effective
Date, and the Prospectus, as of its date, and any further amendments
or supplements thereto, as of their respective dates, made by the
Company prior to the Purchase Contract Settlement Date (other than
the financial statements, related schedules and other financial data
contained therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the requirements
of the Securities Act, the Rules and Regulations and the Trust
Indenture Act; and the documents incorporated by reference in the
Prospectus and any further amendment or supplement to any such
incorporated
16
document made by any of the Issuers prior to the Purchase Contract
Settlement Date (other than the financial statements, related
schedules and other financial data contained therein, as to which
such counsel need express no opinion), when they became effective or
were filed with the Commission, as the case may be, complied as to
form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; and the Indenture, the
Declaration and the Guarantee Agreement conform in all material
respects to the requirements of the Trust Indenture Act and the
applicable rules and regulations thereunder.
(viii) The statements contained in the Prospectus under the
captions "Description of the Debentures," "Description of the
Preferred Securities," "Description of the Guarantee," "Relationship
Among the Preferred Securities, the Debentures and the Guarantee"
and "Description of the Support Agreement" insofar as they purport
to constitute summaries of certain terms of documents referred to
therein, constitute accurate summaries of the terms of such
documents in all material respects.
(ix) The Indenture has been duly authorized, executed and
delivered by the Company and Capital Markets and (assuming due
authentication, execution and delivery by the Indenture Trustee)
constitutes a valid and binding agreement of each of the Company and
Capital Markets enforceable against them in accordance with its
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing.
(x) The Debentures have been duly authorized, executed and
delivered by Capital Markets and (assuming due authentication by the
Indenture Trustee) constitute valid and binding obligations of
Capital Markets entitled to the benefits of the Indenture and
enforceable in accordance with their terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(xi) The Declaration has been duly authorized, executed and
delivered by Capital Markets.
(xii) The Guarantee Agreement has been duly authorized,
executed and delivered by Capital Markets and (assuming due
execution and delivery by the Guarantee Trustee) constitutes a valid
and binding agreement of Capital Markets enforceable against Capital
Markets in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
17
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company and Capital Markets.
(xiv) The Support Agreement has been duly authorized, executed
and delivered by the Company and Capital Markets and constitutes a
valid and binding agreement of the Company and Capital Markets
enforceable in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) or an implied
covenant of good faith and fair dealing; the Debentures and the
Guarantee will be entitled to the benefits of the Support Agreement,
the obligations of Capital Markets under the Debentures and the
Guarantees will be deemed to be "Debt" for purposes of the Support
Agreement and the holders of the Debentures and the Guarantee will
be entitled to the rights of "Lenders" under the Support Agreement.
(xv) The Transactions will not conflict with or result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Trust, the Company or any of the Significant
Subsidiaries is a party or by which the Trust, the Company or any of
the Significant Subsidiaries is bound or to which any of the
properties or assets of the Trust, the Company or any of the
Significant Subsidiaries is subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of the
Company or any of the Significant Subsidiaries or the Declaration or
Certificate of Trust of the Trust or any statute, rule or regulation
or any order known to such counsel of any court or governmental
agency or body having jurisdiction over the Trust, the Company or
any of the Significant Subsidiaries or any of their properties or
assets; and, except for the registration of the Debentures, the
Preferred Securities, the Guarantees, the Company's obligations
under the Support Agreement under the Securities Act, the
qualification of the Indenture, the Declaration and the Guarantee
Agreement under the Trust Indenture Act, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state securities
laws, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the Transactions.
(xvi) None of the Trust nor the Company or any of its
subsidiaries is an "investment company" or an entity "controlled" by
an "investment company" as such terms are defined in the Investment
Company Act.
18
(xvii) Based upon current law and the assumptions stated or
referred to therein: (i) the Trust will be classified as a grantor
trust for United States federal income tax purposes and not as an
association taxable as a corporation; (ii) the Debentures will be
classified as indebtedness of Capital Markets and (iii) the
statements set forth in the Prospectus or in the Remarketing
Materials under the caption "Certain United States Federal Income
Tax Consequences" insofar as they purport to constitute summaries of
matters of United States federal tax laws and regulations or legal
conclusions with respect thereto, constitute accurate summaries of
the matters described therein in all material respects.
In rendering such opinion, such counsel may (i) state that its opinion is
limited to matters governed by the Federal laws of the United States of
America and the laws of the State of Indiana and New York (with respect to
clause (x)) and (ii) rely (to the extent such counsel deems proper and
specifies in its opinion), as to matters involving the application of the
laws of the State of Massachusetts upon the opinion of ______________.
