Exhibit 99.1
dated as of March 21, 2005 (this
"") among KeySpan Corporation, a New York
corporation (the "Company"), X.X. Xxxxxx Securities Inc. (the "Remarketing
Agent"), and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase Bank),
as Purchase Contract Agent and attorney-in-fact for the Holders of the Purchase
Contracts (as such terms are defined in the Purchase Contract Agreement referred
to in Schedule I hereto).
NOW, THEREFORE, for and in consideration of the covenants herein made, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Capitalized terms used and not defined in this shall have the meanings assigned to them in the
Remarketing Agreement dated as of May 6, 2002 (the "Remarketing Agreement")
among the Company, the Purchase Contract Agent and the Remarketing Agent, or if
not defined in the Remarketing Agreement, the meanings assigned to them in the
Purchase Contract Agreement (as defined in Schedule I hereto).
2. Registration Statement and Prospectus. The Company has filed with the
Securities and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder (collectively, the "1933 Act"), a
registration statement (File No. 333-82230) on Form S-3, relating to certain
securities of the Company (the "Shelf Securities"), including the Notes, to be
issued from time to time by the Company. The Company also proposes to file with
the Commission, pursuant to Rule 424 under the 1933 Act, a prospectus supplement
specifically relating to the Notes. The registration statement as amended to the
date of this is hereinafter referred to as
the "Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Notes is hereinafter
referred to as the "Base Prospectus". The Base Prospectus as supplemented by the
preliminary prospectus supplement dated March 17, 2005 (the "Preliminary
Prospectus Supplement") specifically relating to the Notes is hereinafter
referred to as the "Preliminary Prospectus". The Base Prospectus as supplemented
by the prospectus supplement (the "Prospectus Supplement") specifically relating
to the Notes in the form first used to confirm sales of the Notes is hereinafter
referred to as the "Prospectus". Any reference in this to the Registration Statement, the Base Prospectus, the Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act which were filed under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "1934 Act") on or before the date of this , the date of this , the
date of the Preliminary Prospectus Supplement or the date of the Prospectus
Supplement, respectively; and any reference to "amend", "amendment" or
"supplement" with respect to the Registration Statement, the Base Prospectus,
the Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed under the 1934 Act after the date of this
, the date of this , the date of the Preliminary Prospectus Supplement or the date of the
Prospectus Supplement, respectively, which are deemed to be incorporated by
reference therein.
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3. Representations and Warranties of the Company. The Company represents
and warrants to the Remarketing Agent that:
(a) no order preventing or suspending the use of the Preliminary Prospectus
has been issued by the Commission, and the Preliminary Prospectus, as of the
date of the Preliminary Prospectus Supplement, complied in all material respects
with the requirements of the 1933 Act and did not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided that the
Company makes no representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information relating to
the Remarketing Agent furnished to the Company in writing by the Remarketing
Agent expressly for use in the Preliminary Prospectus;
(b) the Registration Statement has been declared effective by the
Commission under the 1933 Act; no order suspending the effectiveness of the
Registration Statement has been issued by the Commission and no proceeding for
that purpose has been initiated or threatened by the Commission; as of the
applicable effective dates of the Registration Statement and any amendment
thereto, the Registration Statement complied and will comply in all material
respects with the requirements of the 1933 Act and the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Trust Indenture Act"), and did not 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 in order to make the statements therein not
misleading; and as of the date of the Prospectus Supplement and any amendment or
supplement to the Prospectus, the Prospectus, as amended or supplemented,
complied in all material respects with the requirements of the 1933 Act and as
of the date of the Prospectus Supplement and any amendment or supplement to the
Prospectus and as of the Remarketing Closing Date (as specified in Schedule I
hereto), as the case may be, the Prospectus, as amended or supplemented, did not
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 in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration Statement which
constitutes the Statement of Eligibility and Qualification (Form T-1) under the
Trust Indenture Act of the Trustee and (ii) any statements or omissions made in
reliance upon and in conformity with information relating to the Remarketing
Agent furnished to the Company in writing by the Remarketing Agent expressly for
use in the Registration Statement or the Prospectus and any amendment or
supplement thereto;
(c) the documents incorporated by reference in the Prospectus, when they
were filed with the Commission, complied in all material respects to the
requirements of the 1934 Act and none of such documents 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, in light of the
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circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus, as amended,
when such documents are filed with the Commission, will comply in all material
respects to the requirements of the 1934 Act and will not 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, in light of the
circumstances under which they were made, not misleading;
(d) the financial statements, and the related notes thereto, included or
incorporated by reference in the Registration Statement and the Prospectus
comply in all material respects with the applicable requirements of the 1933 Act
and the 1934 Act, as applicable, and present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the dates
indicated and the consolidated results of their operations and their
consolidated cash flows for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting principles
applied on a consistent basis, and the supporting schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein;
(e) except for stock issuances pursuant to the Company's employee benefit
plans and dividend reinvestment plans, since the respective dates as of which
information is given in the Prospectus or since the date of the Prospectus, (i)
there has not been any change in the capital stock or long-term debt of the
Company or any of its subsidiaries, or, except as described in the Prospectus
