1
EXHIBIT 1.1
TEXAS GAS TRANSMISSION CORPORATION
(a Delaware corporation)
UNDERWRITING AGREEMENT
_________________________
______________, 199__
2
UNDERWRITING AGREEMENT
_____________, 199___
Texas Gas Transmission Corporation
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or underwriters
being herein called the "Underwriters"), and we understand that Texas Gas
Transmission Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell [indicate currency and amount] aggregate principal amount of
[full title of debt securities] (the "Securities").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby agrees to sell and the
Underwriters agree to purchase, severally and not jointly, the respective
[principal amounts of Securities] set forth below opposite their names at a
purchase price of [_____%] of the principal amount of such Securities, plus
accrued interest from [Date of Securities] to the date of payment and delivery:
Principal
Amount of
Name Securities
----------
[Insert syndicate list] $
Total . . . . . . . . . . . . . . $
=========
3
[The aggregate principal amount of Securities to be
purchased by the several Underwriters may be reduced by the aggregate principal
amount of Securities sold pursuant to delayed delivery contracts.]*
The Underwriters will pay for such Securities (less any
Securities sold pursuant to delayed delivery contracts) upon delivery thereof
at the offices of _________________ at 10:00 a.m. (New York time) on
___________, 199__, or at such other time, not later than ____ (New York time)
on _________, 199__, as shall be jointly designated by the Manager and the
Company.
The Securities shall have the terms set forth in the
Prospectus dated ___________, 199__, and the Prospectus Supplement dated
____________, 199__, including the following:
[Terms of Securities
Maturity: __________ ___, 19__
Interest Rate: ___% per annum
Redemption Provisions:
Interest Payment Dates: _________ ___, and _______ ___
commencing ______ ___, 19__
(Interest accrues from
__________ ___, 19__)
Form and Denomination:
[Other terms:]]
[The fee to be paid to the Underwriters in respect of the
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be ___% of the purchase price of the Securities so
purchased] *
All provisions contained in the document entitled
Texas Gas Transmission Corporation Underwriting Agreement Standard
Provisions (Debt) dated ________, 199__, a copy of which we have previously
received, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this agreement to the same extent as if such provisions
had been set forth in full herein.
__________
* To be added only if delayed delivery contracts are contemplated.
-2-
4
Please confirm your agreement by having an authorized
officer sign a copy of this agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
[MANAGER]
By [MANAGER]
By __________________________
Acting severally on behalf of
itself and the other several
Underwriters named above
Accepted:
TEXAS GAS TRANSMISSION CORPORATION
By _________________________
Title:
-3-
5
TEXAS GAS TRANSMISSION CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
From time to time, Texas Gas Transmission Corporation, a
Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
Underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company proposes to issue from time to time debt
securities to be issued pursuant to the provisions of a senior debt indenture
dated as of ___________, 199__ (as it may be supplemented or amended from time
to time, the "Indenture") between the Company and The Bank of New York, as
Trustee.
The debt securities will have varying designations,
maturities, rates and times of payment of interest, selling prices, redemption
terms and other terms. Any such debt securities are herein sometimes
collectively referred to as the "Securities".
The Company has filed with the Securities and Exchange
Commission (the "Commission"), in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(herein referred to collectively as the "Act"), a registration statement
including a prospectus relating to the Securities and has filed with, or mailed
for filing to, the Commission a prospectus supplement or supplements
specifically relating to the Securities pursuant to Rule 424 under the Act. The
term Registration Statement means the registration statement as amended to the
date of the Underwriting Agreement and shall include any registration statement
filed pursuant to Rule 462(b) of the Act. The term "Basic Prospectus" means the
prospectus included in the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement or abbreviated term
sheet (other than a preliminary prospectus supplement or preliminary abbreviated
term sheet) specifically relating to the Securities. The term "preliminary
prospectus" means a preliminary prospectus supplement or preliminary abbreviated
term sheet specifically relating to the Securities, together with the Basic
Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", "Prospectus" and "preliminary prospectus" shall include, in each
case, the material, if any, incorporated by reference therein.
The term Contract Securities means the Securities, if
6
any, to be purchased pursuant to the delayed delivery contracts substantially
in the form of Schedule I hereto, with such changes therein as the Company may
authorize or approve (the "Delayed Delivery Contracts"). The term
"Underwriters' Securities" means the Securities other than Contract Securities.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. If the Prospectus provides for
sales of Securities pursuant to Delayed Delivery Contracts, the Company hereby
authorizes the Underwriters to solicit offers to purchase Contract Securities
on the terms contained in the Delayed Delivery Contracts. Delayed Delivery
Contracts are to be with institutional investors approved by the Company and of
the types set forth in the Prospectus. On the Closing Date (as hereinafter
defined), the Company will pay the Manager, as compensation for the accounts of
the Underwriters, the commissions set forth in the Underwriting Agreement in
respect of the Contract Securities. The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts.
