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EXHIBIT 4.7
REMARKETING AGREEMENT
REMARKETING AGREEMENT, dated as of [______], 200[_] (this "Agreement"),
between New NiSource Inc., a Delaware corporation (the "Company"), and Credit
Suisse First Boston Corporation, a Massachusetts corporation (together with its
successors and assigns, the "Remarketing Agent" or "Credit Suisse First
Boston").
RECITALS
WHEREAS, the Company will issue Senior Debentures due 200[_] (the
"Debentures") pursuant to the Indenture, dated as of [______], 200[_], between
the Company and The Chase Manhattan Bank, as trustee (the "Trustee"), as amended
and supplemented by the First Supplemental Indenture (the "Supplemental
Indenture"), dated as of [______], 200[_] (collectively the "Indenture");
WHEREAS, each Debenture will be issued as part of a unit (the "Unit" or
"SAILS(sm)")(1) that also includes a contract (a "Purchase Contract") under
which the Holder will purchase from the Company on [______], 200[_], a number of
shares of common stock, $0.01 par value, of the Company (the "Issuable Common
Stock"), in an amount equal to the Settlement Rate as set forth in the Purchase
Contract Agreement, dated as of [______], 200[_] (the "Purchase Contract
Agreement"), between the Company and The Chase Manhattan Bank, as purchase
contract agent (the "Purchase Contract Agent");
WHEREAS, in accordance with the terms of the Purchase Contract
Agreement, the Debentures will be pledged by the Purchase Contract Agent, on
behalf of the Holders of the Units, to Bank One, National Association ("Bank
One"), as collateral agent (the "Collateral Agent"), pursuant to the Pledge
Agreement, dated as of [______], 200[_] (the "Pledge Agreement"), among the
Company, the Purchase Contract Agent, the Collateral Agent, and Bank One, as
securities intermediary (the "Securities Intermediary"), to secure the Holders'
Obligations to purchase the Issuable Common Stock under the Purchase Contracts;
WHEREAS, the Units will be offered to the holders of the common stock,
par value $0.01 per share, of Columbia Energy Group ("Columbia") in connection
with the merger transaction involving NiSource Inc. and Columbia (the "Merger");
WHEREAS, the Debentures pledged as collateral to secure the Holders'
Obligations to purchase the Issuable Common Stock under the Purchase Contracts
will be remarketed pursuant to the Remarketing prior to the fourth anniversary
of the consummation of the Merger, and the proceeds will be used to satisfy the
amounts due under the Purchase Contracts, except that Holders may elect to
settle the Purchase Contracts in cash and not have their Debentures remarketed
in the Remarketing;
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(1) SAILS(sm) or "Stock Appreciation Income Linked Securities(sm)" are service
marks of Credit Suisse First Boston.
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WHEREAS, the Company has requested and the Remarketing Agent has agreed
to act as the Remarketing Agent for the Remarketing of the Debentures, and as
such to perform the services provided herein;
NOW, THEREFORE, the Company and the Remarketing Agent hereby agree as
follows:
Section 1. Definitions. (a) All capitalized terms used in this
Remarketing Agreement which are not otherwise defined herein shall have the
meanings assigned to them in the Indenture, the Purchase Contract Agreement and
the Pledge Agreement.
(b) "Significant Subsidiary" has the meaning set forth in Rule 405
under the Securities Act of 1933, as amended (the "Securities Act").
(c) "subsidiary" has the meaning set forth in Rule 405 under the
Securities Act.
Section 2. Appointment and Obligations of the Remarketing Agent. (a)
The Company hereby appoints Credit Suisse First Boston as exclusive Remarketing
Agent, and Credit Suisse First Boston hereby accepts appointment as Remarketing
Agent, for the purpose of (i) remarketing the Debentures on behalf of the
Holders thereof and (ii) performing such other duties as are assigned to the
Remarketing Agent in the Remarketing Procedures (the procedures in connection
with the Remarketing of the Debentures described in the Indenture, the Purchase
Contract Agreement and the Pledge Agreement), all in accordance with and
pursuant to the Remarketing Procedures.
