EXHIBIT 4.7
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, dated as of November 1, 2000 (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 2006 (the
"Debentures") pursuant to the Indenture, dated as of November 1, 2000,
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 November 1, 2000
(collectively the "Indenture");
WHEREAS, each Debenture will be issued as part of a unit (the
"Unit" or "SAILS{SM}")<2> that also includes a contract (a
"Purchase Contract") under which the Holder will purchase from the
Company on November 1, 2004, 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 November 1, 2000 (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 November 1,
2000 (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
<2> SAILS{SM} or "Stock Appreciation Income Linked Securities{SM}"
are service marks of Credit Suisse First Boston.
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;
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 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
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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 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,
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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.
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 an
appropriate form, 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
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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
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
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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, 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
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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 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
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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.
(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
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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.
(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
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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.
(x) Xxxxxx Xxxxxxxx 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.
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(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").
(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
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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
12
counsel for the Remarketing Agent a signed copy of the Registration
Statement as originally filed with the Commission, and each amendment
thereto filed with the Commission, including all consents and exhibits
filed therewith.
(c) To deliver promptly to the Remarketing Agent in New
York City such number of the following documents as the Remarketing
Agent shall request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and each amendment
thereto, (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).
13
(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 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
14
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.
(d) Xxxxxx Xxxxxx & Xxxxx, 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
15
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 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
16
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.
(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.
17
(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.
(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
18
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 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
19
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 Xxxxxx
Xxxxxxxx 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
20
(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
21
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 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
22
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 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
23
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
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
24
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 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
25
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 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 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.
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
26
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
Eleven Madison Avenue
New York, New York 10285
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
(with a copy to
Xxxxxx X. Xxxxxx
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000)
27
(b) if to the Company to:
New NiSource Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Treasurer
Fax: (000) 000-0000
(with a copy to Xxxxx X. Xxxxx, Xx.,
Xxxxxx Xxxxxx & Xxxxx
6600 Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000)
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 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 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,
28
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 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.
29
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: /s/ Xxxxxxx X. Adik
----------------------------------------
Name: Xxxxxxx X. Adik
Title: Vice President
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: Director
30