If the Company executes and delivers Delayed Delivery
Contracts with institutional investors, the Securities comprising the Contract
Securities shall be deducted from the Securities to be purchased by the several
Underwriters, and the aggregate principal amount of Securities to be purchased
by each Underwriter shall be reduced pro rata in proportion to the principal
amount of Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
The Company is advised by the Manager that the Underwriters
propose to make a public offering of their respective portions of the
Underwriters' Securities as soon after this Agreement is entered into as in the
Manager's judgment is advisable. The terms of the public offering of the
Underwriters' Securities are set forth in the Prospectus.
2. Payment and Delivery. Payment for the Underwriters'
Securities shall be made by wire transfer to an account designated by the
Company at the time and place set forth in the Underwriting Agreement, upon
delivery to the Manager for the respective accounts of the several Underwriters
of the Underwriters' Securities registered in such names and in such
denominations as the Manager shall request in writing not less than one full
business day prior to the date of delivery. The time and date of such payment
and delivery with respect to the Underwriters' Securities are herein referred to
as the Closing Date.
3. Certain Covenants of the Company. In further
consideration of the agreements of the Underwriters herein contained, the
Company covenants as follows:
-2-
7
(a) To furnish you, without charge, three signed copies
of the Registration Statement (including exhibits thereto and
documents incorporated therein by reference) and, during the period
mentioned in paragraph (c) below, as many copies of the Prospectus,
any documents incorporated therein by reference, and any supplements
and amendments thereto as you may reasonably request. The terms
"supplement" and "amendment" or "amend" as used in this Agreement
shall include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), that are deemed to be incorporated by reference
in the Prospectus, including any abbreviated term sheets.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish you a copy of each such
proposed amendment or supplement and to file no such proposed
amendment or supplement to which you reasonably object in writing;
provided, that the foregoing shall not apply to amendments or
supplements that relate to securities registered under the
Registration Statement that are not Securities.
(c) If, at any time when a Prospectus relating to the
Securities is in the opinion of your counsel required by law to be
delivered under the Act, any event shall occur as a result of which it
is necessary to amend or supplement the Prospectus in order to make
the statements therein, in light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the
Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you
on behalf of the Underwriters and to any other dealers upon request,
either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not,
in light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with
law.
(d) To endeavor to qualify the Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
you shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection therewith as well as all
fees, if any, payable in connection with the review of the offering of
the Securities by the National Association of Securities Dealers,
Inc. and the determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as the Manager may
designate.
(e) To make generally available to the Company's
security holders as soon as practicable an earnings statement or
statements of the Company which shall satisfy
-3-
8
the provisions of Section 11(a) of the Act and the rules and
regulations of the Commission thereunder.
(f) During the period beginning on the date of this
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any securities
of the Company substantially similar to the Securities other than the
Securities, without the prior written consent of the Manager.
4. Reimbursement of Underwriters' Expenses. If this
Agreement shall be terminated by the Underwriters or any of them, because of
any failure or refusal on the part of the Company to comply with the terms or
to fulfill any of the conditions of this Agreement in any material respect, or
if for any reason the Company shall be unable to perform its obligations under
this Agreement in any material respect, the Company will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement, with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with the Securities.
5. Certain Covenants of the Underwriters.
Each of the several Underwriters agrees with the Company
that:
(a) it will not offer, sell, resell, or deliver,
directly or indirectly, any Securities in bearer form (including any
Security in global form that is exchangeable for Securities in bearer
form) within the United States of America, its territories and
possessions and other areas subject to its jurisdiction and the
Commonwealth of Puerto Rico (the "United States") in connection with
their original issuance or during the period set forth in the
Prospectus;
(b) it will not offer, sell, resell or deliver, directly
or indirectly, Securities in bearer form, in connection with their
original issuance or during such period, to a United States Person
(which term, as used herein, means any citizen, national or resident
of the United States, any corporation, partnership or other entity
created or organized in or under the laws of the United States or any
political subdivision thereof or any estate or trust the income of
which is subject to United States federal income taxation regardless
of its source) other than to an office located outside the United
States of a financial institution as defined in Section
1.165-12(c)(1)(v) of the Treasury Department Regulations, purchasing
for its own account or for the account of a customer and that provides
a written statement that it will comply with Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder, which financial institution, as
a condition of the purchase, agrees to provide on delivery of such
Securities (or on issuance of such Securities if not in
-4-
9
definitive form) the certificate required in paragraph (c) below;
(c) it will deliver to each purchaser from it of any
Securities in bearer form (including Securities initially represented
by a temporary global certificate) a written confirmation stating
substantially the following:
"By your purchase of Securities in bearer form you represent
that you are not a United States Person or, if you are a United States Person,
that you are a financial institution as defined in Section 1.165-12(c)(1)(v) of
the Treasury Department Regulations, purchasing for your own account or for the
account of a customer and that you will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended from
time to time, and the regulations thereunder. Furthermore, if you are a
dealer, you agree that you will deliver a confirmation containing this entire
paragraph to purchasers of such Securities from you. For purposes of this
statement, 'United States Person' means any citizen, national or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source, and 'United
States' means the United States of America, its territories and possessions and
other areas subject to its jurisdiction and the Commonwealth of Puerto Rico."