Such counsel shall also advise the Remarketing Agent that although such
counsel is not passing upon and assumes no responsibility or liability for
the accuracy, completeness or fairness of the statements contained in the
documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Issuers prior to such
Remarketing Date, they have no reason to believe that any of such
documents (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion), when such
documents became effective or were filed with the Commission, as the case
may be, contained, in the case of a registration statement which became
effective under the Securities Act, an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
necessary to make the statements therein not misleading, or, in the case
of other documents which were filed under the Securities Act or the
Exchange Act with the Commission, an untrue statement of a material fact
or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made when such documents were so filed, not misleading. Such counsel shall
also advise the Remarketing Agent that although such counsel is not
passing upon and, except as set forth in clauses (viii) and (xvii) above,
assumes no responsibility or liability for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
Prospectus and the Remarketing Materials and any further amendments and
supplements thereto made by the Issuers prior to such date, they have no
reason to believe that, as of its effective date, the Registration
Statement or any further amendment thereto made by the Issuers prior to
such date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, as of its date, the Prospectus and the Remarketing
Materials or any further amendment or supplement thereto made by the
Issuers prior to such Remarketing Date (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading
or that, as of such
19
Remarketing Date, either the Registration Statement, the Prospectus or the
Remarketing Materials or any further amendment or supplement thereto made
by the Issuers prior to such Remarketing Date (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and they do not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus or the
Remarketing Materials or required to be described in the Registration
Statement, the Prospectus or the Remarketing Materials which were not
filed or incorporated by reference or described as required.
(e) Special Delaware counsel to the Issuers shall have furnished to
the Remarketing Agent its written opinion, as special Delaware counsel to
the Issuers, addressed to the Remarketing Agent and dated the Remarketing
Date, in form and substance satisfactory to the Remarketing Agent, to the
effect that:
(i) The Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Trust Act.
Under the Delaware Trust Act and the Declaration, the Trust has the
business trust power and authority to own property and to conduct
its business as described in the Prospectus and the Remarketing
Materials and to enter into and perform its obligations under this
Agreement and the Trust Securities.
(ii) The Common Securities have been duly authorized by the
Declaration and are validly issued and (subject to the terms in this
paragraph) fully paid undivided beneficial interests in the assets
of the Trust (such counsel may note that the holders of Common
Securities will be subject to the withholding provisions of Section
10.4 of the Declaration, will be required to make payment or provide
indemnity or security as set forth in the Declaration and will be
liable for the debts and obligations of the Trust to the extent
provided in Section 9.1(b) of the Declaration); under the Delaware
Trust Act and the Declaration, the issuance of the Common Securities
is not subject to preemptive rights.
(iii) The Preferred Securities have been duly authorized by
the Declaration and are validly issued and (subject to the terms in
this paragraph) fully paid and non-assessable undivided beneficial
ownership interests in the assets of the Trust, the holders of the
Preferred Securities will be entitled to the benefits of the
Declaration (subject to the limitations set forth in clause (v)
below) and will be entitled to the same limitation of personal
liability as extended to stockholders of private corporations for
profit organized under the General Corporation Law of the State of
Delaware (such counsel may note that the holders of Preferred
Securities will be subject to the withholding provisions of Section
10.4 of the Declaration and will be required to make payment or
provide indemnity or security as set forth in the
20
Declaration); under the Delaware Trust Act and the Declaration, the
issuance of the Preferred Securities is not subject to preemptive
rights.
(iv) Under the Delaware Trust Act and the Declaration all
necessary trust action has been taken to duly authorize the
execution, delivery and performance by the Trust of this Agreement.
(v) Assuming the Declaration has been duly authorized by
Capital Markets and has been duly executed and delivered by Capital
Markets and the Regular Trustees, and assuming due authorization,
execution and delivery of the Declaration by the Property Trustee
and the Delaware Trustee, the Declaration constitutes a valid and
binding obligation of Capital Markets and the Regular Trustees,
enforceable against Capital Markets and the Regular Trustees in
accordance with its terms, except to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or
transfer and other similar laws relating to or affecting the rights
and remedies of creditors generally, (ii) principles of equity,
including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution.