and for customary dividends paid on the Company's capital stock, any dividend or
distribution of any kind declared, set aside for payment, paid or made by the
Company on any class of capital stock, (ii) there has not been any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus; and (iii) except as set forth or contemplated in
the Prospectus, neither the Company nor any of its subsidiaries has entered into
any transaction or agreement (whether or not in the ordinary course of business)
material to the Company and its subsidiaries taken as a whole;
(f) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, 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, other than where the failure to be so qualified or in good
standing would not have a material adverse effect on the general affairs,
business, prospects, management, financial position, stockholders' equity or
results of operation (a "Material Adverse Effect") on the Company and its
subsidiaries, taken as a whole;
(g) each of the Company's Significant Subsidiaries (as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the 0000 Xxx) has been duly
incorporated and is validly existing as a corporation under the laws of its
jurisdiction of incorporation, with power and authority (corporate and other) to
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own its properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each jurisdiction in which it owns or
leases properties or conducts any business so as to require such qualification,
other than where the failure to be so qualified or in good standing would not
have a Material Adverse Effect on the Company and its Significant Subsidiaries,
taken as a whole; and, except as set forth in the Prospectus, all the
outstanding shares of capital stock of each subsidiary of the Company have been
duly authorized and validly issued, are fully-paid and non-assessable, and
(except in the case of foreign subsidiaries, for directors' qualifying shares)
are owned by the Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(h) all the outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and non-assessable and
are not subject to any pre-emptive or similar rights; except as described in or
expressly contemplated by the Prospectus, there are no outstanding rights
(including, without limitation, pre-emptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of its
subsidiaries, or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any capital stock of the
Company or any such subsidiary, any such convertible or exchangeable securities
or any such rights, warrants or options; the capital stock of the Company
conforms in all material respects to the description thereof contained in the
Registration Statement and the Prospectus;
(i) each of the Remarketing Agreement and this Supplemental Remarketing
Agreement has been duly authorized, executed and delivered by the Company;
(j) the Indenture (as defined in Schedule I hereto) has been duly
authorized, executed and delivered, duly qualified under the Trust Indenture Act
and constitutes a valid and binding instrument, enforceable against the Company
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally,
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; and the Indenture
conforms in all material respects to the descriptions thereof in the Prospectus;
(k) the Notes have been duly authorized, issued and delivered, and
constitute valid and binding obligations of the Company, entitled to the
benefits provided by the Indenture, enforceable against the Company in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally
or by equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and the Notes
conform in all material respects to the descriptions thereof in the Prospectus;
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(l) neither the Company nor any of its Significant Subsidiaries is, or with
the giving of notice or lapse of time or both would be, (i) in violation of or
in default under its Certificate of Incorporation, as amended, or By-Laws, as
amended, or (ii) in violation of or in default under any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its Significant Subsidiaries is a party or by which it or any
of them or any of their respective properties is bound, or in violation of any
law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except for violations and
defaults which individually and in the aggregate are not material to the holders
of the Notes or would not have a Material Adverse Effect on the Company and its
Significant Subsidiaries, taken as a whole; the remarketing of the Notes and the
performance by the Company of all its obligations under the Notes, the
Indenture, the Remarketing Agreement and this Supplemental Remarketing Agreement
and the consummation of the transactions herein and therein contemplated do not
and will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will any such action result in any
violation of the provisions of the Certificate of Incorporation or the By-Laws
of the Company or any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties; and no consent,
approval, authorization, order, license, registration or qualification of or
with any such court or governmental agency or body is required for the issue and
remarketing of the Notes or the consummation by the Company of the transactions
contemplated by this Supplemental Remarketing Agreement, the Remarketing
Agreement, the Indenture or the Notes, except such consents, approvals,
authorizations, orders, licenses, registrations or qualifications as have been
obtained under the 1933 Act, the Trust Indenture Act and the Public Utility
Holding Company Act of 1935, as amended (the "Public Utility Holding Company
Act") and as may be required under state securities laws in connection with the
remarketing of the Notes by the Remarketing Agents;
(m) other than as set forth or contemplated in the Prospectus, there are no
legal or governmental investigations, actions, suits or proceedings pending or,
to the knowledge of the Company, threatened against or affecting the Company or
any of its Significant Subsidiaries or any of their respective properties or to
which the Company or any of its Significant Subsidiaries is or may be a party or
to which any property of the Company or any of its Significant Subsidiaries is
or may be the subject which, if determined adversely to the Company or any of
its Significant Subsidiaries, could (i) individually or in the aggregate have,
or reasonably be expected to have, a Material Adverse Effect on the Company and
its Significant Subsidiaries, taken as a whole or (ii) materially and adversely
affect the ability of the Company to perform its obligations under the Notes,
the Indenture, this Supplemental Remarketing Agreement or the Remarketing
Agreement; and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
and there are no statutes, regulations, contracts or other documents that are