(d) it will deliver Securities in definitive bearer form
to the person entitled to delivery thereof (or transfer of interests
therein) only outside the United States and upon receipt of a written
confirmation stating substantially the following:
"This confirms as of the date hereof that none of the Securities
issued in bearer form delivered or credited to you for our account are being
acquired by or on behalf of, or for offer to resell or for resale to, a United
States Person, or any person inside the United States, or, if a beneficial
interest in such Securities issued in bearer form is being acquired by a United
States Person, that such person is a financial institution as defined in
Section 1.165- 12(c)(1)(v) of the Treasury Department Regulations, or is
acquiring such Securities through such a financial institution and that such
Securities are held by a financial institution that has agreed to comply with
Section 165 (j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended from time to time, and the regulations thereunder, and is not
purchasing for offer to resell or for resale inside the United States. As used
herein, 'United States Person' means any citizen, national or resident of the
United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof or any estate or trust the income of which is subject to
United States federal income taxation regardless of
-5-
10
its source, and 'United States' means the United States of America, its
territories and possessions and other areas subject to its jurisdiction and the
Commonwealth of Puerto Rico.";
provided, however, that (i) if it has actual knowledge that the information
contained in any confirmation delivered pursuant to (c) or (d) above is false,
it shall not deliver any Securities in bearer form to, or, if applicable, cause
a transfer of an interest in any Global Security to the account of, the person
who signed or delivered the confirmation referred to in (d) above
notwithstanding the delivery of such confirmation to it, and (ii) when a
certificate is provided by a clearing organization, it must be based on
statements provided to it by its member organizations. As used herein, a
"clearing organization" is an entity that is in the business of holding
obligations for member organizations and transferring obligations among such
members by credit or debit to the account of a member without the necessity of
physical delivery of the obligation; and
(e) it will comply with or observe any other
restrictions or limitations set forth in the Prospectus on persons to
whom, or the jurisdictions in which, or the manner in which, the
Securities may be offered, sold, resold or delivered.
If Underwriters' Securities are to be distributed through a selling
group consisting of banks, brokers or dealers, the Manager agrees that it shall
cause each member of such selling group to enter into an agreement that it will
comply with this Section 5.
6. Conditions of Underwriters' Obligations. The
several obligations of the Underwriters to purchase and pay for any issue of
Underwriters' Securities hereunder are subject to the following conditions:
(a) That, at the Closing Date, the Company shall furnish
to the Manager an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, Esq., General
Counsel of The ▇▇▇▇▇▇▇▇ Companies, Inc., dated the Closing Date, in
substantially the form set forth as Exhibit A.
(b) That, at the Closing Date, the Manager shall receive
an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
dated the Closing Date, in substantially the form set forth as Exhibit
B.
(c) That, at the Closing Date, the Company shall furnish
to the Manager letters addressed to the Underwriters and dated the
Closing Date, in form and substance satisfactory to the Manager, from
Ernst & Young LLP, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, independent public
accountants, 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 relating to the Company contained in or incorporated by
reference into the Registration Statement and the
-6-
11
Prospectus.
(d) That, at the Closing Date, the Company shall have
furnished to the Manager a certificate dated the Closing Date and
signed by an officer of the Company, to the effect set forth below.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(i) the representations and warranties of the
Company contained herein are true and correct in all
material respects as of the Closing Date;
(ii) the Registration Statement has become
effective; no stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or
threatened by the Commission;
(iii) subsequent to the execution and delivery of
this Agreement and prior to the Closing Date, there shall
not have occurred any downgrading, nor shall any notice have
been given of (A) any intended or potential downgrading or
(B) any review for a possible change that does not indicate
the direction of a possible change, in the rating accorded
any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined
for purposes of Rule 436(g)(2) under the Act; and
(iv) there has not occurred any material adverse
change, or any development which could reasonably be
expected to result in a prospective material adverse change,
in the financial condition, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement and
the Prospectus.
(e) That, the Company shall have performed in all
material respects such of its obligations under this Agreement as are
to be performed by the terms hereof at or before the time of purchase.
(f) That, the Company shall have accepted Delayed
Delivery Contracts, if any, in any case in which sales of Contract
Securities arranged by the Underwriters have been approved by the
Company.