(b) The Remarketing Agent agrees (i) to use commercially reasonable
efforts to remarket the Debentures tendered or deemed tendered to the
Remarketing Agent in the Remarketing, (ii) to notify the Company of the Interest
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 Remarketing Date, the Remarketing Agent shall use
commercially reasonable efforts to remarket, at a price equal to 100.50% of the
principal amount thereof, the Debentures tendered or deemed tendered for
purchase.
(d) If none of the Holders of Units elects to have their Debentures
remarketed in the Remarketing, the Remarketing Agent shall determine the
Interest Rate, in its sole discretion, 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 2(b), the
Remarketing Agent determines that it will be able to remarket all of the
Debentures tendered or deemed tendered for purchase at a price of 100.50% of
their aggregate principal amount prior to 4:00 p.m., New York City time, on the
Remarketing Date, the Remarketing Agent shall determine the Interest Rate, which
shall be (i) the rate per
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annum (rounded to the nearest one-thousandth (0.001) of one percent per annum)
that the Remarketing Agent determines, in its sole judgment, to be the lowest
rate per annum that will enable it to remarket at that price all of the
Debentures 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 of the Debentures tendered or
deemed tendered for purchase, a "Failed Remarketing" shall be deemed to have
occurred, and the Remarketing Agent shall so advise by telephone the Depositary,
the Company, and the Trustee. In the event of a Failed Remarketing, the Interest
Rate shall equal (i) the Two-Year Benchmark Treasury Rate plus (ii) the
Applicable Margin.
(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 Company, and
the Trustee of the Interest Rate determined in the Remarketing and the amount of
the Debentures sold in the Remarketing, (ii) each purchaser (or the Depositary
participant of a purchaser) of the Interest Rate and the amount of Debentures
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 Debentures purchased
through the facilities of the Depositary.
(h) Subject to Section 4 of this Agreement, the Remarketing Agent
shall remit to the Collateral Agent all of the Proceeds of the Remarketing of
the Debentures subject to the Pledge Agreement.
(i) The Remarketing Agent is not obligated to purchase any
Debentures that otherwise would remain unsold in the Remarketing. Neither the
Company nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of the Debentures for Remarketing.
(j) The tender and settlement procedures set forth in Article 7 of
the Supplemental Indenture, including provisions for payment by purchasers of
the Debentures in the Remarketing, shall be subject to modification to the
extent required by the Depositary or, if the book-entry system is no longer
available for the Debentures at the time of the Remarketing, to facilitate the
tendering and remarketing of the Debentures in certificated form. In addition,
the Remarketing Agent may modify the settlement procedures set forth in Article
7 of the Supplemental Indenture in order to facilitate the settlement process.
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Section 3. Representations, Warranties and Agreements of the
Company. The Company represents, warrants and agrees (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 3(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-4
(file no. 333-33896) and the amendment or amendments thereto filed on or before
the date hereof in respect of the Units, including the Purchase Contracts and
the Debentures underlying the Units, and the Issuable Common Stock, have (i)
been prepared by the Company in conformity with the requirements of 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-[_], if required to
be filed in connection with the Remarketing, may also be prepared by the Company
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 has been qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). Copies of such registration statement or
registration statements and the amendment or amendments to such registration
statements have been delivered by the Company to the Remarketing Agent in the
form declared effective by the Commission. 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 Company with
the Remarketing Agent's consent pursuant to Rule 424(a) of the Rules and
Regulations; "Registration Statement" 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 Company 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 11 of Form S-4 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
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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 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) The Registration Statement conforms, the Prospectus and the
Remarketing Materials, and any further amendments or supplements to the
Registration Statement, the Prospectus or the Remarketing Materials, 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, the Remarketing Date and the Purchase Contract Settlement
Date (as to the 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 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
Company by the Remarketing Agent specifically for inclusion therein; the
Purchase Contract Agreement and the Indenture each conform in all material
respects to the requirements of the Trust Indenture Act and the applicable rules
and regulations thereunder; and the Commission has not issued any order
preventing or suspending the use of the effectiveness 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, as of their respective effective or
filing dates, 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; and any further documents so filed and
incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the
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, as of their
respective effective or filing dates, contain an 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) 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 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,
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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 Company to perform its
obligations under this Agreement (a "Material Adverse Effect"), otherwise than
as described or contemplated in the Prospectus or the Remarketing Materials;
and, since the respective date as of which information is given in the
Registration Statement, the Prospectus or the Remarketing Materials, there has
not been any material change in the consolidated share capital or long-term debt
of the Company and 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 (in each case considered either on a statutory accounting or U.S.