(vi) The issuance and sale by the Trust of the Preferred
Securities, the purchase by the Trust of the Debentures, the
execution, delivery and performance by the Trust of this Agreement,
the consummation by the Trust of the transactions contemplated by
this Agreement and compliance by the Trust with its obligations
thereunder do not violate any of the provisions of the Certificate
of Trust or the Declaration or any applicable Delaware law or
administrative regulation.
(vii) Assuming that the Trust derives no income from or
connected with sources within the State of Delaware and has no
assets, activities (other than having a Delaware Trustee as required
by the Delaware Trust Act and the filing of documents with the
Secretary of State of Delaware) or employees in the State of
Delaware, no filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any
Delaware court or Delaware governmental authority or agency (other
that as may be required under the securities or blue sky laws of the
state of Delaware, as to which such counsel need express no opinion)
is necessary or required to be obtained by the Trust solely in
connection with the due authorization, execution and delivery by the
Trust of this Agreement or the offering, issuance, sale or delivery
of the Preferred Securities.
(f) Counsel to the Property Trustee and the Guarantee Trustee shall
have furnished to the Remarketing Agent its written opinion, as counsel to
The Chase Manhattan Bank, as Property Trustee and Guarantee Trustee,
addressed to the Remarketing Agent and dated the
21
Remarketing Date, in form and substance satisfactory to the Remarketing
Agent, to the effect that:
(i) Each of the Property Trustee and the Guarantee Trustee is
duly incorporated as a New York banking corporation with all
necessary power and authority to execute and deliver and perform
their respective obligations under the terms of the Declaration and
the Guarantee Agreement.
(ii) The execution, delivery and performance by the Property
Trustee of the Declaration and the execution, delivery and
performance by the Guarantee Trustee of the Guarantee Agreement have
been duly authorized by all necessary corporate action on the part
of the Property Trustee and the Guarantee Trustee, respectively. The
Declaration has been duly executed and delivered by the Property
Trustee and the Guarantee Agreement has been duly executed and
delivered by the Guarantee Trustee and each constitutes the valid
and binding agreement of the Property Trustee and the Guarantee
Trustee, respectively, enforceable against the Property Trustee and
the Guarantee Trustee, respectively, in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity
or at law) and an implied covenant of good faith and fair dealing.
(iii) The execution, delivery and performance of the
Declaration and the Guarantee Agreement by the Property Trustee and
the Guarantee Trustee, respectively, do not conflict with or
constitute a breach of the charter or by-laws of the Property
Trustee and the Guarantee Trustee, respectively.
(iv) No consent, approval or authorization of, or registration
with or notice to, any New York or federal banking authority is
required for the execution, delivery or performance by the Property
Trustee and the Guarantee Trustee of the Declaration and the
Guarantee Agreement, respectively.
(g) Counsel to the Delaware Trustee shall have furnished to the
Remarketing Agent its written opinion, as counsel to Chase Manhattan Bank
Delaware, as Delaware Trustee, addressed to the Remarketing Agent and
dated the Remarketing Date, in form and substance satisfactory to the
Remarketing Agent, to the effect that:
(i) The Delaware Trustee has been duly incorporated and is
validly existing as a banking corporation in good standing under the
laws of the State of Delaware with all necessary power and authority
to execute and deliver, and to carry out and perform its obligations
under the terms of the Declaration.
(ii) The execution, delivery and performance by the Delaware
Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part
22
of the Delaware Trustee. The Declaration has been duly executed and
delivered by the Delaware Trustee and constitutes the valid and
binding agreement of the Delaware Trustee enforceable against the
Delaware Trustee in accordance with its terms, subject to (i)
bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar
laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law
relating to fiduciary duties (regardless of whether considered and
applied in a proceeding in equity or at law), and (iii) the effect
of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(iii) The execution, delivery and performance of the
Declaration by the Delaware Trustee do not conflict with or
constitute a breach of the charter or by-laws of the Delaware
Trustee.
(iv) No consent, approval or authorization of, or registration
with or notice to, any Delaware or federal banking authority is
required for the execution, delivery or performance by the Delaware
Trustee of the Declaration.
(h) On the Remarketing Date, the Company shall have furnished to the
Remarketing Agent a letter addressed to the Remarketing Agent and dated
such date, in form and substance satisfactory to the Remarketing Agent, of
Arthur Andersen LLP, or such other firm of nationally recognized
independent public accountants satisfactory to the Remarketing Agent,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" with respect to certain financial
information contained in the Prospectus and in the Remarketing Materials.
