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EXHIBIT 1
ENRON CORP.
(A DELAWARE CORPORATION)
ENRON PREFERRED FUNDING II, L.P.
(A DELAWARE LIMITED PARTNERSHIP)
ENRON CAPITAL TRUST II
(A DELAWARE BUSINESS TRUST)
6,000,000 TRUST PREFERRED SECURITIES
____% TRUST ORIGINATED PREFERRED SECURITIES(SM) ("TOPRS")(SM)
PURCHASE AGREEMENT
DATED: JANUARY __, 1997
(SM) "Trust Originated Preferred Securities" and "TOPrS" are service marks of
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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TABLE OF CONTENTS
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SECTION 1. Representations and Warranties
(a) Representations and Warranties by the Company
(i) Compliance with Registration Requirements..............................................4
(ii) Incorporated Documents.................................................................5
(iii) Independent Accountants................................................................5
(iv) Good Standing of the Company and Subsidiaries..........................................5
(v) Authorization of Agreement.............................................................5
(vi) Authorization of the Debentures and Indentures.........................................6
(vii) Authorization of Investment Guarantees.................................................6
(viii) Absence of Defaults and Conflicts; Absence of Further
Requirements...........................................................................6
(ix) Material Adverse Change................................................................7
(x) Investment Company Act.................................................................7
(xi) PUCHA..................................................................................7
(xii) Absence of Proceedings.................................................................7
(b) Representations and Warranties by the Trust, the Partnership and
the Company.....................................................................................7
(i) Good Standing of Trust.................................................................8
(ii) Authorization of Declaration...........................................................8
(iii) Authorization of Trust Common Securities...............................................8
(iv) Authorization of Trust Preferred Securities............................................8
(v) Authorization of Trust Guarantee.......................................................9
(vi) Regular Trustees.......................................................................9
(vii) Good Standing of the Partnership.......................................................9
(viii) Authorization of Partnership Agreement.................................................9
(ix) Authorization of Partnership Preferred Securities......................................9
(x) Authorization of Partnership Guarantee................................................10
(xi) General Partner Status................................................................10
(xii) Investment Company Act................................................................10
(xiii) Absence of Conflicts..................................................................10
(xiv) Absence of Further Requirements.......................................................10
(xv) Absence of Proceedings................................................................11
SECTION 2. Sale and Delivery to Underwriters; Closing.....................................................11
(a) Securities.....................................................................................11
(b) Payment........................................................................................11
(c) Denominations; Registration....................................................................12
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SECTION 3. Covenants of the Offerors......................................................................12
(a) Compliance with Securities Regulations and Commission Requests.................................12
(b) Filing of Amendments...........................................................................13
(c) Delivery of Registration Statements............................................................13
(d) Delivery of Prospectuses.......................................................................13
(e) Continued Compliance with Securities Laws......................................................13
(f) Blue Sky Qualifications........................................................................14
(g) Rule 158.......................................................................................14
(h) Use of Proceeds................................................................................14
(i) Listing........................................................................................14
(j) Restriction on Sale of Securities..............................................................14
(k) Reporting Requirements.........................................................................15
SECTION 4. Payment of Expenses............................................................................15
(a) Expenses.......................................................................................15
(b) Termination of Agreement.......................................................................15
SECTION 5. Conditions of Underwriters' Obligations........................................................16
(a) Effectiveness of Registration Statement........................................................16
(b) Opinion of Counsel for Company.................................................................16
(c) Opinion of Counsel for Underwriters............................................................16
(d) Opinion of Counsel for the Property Trustee....................................................16
(e) Officers' Certificate..........................................................................17
(f) Accountant's Comfort Letter....................................................................17
(g) Bring-down Comfort Letter......................................................................17
(h) Maintenance of Rating..........................................................................17
(i) Approval of Listing............................................................................17
(j) Additional Documents...........................................................................17
(k) Termination of Agreement.......................................................................18
SECTION 6. Indemnification................................................................................18
(a) Indemnification of Underwriters................................................................18
(b) Indemnification of Company, Directors and Officers.............................................19
(c) Actions Against Parties; Notification..........................................................19
(d) Settlement Without Consent if Failure to Reimburse.............................................20
SECTION 7. Contribution...................................................................................21
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................................22
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SECTION 9. Termination of Agreement.......................................................................22
(a) Termination; General...........................................................................22
(b) Liabilities....................................................................................23
SECTION 10. Default by One or More of the Underwriters....................................................23
SECTION 11. Notices.......................................................................................24
SECTION 12. Parties.......................................................................................24
SECTION 13. Governing Law and Time........................................................................24
SECTION 14. Effect of Headings............................................................................24
Schedule B
Exhibit A
Exhibit B
Exhibit C
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Enron Capital Trust II
(a Delaware business trust)
6,000,000 Trust Preferred Securities
___% Trust Originated Preferred Securities (SM) ("TOPrS")SM
(Liquidation Amount of $25 per Preferred Security)
guaranteed by Enron Corp.
PURCHASE AGREEMENT
January __, 1997
Merrill Lunch & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Enron Capital Trust II (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Trust Act") of the State
of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. ▇▇.▇▇. 3801
et seq.), Enron Preferred Funding II, L.P. (the "Partnership"), a limited
partnership organized under the Revised Uniform Limited Partnership Act (the
"Delaware Limited Partnership Act") of the State of Delaware (Chapter 17, Title
6, of the Delaware Code, 6 Del. C. ▇▇.▇▇. 17-101 et seq.), and Enron Corp., a
Delaware corporation (the "Company" and, together with the Trust and the
Partnership, the "Offerors"), confirm their agreement (the "Agreement") with
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
(together, "▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other Underwriters named in
Schedule A hereto (collectively, the "Underwriters," which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ is acting as representative (in such capacity,
hereinafter referred to as the
---------------------------------
(SM)"Trust Originated Preferred Securities" and "TOPrS" are service
marks of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., Inc.