generally accepted accounting principles ("GAAP") basis, as applicable) of the
Company and its subsidiaries, otherwise than as set forth or contemplated in the
Prospectus and the Remarketing Materials.
(e) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus and the 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 and in good standing in any such jurisdiction;
and each Significant Subsidiary (as defined in Section 1 hereof) of the Company
has been duly incorporated and is validly existing as a corporation, limited
liability company or partnership, as applicable, and, to the extent such concept
is applicable, is in good standing under the laws of its jurisdiction or
organization, with power and authority (corporate or other) to own its
properties and conduct its business as described in the Prospectus and the
Remarketing Materials; and each Significant Subsidiary of the Company is duly
qualified to do business as a foreign corporation, limited liability company or
partnership, as applicable, for the transaction of business and, to the extent
such concept is applicable, is in good standing under the laws of each other
jurisdiction in which its ownership or lease of property or the conduct of its
business requires such qualification and good standing, except to the extent
that the failure to be so qualified would not have a Material Adverse Effect.
(f) The Company has an authorized capitalization as set forth and
described in the Prospectus and the Remarketing Materials; and all of the issued
capital shares or other ownership interests 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 described in the Registration
Statement and the Remarketing Materials and the exhibits thereto and except for
directors' qualifying shares) all of the issued common shares of the Company's
wholly owned subsidiaries are owned directly or indirectly by the Company free
and clear of all liens, encumbrances, equities or claims; the shares of Issuable
Common Stock have been duly and validly authorized and reserved for issuance
and, when issued and delivered in accordance with
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the provisions of the Purchase Contracts, the Purchase Contract Agreement and
the Pledge Agreement, will be duly and validly issued, fully paid and
non-assessable.
(g) 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 and the
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.
(h) The Remarketing, the issuance of the Units, the Purchase
Contracts, the Debentures and the Issuable Common Stock (collectively, the
"Instruments"), the entry into and compliance by the Company with all of the
provisions of the Purchase Contract Agreement, the Indenture, the Pledge
Agreement and this Agreement (the "Transactions Documents"), and the
consummation of the transactions herein and therein contemplated (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
bylaws or similar organizational documents 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, in each case the
effect of which (other than a violation of the charter, bylaws or similar
organizational documents of the Company or any of its subsidiaries) individually
or in the aggregate, would be either to affect the validity of the Instruments
or their respective issuance or the validity of the Transaction Documents or to
adversely affect the consummation of the Transactions, or have a Material
Adverse Effect.
(i) No filings, consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body having jurisdiction over the Company is required for the entry into this
Agreement by the Company, the compliance by the Company with all of the
provisions of this Agreement and each Transaction Document to which the Company
is a party, the compliance by the Company with the terms of the Instruments, and
the consummation of the Transactions by the Company; other than such consents,
approvals, authorizations, orders, registrations and qualifications as have been
obtained and are in full force and effect under the Securities Act, the Exchange
Act and the Trust Indenture Act in connection with the Remarketing pursuant to
this Agreement.
(j) None of the Company nor any of its Significant Subsidiaries has
any material contingent liability which is not disclosed in the Prospectus and
the Remarketing Materials.
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(k) None of the Company nor any of its subsidiaries (i) is in
violation of its charter or bylaws 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.
(l) The Company and each of its subsidiaries has statutory
authority, franchises and consents free from burdensome restrictions and
adequate for the conduct of the business in which it is engaged.
(m) The Units have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof contained
in the Prospectus and the Remarketing Materials; and the Units are not subject
to preemptive or other similar rights.