(i) Each of the Company and Capital Markets shall have furnished to
the Remarketing Agent a certificate, dated the Remarketing Date, of, (i)
with respect to the Company, (A) its Chairman of the Board and President,
or its Executive Vice President, and (B) its chief financial officer, and
(ii) with respect to Capital Markets, its President, and its chief
financial officer, stating that:
(i) The representations, warranties and agreements of the
Company and Capital Markets in Sections 2 and 3 are true and correct
as of the Remarketing Date; the Company and Capital Markets have
complied with all its agreements contained herein; and the
conditions contained in Section 6(a) have been fulfilled;
(ii) (A) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus or in the
Remarketing Materials any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, which could, individually or
in the aggregate, reasonably be expected to have
23
a Material Adverse Effect, otherwise than as set forth or
contemplated in the Prospectus or in the Remarketing Materials and
(B) since the respective dates as of which information is given in
the Prospectus or in the Remarketing Materials, there has not been
any material change in the consolidated share capital or long-term
debt of the Company and its subsidiaries or the consolidated share
capital or long-term debt of any Significant Subsidiary or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries (taken as a whole), otherwise than as set forth or
contemplated in the Prospectus or the Remarketing Materials; and
(iii) They have carefully examined the Registration Statement,
the Prospectus and the Remarketing Materials and, in their opinion
(A) the Registration Statement, as of its effective date, and the
Prospectus and the Remarketing Materials, as of their respective
dates, did not include any untrue statement of a material fact and
did not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and (B) since such dates, no event has occurred which should have
been set forth in a supplement or amendment to the Registration
Statement, the Prospectus or the Remarketing Materials.
(j) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus and in the
Remarketing Materials any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus or in the Remarketing Materials or (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus or in the Remarketing Materials,
the effect of which, in any such case described in clause (i) or (ii), is,
in the judgment of the Remarketing Agent, so material and adverse as to
make it impracticable or inadvisable to proceed with the Remarketing on
the terms and in the manner contemplated in the Prospectus and in the
Remarketing Materials.
(k) Without the prior written consent of the Remarketing Agent, the
Declaration or the Indenture shall not have been amended in any manner, or
otherwise contain any provision contained therein as of the date hereof
that, in the opinion of the Remarketing Agent, materially changes the
nature of the Remarketed Securities or the Remarketing Procedures.
(l) Subsequent to the execution and delivery of this Agreement, (i)
no downgrading shall have occurred in the rating accorded the Preferred
Securities or any of the Company's, any Significant Subsidiary's or
Capital Markets' debt securities by any "nationally
24
recognized statistical rating organization", as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the Securities Act and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of
any of the Preferred Securities or any of the Company's, any Significant
Subsidiary's or Capital Markets' debt securities.
(m) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American Stock
Exchange or in the over-the-counter market, or trading in any securities
of the Company or Capital Markets on any exchange or in the
over-the-counter market, shall have been suspended or minimum prices shall
have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium
shall have been declared by Federal or state authorities, (iii) the United
States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the United States or
(iv) there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Remarketing Agent,
impracticable or inadvisable to proceed with the Remarketing on the terms
and in the manner contemplated in the Prospectus or in the Remarketing
Materials.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Remarketing Agent.
7. Indemnification and Contribution. (a) The Issuers shall indemnify
and hold harmless the Remarketing Agent, its officers and employees and each
person, if any, who controls the Remarketing Agent within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of the
Remarketed Securities), to which the Remarketing Agent or that officer, employee
or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any Preliminary Prospectus, the Registration Statement,
the Prospectus or the Remarketing Materials or in any amendment or supplement
thereto, or (B) in any blue sky application or other document prepared or
executed by the Issuers (or based upon any written information furnished by the
Issuers) specifically for the purpose of qualifying any or all of the Remarketed
Securities under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter called a "Blue Sky
Application"), or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Remarketing Materials or in any amendment or supplement thereto, or in any Blue
Sky Application, any material fact required to be stated therein or necessary to
make the statements therein not misleading and shall reimburse the Remarketing
Agent and each such officer, employee
25
and controlling person promptly upon demand for any legal or other expenses
reasonably incurred by the Remarketing Agent or that officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Issuers shall not be liable
in any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary Prospectus,
the Registration Statement, the Prospectus or the Remarketing Materials or in
any such amendment or supplement, or in any Blue Sky Application in reliance
upon and in conformity with the written information furnished to the Issuers by
or on behalf of the Remarketing Agent specifically for inclusion therein and
described in a letter from the Remarketing Agent to the Company and provided
further, that as to any Preliminary Prospectus this indemnity agreement shall
not inure to the benefit of the Remarketing Agent, its officers or employees or
any person controlling the Remarketing Agent on account of any loss, claim,
damage, liability or action arising from the sale of the Remarketed Securities
to any person by the Remarketing Agent if the Remarketing Agent failed to send
or give a copy of the Prospectus, as the same may be amended or supplemented, to
that person within the time required by the Securities Act, and the untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact in such Preliminary Prospectus was corrected
in the Prospectus, unless such failure resulted from non-compliance by the
Company with Section 5(c). For purposes of the last proviso to the immediately
preceding sentence, the term "Prospectus" shall not be deemed to include the
documents incorporated therein by reference, and the Remarketing Agent shall not
be obligated to send or give any supplement or amendment to any document
incorporated by reference in any Preliminary Prospectus or the Prospectus to any
person other than a person to whom the Remarketing Agent had delivered such
incorporated document or documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Issuers may otherwise have to the Remarketing Agent or to any officer, employee
or controlling person of the Remarketing Agent.
