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EXHIBIT 1
TENNESSEE GAS PIPELINE COMPANY
(A DELAWARE CORPORATION)
7 1/2% DEBENTURES DUE 2017
7% DEBENTURES DUE 2027
7 5/8% DEBENTURES DUE 2037
TERMS AGREEMENT
Dated: March 4, 1997
Tennessee Gas Pipeline Company
El Paso Energy Building
0000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Dear Sirs:
We (the "Underwriters") understand that Tennessee Gas Pipeline Company, a
Delaware corporation (the "Company"), proposes to issue and sell (i)
$300,000,000 aggregate principal amount of its 7 1/2% Debentures Due 2017 (the
"20-year Debentures"), (ii) $300,000,000 aggregate principal amount of its 7%
Debentures Due 2027 (the "30-year Debentures"), and (iii) $300,000,000 aggregate
principal amount of its 7 5/8% Debentures Due 2037, (the "40-year Debentures")
(collectively, the "Debt Securities"). The Debt Securities will be issued
pursuant to the provisions of an Indenture dated as of March 4, 1997 (the
"Indenture"), between the Company and The Chase Manhattan Bank, as trustee (the
"Trustee").
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 Debt
Securities set forth below opposite their respective names at the purchase
price(s) set forth below.
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
UNDERWRITER 20-YEAR DEBENTURES 30-YEAR DEBENTURES 40-YEAR DEBENTURES
----------- ------------------- ------------------- -------------------
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation............................ $ 50,000,000 $ 50,000,000 $ 50,000,000
Xxxxxx Xxxxxxx & Co. Incorporated........ 50,000,000 50,000,000 50,000,000
Chase Securities Inc. ................... 50,000,000 50,000,000 50,000,000
Citicorp Securities, Inc. ............... 50,000,000 50,000,000 50,000,000
Xxxxxxx, Xxxxx & Co. .................... 50,000,000 50,000,000 50,000,000
X.X. Xxxxxx Securities Inc. ............. 50,000,000 50,000,000 50,000,000
------------ ------------ ------------
Total.......................... $300,000,000 $300,000,000 $300,000,000
============ ============ ============
20-year Debentures
The 20-year Debentures shall have the terms set forth in the Prospectus,
dated February 28, 1997 (the "Prospectus"), and the Prospectus Supplement, dated
March 4, 1997 (the "Prospectus Supplement"), including the following:
Title: 7 1/2% Debentures Due 2017
Principal Amount to be Issued: $300,000,000
Maturity Date: April 1, 2017
Interest Rate or Formula: 7 1/2% per annum
Interest Payment Dates: Each April 1 and October 1, commencing October 1,
1997
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Redemption Provisions: None
Sinking Fund Requirements: None
Initial Public Offering Price: 99.144%, plus accrued interest, if any, from
March 13, 1997.
Purchase Price: 98.269%, plus accrued interest, if any, from March 13,
1997, payable in immediately available funds.
Selling Concession: .50% of the principal amount of the 20-year Debentures.
Dealer Allowance and Reallowance: .25% of the principal amount of the
20-year Debentures.
30-year Debentures
The 30-year Debentures shall have the terms set forth in the Prospectus and
the Prospectus Supplement, including the following:
Title: 7% Debentures Due 2027
Principal Amount to be Issued: $300,000,000
Maturity Date: March 15, 2027
Interest Rate or Formula: 7% per annum
Interest Payment Dates: Each March 15 and September 15, commencing
September 15, 1997
Redemption Provisions: As set forth in the Prospectus Supplement.
Sinking Fund Requirements: None
Initial Public Offering Price: 99.383%, plus accrued interest, if any, from
March 13, 1997.
Purchase Price: 98.733%, plus accrued interest, if any, from March 13,
1997, payable in immediately available funds.
Selling Concession: .40% of the principal amount of the 30-year Debentures.
Dealer Allowance and Reallowance: .25% of the principal amount of the
30-year Debentures.
Other Terms: The registered holder of a 30-year Debenture may elect to have
such 30-year Debenture repaid as described in the Prospectus Supplement.
40-year Debentures
The 40-year Debentures shall have the terms set forth in the Prospectus and
the Prospectus Supplement, including the following:
Title: 7 5/8% Debentures Due 2037
Principal Amount to be Issued: $300,000,000
Maturity Date: April 1, 2037
Interest Rate or Formula: 7 5/8% per annum
Interest Payment Dates: Each April 1 and October 1, commencing October 1,
1997
Redemption Provisions: None
Sinking Fund Requirements: None
Initial Public Offering Price: 98.784%, plus accrued interest, if any, from
March 13, 1997.