(n) The Purchase Contract Agreement has been duly authorized,
executed and delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against 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 (collectively, the "Bankruptcy Exceptions"); and the
Purchase Contract Agreement conforms to the description thereof contained in the
Prospectus and the Remarketing Materials.
(o) The Purchase Contracts underlying the Units have been duly
authorized, executed, issued and delivered by the Company and constitute legal,
valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, subject to the Bankruptcy Exceptions; the Purchase
Contracts conform to the description thereof contained in the Prospectus and the
Remarketing Materials; and the Purchase Contracts are not subject to any
preemptive or similar rights.
(p) This Agreement has been duly authorized, executed and delivered
by the Company and, at the date hereof and at the Commencement Date, the
Remarketing Date and the Purchase Contract Settlement Date, will have been duly
authorized, executed and delivered by the Company; and this Agreement conforms
to the description thereof contained in the Prospectus and the Remarketing
Materials.
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(q) The Pledge Agreement has been duly authorized, executed and
delivered by the Company and constitutes a legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms,
subject to the Bankruptcy Exceptions; and the Pledge Agreement conforms to the
description thereof contained in the Prospectus and the Remarketing Materials.
(r) The Pledge Agreement creates, as collateral security for the
performance when due by the Holders under the Purchase Contracts, a legal and
valid security interest (as defined in the New York Uniform Commercial Code) in
favor of the Collateral Agent for the benefit of the Company, in the right,
title and interest of such Holders in the Debentures pledged to the Collateral
Agent pursuant to the Pledge Agreement (the "Pledged Debentures").
(s) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to the
Bankruptcy Exceptions; and the Indenture conforms to the description thereof
contained in the Prospectus and the Remarketing Materials.
(t) The Debentures have been duly authorized and executed by the
Company and constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with its terms, subject to the Bankruptcy
Exceptions; and the Debentures are in a form contemplated by, and are entitled
to the benefits of, the Indenture; and the Debentures conform to the description
thereof contained in the Prospectus and the Remarketing Materials; there are no
preemptive or other similar rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of the Debentures pursuant to the
Company's charter or bylaws or any agreement or other instrument.
(u) The Units and the Issuable Common Stock have been approved for
listing on the New York Stock Exchange, with respect to the Issuable Common
Stock, subject to notice of issuance, and the Units are, and the Issuable Common
Stock, upon notice of Issuance, will be listed on the New York Stock Exchange.
(v) Other than as described or contemplated in the Prospectus, there
is no legal or governmental proceeding pending or, to the best of the Company's
knowledge and disclosed to the Remarketing Agent, currently being threatened
challenging the consummation of the Transactions.
(w) To the best of the Company's knowledge and other than described
or contemplated 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.
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(x) Arthur Andersen LLP, who has certified certain financial
statements of the Company, whose report appears in the Prospectus or is
incorporated by reference therein and the Remarketing Materials and who has
delivered the letter referred to in Section 6(e) hereof, are independent public
accountants as required by the Securities Act and the Rules and Regulations.
(y) Neither the Company nor any subsidiary of the Company is or,
after giving effect to this Agreement and consummation of the Transactions, will
be 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.
(z) The statements set forth in the Prospectus and the Remarketing
Materials under the caption "UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES--Material United States Federal Income Tax Consequences of Owning
the SAILS" 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; and any other statements with respect to matters of law and
regulations or legal conclusions with respect thereto set forth in the
Prospectus and the Remarketing Materials are accurate in all material respects.
(aa) The financial statements filed as part of the Registration
Statement or incorporated by reference in the Prospectus or as presented the
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 GAAP applied on
a consistent basis throughout the periods involved; and the supporting schedules
included or incorporated by reference in the Prospectus and the Remarketing
Materials present fairly the information required to be stated therein.
(bb) The conditions for use of Form S-4, as set forth in the General
Instructions thereto, have been satisfied.
(cc) There are no contracts or other documents which are required to
be described in the Prospectus and the Remarketing Materials 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 and the Remarketing
Materials or filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by the Rules and Regulations.