required to be filed as an exhibit to the Registration Statement or required to
be described in the Registration Statement or the Prospectus which are not filed
or described as required;
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(n) the accountants who have certified certain financial statements and any
supporting schedules thereto included in the Registration Statement or the
Prospectus are an independent registered public accounting firm as required by
the 1933 Act;
(o) the Company and its Significant Subsidiaries have good and marketable
title in fee simple to all items of real property and good and marketable title
to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described or referred to in
the Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made or proposed to be made of such property
by the Company and its Significant Subsidiaries; and any real property and
buildings held under lease by the Company and its Significant Subsidiaries are
held by them under valid, existing and enforceable leases with such exceptions
as are not material and do not interfere with the use made or proposed to be
made of such property and buildings by the Company or its Significant
Subsidiaries;
(p) no relationship, direct or indirect, exists between or among the
Company or any or its Significant Subsidiaries on the one hand, and the
directors, officers, stockholders, customers or suppliers of the Company or any
of its subsidiaries on the other hand, which is required by the 1933 Act to be
described in the Registration Statement and the Prospectus which is not so
described;
(q) the Company is not and, after giving effect to the remarketing of the
Notes, will not be an "investment company", as such term is defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(r) the Company and its Significant Subsidiaries have filed all federal,
state, local and foreign tax returns which have been required to be filed and
have paid all taxes shown thereon and all assessments received by them or any of
them to the extent that such taxes have become due and are not being contested
in good faith with such exceptions as would not singly or in the aggregate
result in a Material Adverse Effect on the Company and its Significant
Subsidiaries, taken as a whole; and, except as disclosed in the Registration
Statement and the Prospectus, there is no tax deficiency which has been or might
reasonably be expected to be asserted or threatened against the Company or any
Significant Subsidiary with such exceptions as would not singly or in the
aggregate result in a Material Adverse Effect on the Company and its Significant
Subsidiaries, taken as a whole;
(s) there are no existing or, to the best knowledge of the Company,
threatened labor disputes with the employees of the Company or any of its
Significant Subsidiaries which are likely to have a Material Adverse Effect on
the Company and its Significant Subsidiaries, taken as a whole;
(t) the Company and each of its Significant Subsidiaries possess such
permits, licenses, franchises, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the appropriate federal,
state, local or foreign regulatory agencies or bodies necessary to conduct the
business now operated by them except where the failure to obtain such
Governmental Licenses would not have a Material Adverse Effect on the Company
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and its Significant Subsidiaries, taken as a whole; the Company and each of its
Significant Subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure to so comply would not,
singly or in the aggregate, result in a Material Adverse Effect on the Company
and its Significant Subsidiaries, taken as a whole; all of the Governmental
Licenses are valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses to be in
full force and effect would not result in a Material Adverse Effect on the
Company and its Significant Subsidiaries, taken as a whole; and none of the
Company or any of its Significant Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental
Licenses which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse Effect on the
Company and its Significant Subsidiaries, taken as a whole;
(u) except as otherwise stated in the Registration Statement and the
Prospectus, and except as would not, singly or in the aggregate, result in a
Material Adverse Effect on the Company and its Significant Subsidiaries, taken
as a whole, (i) neither of the Company nor any of its Significant Subsidiaries
is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively, "Hazardous
Materials") or to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (ii) the Company and its Significant Subsidiaries have
all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (iii)
there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigations or
proceedings relating to any Environmental Law against the Company or any of its
Significant Subsidiaries and (iv) to the knowledge of the Company, there are no
events or circumstances that may reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the Company
or any of its Significant Subsidiaries relating to Hazardous Materials or any
Environmental Laws;
(v) an appropriate order (the "Order") of the Commission under the Public
Utility Holding Company Act, necessary to permit the remarketing of the Notes
has been entered, and the Order is in full force and effect and has not been
modified or repealed in any respect; no filing with, or approval, authorization,
consent, license, registration, qualification, order or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or required
for the due authorization, execution and delivery by the Company of this
Supplemental Remarketing Agreement, or for the performance by the Company of the
transactions contemplated in this Supplemental Remarketing Agreement, the
Remarketing Agreement, the Indenture or the Prospectus, except (i) such as have
been obtained under the 1933 Acts, (ii) under the Public Utility Holding Company
Act and (iii) as may be required to be obtained under state securities laws;
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(w) the Significant Subsidiaries of the Company are KeySpan New England,
LLC, The Brooklyn Union Gas Company d/b/a KeySpan Energy Delivery New York,
KeySpan Gas East Corporation d/b/a KeySpan Energy Delivery Long Island,
KeySpan-Ravenswood LLC, Boston Gas Company d/b/a KeySpan Energy Delivery New
England and KeySpan Energy Corporation
(x) except as described in the Prospectus, no subsidiary of the Company is
currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to
the Company, from making any other distribution on such subsidiary's capital
stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary's properties or
assets to the Company or any other subsidiary of the Company; and
(y) no person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the 1933 Act by reason of
the filing of the Registration Statement with the Commission or the issuance and
remarketing of the Notes.