-7-
12
7. Defaulting Underwriters. If any Underwriter or
Underwriters shall default in its or their obligation to take up and pay for
the Securities to be purchased by it or them hereunder, the non-defaulting
Underwriters shall take up and pay for (in addition to the principal amount of
Securities they are obligated to purchase hereunder) the principal amount of
Securities agreed to be purchased by all such defaulting Underwriters as
hereinafter set forth; provided, however, that in the event that the principal
amount of Securities which all Underwriters so defaulting shall have agreed but
failed to take up and pay for shall exceed 10% of the total principal amount of
Securities, the non-defaulting Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any of the Securities,
and if such non-defaulting Underwriters do not purchase all the Securities,
this Agreement will terminate without liability to any non-defaulting
Underwriter or the Company. If non-defaulting Underwriters take up and pay for
all Securities agreed to be purchased by all such defaulting Underwriters, such
Securities shall be taken up and paid for by such non-defaulting Underwriter or
Underwriters in such amount or amounts as the Manager may designate with the
consent of each Underwriter so designated or, in the event no such designation
is made, such Securities shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate principal amount of
Securities set opposite the names of such non-defaulting Underwriters herein.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Securities hereunder unless all of the Underwriters'
Securities are purchased by the Underwriters (or by substituted underwriters
selected by the Manager with the approval of the Company or selected by the
Company with the Manager's approval).
If a new underwriter or underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provisions, the Company or the Manager shall have
the right to postpone the Closing Date for a period not exceeding five business
days in order that necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer
to and include any underwriter substituted under this Section 7 with like
effect as if such substituted underwriter had
-8-
13
originally been named herein.
8. Representations and Warranties. The Company
represents and warrants to each of the Underwriters that:
(a) each document filed or to be filed pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") and incorporated
by reference in the Registration Statement and the Prospectus,
complied or will comply when so filed in all material respects with
the Exchange Act and the applicable rules and regulations thereunder;
(b) each part of the Registration Statement 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 Act, complied when so filed in all material respects
with the Act;
(c) the Registration Statement and the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) will comply in all material
respects with the Act and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
circumstances under which the statements are made, not misleading;
(d) the representations and warranties set forth in this
Section 8(a)-(c) do not apply (1) to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by any
Underwriter expressly for use therein or (2) to that part of the
Registration Statement that constitutes a Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as
amended, of the Trustee referred to in the Registration Statement;
(e) Ernst & Young LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who have
reported upon the audited financial statements and schedules included
or incorporated by reference in the Registration Statement, are
independent public accountants as required by the Act;
(f) this Agreement has been duly authorized, executed and
delivered by the Company;
(g) the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of
Delaware with the corporate power and authority under such laws to own,
lease and operate its properties and conduct its business as described
in the Prospectus; and the Company is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in
good standing could not reasonably be expected to have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
(h) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property 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.
(i) the Indenture, each supplement or amendment thereto,
if any, to the date hereof and any supplement thereto or board
resolution setting forth the terms of the Securities, have been duly
authorized by the Company. The Indenture as executed is or will be
substantially in the form filed as an exhibit to the Registration
Statement. The Indenture, when duly executed and delivered by the
Company and, when duly authorized, executed and delivered (to the
extent required by the Indenture) by the Trustee, will constitute a
valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as 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); and the Indenture conforms in all material
respects to the description thereof in the Prospectus;
(j) the Securities have been duly authorized by the
Company. When duly executed, authenticated, issued and delivered in the
manner provided for in the Indenture and sold and paid for as provided
herein and in any Delayed Delivery Contracts, the Securities will
constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture and enforceable against the Company in
accordance with their terms, except as 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); and the Securities conform in all material
respects to the description thereof in the Prospectus;
(k) since the respective dates as of which information is
given in the Registration Statement, the Prospectus (or any amendment
or supplement thereto), except as otherwise stated therein or
contemplated thereby, there has not been (A) any material adverse
change in the condition (financial or otherwise), 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 (B) any transaction entered into by the Company or any of
its subsidiaries, other than in the ordinary course of business, that
is material to the Company and its subsidiaries, taken as a whole;
(l) the execution and delivery by the Company of this
Agreement, the Indenture and any Delayed Delivery Contracts, the
issuance and delivery of the Securities, the consummation by the
Company of the transactions contemplated herein and compliance by the
Company with the terms of this Agreement, the Indenture and any Delayed
Delivery Contracts, have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not
result in any violation of the charter or by-laws of the Company or any
of its subsidiaries, 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 Company or any
of its subsidiaries under (A) any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it is bound
or to which any of its properties is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
could not reasonably be expected to have a material adverse effect on
the condition (financial or otherwise), earnings, or business of the
Company and its subsidiaries, taken as a whole) or (B) any existing
applicable law, rule, regulation, judgment, order or decree or
determination of any government, governmental instrumentality
(including without limitation, any insurance regulatory agency or body)
or court, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their respective properties;
(m) no authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the Act, the Trust Indenture Act and the applicable
rules and regulations thereunder, and the securities or blue sky laws
of the various states and other jurisdictions outside the United States
in which the Securities will be offered or sold), is required for the
valid authorization, issuance, sale and delivery of the Securities or
for the execution, delivery or performance of the Indenture by the
Company;
(n) except as disclosed in the Prospectus (or any
amendment or supplement thereto), 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 could reasonably be expected to result in any material adverse
change in the condition (financial or otherwise), earnings or business
of the Company and its subsidiaries, taken as a whole, or that could
reasonably be expected to materially and adversely affect the
properties or assets of the Company and its subsidiaries, taken as a
whole, or that could reasonably be expected to adversely affect the
consummation of the transactions contemplated in this Agreement;
(o) there are no statutes, regulations, contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto)
or to be filed as exhibits to the Registration Statement that are not
described and filed (or incorporated by reference) as required;
(p) the Company and its subsidiaries each owns or
possesses all governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations (collectively, "Governmental
Licenses") necessary to own or lease, as the case may be, and to
operate its properties and to carry on its business as presently
conducted, except where the failure to possess such Governmental
Licenses could not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), earnings or business
of the Company and its subsidiaries, taken as a whole, and neither the
Company nor any of its subsidiaries has received any notice of
proceedings relating to revocation or modification of any such
Governmental Licenses; and
(q) the Company is not an investment company under the
Investment Company Act of 1940.
9. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either
Section 15 of the Act, or Section 20 of the Exchange Act as follows:
(i) against any and all losses, claims,
damages, liabilities and expenses 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 information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the Act, if applicable, or the
omission or alleged omission to state therein 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 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 9(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 the third sentence of Section 9(c)
hereof, the reasonable fees and disbursements of counsel chosen by the
Manager for the Underwriters), 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
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) and (ii) above;
provided, however, that this indemnity agreement 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 Company by any Underwriter through the
Manager for the Underwriters expressly for use in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto); and provided,
further, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Securities, or any person so
controlling such Underwriter, (i) if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished sufficient
copies of amendments or supplements thereto to such Underwriter) was
not sent or given by or on behalf of such Underwriter to such person,
where such delivery is required by the Act, at or prior to the written
confirmation of the sale of the Securities to such person, and (ii) if
the Prospectus (as so amended or supplemented) would have fully cured
the defect giving rise to such loss, claim, damage or liability.
-9-
14
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either Section 15 of
the Act, or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only
with respect to untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) 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 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) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either of the two preceding
paragraphs, such person (hereinafter called the indemnified party)
shall promptly notify the person against whom such indemnity may be
sought (hereinafter called the indemnifying party) in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties, and that all such fees and
expenses as shall be reasonable shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters
and such control persons of Underwriters, such firm shall be designated
in writing by the Manager. In the case of any such separate firm for
the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an
-10-
15
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt
by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that
are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs
(a) or (b) of this Section 9 is unavailable to an indemnified party
in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company and of the Underwriters in connection with the statements
or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Underwriters shall be deemed to be in the same respective proportions
as the net proceeds from the offering pursuant to this Agreement
(before deducting expenses) received by the Company and the total
underwriting commissions received by the Underwriters, in each case as
set forth in the table on the cover of the Prospectus, bear to the
aggregate public offering price of the Securities. The relative fault
of the Company and the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would
not be just and equitable if contribution pursuant to
-11-
16
this Section 9 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 in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages, liabilities and expenses incurred by an indemnified party and
referred to in paragraph (d) above shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the 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
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 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person, if
any, who controls an Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company who
signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same right to
contribution as the Company. The Underwriters' obligations to
contribute pursuant to this Section 9 are several in proportion to
their respective underwriting percentages determined by the ratio which
the original purchase obligation of any Underwriter appearing in the
Underwriting Agreement (or such amount increased as provided in Section
8 above) bears to the total purchase obligations of the Underwriters
set forth therein and not joint.
(f) The indemnity and contribution agreements contained in
this Section 9 and the representations and warranties of the Company
contained herein shall remain operative and in full force and effect
regardless of (1) any termination of this Agreement, (2) any
investigation made by or on behalf of any Underwriter or any person
controlling any Underwriter or by or on behalf of the Company, its
officers or directors or any other person controlling the Company and
(3) acceptance of and payment for any of the Securities.
10. Termination in Certain Events. This Agreement shall be
subject to termination in the Manager's absolute discretion, by notice given to
the Company, if (a) after the execution and delivery of this Agreement and
prior to the Closing Date (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company shall have been suspended on any exchange or in any over-the-counter
market, (iii) a general moratorium on commercial banking activities in New York
shall have been declared by either Federal or New York State authorities, or
(iv) there shall have occurred any outbreak or escalation of
-12-
17
hostilities or any change in financial markets or any calamity or crisis that,
in the judgment of the Manager, is material and adverse and (b) in the case of
any of the events specified in clauses (a)(i) through (iv), such event singly
or together with any other such event makes it, in the judgment of the Manager,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
11. Counterparts. This Agreement may be signed by the
parties in counterparts which together shall constitute one and the same
agreement between the parties and shall become effective at such time as each
of the parties shall have signed such counterparts and shall have notified the
other party thereof.