Purchase Price: 97.784%, plus accrued interest, if any, from March 13,
1997, payable in immediately available funds.
Selling Concession: .60% of the principal amount of the 40-year Debentures.
Dealer Allowance and Reallowance: .30% of the principal amount of the
40-year Debentures.
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General
Closing Date and Location: 9:00 a.m. on March 13, 1997, at the offices of
Fried, Xxxxx, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx.
Address of Notices to Underwriters: Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Syndicate Department
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All provisions contained in the document attached as Annex A hereto
entitled "Tennessee Gas Pipeline Company -- Underwriting Agreement Standard
Provisions (Debt Securities)", are hereby incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Terms defined in
such document are used herein as therein defined.
Please confirm your agreement by having an authorized officer sign a copy
of this Terms Agreement in the space set forth below.
Very truly yours,
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO.
INCORPORATED
CHASE SECURITIES INC.
CITICORP SECURITIES, INC.
XXXXXXX, XXXXX & CO.
X.X. XXXXXX SECURITIES INC.
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
------------------------------------
Name: X. Xxxxxx Xxxxx
Title: Senior Vice President
Accepted as of the date first above written:
TENNESSEE GAS PIPELINE COMPANY
By:
------------------------------------------------------
Name: X. Xxxxx Xxxxxx
Title: Senior Vice President
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ANNEX A
TENNESSEE GAS PIPELINE COMPANY
(A DELAWARE CORPORATION)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
Dated: March 4, 1997
Tennessee Gas Pipeline Company, a Delaware corporation (the "Company"),
proposes to issue and sell up to $1,000,000,000 aggregate principal amount of
its unsecured debt securities (the "Debt Securities"), from time to time in one
or more offerings on terms determined at the time of sale. The Debt Securities
will be issued under an Indenture to be dated as of March 4, 1997, as amended,
modified and supplemented from time to time (the "Indenture"), between the
Company and The Chase Manhattan Bank, as trustee (the "Trustee"). Each issue of
Debt Securities may vary as to the aggregate principal amount, maturity date,
interest rate or formula and timing of payment thereof, redemption provisions,
conversion provisions and sinking fund requirements, if any, and any other
variable terms which the Indenture contemplates may be set forth in the Debt
Securities as issued from time to time.
This is to confirm the arrangements with respect to the purchase of Debt
Securities from the Company by the Representative(s) and the several
Underwriters listed in the applicable terms agreement (the "Terms Agreement")
entered into between the Representative(s) and the Company of which these
Underwriting Agreement Standard Provisions (Debt Securities) are attached as
Annex A thereto. Terms defined in the Terms Agreement are used herein as therein
defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-20199) in respect of
the Debt Securities and has filed such amendments thereto as may have been
required to the date of the Terms Agreement. Such registration statement, as
amended, has been declared effective by the Commission and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). Such registration statement, as amended through the date of the
Terms 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 (the "Exchange
Act"), the Securities Act of 1933, as amended (the "Securities Act"), or
otherwise, and any registration statement filed pursuant to Rule 462(b) under
the Securities Act are herein collectively referred to as the "Registration
Statement". The prospectus constituting a part of the Registration Statement and
any amendments or supplements to such prospectus through the date of the Terms
Agreement taken together with any term sheet meeting the requirements of Rule
434(b) under the Securities Act, as applicable, are collectively referred to
herein as the "Prospectus"; provided, however, that a supplement to the
Prospectus contemplated by Section 3(a) hereof (a "Prospectus Supplement") shall
be deemed to have supplemented the Prospectus only with respect to the offering
of Debt Securities to which it relates; provided further, however, that if any
revised prospectus or prospectus supplement shall be provided to the
Representative(s) on behalf of the Underwriters by the Company for use in
connection with the offering of the Debt Securities that differs from the
Prospectus (whether or not such revised prospectus or prospectus supplement is
required to be filed by the Company pursuant to Rule 424(b) under the Securities
Act), the term "Prospectus" shall refer to such revised prospectus or prospectus
supplement, as the case may be, from and after the time it is first provided to
the Representative(s) on behalf of the Underwriters for such use. Any reference
herein or in the Terms Agreement to the Registration Statement or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
or deemed to be incorporated by reference therein pursuant to Item 12 of Form
S-3 that have been filed on or before the date of the Terms Agreement or are to
be filed thereafter under the Exchange Act and are so filed thereafter; and any
reference herein to the terms "amend", "amended", "amendment", "supplement" or
"supplemented" with respect to the Registration Statement or the Prospectus
shall be deemed to refer to and include any such document filed or to be filed
under the Exchange Act.