4. Remarketing. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Remarketing Agent
agrees to use its commercially reasonable best efforts to remarket, in the
manner set forth in Section 2(b) of the Remarketing Agreement, the aggregate
principal amount, as the case may be, of Notes set forth in Schedule I hereto at
a purchase price not less than 100.25% of the sum of the Treasury Portfolio
Purchase Price and the Separate Notes Purchase Price. In connection therewith,
the registered holder or holders thereof agree, in the manner specified in
Section 5 hereof, to pay to the Remarketing Agent a Remarketing Fee (the
"Remarketing Fee") equal to an amount not exceeding 25 basis points (0.25%) of
the sum of the Treasury Portfolio Purchase Price and the Separate Notes Purchase
Price, payable by deduction from any amount received in connection from such
Interim Remarketing in excess of the sum of the Treasury Portfolio Purchase
Price and the Separate Notes Purchase Price. The right of each holder of Notes
to have Notes tendered for purchase shall be limited to the extent set forth in
the last sentence of Section 2(b) of the Remarketing Agreement. As more fully
provided in Section 2(c) of the Remarketing Agreement, the Remarketing Agent is
not obligated to purchase any Notes in the remarketing or otherwise, and neither
the Company nor the Remarketing Agent shall be obligated in any case to provide
funds to make payment upon tender of Notes for remarketing.
5. Delivery and Payment. Delivery of payment for the remarketed Notes by
the purchasers thereof identified by the Remarketing Agent and payment of the
Remarketing Fee shall be made on the Remarketing Closing Date at the location
and time specified in Schedule I hereto (or such later date not later than five
Business Days after such date as the Remarketing Agent and the Company shall
agree), which date and the time may be postponed by agreement between the
Remarketing Agent and the Company. Delivery of the remarketed Notes and payment
of the Remarketing Fee shall be made to the Remarketing Agent against payment by
the respective purchasers of the remarketed Notes of the consideration therefor
as specified herein, which consideration shall be paid to the Collateral Agent
for the account of the persons entitled thereto in immediately available funds
by wire transfer to an account or accounts designated by the Collateral Agent.
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If the Notes are not represented by a Global Security held by or on behalf
of The Depository Trust Company, certificates for the Notes shall be registered
in such names and denominations as the Remarketing Agent may request not less
than one full Business Day in advance of the Remarketing Closing Date, and the
Company, the Collateral Agent and the registered holder or holders thereof agree
to have such certificates available for inspection, packaging and checking by
the Remarketing Agent in New York, New York not later than 1:00 p.m. on the
Business Day prior to the Remarketing Closing Date.
6. Notices. Unless otherwise specified, any notices, requests, consents or
other communications given or made hereunder or pursuant hereto shall be made in
writing or transmitted by any standard form of telecommunication, including
telephone or telecopy, and confirmed in writing. All written notices and
confirmations of notices by telecommunication shall be deemed to have been
validly given or made when delivered or mailed, registered or certified mail,
return receipt requested and postage prepaid. All such notices, requests,
consents or other communications shall be addressed as follows: if to the
Company, to KeySpan Corporation, Xxx Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx,
00000, Attention: Xxxx X. Xxxxxx, Xx., telecopy, 000-000-0000; if to the
Remarketing Agent, to X.X. Xxxxxx Securities Inc., 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Investment Grade Syndicate Desk, telecopy:
000-000-0000; and if to the Purchase Contract Agent, to JPMorgan Chase Bank,
N.A., 4 New York Plaza, 15th Floor, New York, New York 10004, Attention:
Institutional Trust Services, telecopy: 000-000-0000 or to such other address as
any of the above shall specify to the other in writing.
7. Covenants of the Company. The Company covenants and agrees with the
Remarketing Agent as follows:
(a) to file (i) the Preliminary Prospectus in a form approved by the
Remarketing Agent pursuant to Rule 424 under the 1933 Act not later than the
Commission's close of business on the second Business Day following the day it
is first used in connection with the remarketing of the Notes and (ii) the
Prospectus in a form approved by the Remarketing Agent pursuant to Rule 424
under the 1933 Act not later than the Commission's close of business on the
second Business Day following the Remarketing Date or, if applicable, such
earlier time as may be required by Rule 424(b);
(b) to furnish the Remarketing Agent and counsel for the Remarketing Agent,
at the expense of the Company, a duplicate signed copy of the Registration
Statement (as originally filed) and each amendment thereto, in each case
including exhibits and documents incorporated by reference therein and, during
the period mentioned in paragraph below, to furnish the Remarketing Agent as
many copies of the Prospectus (including all amendments and supplements thereto)
and documents incorporated by reference therein as you may reasonably request;
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(c) from the date hereof and prior to the Remarketing Closing Date to
furnish to the Remarketing Agent a copy of any proposed amendment or supplement
to the Registration Statement or the Prospectus, for their review, and not to
file any such proposed amendment or supplement to which the Remarketing Agent
reasonably objects;
(d) 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 1934 Act for so long as the delivery of
a prospectus is required in connection with the offering or sale of the Notes,
and during such same period, to advise you promptly, and to confirm such advice
in writing, (i) when any amendment to the Registration Statement has been filed