12. Construction. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York.
13. Parties at Interest. This Agreement has been and is
made solely for the benefit of the Underwriters and the Company, and the
controlling persons, directors and officers referred to in Section 10 hereof,
and their respective successors, assigns, executors and administrators. No
other person shall acquire or have any right under or by virtue of this
Agreement.
14. Section Headings. The Section headings in this
Agreement have been inserted as a matter of convenience of reference and are
not a part of this Agreement.
-13-
18
SCHEDULE I
DELAYED DELIVERY CONTRACT
Texas Gas Transmission Corporation
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from
Texas Gas Transmission Corporation, a Delaware corporation (the "Company"),
and the Company agrees to sell to the undersigned
$______________________________________________
principal amount of the Company's [title of issue] (the "Securities") offered
by the Company's Prospectus dated , 199__ and Prospectus Supplement or
abbreviated term sheet dated , 199__, receipt of copies of which are hereby
acknowledged, at a purchase price equal to ______% of the principal amount of
such Securities [plus accrued interest on the Securities from ,
199 , to the delivery date or dates thereof] [and accrued amortization of
original issue discount from _____________, 199__ to the date of payment and
delivery] and on the further terms and conditions set forth in this contract.
The undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company the principal
amounts of Securities on the delivery dates (the "Delivery Dates") set forth
below:
[Plus Accrued
Interest From] [and]
[Amortization of
[Principal Amount] Original Issue
Discount From]
__________________ $___________________ ____________________
__________________ $___________________ ____________________
__________________ $___________________ ____________________
Payment for the Securities which the undersigned has
19
agreed to purchase on each Delivery Date shall be made to the Company or its
order by certified or official bank check in New York Clearing House funds at
the office of __________________________, New York, New York (or at such other
place as the undersigned and the Company shall agree) at 10:00 A.M., New York
City time, on such Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned on such Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to such Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for the Securities on each Delivery Date shall be subject to the
conditions that (1) the purchase of Securities to be made by the undersigned
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the Company shall have
sold and had delivered to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above such part of the Securities as is to be
sold to them.
Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by copies of the
opinions of counsel for the Company delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Securities
by any purchaser under any other Delayed Delivery Contract shall not relieve
the undersigned of its obligations under this contract.
The undersigned represents and warrants that, (a) as of the
date of this contract, the undersigned is not prohibited under the laws of the
jurisdictions to which the undersigned is subject from purchasing the
Securities hereby agreed to be purchased and (b) the undersigned does not
contemplate selling the Securities which it has agreed to purchase hereunder
prior to the Delivery Date therefor.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will not be
assignable by either party hereto without the written consent of the other.
This contract shall be governed by and construed in accordance with the laws of
the State of New York. This contract may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
It is understood that the acceptance of any Delayed Delivery
Contract is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis. If the contract is
acceptable to the Company, it is requested that the Company sign the form of
-2-
20
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract, as of the date first above written, between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_______________________________________
Purchaser
By: ___________________________________
_______________________________________
(Title)
_______________________________________
(Address)
Accepted, as of the date
first above written:
Texas Gas Transmission Corporation
By: _______________________
-3-
21
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the
representative of the Purchaser with whom details of delivery on the Delivery
Date may be discussed are as follows:
(Please print.)
Name (Including Area Code) Department
---- --------------------- ----------
-4-
22
EXHIBIT A
FORM OF
OPINION OF
▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇, ESQ.
COUNSEL TO THE COMPANY
______________, 19______
[MANAGER]
as Manager for the several Underwriters
[ADDRESS] ________
__________________
__________________
Ladies and Gentlemen:
I have acted as counsel to Texas Gas Transmission
Corporation, a Delaware corporation (the "Company"), in connection with the
Underwriting Agreement dated _____________, 199__ (the "Underwriting Agreement")
between you and the Company, pursuant to which the Underwriters severally agree
to purchase from the Company an aggregate of [$] [symbol for foreign currency or
currency unit] __________ principal amount of the debt securities of the Company
(the "Securities") issued or to be issued pursuant to a senior indenture dated
as of ____________ ___, 199__ (the Indenture") between the Company and The Bank
of New York, as Trustee (the "Trustee") to be issued pursuant to the
Indenture. I, or persons responsible to me, have examined originals or
copies, certified or otherwise identified to my satisfaction, and such
documents, corporate records, certificates of public officials and other
instruments as I have deemed necessary or advisable for the purpose of
rendering this opinion. Defined terms herein unless otherwise specified shall
have the meaning specified in the Underwriting Agreement.
I have also examined copies of the Registration Statement
on Form S-3 (File No. 33- ) relating to up to $200,000,000 aggregate
principal amount of securities filed with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), exhibits thereto and documents incorporated by reference therein. Such
Registration Statement is now effective, and is herein called the "Registration
Statement". The prospectus constituting a part thereof, in the form filed with
the Commission pursuant to Rule 424 of the rules and regulations under the Act,
together with the prospectus supplement (other than a preliminary prospectus
supplement) specifically relating to the Securities, as filed with,
23
or transmitted for filing to, the Commission pursuant to Rule 424,
is herein called the "Prospectus".