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"Representative"), with respect to the sale by the Trust and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
____% Trust Originated Preferred Securities (liquidation amount of $25 per
preferred security) representing preferred undivided beneficial ownership
interests in the assets of the Trust ("TOPrS" or the "Trust Preferred
Securities") set forth in Schedule A. The Company will own all the common
securities (the "Trust Common Securities" and, together with the Trust
Partnership Securities, the "Trust Securities"), representing undivided
beneficial ownership interests in the assets of the Trust. The Trust Preferred
Securities and the Trust Common Securities will be issued pursuant to the
amended and restated declaration of trust (the "Declaration") of the Trust,
dated as of December __, 1996, among the Company, -----------, -----------
------------, as regular trustees (the "Regular Trustees"), The Chase Manhattan
Bank, as institutional trustee (the "Property Trustee"), and Chase National Bank
Delaware, a Delaware corporation, as Delaware trustee (the "Delaware Trustee"
and, together with the Regular Trustees and the Property Trustee, the "Issuer
Trustees"), and the holders from time to time of undivided beneficial interests
in the assets of the Trust. The Trust Preferred Securities will be guaranteed by
the Company, to the extent set forth in the Prospectus (as defined herein) with
respect to distributions and payments upon liquidation, redemption and otherwise
pursuant to the Trust Preferred Securities Guarantee Agreement (the "Trust
Guarantee"), to be dated as of January __, 1997, between the Company and The
Chase Manhattan Bank, as trustee (the "Guarantee Trustee").
The proceeds from the sale of the Trust Securities will be used by the
Trust to purchase partnership preferred securities ("Partnership Preferred
Securities"), representing all of the limited partnership interests of the
Partnership. All of the general partnership interests will be owned by the
Company, which shall be sole general partner (in such capacity, the "General
Partner"). The Partnership Preferred Securities will be issued pursuant to an
amended and restated agreement of limited partnership, to be dated as of
January __, 1997 (the "Partnership Agreement"), among the Company, as general
partner, and Organizational Partner, Inc., as initial limited partner, and such
other persons who become limited partners thereto, and will be guaranteed by
the Company, to the extent set forth in the Prospectus, with respect to
distributions and payments upon liquidation and redemption pursuant to the
Partnership Guarantee Agreement (the "Partnership Guarantee" and, together with
the Trust Guarantee, the "Guarantees"). The Trust Preferred Securities and the
related Trust Guarantee, together with the Partnership Preferred Securities and
the related Partnership Guarantee, are referred to herein as the "Offered
Securities."
The Partnership will use the proceeds from the sale of the Partnership
Preferred Securities and the capital contribution of the General Partner to
acquire, among other things, (i) a subordinated debenture of the Company, (ii)
senior debentures of certain subsidiaries the Company (together with the
Company, the "Investment Affiliates"). The debentures to be issued
(collectively, the "Subsidiary Debentures") by the subsidiaries (collectively,
the "Investment Subsidiaries") are to be fully and unconditionally guaranteed
by the Company (the "Investment Guarantees"). Each of the debentures (the
"Debentures") shall be issued pursuant to an indenture (each an "Indenture"),
to be
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dated as of January __, 1997, among the applicable Investment Affiliate, The
Chase National Bank, as trustee (the "Debt Trustee"), and in the case of the
Debentures issued by subsidiaries of the Company, the Company, as guarantor
(the "Debenture Guarantor").
The Offerors have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Nos. 333-_____,
333-_____-01, 333-_____-02) to register under the Securities Act of 1933, as
amended (the "1933 Act"), the offer and sale of (i) the Trust Preferred
Securities, (ii) the Trust Guarantee, (iii) the Partnership Preferred
Securities, (iv) the Partnership Guarantee, (v) the Debentures of the Company
and (vi) the Investment Guarantees.
The Offerors understand that the Underwriters propose to make a public
offering of the Offered Securities as soon as the Representative deems
advisable after this Agreement has been executed and delivered and the
Declaration, Trust Guarantee Agreement, Investment Guarantees and the Company
Debenture have been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act").
Promptly after execution and delivery of this Agreement, the Offerors
will either (i) prepare and file a prospectus in accordance with the provisions
of Rule 430A ("Rule 430A") of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations or (ii) if the Company has elected to rely
upon Rule 434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term
sheet (a "Term Sheet") in accordance with the provisions of Rule 434 and Rule
424(b). The information included in such prospectus or in such Term Sheet, as
the case may be, that was omitted from such registration statement at the time
it became effective, but that is deemed to be part of such registration
statement at the time it became effective pursuant to paragraph (b) of Rule
430A is referred to as "Rule 430A Information" or pursuant to paragraph (d) of
Rule 434 is referred to as "Rule 434 Information." Each prospectus used before
such registration statement became effective, and any prospectus that omitted,
as applicable, the Rule 430A Information or the Rule 434 Information, that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto, schedules thereto, if any, and the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus, including the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the
Underwriters for use in connection with the offering of the Offered Securities,
is herein called the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated January __, 1997
together with the Term Sheet, and all references in this Agreement to the date
of the Prospectus shall mean the date
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of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which
is incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties by the Company. The Company represents
and warrants to each Underwriter as of the date hereof, and as of the Closing
Time referred to in Section 2(b) hereof, as follows:
(i) Compliance with Registration Requirements. The
Registration Statement has been filed on an appropriate form under the 1933
Act. Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time, the Registration Statement, the Rule 462(b)
Registration Statement and any amendments and supplements thereto complied and
will comply in all material respects with the applicable requirements of the
1933 Act and the 1933 Act Regulations and the 1939 Act and the rules and
regulations of the Commission under the 1939 Act (the "1939 Act Regulations"),
and did not 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 not misleading. Neither the Prospectus nor any amendments or
supplements thereto, at the time the Prospectus or any such amendment or
supplement was issued and at the Closing Time, included or will include an
untrue statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Offerors will comply with the requirements
of Rule 434. The representations and warranties in this subsection shall not
apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished
to the Company in writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly
for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for use
in connection with this offering was substantively identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the
time the Prospectus was issued and at the Closing Time, did not 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 not
misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(iv) Good Standing of the Company and Subsidiaries. Each of
the Company and each of its subsidiaries listed on Exhibit A hereto has been
duly incorporated, is validly existing and in good standing under the laws of
its respective jurisdiction of incorporation, is duly qualified to do business
and in good standing as a foreign corporation in each jurisdiction in which its
respective ownership of properties or the conduct of its respective businesses
requires such qualification (except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect on
the Company and its subsidiaries taken as a whole), and has the power and
authority necessary to own or hold its respective properties and to conduct the
businesses in which it is engaged, as described in the Prospectus.