or becomes effective; (ii) when any supplement to the Prospectus or any
amendment to the Prospectus has been filed; (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectus or the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the Commission
for any additional information; (iv) of the issuance by the Commission of any
order suspending the effectiveness of the Registration Statement or preventing
or suspending the use of the Preliminary Prospectus or the Prospectus or the
initiation or threatening of any proceeding for that purpose; (v) of the
occurrence of any event within such period of time after the first date of
Remarketing of the Notes as in the opinion of counsel for the Remarketing Agent
(after consultation with the Company) a prospectus relating to the Notes is
required by law to be delivered in connection with sales of the Notes by the
Remarketing Agent or dealer as a result of such occurrence or event the
Prospectus as then amended or supplemented would include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the
Prospectus is delivered to a purchaser, not misleading; and (vi) of the receipt
by the Company of any notice with respect to any suspension of the qualification
of the Notes for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and to use its reasonable best
efforts to prevent the issuance of any such order suspending the effectiveness
of the Registration Statement, preventing or suspending the use of the
Preliminary Prospectus or the Prospectus or suspending any such qualification of
the Notes and, if any such order is issued, will obtain as soon as possible the
withdrawal thereof;
(e) if, during such period after the first date of the remarketing of the
Notes as in the opinion of counsel for the Remarketing Agent a prospectus
relating to the Notes is required by law to be delivered in connection with
remarketing by the Remarketing Agent or dealer, any event shall occur as a
result of which the Prospectus, as then amended or supplemented, would include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances existing when the Prospectus is delivered to a
purchaser, not misleading or if it is necessary to amend or supplement the
Prospectus to comply with law, forthwith to prepare and furnish, at the expense
of the Company, to the Remarketing Agent and to the dealers (whose names and
addresses you will furnish to the Company) to which Notes may have been sold by
the Remarketing Agent and to any other dealers upon request, and, subject to
paragraph (c) above, file with the Commission such amendments or supplements to
the Prospectus as may be necessary so that the Prospectus, as so amended or
supplemented, will not include any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances existing when
they were delivered to a purchaser, not misleading or so that the Prospectus
will comply with law;
10
(f) to endeavor to qualify the Notes for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Remarketing Agent shall
reasonably request and to continue such qualification in effect so long as
reasonably required for distribution of the Notes; provided that the Company
shall not be required to qualify as a foreign corporation, file a general
consent to service of process or become subject to taxation in any jurisdiction;
(g) to make generally available to its security holders and to the
Remarketing Agent as soon as practicable an earnings statement which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158 of the
Commission promulgated thereunder covering a period of at least twelve months
beginning with the first fiscal quarter of the Company occurring after the
"effective date" (as defined in Rule 158) of the Registration Statement;
(h) so long as the Notes are outstanding, to furnish to you copies of all
reports or other communications (financial or other) furnished to holders of
Notes and copies of any reports and financial statements furnished to or filed
with the Commission or any national securities exchange or automatic quotation
system unless the Company is subject to Section 13 or 15(d) of the 1934 Act;
(i) whether or not the transactions contemplated in this Supplemental
Remarketing Agreement and the Remarketing Agreement are consummated or this
Supplemental Remarketing Agreement or the Remarketing Agreement is terminated,
to pay or cause to be paid (i) the costs and expenses incident to the
preparation, printing and filing under the 1933 Act of the Registration
Statement, any preliminary form of the Prospectus and the Prospectus (including
in each case all exhibits, amendments and supplements thereto), (ii) the costs
and expenses incurred in connection with qualifying the Notes under the
securities laws of the several jurisdiction as provided in Section 7(f) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Remarketing Agent), (iii) the fees and
expenses of the Company's counsel and independent auditors, (iv) the costs and
expenses in connection with the printing (including word processing and
duplication costs) and delivery of the Preliminary Prospectus, the Prospectus
and any other materials furnished by the Company to the Remarketing Agent for
distribution to investors in connection with the remarketing of the Notes and
any amendments or supplements thereto and (v) all costs and expenses incident to
the performance of the obligations of the Company hereunder; and
(j) the Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization
or manipulation of the price of the Notes.
8. Conditions to Obligations of Remarketing Agent. The obligations of the
Remarketing Agent hereunder are subject to (i) the satisfaction of the
conditions set forth in Section 7 of the Remarketing Agreement, (ii) the
accuracy of the representations and warranties of the Company contained herein
as of the date hereof, (iii) the performance by the Company of its obligations
11
under the Remarketing Agreement and this Supplemental Remarketing Agreement and
(iv) each of the following conditions. The Remarketing Agent may in its sole
discretion waive compliance with any condition to its obligations hereunder.