Section 4. Fees and Expenses. (a) With respect to the Remarketing,
the Remarketing Agent shall retain as a remarketing fee an amount to be agreed
upon by the Company and the Remarketing Agent from any amount of the Proceeds of
the Remarketing in excess of 100.00% of the aggregate principal amount of the
remarketed Debentures (the "Excess Proceeds").
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(b) The Company agrees that the Excess Proceeds shall be used to pay
(i) the costs incident to the preparation and printing of the Registration
Statement, Prospectus and the Remarketing Materials and any amendments or
supplements thereto; (ii) the costs of distributing the Registration Statement,
Prospectus and the Remarketing Materials and any amendments or supplements
thereto; (iii) the fees and expenses of qualifying the remarketed Debentures
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 hereunder; and (v) the reasonable fees and expenses of counsel to
the Remarketing Agent in connection with their duties hereunder.
(c) The Company, (i) in its capacity as issuer of the Debentures,
shall be liable for, and shall pay, any fees, costs and expenses set forth in
this Section 4 to the extent that such fees, costs and expenses exceed the
amount of the Excess Proceeds and (ii) shall receive the balance of any Excess
Proceeds, if any, remaining after all the fees, costs and expenses in this
Section 4 are paid.
Section 5. Further Agreements of the Company. The Company agrees:
(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 registration statement or prospectus
pursuant to the Securities Act within the period required by the Rules and
Regulations; to make no further amendment or any supplement to the Registration
Statement or Prospectus which shall be reasonably disapproved by the Remarketing
Agent promptly after reasonable notice thereof; 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 Sections 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 Debentures; 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 Debentures 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
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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, (ii) the Prospectus and any amended or
supplemented Prospectus, (iii) any document incorporated by reference in the
Prospectus and (iv) the 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 light of the circumstances under which they were made,
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.
(d) To file promptly with the Commission any amendment to the
Registration Statement, 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, 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, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) of the Rules and Regulations),
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 six years following the Effective Date, 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 with the
Commission or any national securities
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exchange on which any of the remarketed Debentures or any class of securities of
the Company may be listed; and (ii) such additional information concerning the
business and financial condition of the Company 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
Debentures and the obligations of the Company 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 Debentures and the obligations of the Company; provided that
in connection therewith, the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction.
Section 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 contained herein, to the performance by the Company of its respective
obligations hereunder, and to each of the following additional terms and
conditions. The Remarketing Agent may in its sole discretion waive any of the
conditions of this Section 6.
(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 or the Purchase
Contract Agreement 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 Indenture, the
remarketed Debentures, the Prospectus, the Registration Statement, the
Remarketing Materials and all other legal matters relating to this Agreement and
the Transactions shall be reasonably satisfactory in all material respects to
counsel for the Remarketing Agent, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable
them to pass upon such matters.
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(d) Schiff Hardin & Waite, counsel to the Company, shall have
furnished to the Remarketing Agent its written opinion, as counsel to the
Company, 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 Significant Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with respective
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus and the Remarketing
Materials.
(ii) The Company has an authorized capitalization as set forth
and described in the Prospectus and the Remarketing Materials; and all
of the issued capital shares or other ownership interests of the
Company and each Significant Subsidiary have been duly and validly
authorized and issued and are fully paid and non-assessable; and
(except as described in the Registration Statement and the Remarketing
Materials and the exhibits thereto and except for directors' qualifying
shares) all of the issued common shares of the Company's wholly owned
subsidiaries are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims; the shares of
Issuable Common Stock have been duly and validly authorized and
reserved for issuance and, when issued and delivered in accordance with
the provisions of the Purchase Contracts, the Purchase Contract
Agreement and the Pledge Agreement, will be duly and validly issued,
fully paid and non-assessable.
(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 such 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) No filings, consent, approval, authorization, order,
registration or qualification of or with any court or governmental
agency or body having jurisdiction over the Company is required for the
entry into this Agreement by the Company, the compliance by the Company
with all of the provisions of this Agreement and each Transaction
Document to which the Company is a party, the compliance by the Company
with the terms of the Instruments, and the consummation of the
Transactions by the Company; other than such consents, approvals,
authorizations, orders, registrations and qualifications as have been
obtained and are in full force and effect under the Securities Act, the
Exchange Act and the Trust Indenture Act in connection with the
Remarketing pursuant to this Agreement.