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1. Representations and Warranties. The Company represents and warrants to
each of the Underwriters named in the Terms Agreement that:
(a) The Registration Statement has become effective under the
Securities Act, no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such purpose
are pending before or, to the best of the Company's knowledge, contemplated
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 Exchange Act
and the applicable rules and regulations of the Commission thereunder; (ii)
each part of the Registration Statement, when such part became effective,
did not contain, and each such part, as amended or supplemented, if
applicable, will 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; (iii) the Registration
Statement and the Prospectus comply, and, as amended or supplemented, if
applicable, will comply, in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder; and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain 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 Section
1(b) do not apply (A) 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
the Representative(s) expressly for use in the Registration Statement or
Prospectus, or (B) to that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) of the Trustee under
the Trust Indenture Act.
(c) The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware, has the corporate
power and authority to own its properties and to conduct its business as
described in the Prospectus and 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 to the extent that the failure to be so
qualified or to be in good standing would not have a material adverse
effect on the assets, business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(d) Each significant subsidiary of the Company within the meaning of
Regulation S-X (each hereinafter referred to as a "Subsidiary") has been
duly incorporated and is validly existing and in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its properties and to conduct its business as described in
the Prospectus and 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 to the extent that the failure to be so qualified or
be in good standing would not have a Material Adverse Effect.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Indenture has been duly authorized, executed and delivered by
the Company and duly qualified under the Trust Indenture Act and, when duly
executed and delivered by the Trustee, will be a valid and binding
agreement of the Company, enforceable in accordance with its terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency
(including all laws relating to fraudulent conveyance), reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditors' rights generally and general principles of equity,
regardless of whether enforcement is considered in a proceeding in equity
or at law (collectively, the "Bankruptcy Exceptions").
(g) The Debt Securities being sold pursuant to the applicable Terms
Agreement have, as of the date of such Terms Agreement, 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
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the terms of such Terms Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, in each
case enforceable in accordance with their respective terms, except as the
enforcement thereof may be limited by the Bankruptcy Exceptions; and the
Debt Securities being sold pursuant to the applicable Terms Agreement
conform in all material respects to the description thereof contained in
the Prospectus.
(h) Neither the Company nor any of its Subsidiaries are (i) in
violation of their respective charters or by-laws, or (ii) in violation of
or in default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or in any other agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries or their respective property is bound, except in
the case of clause (ii) for such violations or defaults as would not,
individually or in the aggregate, have a Material Adverse Effect.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Indenture and
the Debt Securities will not violate (i) the Restated Certificate of
Incorporation, as amended, or By-laws of the Company, (ii) any provision of
applicable law, (iii) any agreement or other instrument binding upon the
Company or any Subsidiaries, or (iv) any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or
any Subsidiary, except, in the case of clauses (ii) through (iv),
inclusive, for such violations as would not, individually or in the
aggregate, have a Material Adverse Effect. No consent, approval,
authorization or order of or qualification with any U.S. governmental body
or agency is required for the performance by the Company of its obligations
under this Agreement, the Indenture or the Debt Securities, except (x) such
as may be required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Debt Securities, or (y) where
the failure to obtain such consent, approval, authorization, order or
qualification would not, individually or in the aggregate, have a Material
Adverse Effect or materially adversely affect the offering of the Debt
Securities as contemplated in the Prospectus Supplement.
(j) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be
stated in or contemplated by the Registration Statement and Prospectus,
there has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the assets, business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(k) Other than as set forth or incorporated by reference in the
Registration Statement and Prospectus, there are no legal or governmental
proceedings instituted or, to the best of the Company's knowledge,
threatened against the Company or any Subsidiaries that would restrict the
issuance and sale of the Debt Securities as contemplated by the Prospectus
or that are required under the Securities Act to be disclosed therein and
that are not disclosed. No contract or document of a character required
under the Securities Act to be described in the Registration Statement or
Prospectus or to be filed as an exhibit to the Registration Statement is
not so described or filed as required.
(l) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly in all material
respects the consolidated or combined financial position, results of
operations and cash flows of the combined energy businesses of the Company
on the basis stated in the Registration Statement 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; and the other financial and
statistical information and data of the Company (including any pro forma
financial information) set forth in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) is, 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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(m) The Company is not, nor is it directly or indirectly controlled by
or acting on behalf of any person that is, (i) an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and
the rules and regulations promulgated by the Commission thereunder, 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.