(b) The Remarketing Agent shall indemnify and hold harmless the
Company and Capital Markets, their officers and employees, each of their
directors, the Trust and each Trustee, and each person, if any, who controls any
of the Issuers within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or Capital Markets, any such director, officer or
employee, the Trust or any such Trustee or any such controlling person may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Prospectus, the Registration Statement, the Prospectus or the
Remarketing Materials or in any amendment or supplement thereto, or (B) in any
Blue Sky Application or (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Remarketing Materials or in any amendment or supplement thereto, or in any Blue
Sky Application, any material fact required to be stated therein or necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with the written
information furnished to the Company or the Trustee by or on behalf of the
Remarketing
26
Agent specifically for inclusion therein and described in a letter from the
Remarketing Agent to the Company and Capital Markets, and shall reimburse the
Company and Capital Markets and any such director, officer or employee, the
Trust or any such Trustee or such controlling person for any legal or other
expenses reasonably incurred by the Company or Capital Markets or any such
director or officer, the Trust or any Trustee or any such controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which the
Remarketing Agent may otherwise have to the Company or Capital Markets or any
such director or officer, the Trust or any such Trustee or any such controlling
person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Remarketing Agent shall have the right to employ counsel to represent
jointly the Remarketing Agent and its officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Remarketing Agent against the Issuers under
this Section 7 if, in the reasonable judgment of the Remarketing Agent, it is
advisable for the Remarketing Agent and those officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Issuers. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
27
(d) If the indemnification provided for in this Section 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Issuers on the one hand and the Remarketing Agent on the other
hand from the Remarketing or (ii) if the allocation provided by clause (i) above
is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Issuers on the one hand and the Remarketing Agent on
the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Issuers on the one hand and the Remarketing Agent on the other with respect to
such offering shall be deemed to be in the same proportion as the total
liquidation or principal amount of the Remarketed Securities less the fee paid
to the Remarketing Agent pursuant to Section 4(a) of this Agreement, on the one
hand, and the total fees received by the Remarketing Agent pursuant to such
Section 4(a), on the other hand, bear to the total liquidation or principal
amount of the Remarketed Securities. The relative fault shall be determined by
reference to whether the 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 Issuers on the one hand or the Remarketing Agent on the other
hand, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Remarketing Agent agree that it would not be just and
equitable if contributions pursuant to this Section 7(d) were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 7(d)
shall be deemed to include, for purposes of this Section 7(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), the Remarketing Agent shall not be required to
contribute any amount in excess of the amount by which the fees received by it
under Section 4 exceed the amount of any damages which the Remarketing Agent has
otherwise paid or become liable to pay by reason of 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 Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
8. Resignation and Removal of the Remarketing Agent. The Remarketing
Agent may resign and be discharged from its duties and obligations hereunder,
and Capital Markets may remove the Remarketing Agent, by giving 60 days' prior
written notice, in the case of a resignation, to Capital Markets, the
Depositary, the Property Trustee and the Indenture Trustee and, in the case of a
removal, the removed Remarketing Agent, the Depositary, the Property Trustee and
the Indenture Trustee; provided, however, that (i) Capital Markets may not
remove the Remarketing Agent unless (A) the Remarketing Agent becomes involved
as a debtor in a bankruptcy, insolvency or similar proceeding, (B) the
Remarketing Agent shall not be among the 15 underwriters with the
28
largest volume underwritten in dollars, on a lead or co-managed basis, of U.S.