(v) To the best of such counsel's knowledge and other than as
described or contemplated in the Prospectus and the Remarketing
Materials, there is no legal or governmental proceeding pending or, to
the best of such counsel's
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knowledge, currently being threatened challenging the Remarketing of
the Debentures.
(vi) To the best of such counsel's knowledge and other than as
described or contemplated in the Prospectus and the 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, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others.
(vii) The Registration Statement was declared effective under
the Securities Act, and the Indenture was 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.
(viii) 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 document
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), 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 conforms in all material respects to the
requirements of the Trust Indenture Act and the applicable rules and
regulations thereunder.
(ix) The statements contained in the Prospectus under the
captions "SUMMARY--The SAILS" and "DESCRIPTION OF THE
SAILS--Description of the Debentures" 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.
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(x) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company enforceable against it in accordance with its terms,
subject to the Bankruptcy Exceptions; and the Indenture conforms in all
material respects to the description thereof contained in the
Prospectus and the Remarketing Materials.
(xi) The Debentures have been duly authorized and executed by
the Company and constitute valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable in accordance
with their terms, subject to the Bankruptcy Exceptions; and the
Debentures are in the form contemplated by, and are entitled to the
benefits of, the Indenture; and the Debentures conform in all material
respects to the description thereof contained in the Prospectus and the
Remarketing Materials; there are no preemptive or other similar rights
to subscribe for or to purchase, nor any restriction upon the voting or
transfer of the Debentures pursuant to the Company's charter or bylaws
or any agreement or other instrument known to such counsel other than
the Pledge Agreement.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company, and this Agreement conforms in all material
respects to the description thereof contained in the Prospectus and the
Remarketing Materials.
(xiii) 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
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, or which
affects the validity, performance or consummation of the Transactions,
nor will such actions result in any violation of the provisions of the
charter or bylaws or similar organizational documents of the Company or
any of its Significant Subsidiaries 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 Company or any of its Significant
Subsidiaries or any of its properties or assets, in each case the
effect of which (other than a violation of the charter, bylaws or
similar organizational documents of the Company or one of its
subsidiaries) individually or in the aggregate, would be either to
affect the validity of the Instruments or their respective issuance or
the validity of the Transaction Documents or to adversely affect the
consummation of the Transactions, or have a Material Adverse Effect.
(xiv) None of the Company nor any of its subsidiaries is or,
after giving effect to this Agreement and consummation of the
Transactions, will be an "investment company" or an entity "controlled"
by an "investment company" as such terms are defined in the 1940 Act.
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(xv) Based upon current law and the assumptions stated or
referred to therein, the statements set forth in the Prospectus or the
Remarketing Materials under the caption "UNITED STATES FEDERAL INCOME
TAX CONSEQUENCES--Material United States Federal Income Tax
Consequences of Owning SAILS" 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;
and any other statements with respect to matters of law and regulations
or legal conclusions with respect thereto set forth in the Prospectus
and the Remarketing Materials are accurate in all material respects.
In rendering such opinion, such counsel may state that they express no opinion
as to the laws of any jurisdiction other than the laws of the United States of
America, the Delaware General Corporation Law and, in the case of paragraphs
(x), (xi), and (xii) of this Section, the State of New York. 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
Company 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, which such counsel need not address), 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 or 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 made therein, in light of the circumstances under which they were
made, 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
(ix) and (xv) 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 Company 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 Company prior to such
date (other than the financial statements and related schedules therein, which
such counsel need not address) 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 Company prior to such Remarketing Date (other than the
financial
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statements and related schedules therein, which such counsel need not
address) 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
Remarketing Date, either the Registration Statement, the Prospectus or the
Remarketing Materials or any further amendment or supplement thereto made by the
Company prior to such Remarketing Date (other than the financial statements and
related schedules therein, which such counsel need address) 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) On the Remarketing Date at 9:30 a.m., New York City time,
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 the Remarketing Materials.