(a) the representations and warranties of the Company contained herein are
true and correct on and as of the Remarketing Closing Date as if made on and as
of the Remarketing Closing Date, and the Company shall have complied with all
agreements and all conditions on its part to be performed or satisfied hereunder
at or prior to the Remarketing Closing Date;
(b) the Preliminary Prospectus and the Prospectus shall have been filed
with the Commission pursuant to Rule 424 within the applicable time periods
prescribed for such filings by the rules and regulations under the 1933 Act; no
stop order suspending the effectiveness of the Registration Statement shall be
in effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to the Remarketing Agent's
satisfaction;
(c) subsequent to the execution and delivery of this Supplemental
Remarketing Agreement and prior to the Remarketing Closing Date, there shall not
have occurred any downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any review or
possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of Rule
436(g)(2) under the 1933 Act;
(d) since the respective dates as of which information is given in the
Prospectus (exclusive of any amendment or supplement thereto after the execution
and delivery hereof), 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 material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus (exclusive of any amendment or supplement), the
effect of which in the judgment of the Remarketing Agent makes it impracticable
or inadvisable to proceed with the remarketing of the Notes on the Remarketing
Closing Date, as the case may be, on the terms and in the manner contemplated in
the Prospectus (exclusive of any amendment or supplement); and 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 any material 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 (exclusive of any amendment
or supplement);
(e) the Remarketing Agent shall have received on and as of the Remarketing
Closing Date a certificate of an executive officer of the Company, with specific
knowledge about the Company's financial matters, satisfactory to you to the
effect set forth in subsections (a) through (c) (with respect to the respective
12
representations, warranties, agreements and conditions of the Company) of this
Section 8 and to the further effect that there has not occurred any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, business, prospects, management,
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole from that set forth or contemplated in the
Prospectus (exclusive of any amendment or supplement);
(f) the Remarketing Agent shall have received on and as of the Remarketing
Closing Date the opinion of the General Counsel or Deputy General Counsel of the
Company, or such other legal counsel employed by the Company agreed to in
writing by the Remarketing Agent, to the effect set forth in Exhibit A hereto
dated as of the Remarketing Closing Date and in form and substance satisfactory
to the Remarketing Agent;
(g) the Remarketing Agent shall have received on and as of the Remarketing
Closing Date the favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the
Company, to the effect set forth in Exhibit B-1 hereto and the letter related to
certain matters to the effect set forth in Exhibit B-2 hereto, each dated as of
the Remarketing Closing Date and in form and substance satisfactory to the
Remarketing Agent;
(h) the Remarketing Agent shall have received on and as of the Remarketing
Closing Date an opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the Remarketing
Agent, in form and substance reasonably satisfactory to the Remarketing Agent,
and such counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters;
(i) on the Remarketing Date and on the Remarketing Closing Date, as the
case may be, Deloitte & Touche LLP shall have furnished to the Remarketing Agent
letters, dated such respective dates, in form and substance satisfactory to the
Remarketing Agent, containing statements and information of the type customarily
included in accountants "comfort letters" to underwriters with respect to the
financial statements and certain financial information for all periods on or
before December 31, 2004 contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Remarketing Closing Date,
as the case may be, shall use a "cut-off" date no more than three business days
prior to such Remarketing Closing Date; and
(j) an order of the Commission under the Public Utility Holding Company Act
authorizing the remarketing of the Notes shall be in full force and effect, and
such order shall not have been amended since the date of this Supplemental
Remarketing Agreement to include any provision unacceptable to the Remarketing
Agent in its reasonable judgment;
(k) on or prior to the Remarketing Closing Date, the Company shall have
furnished to the Remarketing Agent such further certificates and documents as
the Remarketing Agent shall reasonably request.
13
9. Indemnity and Contribution. Anything herein to the contrary
notwithstanding, the Remarketing Agent and the Company shall be entitled to
indemnity and contribution on the terms and conditions set forth in the
Remarketing Agreement.
10. Termination. Notwithstanding anything herein contained, this
Supplemental Remarketing Agreement may be terminated in the absolute discretion
of the Remarketing Agent, by notice given to the Company, if after the execution
and delivery of this Supplemental Remarketing Agreement and prior to the
Remarketing Closing Date, (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange or the Chicago Board Options Exchange, (ii) trading of any securities
of or guaranteed by the Company shall have been suspended on any exchange or in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities, or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis,
either within or outside the United States, that, in the judgment of the
Remarketing Agent, is material and adverse and makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Notes on the
Remarketing Closing Date on the terms and in the manner contemplated by this
Supplemental Remarketing Agreement and the Prospectus.
[Signature page follows on next page]
14
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the Remarketing Agent.
Very truly yours,
KEYSPAN CORPORATION
By: /s/
----------------------
Name:
Title:
CONFIRMED AND ACCEPTED:
X.X. XXXXXX SECURITIES INC.
By: /s/
----------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.
not individually but solely as Purchase
Contract Agent and as attorney-in-fact for
the Holders of the Purchase Contracts
By: /s/
-------------------------
Name:
Title:
15
SCHEDULE I
Notes subject to the remarketing: Notes due 2008 of the Company (the
"Notes").
Purchase Contract Agreement dated as of May 6, 2002 (the "Purchase Contract
Agreement") by and between KeySpan Corporation, a New York corporation, and
JPMorgan Chase Bank, a New York banking corporation, as Purchase Contract Agent
(the "Purchase Contract Agent") and as attorney-in-fact for the Holders of the
Purchase Contracts.
Indenture dated as of November 1, 2000 (the "Base Indenture", and as
supplemented by the First Supplemental Indenture and the Second Supplemental
Indenture, the "Indenture") by and between KeySpan Corporation and JPMorgan
Chase Bank, N.A. (formerly known as JPMorgan Chase Bank), as trustee.
First Supplemental Indenture dated as of May 6, 2002 (the "First
Supplemental Indenture") by and between KeySpan Corporation, a New York
corporation, and JPMorgan Chase Bank, N.A., as trustee.
Second Supplemental Indenture dated as of May 6, 2002 (the "Supplemental
Indenture") by and between KeySpan Corporation and JPMorgan Chase Bank, N.A., as
trustee.