domestic debt securities during the twelve-month period ended as of the last
calendar quarter preceding the Remarketing Date or (C) the Remarketing Agent
shall be subject to one or more legal restrictions preventing the performance of
its obligations hereunder and (ii) no such resignation nor any such removal
shall become effective until Capital Markets shall have appointed at least one
nationally recognized broker-dealer as successor Remarketing Agent and such
successor Remarketing Agent shall have entered into a remarketing agreement with
the Company, Capital Markets and the Trust in which it shall have agreed to
conduct the Remarketing in accordance with the Remarketing Procedures. In any
such case, Capital Markets will use its reasonable efforts to appoint a
successor Remarketing Agent and enter into such a remarketing agreement with
such person as soon as reasonably practicable. The provisions of Sections 4 and
7 shall survive the resignation or removal of any Remarketing Agent pursuant to
this Agreement.
9. Dealing in the Remarketed Securities. The Remarketing Agent, when
acting as a Remarketing Agent or in its individual or any other capacity, may,
to the extent permitted by law, buy, sell, hold and deal in any of the
Remarketed Securities. The Remarketing Agent may exercise any vote or join in
any action which any beneficial owner of Remarketed Securities may be entitled
to exercise or take pursuant to the Declaration or the Indenture with like
effect as if it did not act in any capacity hereunder. The Remarketing Agent, in
its individual capacity, either as principal or agent, may also engage in or
have an interest in any financial or other transaction with the Issuers as
freely as if it did not act in any capacity hereunder.
10. Remarketing Agent's Performance; Duty of Care. The duties and
obligations of the Remarketing Agent shall be determined solely by the express
provisions of this Agreement and the Declaration and the Indenture. No implied
covenants or obligations of or against the Remarketing Agent shall be read into
this Agreement, the Declaration or the Indenture. In the absence of bad faith on
the part of the Remarketing Agent, the Remarketing Agent may conclusively rely
upon any document furnished to it, which purports to conform to the requirements
of this Agreement, the Declaration or the Indenture as to the truth of the
statements expressed in any of such documents. The Remarketing Agent 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 Agent, acting under this Agreement, shall incur no liability to the
Company or to any holder of Remarketed Securities in its individual capacity or
as Remarketing Agent for any action or failure to act, on its part in connection
with a Remarketing or otherwise, except if such liability is judicially
determined to have resulted from the gross negligence or willful misconduct on
its part.
11. Termination. This Agreement shall terminate as to the
Remarketing Agent on the effective date of the resignation or removal of the
Remarketing Agent pursuant to Section 8. In addition, the obligations of the
Remarketing Agent hereunder may be terminated by it by notice given to the
Company or the Trust prior to 10:00 A.M., New York City time, on the Remarketing
Date if, prior to that time, any of the events described in Sections 6(j), (k),
(l) or (m) shall have occurred or if the Remarketing Agent shall decline to
perform its obligations under this Agreement for any reason permitted hereunder.
29
12. Notices. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Remarketing Agent, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: (212) 528-8822);
(b) if to the Issuers shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Prospectus, Attention: Treasurer. (Fax: 219-853-5352).
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Remarketing Agent, the Company,
Capital Markets, the Trust and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that (x) the representations, warranties, indemnities and agreements of
the Issuers contained in this Agreement shall also be deemed to be for the
benefit of the officers and employees of the Remarketing Agent and the person or
persons, if any, who control the Remarketing Agent within the meaning of Section
15 of the Securities Act and (y) the indemnity agreement of the Remarketing
Agent contained in Section 7(b) of this Agreement shall be deemed to be for the
benefit of directors, officers and employees of the Issuers and any person
controlling the Issuers within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to herein, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Issuers and the Remarketing Agent contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the Remarketing and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them or
any person controlling any of them.
15. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 under the Securities Act.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
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18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the
Company, the Trust and the Remarketing Agent, please indicate your acceptance in
the space provided for that purpose below.
Very truly yours,
NIPSCO INDUSTRIES, INC.
By:
------------------------------------
Title:
NIPSCO CAPITAL MARKETS, INC.
By:
------------------------------------
Title:
NIPSCO CAPITAL TRUST I
By: NIPSCO Capital Markets, as Sponsor
By:
--------------------------------
Title:
Accepted:
LEHMAN BROTHERS INC.
By:
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Authorized Representative