(f) The Company shall have furnished to the Remarketing Agent
a certificate, dated the Remarketing Date, of (i) its Chairman and President, or
its Executive Vice President, and (ii) its chief financial officer, stating
that:
(i) The representations, warranties and agreements of the
Company in Section 3 of this Agreement are true and correct as of the
Remarketing Date; the Company has complied with all its agreements
contained herein; and the conditions contained in Section 6 (a) of this
Agreement 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 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 a Material Adverse Effect, otherwise
than as set forth or contemplated in the Prospectus and the Remarketing
Materials; and (B) since the respective dates as of which information
is given in the Registration Statement, Prospectus and the Remarketing
Materials, 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 change, or any development involving a prospective
change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations (in each case
considered either on a statutory accounting or GAAP basis, as
applicable) of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus and the Remarketing Materials;
and
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(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
and the Remarketing Materials.
(g) (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 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 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 described or contemplated in
the Prospectus or 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 the Remarketing Materials.
(h) Without the prior written consent of the Remarketing
Agent, the Indenture shall not have been amended in any manner, or shall not
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 Debentures or the Remarketing Procedures.
(i) Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Units or any of the Company's or any of its subsidiaries' debt securities by any
"nationally 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 Company's or any of its Significant Subsidiaries' debt securities.
(j) 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 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
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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 the Remarketing Materials.
(k) The Units shall have been duly listed, and the Issuable
Common Stock, subject to notice of issuance, shall have been duly listed, on the
New York Stock Exchange.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be furnished to the Remarketing Agent and
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.
Section 7. Indemnification and Contribution. (a) The Company
shall indemnify and hold harmless the Remarketing Agent, its partners, directors
and officers and each person, if any, who controls such Remarketing Agent within
the meaning of Section 15 of the Securities Act, against any loss, claim, damage
or liability, joint or several, to which the Remarketing Agent or that partner,
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage or liability (or action in
respect thereof) 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 Company (or based upon
any written information furnished by the Company) specifically for the purpose
of qualifying any or all of the remarketed Debentures 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 partner,
director, officer and controlling person promptly upon demand for any legal or
other expenses reasonably incurred by the Remarketing Agent or that partner,
director, officer 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 Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of, or is based upon, any untrue statement or
alleged untrue statement in or omission or alleged omission from 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
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reliance upon and in conformity with the written information furnished to the
Company by the Remarketing Agent specifically for inclusion therein and
described in a letter from the Remarketing Agent to the Company. The foregoing
indemnity agreement is in addition to any liability which the Company 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, its directors and officers who sign the Registration Statement or
the Remarketing Materials and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act, against any loss, claim,
damage or liability to which the Company, any such director or officer or any
such controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage or liability (or action in
respect thereof) 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 by the Remarketing Agent specifically for
inclusion therein and described in a letter from the Remarketing Agent to the
Company, and shall reimburse the Company and any such director or officer or
such controlling person for any legal or other expenses reasonably incurred by
the Company or any such director or officer, 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.
(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. 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 (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying 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
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partners, directors, officers 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 Company under this Section 7 if, in the
reasonable judgment of the Remarketing Agent, it is advisable for the
Remarketing Agent and those partners, directors, officers 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 Company. 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 (a) includes an unconditional
release of the indemnified party from all liability arising out of such claim,
action, suit or proceeding, and (b) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any
indemnified party, 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.
(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 Company 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 Company 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
Company on the one hand and the Remarketing Agent on the other shall be deemed
to be in the same proportion as (i) the total principal amount of the remarketed
Debentures less the fee paid to the Remarketing Agent pursuant to Section 4(a)
of this Agreement bears to (ii) the total fees received by the Remarketing Agent
pursuant to such Section 4(a). The relative fault shall be determined by
reference to, among other things, 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 Company 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
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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 actually
received by it under Section 4 exceed the amount of any damages which the
Remarketing Agent has paid or becomes 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.
Section 8. Resignation and Removal of the Remarketing Agent.