(n) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
2. Purchase and Sale. The obligations of the Underwriters to purchase, and
of the Company to sell, the Debt Securities shall be evidenced by the Terms
Agreement. The Terms Agreement shall specify the principal amount of Debt
Securities, the names of the Underwriters participating in such offering
(subject to substitution as provided in Section 8 hereof), the principal amount
of Debt Securities that each such Underwriter severally agrees to purchase, the
purchase price to be paid by the Underwriters for the Debt Securities, the
initial public offering price, the time and place of delivery and payment and
any other terms of the Debt Securities not already specified in the Indenture
(including, but not limited to, designations, denominations, interest rates or
formulas and payment dates, maturity dates, conversion provisions, redemption
provisions and sinking fund requirements).
The several commitments of the Underwriters to purchase Debt Securities
pursuant to the Terms Agreement shall be deemed to have been made on the basis
of the representations and warranties herein contained and shall be subject to
the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Debt Securities to
be purchased by the Underwriters shall be made at the offices of Fried, Frank,
Harris, Xxxxxxx & Xxxxxxxx, One New York Plaza, New York, New York, or at such
other place as shall be agreed upon by the Representative(s) and the Company, at
9:00 A.M., New York City time, on the third or fourth business day (unless
otherwise permitted by the Commission pursuant to Rule 15c6-1 under the Exchange
Act, or postponed in accordance with the provisions of Section 8 hereof)
following the date of the Terms Agreement or such other time as shall be agreed
upon by the Representative(s) and the Company (each such time and date being
referred to as a "Closing Time"). Payment shall be made to the Company by wire
transfer of immediately available (same-day) funds, against delivery to the
Representative(s) for the respective accounts of the Underwriters of the Debt
Securities to be purchased by them. The certificate(s) for such Debt Securities
shall be in such denomination(s) and registered in such name(s) as the
Representative(s) may request in writing at least two business days prior to the
applicable Closing Time. Such certificate(s) will be made available for
examination and packaging by the Representative(s) on or before the first
business day prior to Closing Time.
3. Covenants of the Company. In further consideration of the agreements of
the Underwriters contained herein, the Company covenants as follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Debt Securities covered thereby and their terms not otherwise
specified in the Indenture, the names of the Underwriters participating in
the offering and the principal amount of Debt Securities which each
severally has agreed to purchase, the price at which the Debt Securities
are to be purchased by the Underwriters from the Company, the initial
public offering price, the selling concession and reallowance, if any, and
such other information as the Representative(s) and the Company deem
appropriate in connection with the offering of the Debt Securities. The
Company will promptly transmit copies of the Prospectus Supplement to the
Commission for filing pursuant to Rule 424 under the Securities Act and
will furnish to the Underwriters named therein as many copies of the
Prospectus and such Prospectus Supplement as the Representative(s) shall
reasonably request.
(b) The Company will furnish to the Representative(s), without charge,
one signed copy of the Registration Statement (including exhibits thereto)
and for delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and, during the period
referred
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to in paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Representative(s) may
reasonably request.
(c) At any time when the Prospectus is required by the Securities Act
to be delivered in connection with sales of the Debt Securities, the
Company will give the Representative(s) notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus (including any term sheet within the meaning of Rule 434
under the Securities Act ), whether pursuant to the Securities Act, the
Exchange Act or otherwise, and will furnish the Representative(s) with
copies of each such proposed amendment or supplement or other documents
proposed to be filed a reasonable time in advance of filing.
(d) The Company will advise the Representative(s) promptly and, if
requested by the Representative(s), 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 Debt Securities for offering or sale in
any jurisdiction, or the initiation of any proceeding for such purposes,
and (iii) of the happening of any event during the period referred to in
paragraph (c) above which makes any statement of a material fact made in
the Registration Statement or the Prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement in
order to make the statements therein not misleading or the Prospectus in
order to make the statements therein, in the 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 make every reasonable effort to obtain the
withdrawal or lifting of such order at the earliest possible time.
(e) If, at any time when the Prospectus is required by the Securities
Act to be delivered in connection with sales of any of the Debt Securities,
any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for
the Company, to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances under which they were
made when the Prospectus is delivered to a purchaser, not misleading, or
if, in the opinion of either such counsel, it is necessary to amend or
supplement the Prospectus to comply with U.S. laws, the Company will
promptly prepare and file with the Commission and furnish, at its own
expense, to the Underwriters, and to the dealers (whose names and addresses
the Representative(s) will furnish to the Company) to which Debt Securities
may have been sold by the Underwriters and to any other dealer upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances under which they were made when the Prospectus
is delivered to a purchaser, be misleading or so that the Prospectus, as so
amended or supplemented, will comply with such U.S. laws.