Based upon the foregoing, I am of the opinion that:
(1) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
do business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property 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 upon the
Company and its subsidiaries, taken as a whole.
(2) Each subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property 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.
(3) The Company and its subsidiaries hold all franchises,
certificates of public convenience and necessity, consents, authorizations,
approvals, orders, permits, licenses and easements necessary to own, operate and
maintain their properties as described in the Prospectus, subject only to such
defects, irregularities, restrictions, conditions and other matters as are
described in the Prospectus or which do not materially affect the right of the
Company or its subsidiaries to own, operate and maintain its properties and to
conduct its business as described therein, and has made all declarations and
filings with, all federal, state, local and other governmental authorities, and
all courts or other tribunals, necessary to conduct its business in the manner
described in the Prospectus, except to the extent that the lack of such
consents, authorizations, approvals, orders, certificates or permits would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(4) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization and execution
by the Trustee is a valid and binding agreement of the Company
enforceable in accordance with its terms subject, as to enforcement, to
bankruptcy, insolvency, reorganization, and other laws of general applicability
relating to or affecting creditors' rights and to general equity principles. The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended.
(5) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture,
and delivered to and paid for by the Underwriters [or by institutional
investors pursuant to Delayed Delivery Contracts] will be valid and binding
obligations of the Company, enforceable in accordance with their respective
terms subject, as
-2-
24
to enforcement, to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and will be entitled to the benefits of such Indenture.
(6) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement of
the Company, enforceable in accordance with its terms subject, as to
enforcement, to bankruptcy, insolvency, reorganization, and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles, and except as rights to indemnity and contribution
thereunder may be limited under applicable law.
(7) The execution and delivery and performance by the Company
of its obligations under, of the Underwriting Agreement, the Securities and the
Indenture will not contravene any provision of applicable law or the Certificate
of Incorporation or By-laws of the Company or any material agreement or other
material instrument binding upon the Company, and no consent, approval or
authorization of any governmental body or agency other than pursuant to any
state securities or Blue Sky law is required for the performance by the Company
of its obligations under, of the Underwriting Agreement the Indenture and the
Securities and the issuance and sale of the Securities pursuant to the
Underwriting Agreement;
(8) The statements (1) in the Prospectus [under the captions
"Description of Debt Securities" (in the Prospectus Supplement), "Description of
Debt Securities" (in the Basic Prospectus) and "Plan of Distribution" (in the
Prospectus Supplement and in the Basic Prospectus)], (2) in the Registration
Statement under Item 15 and (3) in the Company's Annual Report on Form 10-K for
the year ended December 31, 1996, and in its Quarterly Report on Form 10-Q for
the period ended March 31, 1997, under "Business" and "Legal Proceedings"
relating to legal matters in general or to the regulation of the Company by the
Federal Energy Regulatory Commission (the "FERC"), including without
limitation, actions taken by, and matters pending before, the FERC, in each case
insofar as such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly present the information called for
with respect to such legal matters, documents and proceedings, and such
statements do not contain any untrue statement of material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(9) After due inquiry, I do not know of any legal or
governmental proceeding pending or threatened to which the Company is a party or
to which any of the properties of the Company is subject which is required to be
described or of any statute, regulation contract or other document which is
required to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not described
or filed as required; and
(10) I (a) am of the opinion that (except as to financial
statements and other financial and statistical data included therein, as to
which I do not express any opinion) each document, if any, filed pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Registration Statement and the Prospectus
complied when so filed as to form in all material
-3-
25
respects with the Exchange Act and the rules and regulations of the Commission
thereunder, (b) am of the opinion that the Registration Statement and
Prospectus, as amended or supplemented, if applicable (except as to financial
statements and other financial and statistical data included therein, as to
which I do not express any opinion), comply as to form in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, (c) believe that (except as to financial statements and
other financial and statistical data, and except for that part of the
Registration Statement that constitutes a Statement of Eligibility and
Qualification ("Form T-1") under the Trust Indenture Act of 1939, as amended, as
to which I do not express any belief), each part of the Registration Statement
when such part became effective or was incorporated by reference into the
Registration Statement did not contain, and as of the date this opinion is
delivered, does not contain, any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (d) believe that (except as to financial
statements and other financial and statistical data, and except for that part of
the Registration Statement that constitutes a Form T-1 heretofore referred to as
to which I do not express any belief) the Registration Statement and the
Prospectus, as amended or supplemented, if applicable, do not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
I am a member of the Bar of the States of Oklahoma and New York.