Remarketing Closing Date, Time and Location: 9:00 a.m., New York City time,
Xxxxx 00, 0000, Xxx Xxxx, Xxx Xxxx.
Reset Rate: 4.90%
Principal Amount of Senior Notes remarketed: $394,880,000.
Treasury Portfolio Purchase Price: $398,213,589.
1
EXHIBIT A
FORM OF OPINION OF GENERAL COUNSEL OR DEPUTY GENERAL OF THE COMPANY TO BE
DELIVERED PURSUANT TO SECTION 8(f)
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New York.
2. The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into the Supplemental Remarketing Agreement and the Remarketing Agreement
and consummate the transactions contemplated in the Prospectus.
3. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify or
be in good standing would not result in a material adverse effect on the Company
and its subsidiaries, taken as a whole.
4. Each Significant Subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 0000 Xxx) has been duly incorporated and is
validly existing as a corporation or a limited liability company, as the case
may be, in good standing under the laws of the jurisdiction of its incorporation
or organization, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and is
duly qualified as a foreign corporation or limited liability company, as the
case may be, to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a material adverse effect on
the Company and its subsidiaries, taken as a whole; except as stated in the
Prospectus, all of the membership interests or issued and outstanding shares of
capital stock of each Significant Subsidiary has been duly authorized and with
respect to such stock, are validly issued, fully paid and non-assessable and, to
the best of my knowledge, are owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of capital
stock of any Significant Subsidiary were issued in violation of preemptive or
other similar rights of any securityholder of such Significant Subsidiary.
5. The information (i) in the Annual Report on Form 10-K under "Legal
Proceedings" and "Business-Competition, Regulation and Rate Matters-Regulation,"
"-State Utility Commission," "-Federal Energy Regulatory Commission" and
"-Securities and Exchange Commission," (ii) in the Prospectus covering similar
A-1
matters, if any, and (iii) in the Registration Statement under Item 15, to the
extent that such information constitutes matters of law, summaries of legal
matters, the Company's charter and bylaws or legal proceedings, or legal
conclusions, has been reviewed by me and is correct in all material respects.
6. To the best of my knowledge, neither of the Company nor any of its
Significant Subsidiaries is (i) in violation of its charter or by-laws or
operating agreement, as the case may be, or (ii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or
governmental or regulatory authority, except where such violation would not
result in a material adverse effect on the Company and its subsidiaries, taken
as a whole, and no default by the Company or any of its Significant Subsidiaries
exists in the due performance or observance of any material obligation,
agreement, covenant or condition contained in any agreement and instrument that
is described or referred to in the Registration Statement or the Prospectus or
filed or incorporated by reference as an exhibit to the Registration Statement.
7. The execution, delivery and performance of the Supplemental Remarketing
Agreement, the Remarketing Agreement, the Indenture and the Notes, the
consummation of the transactions contemplated in the Prospectus (including the
remarketing of the Notes) and the compliance by the Company with its obligations
thereunder have been duly authorized by all necessary corporate action and do
not and will not, whether with or without the giving of notice or passage of
time or both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any
assets, properties or operations of the Company or any of its Significant
Subsidiaries pursuant to any agreement or instrument known to me, nor will such
action result in any violation of the provisions of the charter or by-laws or
operating agreement of the Company or any of its Significant Subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree,
known to me, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their assets, properties or operations.
8. To the best of my knowledge, except as otherwise disclosed in the
Registration Statement or the Prospectus, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation to which the Company or any
of its Significant Subsidiaries is a party or to which the assets, properties or
operations of the Company or any of its Significant Subsidiaries is subject,
before or brought by any court or governmental agency or body, domestic or
foreign, which might reasonably be expected to result in a material adverse
effect on the Company and its Significant Subsidiaries, taken as a whole, or
which might reasonably be expected to materially and adversely affect the
assets, properties or operations of the Company or any of its Significant
Subsidiaries, the performance by the Company or of its obligations under the
Supplemental Remarketing Agreement, the Remarketing Agreement, the Indenture, or
the Notes or the consummation of the transactions contemplated in the
Prospectus.
A-2
9. All descriptions in the Prospectus of contracts and other documents to
which the Company or any of its subsidiaries are a party are accurate in all
material respects; and, to the best of my knowledge, there are no franchises,
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits to the Registration Statement other than
those described or referred to therein or filed or incorporated by reference as
exhibits thereto, and the descriptions thereof or references thereto are correct
in all material respects.
10. To the best of my knowledge, there are no statutes or regulations that
are required to be described in the Prospectus that are not described as
required.
11. The Registration Statement and the Prospectus, excluding the documents
incorporated by reference therein, and each amendment or supplement to the
Registration Statement and Prospectus, excluding the documents incorporated by
reference therein, as of their respective effective or issue dates (other than
the financial statements and supporting schedules included therein or omitted
therefrom and the Trustee's Statement of Eligibility on Form T-1 (the "Form
T-1"), as to which no opinion is expressed), complied as to form in all material
respects with the requirements of the 1933 Act.
12. The documents incorporated by reference in the Prospectus (other than the
financial statements and supporting schedules included therein or omitted
therefrom, as to which no opinion is expressed), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act.