(v) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Offerors.
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(vi) Authorization of the Debentures and Indentures. At the
Closing Time, each Indenture will have been duly authorized, executed and
delivered by the applicable Investment Affiliate and, in the case of the
Subsidiary Debentures, the Debenture Guarantor and, when duly executed and
delivered by the Debt Trustee, will constitute a valid and binding agreement of
such Investment Affiliate and, in the case of the Subsidiary Debentures, the
Debenture Guarantor, enforceable against such Investment Affiliate and, in the
case of the Subsidiary Debentures, the Debenture Guarantor, in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law) (the "Bankruptcy Exceptions"). The Indenture
of the Company has duly qualified under the 1939 Act. The Debentures have been
duly authorized and, at the Closing Time, will have been duly executed by the
applicable Investment Affiliate and, when authenticated, issued and delivered in
the manner provided for in the applicable Indenture and delivered against
payment of the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of such Investment Affiliate,
enforceable against such Investment Affiliate in accordance with their terms,
except as the enforcement thereof may be limited by the Bankruptcy Exceptions.
(vii) Authorization of Investment Guarantees. The Investment
Guarantees have been duly authorized and, at the Closing Time, will have been
duly executed and delivered by the Debenture Guarantor, and, when authenticated
in the manner provided in the Investment Guarantee, will constitute a valid and
binding obligation of the Debenture Guarantor, enforceable against the Debenture
Guarantor in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions.
(viii) Absence of Defaults and Conflicts; Absence of Further
Requirements. The execution, delivery and performance of this Agreement, the
Declaration, the Partnership Agreement, the Trust Guarantee, the Partnership
Guarantee, the Debentures and the Indentures (collectively, the "Transaction
Documents") by the Company and the execution, delivery and performance of the
Debentures and the Indentures by the applicable Investment Affiliate and the
consummation of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property 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 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 properties of assets, the effect of which
breach, violation or default would be material to the Company and its
subsidiaries taken as a whole; and except such as have been obtained or
required under the 1933 Act
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or the 1933 Act Regulations, 1934 Act or the 1934 Act Regulations or state
securities laws and the qualification of the Declaration, the Trust Preferred
Guarantee Agreement, the Investment Guarantees and the Indenture of the Company
under the 1939 Act, no consent, approval, authorization or order of, or filing
or registration with, any such court or governmental agency or body is required
in connection with the offering, issuance, and sale of the Offered Securities,
the Debentures and Investment Guarantees or, the consummation of the
transactions contemplated by this Agreement or the execution, delivery and
performance by the Company and, where applicable, the Investment Subsidiaries
of the Transaction Documents.
(ix) Material Adverse Change. Since the respective dates as
of which information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, there has been no material adverse change
in the condition, financial or otherwise, or in the earnings or business
affairs or business prospects of the Company and its subsidiaries taken as a
whole, whether or not arising in the ordinary course of business.
(x) Investment Company Act. Each of the Company and the
Investment Subsidiaries is not, and after giving effect to the offering and
sale of the Trust Preferred Securities and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company"
as such term is defined in the Investment Company Act of 1940, as amended (the
"1940 Act").
(xi) PUCHA. Each of the Company and its subsidiaries is
exempt from any obligation, duty or liability imposed on it as a "holding
company," "subsidiary company" of a "holding company" or an "affiliate" of a
"subsidiary company" or a "holding company," in each case as such term is
defined in the Public Utility Holding Company Act of 1935, as amended
("PUHCA").
(xii) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or, to
the knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries that is required to be disclosed in the Prospectus or
that would result in any material adverse change in the condition (financial or
otherwise), earnings or business affairs of the Company and its subsidiaries,
taken as a whole, or that could materially and adversely affect the properties
or assets of the Company or any of its subsidiaries, or that could adversely
affect the consummation of the transactions contemplated in this Agreement.
(b) Representations and Warranties by the Trust, the Partnership and the
Company. The Offerors, jointly and severally, represent and warrant to each
Underwriter as of the date hereof, and as of the Closing Time referred to in
Section 2(b) herein, as follows:
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(i) Good Standing of Trust. The Trust has been duly created
and is validly existing in good standing as a business trust under the Delaware
Trust Act with the power and authority to own property and to conduct its
business as described in the Registration Statement and Prospectus and to enter
into and perform its obligations under this Agreement, the Trust Preferred
Securities, the Trust Common Securities and the Declaration; the Trust is duly
qualified to transact business as a foreign business trust and is in good
standing in any other jurisdiction in which such qualification is necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the Trust; the Trust is not a party
to or otherwise bound by any agreement other than those described in the
Prospectus; and the Trust is and will be treated as a consolidated subsidiary
of the Company pursuant to generally accepted accounting principles.
(ii) Authorization of Declaration. The Declaration has been
duly authorized by the Company and, at the Closing Time, will have been
executed and delivered by the Company, as Sponsor, and assuming due
authorization, execution and delivery of the Declaration by the Trustees, the
Declaration will, at the Closing Time, be a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions, and will conform in all material respects to all statements
relating thereto in the Prospectus; and at the Closing Time, the Declaration
will have been duly qualified under the 1939 Act.
(iii) Authorization of Trust Common Securities. At the
Closing Time, the Trust Common Securities will have been duly authorized by the
Declaration and, when issued and delivered by the Trust to the Company against
payment therefor as described in the Registration Statement and Prospectus,
will be validly issued and (subject to the terms of the Declaration) fully paid
undivided beneficial interests in the assets of the Trust and will conform in
all material respects to all statements relating thereto contained in the
Prospectus; the issuance of the Trust Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time all of the issued
and outstanding Trust Common Securities of the Trust will be directly owned by
the Company free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(iv) Authorization of Trust Preferred Securities. At the
Closing Time, the Trust Preferred Securities will have been duly authorized by
the Declaration and, when issued and delivered against payment of the
consideration set forth in this Agreement, will be validly issued and (subject
to the terms of the Declaration) fully paid and non-assessable undivided
beneficial interests in the Trust, will be entitled to the benefits of the
Declaration and will conform in all material respects to all statements
relating thereto contained in the Prospectus; the issuance of the Trust
Preferred Securities is not subject to preemptive or other similar rights; and
(subject to the terms of the Declaration) holders of Trust Preferred Securities
will be entitled to the same limitation of personal liability under Delaware
law as extended to stockholders of private corporations for profit.
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(v) Authorization of Trust Guarantee. The Trust Guarantee has
been duly authorized by the Company and, when validly executed and delivered by
the Company, and, assuming due authorization, execution and delivery of the
Trust Guarantee by the Guarantee Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms except to the extent that enforcement thereof may be limited by the
Bankruptcy Exceptions; the Trust Guarantee will conform in all material
respects to all statements relating thereto contained in the Prospectus; and
the Trust Guarantee, at the Closing Time, will have been duly qualified under
the 1939 Act.
(vi) Regular Trustees. Each of the Regular Trustees of the
Trust is an employee of the Company; at the Closing Time, the Declaration will
have been duly executed and delivered by the Regular Trustees and will be a
valid and binding obligation of each Regular Trustee, enforceable against such
Regular Trustee in accordance with its terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions.
(vii) Good Standing of the Partnership. The Partnership has
been duly formed and is validly existing in good standing as a limited
partnership under the Delaware Limited Partnership Act with the power and
authority to own property and to conduct its business as described in the
Registration Statement and Prospectus and, at the Closing Time, will have power
and authority to enter into and perform its obligations under this Agreement,
the Partnership Preferred Securities and the Partnership Agreement; the
Partnership is duly qualified to transact business as a foreign limited
partnership and is in good standing in any other jurisdiction in which such
qualification is necessary, except to the extent that the failure to so qualify
or be in good standing would not have a material adverse effect on the
Partnership; the Partnership is not a party to or otherwise bound by any
agreement other than those described in the Prospectus; and the Partnership is
and will be treated as a consolidated subsidiary of the Company pursuant to
generally accepted accounting principles.
(viii) Authorization of Partnership Agreement. The
Partnership Agreement has been duly authorized by the Company as general
partner and, at the Closing Time, will have been duly executed and delivered by
the Company, and will be a valid and legally binding obligation of the Company,
enforceable against the Company in accordance with its terms, except to the
extent that enforcement thereof may be limited by the Bankruptcy Exceptions,
and will conform in all material respects to the description thereof in the
Prospectus.
(ix) Authorization of Partnership Preferred Securities. At
the Closing Time, the Partnership Preferred Securities will have been duly
authorized by the Partnership Agreement and, when issued and delivered pursuant
to the Partnership Agreement against payment of the consideration set forth
therein, will be duly issued and fully paid and not subject to assessment for
additional amounts (except as provided in Section 17-607 of the Delaware
Limited Partnership Act), will be entitled to the benefits of the Partnership
Agreement and will conform to the description thereof in the Prospectus; the
issuance of the Partnership Preferred Securities is not subject to
14
preemptive or other similar rights; assuming that the holders of Partnership
Preferred Securities in their capacities as such do not participate in the
control of the business of the Company, the holders of the Partnership
Preferred Securities, in their capacities as such, will have no liability in
excess of their obligations to make payments provided for in the Limited
Partnership Agreement (subject to the obligation of a holder of Partnership
Preferred Securities to repay any funds distributed to it).
(x) Authorization of Partnership Guarantee. The Partnership
Guarantee has been duly authorized by the Company and, when validly executed
and delivered by the Company will constitute a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions.
(xi) General Partner Status. The Company is the sole general
partner of the Partnership.
(xii) Investment Company Act. Neither the Trust nor the
Partnership is and, after giving effect to the offering and sale of the Trust
Preferred Securities and the application of the proceeds thereof as described
in the Prospectus, neither will be an "investment company" under the 1940 Act.
(xiii) Absence of Conflicts. The Trust is not in violation of
the Declaration or its certificate of trust filed with the State of Delaware
December __, 1996 (the "Certificate of Trust"); the Partnership is not in
violation of the Partnership Agreement or the certificate of limited
partnership, filed December __, 1996 (the "Certificate of Partnership"); and
the execution, delivery and performance of applicable Transaction Documents by
the Partnership and the Trust and the consummation of the transactions
contemplated herein and therein and compliance by the Partnership and the Trust
with their respective obligations hereunder and thereunder have been duly
authorized by all necessary action on the part of the Partnership and the Trust
and do not and will not result in any violation of the Declaration or
Certificate of Trust or the Partnership Agreement or the Certificate of
Partnership and 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, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Trust or the Partnership under any existing applicable law, rule,
regulation, judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, or any regulatory body or
administrative agency or other governmental body having jurisdiction over the
Trust or the Partnership or their respective properties.
(xiv) Absence of Further Requirements. No authorization,
approval, consent or order of any court or governmental authority or agency is
necessary in connection with the issuance, offer and sale of the Trust
Securities and the Partnership Preferred Securities, and the consummation of
the transactions contemplated by this Agreement by the Partnership or the
Trust, or the execution,
15
delivery, and performance by the Partnership or the Trust of the applicable
Transaction Documents, except such as may be required under the 1933 Act or the
1933 Act Regulations, the 1934 Act or the 1934 Act Regulations or state
securities laws and the qualification of the Declaration, the Trust Guarantee,
the Investment Guarantees and the Indenture relating to the Debenture of the
Company under the 1939 Act.
(xv) Absence of Proceedings. Except as disclosed in the
Prospectus, there is no action, suit or proceeding before or by any government,
governmental instrumentality or court, domestic or foreign, now pending or, to
the knowledge of the Trust or the Partnership, threatened against or affecting
the Trust or the Partnership that is required to be disclosed in the Prospectus
or that would result in any material adverse change in the condition (financial
or otherwise), earnings or business affairs of the Trust or the Company and its
subsidiaries, taken as a whole, or that could materially and adversely affect
the properties or assets of the Trust or the Partnership, or that could
adversely affect the consummation of the transactions contemplated in this
Agreement.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the initial public offering price set forth in Schedule B, the number of Trust
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Trust Preferred Securities which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Trust Preferred Securities shall be made at the offices
of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, or at such other
place as shall be agreed upon by the Representative and the Company, at 9:00
a.m. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 p.m.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representative and the Company (such time and date of payment and delivery
being herein called the "Closing Time").
Payment shall be made to the Trust by wire transfer of
immediately available funds to a bank account designated by the Company,
against delivery to such persons designated by the Representative for the
respective accounts of the Underwriters of a certificate in global form for the
Trust Preferred Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Trust
Preferred Securities which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
individually and not as representative of the Underwriters, may (but shall not
be obligated
16
to) make payment of the purchase price for the Trust Preferred Securities to be
purchased by any Underwriter whose funds have not been received by the Closing
Time, but such payment shall not relieve such Underwriter from its obligations
hereunder.
The purchase price per Trust Preferred Security to be paid by
the several Underwriters for the Trust Preferred Securities shall be an amount
equal to the initial public offering price as set forth in Schedule B. The
initial public offering price per Trust Preferred Security shall be a fixed
price to be determined by agreement between the Representative and the
Offerors. The initial public offering price and the purchase price, when so
determined, shall be set forth in Schedule B.
As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the Trust
Preferred Securities will ultimately be used to purchase the Debentures of the
Company and the Investment Subsidiaries, the Company hereby agrees to pay at
the Closing Time to the Representative, for the accounts of the several
Underwriters, a commission per Trust Preferred Security set forth on Schedule
B.
At the Closing Time, the Company will pay, or cause to be
paid, the commission payable at such time to the Underwriters under Section 2
hereof by wire transfer of immediately available funds to a bank account
designated by Merrill, Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated for the
account of Underwriters.
(c) Denominations; Registration. Certificates for the Trust Preferred
Securities shall be in such denominations and registered in such names as the
Representative may request in writing at least one business day before the
Closing Time. The Trust Preferred Securities will be made available for
examination and packaging by the Representative in the City of New York not
later than 9:00 a.m. (Eastern time) on the business day prior to the Closing
Time.
SECTION 3. COVENANTS OF THE OFFERORS
The Offerors covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Offerors, subject to Section 3(b), will comply with the requirements of Rule
430A or Rule 434, as applicable, and will notify the Representative
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission, (iii) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Offered Securities for offering or sale in
17
any jurisdiction, or of the initiation or threatening of any proceeding for any
of such purposes. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period when the Underwriters are
required to deliver a prospectus with respect to the Offered Securities, the
Offerors will give the Representative notice of its intention to file or
prepare any amendment to the Registration Statement (including any filing under
Rule 462(b)), any Term Sheet or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Representative with copies of any such documents
a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Representative
or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Offerors have furnished or
will deliver to the Representative and counsel for the Underwriters, without
charge, conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated
by reference therein and documents incorporated or deemed to be incorporated by
reference therein) and conformed copies of all consents and certificates of
experts, and will also deliver to the Representative, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies
of the Registration Statement and each amendment thereto furnished to the
Underwriters will be substantively identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Offerors have delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Offerors hereby consent to the
use of such copies for purposes permitted by the 1933 Act. The Offerors will
furnish to each Underwriter, without charge, during the period when the
prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be substantively
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Offerors will comply
with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations with respect to the
offer of the Offered Securities so as to permit the completion of the
distribution of the Trust Preferred Securities as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is required
by the 1933 Act to be delivered in connection with sales of the Trust Preferred
Securities, any event shall occur or
18
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the Company, to amend the Registration
Statement or amend or supplement the Prospectus in order that the Prospectus
will not include any untrue statements of a material fact or omit to state a
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such counsel, at any
such time to amend the Registration Statement or amend or supplement the
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company will
furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use all reasonable efforts,
in cooperation with the Underwriters, to qualify the Offered Securities for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Representative may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to serve of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Offered Securities have been so qualified, the
Company will file such statements and reports as may be required by the laws of
such jurisdiction to continue such qualification in effect for a period of not
less than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) Rule 158. The Offerors will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use or cause to be used
the net proceeds received from the sale of the Offered Securities in the manner
specified in the Prospectus under "Use of Proceeds."
(i) Listing. The Company will use all reasonable efforts to
effect the listing of the Offerors Securities on the New York Stock Exchange.
