Exhibit 99.1
EXECUTION COPY
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ATMOS ENERGY CORPORATION
(a Texas and Virginia corporation)
7 3/8% Senior Notes due 2011
PURCHASE AGREEMENT
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Dated: May 15, 2001
Table of Contents
Page
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SECTION 1. Representations and Warranties......................................... 2
(a) Representations and Warranties by the Company.......................... 2
(i) Compliance with Registration Requirements..................... 2
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(ii) Incorporated Documents........................................ 3
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(iii) Independent Accountants....................................... 3
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(iv) Financial Statements.......................................... 4
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(v) No Material Adverse Change in Business........................ 4
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(vi) Good Standing of the Company.................................. 4
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(vii) Good Standing of Subsidiaries................................. 4
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(viii) Capitalization................................................ 5
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(ix) Authorization of Agreement.................................... 5
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(x) Authorization of Indenture.................................... 5
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(xi) Authorization of Securities................................... 5
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(xii) Description of Securities and the Indenture................... 6
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(xiii) Absence of Defaults and Conflicts............................. 6
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(xiv) Absence of Labor Dispute...................................... 6
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(xv) Absence of Proceedings........................................ 7
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(xvi) Accuracy of Exhibits.......................................... 7
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(xvii) Possession of Intellectual Property........................... 7
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(xviii) Absence of Further Requirements............................... 7
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(xix) Possession of Licenses and Permits............................ 8
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(xx) Title to Property............................................. 8
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(xxi) Investment Company Act........................................ 8
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(xxii) Environmental Laws............................................ 8
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(xxiii) Registration Rights........................................... 9
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(b) Officer's Certificates................................................. 9
SECTION 2. Sale and Delivery to Underwriters; Closing............................. 9
(a) Securities............................................................. 9
(b) Payment................................................................ 9
(c) Denominations; Registration............................................ 10
SECTION 3. Covenants of the Company............................................... 10
(a) Prospectus Supplement; Delivery of Prospectus.......................... 10
(b) Filing of Amendments................................................... 10
(c) Delivery of Registration Statements.................................... 10
(d) Delivery of Prospectuses............................................... 11
(e) Continued Compliance with Securities Laws.............................. 11
(f) Blue Sky Qualifications................................................ 11
(g) Rule 158............................................................... 12
(h) Use of Proceeds........................................................ 12
(i) Notice upon Effectiveness; Commission Requests......................... 12
(j) Restriction on Sale of Securities...................................... 12
(k) Reporting Requirements................................................. 12
(l) Rating of Securities................................................... 12
(m) The Depository Trust Company........................................... 12
SECTION 4. Payment of Expenses.................................................... 13
(a) Expenses............................................................... 13
(b) Termination of Agreement............................................... 13
SECTION 5. Conditions of Underwriters' Obligations................................ 13
(a) Effectiveness of Registration Statement................................ 13
(b) Opinion of Counsel for Company......................................... 13
(c) Opinion of Counsel for Underwriters.................................... 14
(d) Officers' Certificate.................................................. 14
(e) Accountants' Comfort Letter............................................ 14
(f) Bring-down Comfort Letter.............................................. 14
(g) Maintenance of Rating.................................................. 15
(h) No Objection........................................................... 15
(i) Additional Documents................................................... 15
(j) Termination of Agreement............................................... 15
SECTION 6. Indemnification........................................................ 15
(a) Indemnification of Underwriters........................................ 15
(b) Indemnification of Company, Directors and Officers..................... 16
(c) Actions Against Parties; Notification.................................. 17
(d) Settlement Without Consent If Failure to Reimburse..................... 17
SECTION 7. Contribution........................................................... 17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery......... 19
SECTION 9. Termination of Agreement............................................... 19
(a) Termination; General................................................... 19
(b) Liabilities............................................................ 19
SECTION 10. Default by One or More of the Underwriters............................. 19
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SECTION 11. Notices................................................................ 20
SECTION 12. Parties................................................................ 20
SECTION 13. Representation of Underwriters......................................... 21
SECTION 14. GOVERNING LAW AND TIME................................................. 21
SECTION 15. Effect of Headings..................................................... 21
SECTION 16. Counterparts........................................................... 21
SCHEDULES
Schedule A - List of Underwriters
Schedule B - Pricing Information
Schedule C - List of Subsidiaries
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel
Exhibit B - Form of Opinion of Virginia Counsel to the Company
Exhibit C - Form of Opinion of General Counsel of the Company
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ATMOS ENERGY CORPORATION
(a Texas and Virginia corporation)
7 3/8% Senior Notes due 2011
PURCHASE AGREEMENT
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May 15, 0000
XXXX XX XXXXXXX SECURITIES LLC
as Representative of the several Underwriters named in Schedule A
c/o Banc of America Securities LLC
Banc of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Atmos Energy Corporation, a Texas and Virginia corporation (the
"Company"), confirms its agreement with Banc of America Securities LLC ("Banc of
America") and each of the other Underwriters named in Schedule A hereto
(collectively, the "Underwriters", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Banc of
America is acting as representative (in such capacity, the "Representative"),
with respect to the issue and sale by the Company to the Underwriters of its 7
3/8% Senior Notes due 2011 (the "Securities") on the terms and conditions stated
herein and in Schedule B. The Securities are to be sold to each Underwriter,
acting severally and not jointly, in the respective principal amounts as are set
forth in Schedule A hereto opposite the name of such Underwriter. The Securities
are to be issued pursuant to an indenture to be dated as of May 22, 2001 (the
"Indenture"), between the Company and SunTrust Bank, as trustee (the "Trustee").