This opinion is solely for the benefit of the Underwriters, and, other than the
Trustee who may rely upon this opinion to the same extent as if addressed to
it, may be relied upon only by the Underwriters. This opinion speaks as of its
date, and I undertake no, and hereby expressly disclaim any, duty to advise
you as to changes of fact or law coming to my attention after the date hereof.
Yours very truly,
-4-
26
[DPW Letterhead]
EXHIBIT B
_______, 199__
[Manager]
as Manager for the
Several Underwriters
[ADDRESS]_____________
______________________
______________________
Ladies and Gentlemen:
We have acted as counsel for you, as Manager for the several
underwriters (the "Underwriters") named in the Underwriting Agreement dated
_____________, 1997 (the "Underwriting Agreement") with Texas Gas Transmission
Corporation (the "Company") in connection with the purchase by the several
Underwriters of $________ principal amount of __________________ (the "Debt
Securities") to be issued pursuant to the indenture dated as of _____________,
1997 (as amended by the Trust Indenture Reform Act of 1990, the "Indenture")
between the Company and the Bank of New York, as Trustee.
We have examined an executed copy of the Underwriting Agreement
and the Indenture. We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such other documents, corporate
records, certificates of public officials and other instruments as we have
deemed necessary or advisable for the purpose of rendering this opinion,
including those relating to the authorization, execution and delivery by the
Company of the Indenture and the Underwriting Agreement and the authorization,
issuance and sale of the Debt Securities by the Company.
We have participated in the preparation of the Company's
registration statement on Form S-3 (File No. _________) (other than the
documents incorporated by reference in the prospectus included therein (the
"Incorporated Documents")) relating to up to $200,000,000 aggregate principal
amount of debt securities filed with the Securities and Exchange Commission
(the "Commission") pursuant to the provisions of the Securities Act of 1933,
as amended (the "Act"). Although we did not participate in the preparation of
the Incorporated Documents, we have reviewed such documents. In addition, we
have reviewed evidence that the registration statement was declared effective
under the Act and that the Indenture was qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"). The registration
statement (including the Incorporated Documents) as amended to the date of the
Underwriting Agreement is hereinafter referred to as the "Registration
Statement", and the prospectus included in the Registration Statement (the
"Basic Prospectus"), as supplemented by the prospectus supplement specifically
relating to the Debt Securities (the "Prospectus
27
Supplement") in the form first filed with the Commission pursuant to Rule 424
under the Act, is hereinafter referred to in its entirety as the "Prospectus".
Based upon the foregoing, we are of the opinion that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, and the Indenture has been duly qualified under the Trust
Indenture Act;
(ii) the Debt Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters, will be
valid and binding obligations of the Company and will be entitled to
the benefits of the Indenture;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company, except as rights to indemnity and
contribution thereunder may be limited under applicable law;
(iv) the statements in the Prospectus under "Description of
Notes" (in the Prospectus Supplement), "Description of Debt
Securities" (in the Basic Prospectus), "Plan of Distribution" (in the
Basic Prospectus) and "Underwriting" (in the Prospectus Supplement),
insofar as such statements constitute a summary of the documents
referred to therein, fairly present the information called for with
respect to such documents.
We have not ourselves checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to other matters in
the Registration Statement or the Prospectus. We have generally reviewed and
discussed with your representatives and with certain officers and employees of,
and counsel and independent public accountants for, the Company the information
furnished, whether or not subject to our check and verification. On the basis of
such consideration, review and discussion, but without independent check or
verification, except as stated, (i) nothing has come to our attention to cause
us to believe that the Registration Statement (except for the financial
statements and other
28
financial and statistical data included therein, as to which we are not called
upon to express a belief, and except for that part of the Registration Statement
that constitutes a Statement of Eligibility and Qualification ("Form T-1") under
the Trust Indenture Act) on the date of the Underwriting Agreement did not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading or that the Prospectus
(except as aforesaid) contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading and (ii)
we are of the opinion that the Registration Statement and the Prospectus (except
for the financial statements and other financial and statistical data included
therein, as to which we are not called upon to express an opinion and except
for that part of the Registration Statement that constitutes the Form T-1
under the Trust Indenture Act) comply as to form in all material respects with
the Act and the rules and regulations of the Commission thereunder.
We have examined the opinion dated the date hereof of ▇▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇, Esq., General Counsel of The ▇▇▇▇▇▇▇▇ Companies, Inc., parent of the
Company, delivered in accordance with the provisions of Section 6(a) of the
Underwriting Agreement, and we believe that such opinion is appropriately
responsive to the requirements of the Underwriting Agreement. We have also
examined the letter of Ernst & Young LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP dated the date
hereof delivered to you pursuant to Section 6(c) of the Underwriting Agreement.
We participated in discussions with representatives of Ernst & Young LLP and
with your representatives relating to the form of such letter, and we believe
that it is substantially in the form agreed to.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the General Corporation
Law of the State of Delaware and the federal laws of the United States of
America.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by or furnished to any other person without our prior written
consent.
Very truly yours,