(j) Restriction on Sale of Securities. Except as contemplated by this
Agreement, during a period of 30 days from the date of the Prospectus, neither
the Trust nor the Company will, without the prior written consent of the
Underwriters, directly or indirectly, sell, offer to sell, grant any
19
option for sale of, or otherwise dispose of, any Trust Preferred Securities,
any Partnership Preferred Securities, any preferred stock of the Company or any
security convertible into or exchangeable into or exercisable for Trust
Preferred Securities or Partnership Preferred Securities or any preferred stock
of the Company.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, the Declaration, the Partnership Agreement, and the Indentures
and such other documents as may be required in connection with the offering,
purchase, sale, issuance or delivery of the Securities (other than fees and
expenses of counsel for the Underwriters related thereto), (iii) the
preparation, issuance and delivery of the certificates for the Trust Preferred
Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants, experts and other advisors, (v) the
qualification of the Offered Securities under securities laws in accordance
with the provisions of Section 3(f) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to the Underwriters of
copies of each preliminary prospectus, any Term Sheets and of the Prospectus
and any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any
supplement thereto, (viii) the fees and expenses of the Property Trustee and
the Trust Preferred Guarantee Trustee, including the reasonable fees and
disbursements of counsel for the Trustees in connection with the Indentures,
the Investment Guarantees and the Debentures, (ix) any fees payable in
connection with the rating of the Trust Preferred Securities, and (x) the fees
and expenses incurred in connection with the listing of the Offered Securities
on the New York Stock Exchange.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
20
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Offerors contained in
Section 1 hereof and in certificates of any officer of the Company, the Trust,
the Partnership or any subsidiary of the Company delivered pursuant to the
provisions hereof, to the performance by each of the Offerors of its covenants
and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
the Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule
434, a Term Sheet shall have been filed with the Commission in accordance with
Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time, the
Representative shall have received the favorable opinions, dated as of the
Closing Time, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Senior Vice President and General
Counsel of the Company and ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel to the Company, the
Trust and the Partnership, in form and substance satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit B hereto.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the Company and its subsidiaries and certificates of public
officials.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
Representative shall have received the favorable opinions, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇▇ &Patterson, L.L.P. and of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, co-counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters in form and
substance satisfactory to the Underwriters.
(d) Opinion of Counsel for the Property Trustee. At the Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Property Trustee, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letters for each of the other Underwriters to the
effect set forth in Exhibit C hereto and to such further effect as counsel to
the Underwriters may reasonably request.
21
(e) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of the Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and warranties
in Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) the Company shall
have complied with all agreements and satisfied all conditions on its part to
be performed or satisfied at or prior to the Closing Time, and (iv) no stop
order suspending the effectiveness of the Registration Statement has been
issued and, to such officer's knowledge, no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a
letter, dated as of such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(g) Bring-down Comfort Letter. At the Closing Time, the Representative
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (f) of this Section, except that the specified
date referred to shall be a date not more than five business days prior to the
Closing Time.
(h) Maintenance of Rating. Since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the Company's debt
securities by any "nationally recognized statistical rating agency," as that
term is defined by the Commission for purposes of Rule 436(g)(2) under the 1933
Act, and 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 debt securities.
(i) Approval of Listing. At the Closing Time, the Trust Preferred
Securities shall have been approved for listing on the New York Stock Exchange,
subject only to official notice of issuance.
(j) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling
22
them to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection with
the issuance and sale of the Offered Securities as herein contemplated shall be
reasonably satisfactory in form and substance to the Representative and counsel
for the Underwriters.
(k) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 6 and 7 shall survive any such termination and remain in
full force and effect.
SECTION 6. INDEMNIFICATION
(a) Indemnification of Underwriters. The Offerors agree, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d)
below) any such settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim
23
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above; provided, however, that the indemnity set
forth in this Section 6(a) shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Offerors by any Underwriter through
▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information and the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto). The foregoing indemnity with respect to any untrue
statement or alleged untrue statement contained in or omission or alleged
omission from a preliminary prospectus shall not inure to the benefit of the
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any loss, liability, claim, damage or expense purchased any of the
Offered Securities which are the subject thereof if the Company shall sustain
the burden of proving that such person was not sent or given a copy of the
Prospectus (or the Prospectus as amended or supplemented) at or prior to the
written confirmation of the sale of such Offered Securities to such person and
the untrue statement contained in or omission from such preliminary prospectus
was corrected in the Prospectus (or the Prospectus as amended or supplemented)
and the Company had previously furnished copies thereof to such Underwriter.
(b) Indemnification of Company, Directors and Officers. Each Underwriter,
severally in proportion to its respective purchase obligation and not jointly,
agrees to indemnify and hold harmless the Offerors, directors of the Company,
the General Partner of the Partnership, the Issuer Trustees of the Trust, each
of the officers of the Offerors who signed the Registration Statement, and each
person, if any, who controls any of the Offerors within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section
6(a) above, counsel to the indemnified parties shall be selected by
24
▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company,
provided that if it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel
chosen by it and approved by the indemnified parties defendant in such action,
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying parties
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except
with the consent of the indemnified party) also be counsel to the indemnified
party. In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) 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.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
25
SECTION 7. CONTRIBUTION
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Offerors on the one hand and the Underwriters
on the other hand from the offering of the Trust Preferred Securities pursuant
to this Agreement or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Offerors on the one hand and of the Underwriters on the
other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the Trust
Preferred Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Trust Preferred Securities pursuant to this Agreement (before deducting
expenses but after deducting the total underwriting commission received by the
Underwriters) received by the Offerors and the total underwriting commission
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet, bear to the aggregate initial public offering price of the Trust
Preferred Securities as set forth on such cover.