The Remarketing Agent may resign and be discharged from its duties and
obligations hereunder, and the Company may remove the Remarketing Agent, by
giving 60 days' prior written notice, in the case of a resignation, to the
Company, the Depositary, the Indenture Trustee and, in the case of a removal, to
the removed Remarketing Agent, the Depositary, and the Indenture Trustee;
provided, however, that (i) the Company 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 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 the Company 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 in which it shall have agreed to conduct
the Remarketing in accordance with the Remarketing Procedures. In any such case,
the Company 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.
Section 9. Dealing in the Remarketed Debentures. 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 Debentures. The Remarketing Agent may exercise any
vote or join in any action which any beneficial owner of remarketed Debentures
may be entitled to exercise or take pursuant to the Indenture with like effect
as if it did not act in any capacity hereunder. The Remarketing 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 Company as freely as if
it did not act in any capacity hereunder.
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Section 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, the Purchase Contract Agreement, the
Pledge Agreement and the Indenture. No implied covenants or obligations of or
against the Remarketing Agent shall be read into this Agreement, the Purchase
Contract Agreement, the Pledge Agreement 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 Purchase Contract Agreement, the
Pledge Agreement 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 Debentures in its individual capacity or as Remarketing Agent for
any action or failure to act, on its part in connection with the Remarketing or
otherwise, except if such liability is finally judicially determined to have
resulted primarily and directly from the gross negligence or willful misconduct
on its part. The Remarketing Agent may, but shall not be obligated to, purchase
remarketed Debentures for its own account.
If at any time during the term of this Agreement, any Event of
Default under the Indenture, or event that with the passage of time or the
giving of notice or both would become an Event of Default under the Indenture,
has occurred and is continuing under the Indenture, then the obligations and
duties of the Remarketing Agent under this Agreement shall be suspended until
such default or event has been cured. The Company will cause the Trustee, the
Purchase Contract Agent and the Collateral Agent to give the Remarketing Agent
notice of all such defaults and events of which such trustee or agent is aware.
Section 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 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(g), (h), (i) or
(j) shall have occurred or if the Remarketing Agent shall decline to perform its
obligations under this Agreement for any reason permitted hereunder.
Section 12. Notices. All notices and other communications
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been given if (a) delivered personally, (b) sent by
registered or certified mail, return receipt requested, postage prepaid, or (c)
transmitted by facsimile (with receipt confirmed) to the parties hereto as
follows:
(a) if to the Remarketing Agent to:
Credit Suisse First Boston Corporation
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Eleven Madison Avenue
New York, New York 10285
Attention: ____________
Fax: _____________
(with a copy to
Morton A. Pierce
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019-6092
fax: (212) 259-6333)
(b) if to the Company to:
New NiSource Inc.
801 East 86th Avenue
Merrillville, Indiana 46410
Attention: Treasurer
Fax: ___________
(with a copy to Peter V. Fazio, Jr.,
Schiff Hardin & Waite
6600 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606-6473
fax: (312) 258-5600)
Any such notices or other communications shall take effect at
the time of receipt thereof.
Section 13. Persons Entitled to Benefit of Agreement. This
Agreement shall inure solely to the benefit of and be binding upon the
Remarketing Agent, the Company 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 Company contained in this Agreement shall also be deemed to be
for the benefit of the partners, directors and officers 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 and officers of the Company and any
person controlling the Company 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.
Section 14. Survival. The respective indemnities,
representations, warranties and agreements of the Company and the Remarketing
Agent contained in this
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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.
Section 15. Governing Law; Jurisdiction; Consent to Service of
Process. This Remarketing Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of law principles. The Company hereby submits to the jurisdiction of the courts
of the State of New York in any proceeding arising out of or relating to this
Agreement, including federal district courts located in such state, agrees not
to commence any suit, action or proceeding relating thereto except in such
courts, and waives, to the fullest extent permitted by law, the right to move to
dismiss or transfer any action brought in such court on the basis of any
objection to personal jurisdiction, venue or inconvenient forum. The Company
also hereby consents to service of process in the manner set forth in Section
12.
Section 16. Counterparts. This Remarketing 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.
Section 17. 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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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
duly executed as of the day and year first above written.
NEW NISOURCE INC.
By:
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Name:
Title:
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
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Name:
Title: