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EXHIBIT 1.1
$500,000,000
El Paso Energy Corporation
6 3/4% Senior Notes Due 2009
UNDERWRITING AGREEMENT
May 5, 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
ABN AMRO INCORPORATED
CHASE SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
As Underwriters
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
El Paso Energy Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell $500,000,000 principal amount of its 6 3/4% Senior
Notes Due 2009 (the "Securities") to the several underwriters named in Schedule
I hereto (the "Underwriters"). The Securities are to be issued pursuant to the
provisions of an Indenture to be dated as of May 10, 1999 (as supplemented by a
First Supplemental Indenture to be dated as of May 10, 1999, the "Indenture")
between the Company and The Chase Manhattan Bank, as Trustee (the "Trustee").
SECTION 1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (Registration
No. 333-42713) in respect of the Company's debt securities, common stock,
preferred stock and trust preferred securities of two statutory business trusts
sponsored by the Company, as amended by Post-Effective Amendment No. 1, and has
filed such amendments thereto as may have been required to the date of this
Agreement. Such registration statement and such post-effective amendment, as
amended, have been declared effective by the Commission. Such registration
statement and such post-effective amendment, as amended through the date of this
Agreement, including all documents incorporated or deemed to be incorporated
therein by reference, as from time to time amended or supplemented pursuant to
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "Exchange Act"), or otherwise,
are herein collectively referred to as the "Registration Statement." The
prospectus in the form first used
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to confirm sales of Securities (including the information contained in any
prospectus supplement relating to the Securities ("Prospectus Supplement") and
any documents or information incorporated or deemed to be incorporated by
reference into such prospectus) are hereinafter collectively referred to as the
"Prospectus". All references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "described" or
"stated" in the Registration Statement or the Prospectus (and all references of
like import) shall be deemed to mean and include all such financial statements
and schedules and other information which is or is deemed to be incorporated by
reference in the Registration Statement or the Prospectus, as the case may be.
The terms "supplement," "supplemented," "amendment," "amend" and "amended" as
used in this Agreement with respect to the Registration Statement or the
Prospectus shall include all documents filed by the Company with the Commission
pursuant to the Exchange Act that are incorporated or deemed to be incorporated
therein by reference.
SECTION 2. Agreements to Sell and Purchase. On the basis of the
representations and warranties contained in this Agreement, and subject to its
terms and conditions, the Company agrees to issue and sell, and each Underwriter
agrees, severally and not jointly, to purchase from the Company the principal
amount of Securities set forth opposite the name of such Underwriter in Schedule
I hereto at 99.169% of the principal amount thereof (the "Purchase Price").
SECTION 3. Terms of Public Offering. The Company is advised by you that
the Underwriters propose (i) to make a public offering of their respective
portions of the Securities as soon after the execution and delivery of this
Agreement as in your judgment is advisable and (ii) initially to offer the
Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Securities shall be represented by
one or more definitive global Securities in book-entry form which will be
deposited by or on behalf of the Company with The Depository Trust Company
("DTC") or its designated custodian. The Company shall deliver the Securities,
with any transfer taxes thereon duly paid by the Company, to ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ") through the facilities of DTC, for the
respective accounts of the several Underwriters, against payment to the Company
of the Purchase Price therefor by wire transfer of Federal or other funds
immediately available in New York City. The global certificates representing the
Securities shall be made available for inspection not later than 9:30 A.M., New
York City time, on the business day prior to the Closing Date (as defined
below), at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of delivery and payment for the Securities shall be
9:00 A.M., New York City time, on May 10, 1999 or such other time on the same or
such other date as DLJ and the Company shall agree in writing. The time and date
of such delivery and payment are hereinafter referred to as the "Closing Date".
The documents to be delivered on the Closing Date on behalf of the
parties hereto pursuant to Section 8 of this Agreement shall be delivered at the
offices of ▇▇▇▇▇ Liddell & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ and the Securities shall be delivered at the Designated Office, all
on the Closing Date.
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SECTION 5. Agreements of the Company. The Company agrees with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, (iii) when any amendment to
the Registration Statement becomes effective and (iv) of the happening of any
event during the period referred to in Section 5(d) below which makes any
statement of a material fact made in the Registration Statement or the
Prospectus untrue or which requires any additions to or changes in the
Registration Statement or the Prospectus in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, the Company will use its best
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish to you one signed copy of the Registration Statement as
first filed with the Commission and of each amendment to it, including all
exhibits, and to furnish to you and each Underwriter designated by you such
number of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
(c) To prepare the Prospectus, the form and substance of which shall be
satisfactory to you (provided that it shall contain or incorporate by reference
such information as the Company reasonably determines to be necessary or
appropriate to comply with applicable securities laws), and to file the
Prospectus in such form with the Commission within the applicable period
specified in Rule 424(b) under the Act; during the period specified in Section
5(d) below, not to file any further amendment to the Registration Statement and
not to make any amendment or supplement to the Prospectus of which you shall not
previously have been advised or to which you shall reasonably object after being
so advised; and, during such period, to prepare and file with the Commission,
promptly upon your reasonable request, any amendment to the Registration
Statement or amendment or supplement to the Prospectus which may be necessary or
advisable in connection with the distribution of the Securities by you, and to
use its best efforts to cause any such amendment to the Registration Statement
to become promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business day
after the date of this Agreement and from time to time thereafter for such
period as in the opinion of counsel for the Underwriters a prospectus is
required by law to be delivered in connection with sales by an Underwriter or a
dealer, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
and any documents incorporated therein by reference as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters, it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when
the Prospectus is delivered to a purchaser, not misleading, or if, in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply
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with applicable law, forthwith to prepare and file with the Commission an
appropriate amendment or supplement to the Prospectus so that the statements in
the Prospectus, as so amended or supplemented, will not in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with applicable law, and to furnish to each Underwriter and to any
dealer as many copies thereof as such Underwriter or dealer may reasonably
request.
(f) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such jurisdictions
as you may request, to continue such registration or qualification in effect so
long as required for distribution of the Securities and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Prospectus, the Registration
Statement, any preliminary prospectus or the offering or sale of the Securities,
in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its security holders as
soon as practicable an earnings statement covering a period of at least twelve
months after the Closing Date (but in no event commencing later than 60 days
after the Closing Date) which shall satisfy the provisions of Section 11(a) of
the Act, and to advise you in writing when such statement has been so made
available.
(h) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of the Company's counsel and
the Company's accountants in connection with the registration and delivery of
the Securities under the Act and all other fees and expenses in connection with
the preparation, printing, filing and distribution of the Registration Statement
(including financial statements and exhibits), any preliminary prospectus, the
Prospectus and all amendments and supplements to any of the foregoing, including
the mailing and delivering of copies thereof to the Underwriters and dealers in
the quantities specified herein, (ii) all costs and expenses related to the
issuance and delivery of the Securities to the Underwriters, including any
transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Securities, (iv) all
expenses in connection with the registration or qualification of the Securities
for offer and sale under the securities or Blue Sky laws of the several states
and all costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and fees and
disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and disbursements of counsel for the Underwriters in connection with the
review and clearance of the offering of the Securities by the National
Association of Securities Dealers, Inc., (vi) the cost of printing certificates
representing the Securities, (vii) the costs and charges of any transfer agent,
registrar and/or depositary (including the Depository Trust Company), (viii) any
fees charged by rating agencies for the rating of the Securities, (ix) the fees
and expenses of the Trustee and the Trustee's counsel in connection with the
Indenture and the Securities and (x)
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all other costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in this Section.
(i) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Securities.
(j) To use its best commercial efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Securities.
SECTION 6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective under the Act, and
no stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the requirements of the
Exchange Act, (ii) the Registration Statement, when it became effective, did not
contain, and as amended or supplemented, if applicable, will not contain at the
time of such amendment or supplement 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, (iii) the Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will comply in
all material respects with the requirements of the Act, and (iv) the Prospectus
does not contain and, as amended or supplemented, if applicable, will not
contain at the time of such amendment or supplement any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph do not apply 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 such Underwriter through you expressly for use
therein.
(c) Each preliminary prospectus or preliminary prospectus supplement
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 requirements of the Act, and did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in any preliminary prospectus based upon
information relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein.
(d) Each of the Company and its significant subsidiaries within the
meaning of Regulation S-X (each hereinafter referred to as a "Subsidiary") has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
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corporate power and authority to carry on its business as described in the
Prospectus and to own, lease and operate its properties, and each is duly
qualified and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
business, prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole.
(e) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights.
(f) All of the outstanding shares of capital stock of each of the
Company's Subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and (other than the shares of Series A Preferred
Stock of El Paso Tennessee Pipeline Co. that are listed for trading on the New
York Stock Exchange, Inc.) are owned by the Company, directly or indirectly
through one or more subsidiaries, free and clear of any security interest,
claim, lien, encumbrance or adverse interest of any nature (each, a "Lien").
(g) The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and has been duly authorized,
and when executed and delivered by the Company and the Trustee, will constitute
a valid and legally binding obligation of the Company, enforceable in accordance
with its terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(B) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(h) The Securities have been duly authorized and, on the Closing Date,
will have been validly executed and delivered by the Company. When the
Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, the Securities will be entitled to
the benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (A) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(i) The Securities conform in all material respects as to legal matters
to the description thereof contained under the captions "Description of the
Senior Debt Securities" in the Prospectus and "Description of the Senior Notes"
in the Prospectus Supplement.
(j) Neither the Company nor any Subsidiary is (i) in violation of its
respective charter or by-laws or (ii) in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or their
respective property is bound.
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(k) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company, the compliance by the Company with
all the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the securities
or Blue Sky laws of the various states), (ii) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the charter or
by-laws of the Company or any Subsidiary or any indenture, loan agreement,
mortgage, lease or other agreement or instrument that is material to the Company
and its subsidiaries, taken as a whole, to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or their respective
property is bound, (iii) violate or conflict with any applicable law or any
rule, regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, any Subsidiary or their
respective property, (iv) result in the imposition or creation of (or the
obligation to create or impose) a Lien under any agreement or instrument to
which the Company or any Subsidiary is a party or by which the Company or any
Subsidiary or their respective property is bound or (v) result in the
suspension, termination or revocation of any permit, license, covenant,
exemption, franchise, authorization or other approval (each an "Authorization")
of the Company or any Subsidiary or any other impairment of the rights of the
holder of any such Authorization.
(l) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or is threatened
to be a party or to which any of their respective property is or is threatened
to be subject that would restrict the issuance and sale of the Securities as
contemplated by the Prospectus or that are required to be described in the
Registration Statement or the Prospectus and are not so described; nor are there
any statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so described or filed as
required.
(m) This Agreement has been duly authorized, executed and delivered by
the Company.
(n) PricewaterhouseCoopers LLP are independent public accountants with
respect to the Company and its subsidiaries and, to the Company's knowledge,
Ernst & Young LLP and KPMG LLP are independent public accountants with respect
to Sonat Inc., each as required by the Act.
(o) The consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment or
supplement thereto), together with related schedules and notes, present fairly
in accordance with generally accepted accounting principles consistently applied
the consolidated financial position, results of operations and cash flows of the
Company and its subsidiaries on the basis stated therein at the respective dates
or for the respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; the supporting schedules, if any, included in the
Registration Statement present fairly in accordance with generally accepted
accounting principles the information required to be stated therein; and the
other financial and statistical information and data set forth or incorporated
by reference in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company.
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(p) The pro forma financial information set forth or incorporated by
reference in the Registration Statement and the Prospectus (and any supplement
or amendment thereto) are, in all material respects, fairly presented and
prepared on a basis consistent with the historical financial statements of the
Company and its subsidiaries, give effect to assumptions used in the preparation
thereof which have been made on a reasonable basis and in good faith, and
present fairly the effects of the proposed merger with Sonat Inc., assuming that
all common stock is issued and the merger is accounted for as a pooling of
interests, or, alternatively, that common stock and depositary shares of
preferred stock are issued and the merger is accounted for as a purchase.
(q) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be (i) an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended, or (ii) a "holding
company" within the meaning of, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended, and the rules and regulations
promulgated by the Commission thereunder.
(r) No "nationally recognized statistical rating organization" as such
term is defined for purposes of Rule 436(g)(2) under the Act has indicated to
the Company that it is considering (i) the downgrading, suspension or withdrawal
of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating assigned to the Company or any securities of
the Company or (ii) any adverse change in the outlook for any rating of the
Company or any securities of the Company.
(s) Since the respective dates as of which information is given in the
Prospectus other than as set forth or incorporated by reference in the
Prospectus (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii) there has
not been any material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent.
(t) Each certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to the Underwriters as to the matters
covered thereby.
SECTION 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
its directors, its officers and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
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thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus or preliminary prospectus supplement, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished in writing
to the Company by such Underwriter through you expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter who
failed to deliver a Prospectus (as then amended or supplemented, provided by the
Company to the several Underwriters in the requisite quantity and on a timely
basis to permit proper delivery on or prior to the Closing Date) to the person
asserting any losses, claims, damages and liabilities and judgments caused by
any untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, if such material misstatement or omission
or alleged material misstatement or omission was cured in such Prospectus and
such Prospectus was required by law to be delivered at or prior to the written
confirmation of sale to such person.
(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 Section 15 of the Act or Section 20 of the Exchange Act, to the
same extent as the foregoing indemnity from the Company to such Underwriter but
only with reference to information relating to such Underwriter furnished in
writing to the Company by such Underwriter through you expressly for use in the
Registration Statement (or any amendment thereto), the Prospectus (or any
amendment or supplement thereto) or any preliminary prospectus or preliminary
prospectus supplement.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Underwriter shall not be required to assume
the defense of such action pursuant to this Section 7(c), but may employ
separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
such Underwriter). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
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action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by DLJ, in the case of parties indemnified pursuant to Section 7(a),
and by the Company, in the case of parties indemnified pursuant to Section 7(b).
The indemnifying party shall indemnify and hold harmless the indemnified party
from and against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action (i) effected with its written consent
or (ii) effected without its written consent if the settlement is entered into
more than thirty business days after the indemnifying party shall have received
a request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action 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 the indemnified party.
(d) To the extent the indemnification provided for in this Section 7 is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the offering
of the Securities or (ii) if the allocation provided by clause 7(d)(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 7(d)(i) above but also the
relative fault of the Company on the one hand and the Underwriters on the other
hand in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total net proceeds from the offering (after deducting
underwriting discounts and commissions but before deducting expenses) received
by the Company, and the total underwriting discounts and commissions received by
the Underwriters, bear to the total price to the public of the Securities, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault of the Company on the one hand and the Underwriters on the other
hand 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 the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
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The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) 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 the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. 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 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. The Underwriters' obligations to contribute
pursuant to this Section 7(d) are several in proportion to the respective
principal amount of Securities purchased by each of the Underwriters hereunder
and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the Closing Date with the same force
and effect as if made on and as of the Closing Date.
(b) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been given
of any potential or intended downgrading, suspension or withdrawal of, or of any
review (or of any potential or intended review) for a possible change that does
not indicate the direction of the possible change in, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any "nationally
recognized statistical rating organization" as such term is defined for purposes
of Rule 436(g)(2) under the Act, (ii) there shall not have occurred any change,
nor shall any notice have been given of any potential or intended change, in the
outlook for any rating of the Company or any securities of the Company by any
such rating organization and (iii) no such rating organization shall have given
notice that it has assigned (or is considering assigning) a lower rating to the
Securities than that on which the Securities were marketed.
(c) You shall have received on the Closing Date a certificate dated the
Closing Date, signed by an executive officer of the Company in such capacity
confirming the matters set forth in Sections 6(s), 8(a), and 8(b) and that the
Company has complied with all of the agreements and
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satisfied all of the conditions herein contained and required to be complied
with or satisfied by the Company on or prior to the Closing Date.
(d) You shall have received on the Closing Date (i) an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel for the Company, addressing the matters set
forth on Exhibit A attached hereto, and (ii) an opinion (satisfactory to you and
counsel for the Underwriters), dated the Closing Date, of the general counsel of
the Company, addressing the matters set forth on Exhibit B attached hereto.
(e) You shall have received on the Closing Date an opinion, dated the
Closing Date, of ▇▇▇▇▇ Liddell & ▇▇▇▇ LLP, counsel for the Underwriters, with
respect to all such matters as you may reasonably request.
(f) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from PricewaterhouseCoopers LLP,
independent public accountants, containing the information and statements of the
type ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial information contained
in or incorporated by reference in the Registration Statement and the
Prospectus.
(g) You shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to you, from Ernst & Young LLP, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to certain financial information contained in or incorporated by
reference in the Registration Statement and the Prospectus.
(h) The Underwriters shall have received a counterpart, conformed as
executed, of the Indenture which shall have been entered into by the Company and
the Trustee.
(i) The Company shall not have failed on or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required to
be performed or complied with by the Company on or prior to the Closing Date.
SECTION 9. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto. This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Company if any of the following has
occurred after the execution and delivery of this Agreement: (i) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus, (ii) the suspension or material
limitation of trading in securities or other instruments on the New York Stock
Exchange, the American Stock Exchange, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq
National Market or limitation on prices for securities or other instruments on
any such exchange or the Nasdaq National Market, (iii) the
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suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market, (iv) the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority which in your opinion materially and
adversely affects, or will materially and adversely affect, the business,
prospects, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date any one or more of the Underwriters shall fail
or refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date by all Underwriters, each non-defaulting
Underwriter shall be obligated severally, in the proportion which the principal
amount of Securities set forth opposite its name in Schedule I bears to the
aggregate principal amount of Securities which all the non-defaulting
Underwriters have agreed to purchase, or in such other proportion as you may
specify, to purchase the Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the aggregate principal amount of Securities which any
Underwriter has agreed to purchase pursuant to Section 2 hereof be increased
pursuant to this Section 9 by an amount in excess of one-ninth of such principal
amount of Securities without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Securities and the aggregate principal amount of Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Securities to be purchased by all Underwriters and arrangements
satisfactory to you and the Company for purchase of such Securities are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter and the Company. In any
such case which does not result in termination of this Agreement, either you or
the Company shall have the right to postpone the Closing Date, but in no event
for longer than seven days, in order that the required changes, if any, in the
Registration Statement and the Prospectus or any other documents or arrangements
may be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of any such
Underwriter under this Agreement.
SECTION 10. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to El Paso
Energy Corporation, El Paso Energy Building, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇., and (ii) if to any Underwriter or to you,
to you c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department, or in any case to
such other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Securities,
regardless of (i) any investigation, or statement as to the results thereof,
made by
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or on behalf of any Underwriter, the officers or directors of any Underwriter,
any person controlling any Underwriter, the Company, the officers or directors
of the Company or any person controlling the Company, (ii) acceptance of the
Securities and payment for them hereunder and (iii) termination of this
Agreement.
If for any reason the Securities are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 9), the Company agrees to reimburse the
several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) incurred by them. Notwithstanding any termination of
this Agreement, the Company shall be liable for all expenses which it has agreed
to pay pursuant to Section 5(h) hereof. The Company also agrees to reimburse the
several Underwriters, their directors and officers and any persons controlling
any of the Underwriters for any and all fees and expenses (including, without
limitation, the fees and disbursements of counsel) incurred by them in
connection with enforcing their rights hereunder (including, without limitation,
pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Company's directors and the Company's officers who sign
the Registration Statement and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Securities from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
EL PASO ENERGY CORPORATION
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: H. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Title: Executive Vice President and
-------------------------------
Chief Financial Officer
-------------------------------
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
ABN AMRO INCORPORATED
CHASE SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By: ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Title: Vice President
---------------------
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SCHEDULE I
Principal Amount of
Underwriters Securities to be Purchased
------------ --------------------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation $251,000,000
ABN AMRO Incorporated 83,000,000
Chase Securities Inc. 83,000,000
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC 83,000,000
------------
Total $500,000,000
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EXHIBIT A
OPINION OF ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
Counsel for the Company
The opinion of counsel for the Company pursuant to Section 8(d) of the
Underwriting Agreement shall be to the effect that:
1. The Registration Statement has become effective under the Act and no
stop order suspending the effectiveness of the Registration Statement
is in effect, and no proceedings for such purpose are pending before
or, to such counsel's knowledge, threatened by the Commission.
2. (A) Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein or omitted therefrom as
to which such counsel need not express any opinion) appeared on its
face to be appropriately responsive in all material respects with the
requirements of the Exchange Act and (B) the Registration Statement and
Prospectus (except for financial statements and schedules and other
financial or statistical data included or incorporated by reference
therein or omitted therefrom as to which such counsel need not express
any opinion) appeared on their face to be appropriately responsive in
all material respects with the requirements of the Act.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
4. The Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described
in the Prospectus, will not be, (i) an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended or
(ii) a "holding company" within the meaning of, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as
amended, and the rules and regulations promulgated by the commission
thereunder.
5. The Indenture has been duly qualified under the Trust Indenture Act and
has been authorized, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, except as (a) the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or transfer or other similar laws
relating to or affecting creditors' rights generally and (b) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability.
6. 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 in accordance with the
terms of the Underwriting Agreement, will be entitled to the benefits
of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms, except as (a) the
enforcement thereof may be limited by
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bankruptcy, insolvency, or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
7. The execution and delivery by the Company of, and the performance by
the Company of its obligations under, the Underwriting Agreement will
not violate any provision of applicable United States federal law, New
York law, or the Delaware General Corporation Law, or the Certificate
of Incorporation, as amended, or By-Laws, as amended, of the Company or
any Subsidiary.
8. No consent, approval, authorization or order of or qualification with
any United States federal, New York or (with respect to matters arising
under the Delaware General Corporation Law) Delaware body or agency is
required for the performance by the Company of its obligations under
the Underwriting Agreement, except such (i) as may be required under
the Act, (ii) which have been obtained, or (iii) as may be required
under the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities, as to which such
counsel need not express any opinion, or except where failure to obtain
such consent, approval, authorization, order or qualification would not
have a material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole.
9. The statements (A) in the Prospectus under the captions "Description of
the Senior Notes" and "Description of the Senior Debt Securities" and
(B) in the Registration Statement under Item 15, insofar as such
statements constitute a summary of the legal matters referred to
therein, fairly present the information disclosed therein in all
material respects.
In addition, such counsel shall state that, in the course of the
preparation by the Company of the Registration Statement, the Prospectus and the
Prospectus Supplement (including the documents incorporated by reference
therein), such counsel participated in conferences with certain of the officers
and representatives of the Company, the Company's independent accountants, the
Underwriters and counsel for the Underwriters at which the Registration
Statement, the Prospectus and the Prospectus Supplement were discussed. Such
counsel shall state that, between the date of effectiveness of the Registration
Statement and the time of delivery of such counsel's opinion letter, such
counsel participated in additional conferences with certain officers and
representatives of the Company and the Company's independent accountants at
which portions of the Registration Statement, the Prospectus and the Prospectus
Supplement were discussed. Given the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process, such counsel does not pass upon and need not assume
any responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement, the Prospectus or the Prospectus
Supplement, except as specifically described in the opinion in paragraphs 2 and
9 above. Subject to the foregoing and on the basis of the information such
counsel gained in the performance of the services referred to above, including
information obtained from officers and other representatives of the Company and
the Company's independent accountants, such counsel shall state that no facts
have come to such counsel's attention that have caused it to believe that the
Registration Statement, at the time it became effective, contained any untrue
statement of a material fact or omitted to state a material fact required to be
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stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus and the Prospectus Supplement, as of their
respective dates, contained any untrue statement of a material fact or omitted
to state a 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. Also, subject to the foregoing, such counsel shall state
that no facts have come to its attention in the course of the proceedings
described in the first and second sentences of this paragraph that caused such
counsel to believe that the Prospectus or the Prospectus Supplement as of the
date and time of delivery of such counsel's opinion letter contains any untrue
statement of a material fact or omits to state a 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.
With respect to the preceding paragraph, counsel may state that (A)
their opinion and belief is based upon their participation in the preparation of
the Registration Statement and Prospectus and any amendments or supplements
thereto and review and discussion of the contents thereof, but are without
independent check or certification, except as specified and (B) for purposes of
paragraphs 7 and 8, such counsel may state (i) that it has reviewed only those
statutes, rules and regulations that in its experience are applicable to
transactions of the type contemplated by the Underwriting Agreement and (ii)
that it does not hold itself out as experts in the regulation of the generation,
transportation, distribution or delivery of electricity or electrical services,
or the import or export of electricity or electrical services.
Such counsel need express no view, opinion or belief, however, with
respect to financial statements, schedules or notes thereto or other financial
or statistical data included or incorporated by reference in or omitted from the
Registration Statement or Prospectus.
Such counsel may state that the opinions expressed above are limited to
the federal laws of the United States, the laws of the State of New York, and
the General Corporation Law of the State of Delaware.
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EXHIBIT B
OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
General Counsel for the Company
The opinion of the General Counsel for the Company pursuant to Section
8(d) of the Underwriting Agreement shall be to the effect that:
1. Each of the Company and its Subsidiaries has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and has the corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus, and each is duly qualified as
a foreign corporation 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 where the
failure to be so qualified or to be in good standing would not have a
material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as
a whole.