(f) The Company will endeavor in good faith to qualify the Debt
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representative(s) shall reasonably request; provided,
however, that the Company shall not be obligated to file any general
consent to service or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will maintain
such qualification in effect for so long as may be required for the
distribution of the Debt Securities. The Company will file such statements
and reports as may be required by the laws of each jurisdiction in which
the Debt Securities have been qualified as above provided.
(g) With respect to each sale of Debt Securities, the Company will
make generally available to its security holders as soon as practicable an
earnings statement which shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 of the Commission thereunder.
(h) Unless otherwise provided in the Terms Agreement, during the
period (the "Lock-up Period") commencing on the date of the Terms Agreement
and ending on the later of termination of any trading restrictions and the
Closing Time with respect to the Debt Securities covered thereby (it being
understood that the Representative(s) promptly will notify the Company in
writing as to the termination
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of trading restrictions on such Debt Securities), the Company will not,
without the Representative(s)' prior consent, offer to sell, enter into any
agreement to sell, or guarantee any new issue of Debt Securities with a
maturity of ten year(s) or more, including additional Debt Securities;
provided, however, that the Lock-up Period shall in any event terminate on
the 30th day after the Closing Time.
(i) The Company will use its reasonable 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 Time and to satisfy all conditions
precedent to the delivery of the Debt Securities.
4. Conditions to Closing. The several obligations of the Underwriters to
purchase Debt Securities pursuant to the Terms Agreement are subject to the
following conditions:
(a) All the representations and warranties of the Company contained in
this Agreement shall be true and correct at the applicable Closing Time
with the same force and effect as if made on and as of such Closing Time.
(b) As of the applicable Closing Time, there shall not have been,
since the date of the Terms Agreement, any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
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 Securities Act.
(c) As of the applicable Closing Time, there shall not have been,
since the date of the Terms Agreement or since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, in each case, as amended and supplemented, any change, or any
development involving a prospective change, in the assets, business,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented as of such time, that, in the reasonable judgment
of the Representative(s), is material and adverse and that makes it, in the
reasonable judgment of the Representative(s), impracticable to market the
Debt Securities on the terms and in the manner contemplated in the
Prospectus, as so amended or supplemented.
(d) The Representative(s) shall have received at the applicable
Closing Time a certificate, dated the applicable Closing Time and signed by
an executive officer of the Company, to the effect set forth in clauses (b)
above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct at the applicable
Closing Time and that the Company has complied in all material respects
with all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied on or before the applicable Closing Time. The
officer signing and delivering such certificate may rely upon the best of
his knowledge after due inquiry.
(e) The Representative(s) shall have received at the applicable
Closing Time (i) an opinion of Xxxxx, Xxxxx, Xxxxxx, Xxxxxxx & Xxxxxxxx,
special counsel to the Company, addressing the matters set forth in Exhibit
A attached hereto, and (ii) an opinion of the General Counsel or the
Associate General Counsel of the Company, addressing the matters set forth
in Exhibit B attached hereto.
(f) The Representative(s) shall have received at the applicable
Closing Time an opinion of Xxxxxxx & Xxxxx L.L.P., special counsel for the
Underwriters, dated the applicable Closing Time, with respect to all such
matters as the Representative(s) may reasonably request.
(g) The Representative(s) shall have received on the date of the Terms
Agreement and as of the applicable Closing Time a letter, dated such date,
in form and substance satisfactory to the Representative(s), from
independent accountants for the Company, containing statements and
information of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
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If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative(s) by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without any liability of
any party to any other party except as may be provided in Sections 5, 6 and 8.
5. Payment of Expenses. The Company will pay all expenses, fees and taxes
incident to the performance of its obligations under the Terms Agreement (which
incorporates by reference this Agreement), including, without limitation, (i)
the preparation and filing of the Registration Statement and the Prospectus and
all amendments and supplements thereto, and the reproduction of this Agreement,
(ii) the preparation, issuance and delivery of the Debt Securities to the
Underwriters, (iii) the fees and disbursements of the Company's counsel and
accountants and the Trustee and its counsel, (iv) the qualification of the Debt
Securities under securities laws in accordance with the provisions of Section
3(f), including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky Surveys and Legal Investment Surveys, (v) the printing and delivery
to the Underwriters in quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto, and of the Prospectus and any
amendment or supplement thereto, (vi) the reproduction and delivery to the
Underwriters of copies of the Indenture and any Blue Sky Surveys and Legal
Investment Surveys, (vii) the fees, if any, charged by rating agencies for
rating the Debt Securities, (viii) the fees and expenses, if any, incurred in
connection with the listing of the Debt Securities on any national securities
exchange, and (ix) the fees and expenses, if any, relating to clearance with the
National Association of Securities Dealers, Inc.
6. Indemnification and Contribution. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by any Underwriter or any such controlling person
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), 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, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished to the Company in writing by any Underwriter through the
Representative(s) expressly for use therein or was based on the Form T-1 of the
Trustee. The foregoing indemnity with respect to any preliminary prospectus or
any Prospectus that is supplemented or amended shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the Debt
Securities which are the subject thereof if such Underwriter in a timely manner
received a copy of such Prospectus (or such Prospectus as so amended or
supplemented), and a copy of the Prospectus (or the Prospectus as amended or
supplemented), excluding documents incorporated therein by reference, was not
sent or given by or on behalf of such Underwriter to such person, at or prior to
the confirmation of the sale of the Debt Securities to such person in any case
where delivery of a Prospectus (or an amended or supplemented Prospectus) at or
prior to the written confirmation of the sale of the Debt Securities is required
by the Securities Act and the untrue statement or omission or the alleged untrue
statement or omission was corrected in the Prospectus (or the Prospectus as
amended or supplemented).
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 Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by the
Company, its directors, such officers or any such controlling person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary prospectus
or the Prospectus (as amended or supplemented if the Company shall
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have furnished any amendments or supplements thereto), 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, in light of the
circumstances under which they were made, not misleading, but only with
reference to information relating to such Underwriter furnished to the Company
by such Underwriter in writing through the Representative(s) expressly for use
in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
Promptly after receipt by an indemnified party under the first or second
paragraph in this Section 6 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section, notify the indemnifying party in writing
of the commencement thereof; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall pay
the reasonable expenses of legal counsel to the indemnified party as incurred
and shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation, and the indemnifying party shall not be responsible for the cost
of more than one counsel for all indemnified parties (excluding any necessary
local counsel) in connection with any actions arising from the same facts. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the entry of any judgment
with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action
or claim, and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.
If the indemnification provided for in the first or second paragraph in
this Section 6 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities 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 or
liabilities (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 Debt Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, 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
in connection with the offering of the Debt Securities shall be deemed to be in
the same respective proportions as the net proceeds from the offering of such
Debt Securities (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover of the Prospectus Supplement,
bear to the aggregate public offering price of the Debt Securities. The relative
fault of the Company on the one hand and of 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 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. The
Underwriters' respective obligations to contribute pursuant to this Section 6
are several in proportion to the respective principal amounts of Debt Securities
purchased by each of such Underwriters and not joint.
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The Company and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 6 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 that 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 and liabilities referred to in the immediately preceding
paragraph 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 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Debt Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages that 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6 and
the representations and warranties of the Company contained herein or made
pursuant hereto shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) 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 directors or officers or any person controlling the
Company, and (iii) acceptance of and payment for any of the Debt Securities.
7. Termination. This Agreement may be terminated, upon written notice given
by the Representative(s) to the Company, at any time prior to the applicable
Closing Time, if (a) after the execution and delivery of the Terms Agreement and
prior to the Closing Time (i) since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as may
otherwise be stated in or contemplated by the Registration Statement and the
Prospectus, any material adverse change, or any development involving a
prospective material adverse change, in the assets, business, financial
condition or results of operations of the Company and its subsidiaries taken as
a whole occurs, (ii) 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 or the NASDAQ National Market, (iii) trading of any
securities of the Company shall have been suspended on any national securities
exchange or on the NASDAQ National Market, (iv) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (v) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the reasonable judgment of the Representative(s), is
material and adverse, and (b) in the case of any of the events specified in
clauses (a)(i) through (v), such event, singly or together with any other such
event, makes it, in the reasonable judgment of the Representative(s),
impracticable to market the Debt Securities on the terms and in the manner
contemplated by the Prospectus and the Prospectus Supplement, as such may be
amended or supplemented.
8. Defaulting Underwriters. If one or more of the Underwriters
participating in an offering of Debt Securities shall fail or refuse at the
applicable Closing Time to purchase Debt Securities which it or they are
obligated to purchase under the applicable Terms Agreement (the "Defaulted
Securities"), and the principal amount of Defaulted Securities is not more than
one-tenth of the aggregate principal amount of the Debt Securities to be
purchased pursuant to the Terms Agreement, the non-defaulting Underwriters named
in such Terms Agreement shall be obligated severally in the proportions that the
principal amount of Debt Securities set forth opposite their respective names
above bears to the aggregate principal amount of Debt Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as the Representative(s) may specify, to purchase the Debt
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided, however, that in no event shall
the principal amount of Debt Securities that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 8 by
an amount in excess of one-ninth of such principal amount of Debt Securities
without the written consent of such Underwriter. If, at the applicable Closing
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Time, any Underwriter or Underwriters shall fail or refuse to purchase Debt
Securities and the aggregate principal amount of Debt Securities with respect to
which such default occurs is more than one-tenth of the aggregate principal
amount of Debt Securities to be purchased pursuant to the Terms Agreement, and
arrangements satisfactory to the Representative(s) and the Company for the
purchase of such Debt Securities are not made within 48 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Representative(s) or the Company shall have the right to postpone the Closing
Time but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement and in the Prospectus or in 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 such Underwriter under this Agreement.
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, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, 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 this Agreement or
the offering of the Debt Securities.
9. Parties. This Agreement shall inure to the benefit of and be binding
upon the Company and any Underwriter who becomes a party hereto, and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto or thereto and their respective successors and the
controlling persons and officers and directors referred to in Section 6 and
their heirs and legal representatives, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the parties and their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Debt Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
10. Counterparts. The Terms Agreement may be signed with counterpart
signature pages or in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
13. Notices. All references herein and in the applicable Terms Agreement to
the Representative(s) or the Underwriters when made in connection with any
notice to or communication by or with such Representative(s) or the Underwriters
shall be given to the Representative(s) at the address set forth in the
applicable Terms Agreement.
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EXHIBIT A
OPINION OF XXXXX, XXXXX, XXXXXX, XXXXXXX & XXXXXXXX,
COUNSEL FOR THE COMPANY
The opinion of counsel for the Company to be delivered pursuant to Section
4(e) of the Underwriting Agreement shall be to the effect that:
1. The Registration Statement has become effective under the
Securities Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for that purpose are pending before or, to such
counsel's knowledge, contemplated by the Commission.
2. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
3. The form and terms of the Debt Securities have been duly authorized
and established in conformity with the provisions of the Indenture by all
necessary corporate action by the Company, and when such Debt Securities
have been duly executed, authenticated and delivered against payment
therefor in accordance with the provisions of the Indenture and the
Underwriting Agreement, they will constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance
with their terms and the terms of the Indenture, except as such enforcement
may be limited by the Bankruptcy Exceptions; and the Indenture has been
duly authorized, executed and delivered by the Company, has been qualified
under the Trust Indenture Act, and constitutes a legal, valid and binding
obligation enforceable against the Company in accordance with its terms,
except as such enforcement may be limited by the Bankruptcy Exceptions.
4. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Debt Securities will not violate any provision of
applicable United States federal law, New York law or the Delaware General
Corporation Law, or the Restated Certificate of Incorporation, as amended,
or By-laws, as amended, of the Company.
5. 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 governmental
body or agency is required for the performance by the Company of its
obligations under the Underwriting Agreement, the Indenture or the Debt
Securities, except such as may be required under the Securities Act and the
rules and regulations of the Commission thereunder, and the Trust Indenture
Act and the rules and regulations of the Commission thereunder, which have
been obtained, or as may be required under the securities or Blue Sky laws
of the various states in connection with the offer and sale of the Debt
Securities, as to which such counsel need not express any opinion, or
except where the failure to obtain such consent, approval, authorization,
order or qualification would not, individually or in the aggregate, have a
Material Adverse Effect.
6. The Company is not (A) an "investment company" within the meaning
of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder, or (B) 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.
7. The statements (A) in the Prospectus Supplement under the caption
"Description of Offered Securities" and in the Prospectus under the caption
"Description of Debt Securities", and (B) in the Registration Statement
under Item 15, insofar as such statements constitute a summary of the
United States federal or New York or Delaware General Corporation Law legal
matters referred to therein, fairly present the information disclosed
therein in all material respects.
A-1
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8. (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 when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, 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 as to form in all material
respects with the requirements of the Securities Act, the Trust Indenture
Act and the applicable rules and regulations of the Commission thereunder.
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, counsel to the Company and the Company's
independent accountants, 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, at which
portions of the Registration Statement, the Prospectus and any 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 paragraph (7)
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
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 second sentence of this paragraph that cause 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, Fried, Xxxxx, Xxxxxx, Xxxxxxx &
Xxxxxxxx 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 verification, except as
specified, and (B) for purposes of paragraphs (iv) and (v), such counsel may
state (1) that they have reviewed only those statutes, rules and regulations
that in their experience are applicable to transactions of the type contemplated
by the Indenture and the Underwriting Agreement, and (2) that they do not act as
United States regulatory counsel to the Company in connection with, and do not
hold themselves out as experts in, the regulation of the generation,
transportation, distribution or delivery of natural gas, oil, electricity or
other specially regulated commodities or services, including pipelines,
transmission lines, storage facilities and related facilities and equipment, or
the import or export of such commodities or services.