The relative fault of the Offerors on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
26
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Trust Preferred Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
any such 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, the General Partner of the Partnership, the
Issuer Trustees of the Trust, each officer of the Offerors who signed the
Registration Statement, and each person, if any, who controls any of the
Offerors within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Trust Preferred Securities set forth
opposite their respective names in Schedule A hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Offerors or any of its
subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Offerors, and
shall survive delivery of the Trust Preferred Securities to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs or business prospects of the Company and its
subsidiaries taken as a whole, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or the international financial markets,
any outbreak of hostilities or escalation thereof or other calamity or crisis
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative,
impracticable to market the Trust Preferred Securities or to enforce contracts
for the
27
sale of the Trust Preferred Securities, or (iii) if trading in any securities
of the Company has been suspended or materially limited by the Commission or
the New York Stock Exchange or if trading generally on the American Stock
Exchange or the New York Stock Exchange or in the Nasdaq National Market has
been suspended or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required, by any of
said exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if a banking moratorium has been declared by either Federal or New York
State authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that
Sections 6 and 7 shall survive such termination and remain in full force and
effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters shall fail at the Closing Time to
purchase the Trust Preferred Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such
amounts as may be agreed upon and upon the terms herein set forth; if, however,
the Representative shall not have completed such arrangements within such
24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10%
of the aggregate number of the Trust Preferred Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to
the underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate number of the Trust Preferred Securities to be purchased hereunder,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements.
28
SECTION 11. NOTICES
All notices, requests, statements and other communications hereunder
shall be in writing and shall be delivered or sent by mail, messenger or any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative at ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention
▇▇▇ ▇. ▇▇▇▇▇, Managing Director, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇; and notices to
the Company, the Trust or the Partnership shall be directed to the Company at
Enron Corp., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Treasury
Department, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇. Any such notice, request, statement
or communication shall be effective upon receipt thereof.
SECTION 12. PARTIES
This Agreement shall inure to the benefit of and be binding upon the
Underwriters and the Offerors and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the Underwriters and the
Offerors and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or
in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Offerors and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm
or corporation. No purchaser of Trust Preferred Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
29
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
ENRON CORP.
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ENRON PREFERRED FUNDING II, L.P.
By: ENRON CORP., General Partner
By:
----------------------------------
Name:
-----------------------------
Title:
----------------------------
ENRON CAPITAL TRUST II
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
30
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇, INCORPORATED
By:
---------------------------------
Authorized Signatory
For themselves and as Representative of the other
Underwriters named in Schedule A hereto.
31
SCHEDULE A
Number of
Name of Underwriter Trust Preferred Securities
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated..................................
---------
---------
Total.......................................................................... 6,000,000
=========
32
SCHEDULE B
1. The initial public offering price per security for the Trust
Preferred Securities, determined as provided in said Section 2, shall be
$_____.
2. The purchase price per security for the Trust Preferred Securities
to be paid by the several Underwriters shall be $_____, being an amount equal
to the initial public offering price set forth above.
3. The compensation per Trust Preferred Security to be paid by the
Company to the several Underwriters in respect of their commitments hereunder
shall be $____; provided, however, that the compensation per Trust Preferred
Security for sale of 10,000 or more Trust Preferred Securities to a single
purchaser shall be $__.
33
Exhibit A
Citrus Corp.
Enron Gas Processing Company
Enron Capital & Trade Resources Corp.
Enron International Inc.
Enron Liquids Pipeline Company
Enron Oil & Gas Company
Enron Power Corp.
Florida Gas Transmission Company
Houston Pipe Line Company
Northern Natural Gas Company
Transwestern Pipeline Company
34
Exhibit B
1. Each of the Company, each Subsidiary and each Investment Affiliate
has been duly incorporated and is validly existing and in good standing under
the laws of its jurisdiction of incorporation, is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in which
its respective ownership of properties or the conduct of its respective
businesses requires such qualification (except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries taken as a whole), and has full
corporate power and authority to conduct its business as currently conducted.
2. The Purchase Agreement has been duly authorized, executed and
delivered by the Company, the Trust and the Partnership.
3. Each of the Indentures has been duly authorized, executed and
delivered by the Company or the applicable Investment Affiliate and, assuming
due authorization, execution and delivery thereof by the Indenture Trustee,
constitutes a valid and legally binding obligation of the Company or such
Investment Affiliate enforceable against the Company or such Investment
Affiliate in accordance with its terms, and the Indentures have been duly
qualified under the 1939 Act.
4. Each of the Debentures has been duly authorized, executed and
issued by the Company or the applicable Investment Affiliate and, assuming due
authentication thereof by the Indenture Trustee and upon payment and delivery
as described in the Purchase Agreement, will constitute a valid and legally
binding obligation of the Company or such Investment Affiliate enforceable
against the Company or such Investment Affiliate in accordance with its terms.
5. The Investment Guarantees have been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery thereof by the Investment Guarantee Trustee, constitute valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their respective terms, and the Investment Guarantees have been
duly qualified under the 1939 Act.
6. The Trust Guarantee has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution and
delivery thereof by the Trust Guarantee Trustee, constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms, and the Trust Guarantee has been duly qualified
under the 1939 Act.
35
7. The Partnership Guarantee has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding obligation
of the Company enforceable against the Company in accordance with its terms.
8. The Declaration has been duly authorized, executed and delivered by
the Company and the Declaration has been duly qualified under the 1939 Act.
9. The Limited Partnership Agreement has been duly authorized,
executed and delivered by the Company.
10. Neither the Company, the Trust nor the Partnership is, nor after
giving effect to the offering and sale of the Trust Preferred Securities and
the application of the net proceeds therefrom as described in the Prospectus
will be, an "investment company" within the meaning of the 1940 Act.
11. No consent, approval, authorization, order, registration or
qualification of or with any court or governmental agency or body is required
for the issue and sale by the Registrants of the Offered Securities, the
issuance by the Investment Affiliates of the Debentures, the issuance by the
Company of the Investment Guarantees, the Partnership Guarantee and the Trust
Guarantee and the compliance by the Registrants with all of the provisions of
the Purchase Agreement, except for (a) the registration under the 1934 Act of
the Offered Securities and (b) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters.