Nothing has come to such counsel's attention that would lead such counsel
to believe that the Registration Statement or any post-effective amendment
thereto (except for (x) financial statements, supporting schedules and other
financial and statistical data included therein or omitted therefrom, (y) the
Form T-1 and (z) the information related to estimated proved reserves
attributable to certain oil and gas properties and estimates of future net cash
flows and present values referred to in the Prospectus under the caption
"Experts", as to which such counsel makes no statement), at the date of the
Supplemental Remarketing Agreement, 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 the Prospectus
or any amendment or supplement thereto (except for (x) financial statements,
supporting schedules and other financial and statistical data included therein
or omitted therefrom, (y) the Form T-1 and (z) the information related to
estimated proved reserves attributable to certain oil and gas properties and
A-3
estimates of future net cash flows and present values referred to in the
Prospectus under the caption "Experts", as to which such counsel makes no
statement), at the time the Prospectus was issued, at the time any such amended
or supplemented prospectus was issued or at the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
The opinion of counsel described above shall be rendered to the Remarketing
Agent at the request of the Company and shall so state therein.
X-0
XXXXXXX X-0
FORM OF OPINION OF XXXXXXX XXXXXXX & XXXXXXXX LLP TO BE DELIVERED PURSUANT TO
SECTION 8(g)
1. The Company has been duly incorporated and is validly existing and in
good standing as a corporation under the laws of the State of New York and has
full corporate power and authority to conduct its business as described in the
Registration Statement and Prospectus.
2. The Remarketing Agreement has been duly authorized, executed and
delivered by the Company.
3. The Supplemental Remarketing Agreement has been duly authorized,
executed and delivered by the Company.
4. The Indenture has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and, assuming that the Indenture is the valid and
legally binding obligation of the Trustee, the Indenture constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms.
5. The Notes have been duly authorized, executed and issued by the Company
and, assuming due authentication thereof by the Trustee, constitute valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their terms and entitled to the benefits of the Indenture.
6. The statements made in the Prospectus Supplement under the caption
"Description of the Remarketed Notes" and the statements made in the Base
Prospectus under the caption "Description of Debt Securities," insofar as they
purport to constitute summaries of certain terms of contracts and other
documents referred to therein, constitute accurate summaries of the terms of
such statutes, contracts and other documents in all material respects.
7. No consent, approval, authorization, order, registration or
qualification of or with any federal or New York governmental agency or body or,
to our knowledge, any federal or New York court is required for the remarketing
of the Notes by the Company and the compliance by the Company with the
provisions of the Supplemental Remarketing Agreement, the Remarketing Agreement,
the Indenture and the Notes, except for (A) the issuance of an appropriate order
by the Commission under the Public Utility Holding Company Act, (B) the
registration of the Notes under the 1933 Act and (C) such consents, approvals,
authorizations, orders, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the remarketing of the
Notes by the Remarketing Agent.
B-1
8. The Registration Statement has become effective under the 1933 Act and
the Prospectus was filed on March [ ], 2005, pursuant to Rule 424(b) of the
rules and regulations of the Commission under the 1933 Act, and, to our
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued or proceedings for that purpose have been instituted
or threatened by the Commission.
9. Subject to the qualifications, exceptions, assumptions and limitations
therein, the statements set forth in the Prospectus Supplement under the caption
"Certain United States Federal Income and Estate Tax Consequences," insofar as
they purport to constitute summaries of matters of United States federal tax law
and regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
10. The Company is not, and after giving effect to the remarketing of the
Notes will not be, an "investment company" within the meaning of and subject to
regulation under the Investment Company Act of 1940, as amended.
The opinions set forth in paragraphs 4 and 5 above are subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether considered in a proceeding
in equity or at law) and (iii) an implied covenant of good faith and fair
dealing.
The opinion of counsel described above shall be rendered to the Remarketing
Agent at the request of the Company and shall so state therein.
B-2
EXHIBIT B-2
FORM OF LETTER OF XXXXXXX XXXXXXX & XXXXXXXX LLP TO BE DELIVERED PURSUANT TO
SECTION 8(g)
Such counsel shall (i) advise the Remarketing Agent that the Registration
Statement, as of its effective date, and the Prospectus, as of its date,
appeared, on its face, to be appropriately responsive in all material respects
with the requirements of the 1933 Act and the applicable rules and regulations
of the Commission thereunder, except that such counsel may express no view with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in such Registration Statement, the
Prospectus or the 1934 Act Documents and (ii) nothing has come to such counsel's
attention to cause such counsel to believe that the Registration Statement
(including the 1934 Act Documents on file with the Commission on the date of
filing of the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2004), as of the date of filing of such Annual Report, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading or that the Prospectus (including the 1934 Act Documents)
as of its date or as of the date hereof contained or contains any untrue
statement of a material fact or omitted or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that in each
case such counsel need not express any belief with respect to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Prospectus or the 1934 Act
Documents.
For purposes of this letter, "1934 Act Documents" means the Company's
Annual Report on Form 10-K for the year ended December 31, 2004 and all other
reports filed by the Company pursuant to Section 13(a) or 15(d) of the 1934 Act
since the end of the fiscal year covered by such Annual Report.
B-3