Such counsel need express no opinion, view or belief, however, with respect
to (i) financial statements, schedules or notes thereto or other financial and
statistical data included or incorporated by reference in or omitted from the
Registration Statement, the Prospectus or the Prospectus Supplement, (ii) any
part of the
A-2
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Registration Statement which shall constitute a Statement of Eligibility on Form
T-1 under the Trust Indenture Act, or (iii) the Delaware corporation known prior
to December 12, 1996 as Tenneco Inc. and any of its subsidiaries or its
businesses prior to December 12, 1996 other than the operations of Old Tenneco
(as defined in the Prospectus) related to the transmission and marketing of
natural gas.
Such counsel may state (i) 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, and (ii) that no opinion,
view or belief is being expressed with respect to the following documents
incorporated by reference in the Registration Statement and the Prospectus: (A)
the Form 10-K (as defined in the Prospectus); and (B) the Form 10-Qs (as defined
in the Prospectus).
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EXHIBIT B
OPINION OF XXXXXXXX X. XXXXXX,
ASSOCIATE GENERAL COUNSEL OF THE COMPANY
The opinion of Xxxxxxxx X. Xxxxxx, Associate General Counsel of the
Company, to be delivered pursuant to Section 4(e) of the Underwriting Agreement
shall be to the effect that:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of Delaware.
2. The Company has the corporate power and authority to own its
properties and to conduct its business as described in the Prospectus, as
amended or supplemented, and is 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 to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse Effect.
3. Each Subsidiary has been duly incorporated and is validly existing
and in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its properties
and to conduct its business as described in the Prospectus and is 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 to the extent that
the failure to be so qualified or be in good standing would not have a
Material Adverse Effect.
4. To the best of such counsel's knowledge, the execution and delivery
by the Company of, and the performance by the Company of its obligations
under, the Underwriting Agreement, the Indenture and the Debt Securities
will not violate (A) any agreement or other instrument binding upon the
Company or any of its Subsidiaries, or (B) any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the Company
or any of its Subsidiaries except, in each case, for such violations as
would not, individually or in the aggregate, have a Material Adverse
Effect.
5. The statements (A) under 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) under the caption "Item 1 -- Legal
Proceedings" of Part II of the Company's quarterly reports on Form 10-Q, if
any, filed since such annual report, 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. To the best knowledge of such counsel, after due inquiry, (A) there
are no legal or governmental proceedings instituted or threatened against
the Company or any of its subsidiaries that would restrict the issuance and
sale of the Debt Securities as contemplated by the Prospectus, or would be
required to be disclosed therein and that is not disclosed, and (B) there
are no statutes, regulations, contracts or other documents that are
required to be summarized in the Registration Statement or the Prospectus
or to be filed or incorporated by reference as exhibits to the Registration
Statement that are not summarized, filed or incorporated as required.
7. (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 when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, 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 as to form in all material
respects with the requirements of the Securities Act, the Trust Indenture
Act and the applicable rules and regulations of the Commission thereunder.
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8. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement, the
Indenture and the Debt Securities 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 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, the Indenture
or the Debt Securities, except in each of the foregoing cases for such
violations, or failures to obtain such consent, approval, authorization,
order or qualification, as would not, individually or in the aggregate,
have a Material Adverse Effect.
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, counsel to the Company and the Company's
independent accountants, 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, 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 paragraph (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 Associate General Counsel of the Company, 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 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, 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 his attention in the course of the proceedings
described in the second sentence of this paragraph that cause 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.
Such counsel need express no opinion, view or belief, however, with respect
to (i) 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 or the Prospectus Supplement, (ii) any part
of the Registration Statement which shall constitute a Statement of Eligibility
on Form T-1 under the Trust Indenture Act, or (iii) the Delaware corporation
known prior to December 12, 1996 as Tenneco Inc. and any of its subsidiaries or
its businesses prior to December 12, 1996 other than the operations of Old
Tenneco (as defined in the Prospectus) related to the transmission and marketing
of natural gas.
Such counsel may state that the opinions expressed above are limited to the
federal laws of the United States and the laws of the State of Texas and the
corporate laws of the State of Delaware.
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