12. The statements made in the Prospectus under the caption
"Description of the Trust," "Description of the Partnership," "Description of
the Trust Preferred Securities," "Description of the Trust Guarantee,"
"Description of the Partnership Preferred Securities" and "Description of the
Partnership Guarantee," insofar as they purport to constitute summaries of the
terms of the Offered Securities, the Declaration and the Limited Partnership
Agreement, constitute accurate summaries of the terms of the Offered
Securities, the Declaration and the Limited Partnership Agreement in all
material respects.
13. We hereby confirm (a) our opinions set forth in the Prospectus
under the caption "Certain Federal Income Tax Considerations" and (b) that,
subject to the qualifications set forth therein, the discussion set forth in
the Prospectus under such caption is an accurate summary of the United States
federal income tax matters described therein.
14. The Registration Statement has become effective under the 1933 Act
and the Prospectus was filed on ___________, 1997 pursuant to Rule 424(b) of
the 1933 Act Regulations and, to our knowledge after due inquiry, no stop order
suspending the effectiveness of the
36
Registration Statement has been issued and no proceeding for that purpose has
been instituted or threatened by the Commission.
15. The Registration Statement and the Prospectus (except for the
reports of experts pertaining to natural resource reserves and the financial
statements and other financial data included in the Registration Statement and
the Prospectus, as to which we express no opinion, and exclusive of the
documents incorporated by reference therein) comply as to form in all material
respects with the requirements of the 1933 Act and the 1939 Act and the 1933
Act Regulations and the 1939 Act Regulations.
16. Each document filed with the Commission pursuant to the 1934 Act
(except for the reports of experts pertaining to natural resource reserves and
the financial statements and other financial data included in the Prospectus,
as to which we express no opinion), which is incorporated by reference into the
Prospectus, complied as to form, when so filed, in all material respects with
the requirements of the particular form of the Commission upon which it was
filed.
17. The execution and delivery of the Purchase Agreement and the
Indentures and the consummation of the transactions therein contemplated and
the compliance with the terms of the Purchase Agreement and the Indentures do
not and will not conflict with, violate or result in a breach of any of the
terms or provisions of, or constitute a default under, the Restated Certificate
of Incorporation, or By-laws, as amended, of the Company or any Subsidiary, or
any indenture, mortgage or, to our knowledge, other agreement to which the
Company or any Subsidiary is a party or by which any of the property or assets
of any of them is subject, or any existing applicable law, rule, regulation,
judgment, order or decree of any domestic government, governmental
instrumentality or court known to us and having jurisdiction over the Company
or any Subsidiary or any of their respective properties.
18. No action, suit or proceeding at law or in equity, or before or by
any federal, state or other commission, board or administrative agency, is
pending or to our knowledge threatened against the Company, the Trust, the
Partnership or any of the Subsidiaries which would be required to be described
in the Prospectus and is not described as required.
19. Each of the Company and its subsidiaries is exempt from any
obligation, duty or liability imposed on it as a "holding company," "subsidiary
company" of a "holding company" or an "affiliate" of a "subsidiary company" or
a "holding company," in each case as such term is defined in ▇▇▇▇▇.
▇▇
▇▇. Under the Declaration and the Delaware Trust Act, the Trust has
full trust power and authority (i) to own property and to conduct its business
as described in the Prospectus, and (ii) to enter into and perform its
obligations under the Purchase Agreement and the Trust Securities.
21. The Trust Common Securities have been duly authorized by the
Declaration and are validly issued undivided beneficial interests in the assets
of the Trust.
22. Under the Declaration and the Delaware Trust Act, the
issuance of the Trust Securities is not subject to preemptive rights.
23. Under the Partnership Agreement and the Delaware Limited
Partnership Act, the Partnership has full partnership power and authority (i)
to own property and to conduct its business as described in the Prospectus, and
(ii) to enter into and perform its obligations under the Purchase Agreement and
the Partnership Preferred Securities.
24. Under the Partnership Agreement and the Delaware Limited
Partnership Act, the issuance of the Partnership Preferred Securities is not
subject to preemptive rights.
25. The Partnership Agreement is a valid and legally binding
obligation of the General Partner, enforceable against the General Partner in
accordance with its terms.
26. The issuance and sale by the Trust of the Trust Preferred
Securities, the issuance and sale by the Partnership of the Partnership
Preferred Securities, and the execution, delivery and performance by the Trust
and the Partnership of the Purchase Agreement and the consummation of the
transactions contemplated by the Purchase Agreement do not violate (i) the
Trust Certificate or the Declaration, (ii) the Partnership Certificate or the
Partnership Agreement, or (iii) any Delaware law, rule or regulation applicable
to the Trust or the Partnership.
27. No facts have come to our attention that would lead us to believe
that the Registration Statement (except for financial statements and schedules
and other financial data and information pertaining to natural resource
reserves included therein, as to which we have not been asked to comment), at
the time it became effective or at the date hereof, 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 (except for financial statements and schedules and other
financial data and information pertaining to natural resource reserves included
therein, as to which we have not been asked to comment), as of the date of such
Prospectus and 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.
38
Exhibit C
1. Chase is a New York banking corporation validly existing under the
laws of the State of New York.
2. The Trust Preferred Guarantee Trustee has the requisite power and
authority to execute, deliver and perform its obligations under the Trust
Preferred Securities Guarantee, and has taken all necessary action to authorize
the execution, delivery and performance by it of the Trust Preferred Securities
Guarantee.
3. The Property Trustee has the requisite power and authority to
execute and deliver the Declaration, and has taken all necessary action to
authorize the execution and delivery of the Declaration.
4. The Trust Preferred Securities Guarantee has been duly executed and
delivered by the Trust Preferred Guarantee Trustee and constitutes a legal,
valid and binding obligation of the Trust Preferred Guarantee Trustee,
enforceable against the Trust Preferred Guarantee Trustee in accordance with
its terms, except that certain payment obligations may be enforceable solely
against the assets of the Issuer and except that such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium, liquidation, or
other similar laws applicable to banking corporations affecting the enforcement
of creditors' rights generally, and by general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law).