2. The execution, delivery and performance of the Underwriting Agreement,
the Indenture and the Securities by the Company, the compliance by the
Company with all the provisions thereof and the consummation of the
transactions contemplated thereby will not, to such counsel's
knowledge, (i) violate any indenture, loan agreement, mortgage, lease
or other agreement or instrument to which the Company or any Subsidiary
is a party or by which the Company or any Subsidiary or their
respective property is bound or (ii) violate or conflict with any
judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any Subsidiary or their
respective property, except in each case, for such violations as would
not have a material adverse effect on the business, prospects,
financial condition or results of operation of the Company and its
subsidiaries, taken as a whole.
3. To such counsel's knowledge after due inquiry, there are no legal or
governmental proceedings pending or threatened to which the Company or
any Subsidiary is or is threatened to be a party or to which any of
their respective property is or is threatened to be subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described; nor does such counsel know of any
statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to
be filed as exhibits to the Registration Statement that are not so
described or filed as required.
4. (A) Each document, if any, filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus (except for financial
statements and schedules and other financial or statistical data
included or incorporated by reference therein or omitted therefrom as
to which such counsel need not express any opinion) appeared on its
face to be appropriately responsive in all material respects with the
Exchange Act and (B) the Registration Statement and Prospectus (except
for financial statements and schedules and other financial or
statistical data included or incorporated by reference therein or
omitted therefrom as to which such
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counsel need not express any opinion) appeared on their face to be
appropriately responsive in all material respects with the requirements
of the Act.
5. The statements under (A) the caption "Item 3 - Legal Proceedings" of
the Company's most recent annual report on Form 10-K incorporated by
reference into the Prospectus and (B) the caption "Item 1 - Legal
Proceedings" of Part II of the Company's quarterly reports on Form 10-Q
filed since such annual report, if any, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present as of the date of the
applicable report the information disclosed therein in all material
respects.
6. (A) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement
will not violate any provisions of any applicable laws and regulations
specifically governing the generation, transportation, distribution or
delivery of natural gas, oil, electricity or other related commodities
or services, including pipelines, transmission lines, storage
facilities and related facilities and equipment, or the import or
export of such commodities or services (collectively, the "Energy
Industry") and (B) no consent, approval, authorization or order of or
qualification with any United States federal body or agency
specifically regulating the Energy Industry is required for the
performance by the Company of its obligations under the Underwriting
Agreement, except in each of the foregoing cases for such violations or
failures to obtain such consent, approval, authorization, order or
qualification as would not have a material adverse effect on the
business, prospects, financial condition or results of operation of the
Company and its subsidiaries, taken as a whole.
In addition, such counsel shall state that in the course of the
preparation by the Company of the Registration Statement, the Prospectus and the
Prospectus Supplement, such counsel participated in conferences with certain of
the officers and representatives of the Company, counsel to the Company, the
Company's independent accountants, the Underwriters and counsel for the
Underwriters at which the Registration Statement, the Prospectus and the
Prospectus Supplement were discussed. Such counsel shall state that, between the
date of effectiveness of the Registration Statement and the time of delivery of
such counsel's letter, such counsel participated in additional conferences with
certain officers and representatives of the Company, counsel to the Company and
the Company's independent accountants at which portions of the Registration
Statement, the Prospectus and the Prospectus Supplement were discussed. Given
the limitations inherent in the independent verification of factual matters and
the character of determinations involved in the registration process, such
counsel does not pass upon and need not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or the Prospectus Supplement, except as
specifically described in paragraphs 4 and 5 above. Subject to the foregoing and
on the basis of the information such counsel gained in the performance of the
services referred to above and in the performance of his duties as General
Counsel of the Company, as well as information obtained from officers and other
representatives of the Company and the Company's independent accountants, such
counsel shall state that no facts have come to such counsel's attention that
have caused him to believe that the Registration Statement, at the time it
became effective, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the Prospectus and the
Prospectus Supplement, as of their respective dates,
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contained any untrue statement of a material fact or omitted to state a 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. Also, subject to the foregoing, no facts have come to such counsel's
attention in the course of the proceedings described in the first and second
sentences of this paragraph that caused him to believe that the Prospectus or
the Prospectus Supplement as of the date and time of delivery of such counsel's
letter contains any untrue statement of a material fact or omits to state a
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.
Such counsel need express no view, opinion or belief, however, with
respect to financial statements, schedules or notes thereto or other financial
or statistical data included or incorporated by reference in or omitted from the
Registration Statement or Prospectus.
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