The Securities and the Indenture are more fully described in the Prospectus
(defined below).
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 333-93705). Such registration statement, as amended at the date hereof,
including the exhibits thereto, schedules thereto, if any, and the documents
incorporated or deemed to be incorporated by reference therein, is hereinafter
referred to as the "Registration Statement". The Registration Statement includes
a prospectus prepared in accordance with Rule 415 under the Securities Act of
1933, as amended (the "1933 Act"), relating to certain debt securities and
common stock of the Company, as the case may be, and the offering thereof from
time to time in accordance with Rule 415 under the 1933 Act pursuant to the
Registration Statement. The Registration Statement has been declared effective
by the Commission and the Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). As provided in Section
3(a), a prospectus supplement reflecting the terms of the Securities, the terms
of the offering thereof and other matters set forth therein has been prepared
and will be filed pursuant to Rule 424 under the 1933 Act. Such prospectus
supplement, in the form first filed after the date hereof pursuant to Rule 424,
is herein referred to as the "Prospectus Supplement." The base prospectus
included in the Registration Statement relating to all offerings of securities
under the Registration Statement, as supplemented by the Prospectus Supplement,
is herein called the "Prospectus," except that, if such base prospectus is
amended or supplemented on or prior to the date on which the Prospectus
Supplement is first filed pursuant to Rule 424, the term "Prospectus" shall
refer to the base prospectus as so amended or supplemented and as supplemented
by the Prospectus Supplement, in either case including the documents filed with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), that are incorporated by reference therein. Any preliminary
prospectus supplement attached to the base prospectus that was filed omitting
certain information regarding the public offering price and description of
Securities pursuant to Rule 424 of the rules and regulations of the Commission
under the 1933 Act and used prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." For purposes of this
Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained", "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, such preliminary prospectus or the Prospectus, as the
case may be.
The Company understands that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered.
SECTION 1. Representations and Warranties.
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(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(b) hereof, and agrees with each
Underwriter, as follows:
(i) Compliance with Registration Requirements. The Company meets
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the requirements for use of Form S-3 under the 1933 Act. The Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement has been issued
under the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company,
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are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement and any post-
effective amendments thereto became effective and at the time of the filing
by the Company of any annual report on Form 10-K or any quarterly report on
Form 10-Q and at the Closing Time, the Registration Statement and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the published rules and
regulations under the 1933 Act (the "1933 Act Regulations"), the 1939 Act
and the published rules and regulations of the Commission under the 1939
Act (the "1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was
issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through Banc of America expressly for
use in the Registration Statement or Prospectus.
Each preliminary prospectus and the Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed
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to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1933 Act, 1933 Act Regulations, 1934 Act and the
published rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the
time the Prospectus was issued and at the Closing Time, did not and will
not contain an untrue statement of a material fact and did not omit to or
will not 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.
(iii) Independent Accountants. The accountants who certified the
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financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
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(iv) Financial Statements. The financial statements included or
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incorporated by reference in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly in all
material respects the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules, if any, included in the
Registration Statement and the Prospectus present fairly in all material
respects in accordance with GAAP the information required to be stated
therein. The selected financial data and the summary financial information
included in the Prospectus present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus.
(v) No Material Adverse Change in Business. Since the respective
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dates as of which information is given in the Registration Statement and
the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change, or a development known to the Company involving a
prospective material adverse change, in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of
the Company and its subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on the Common Stock in amounts per share that are
consistent with past practice, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock, other than as set forth in the Prospectus.
(vi) Good Standing of the Company. The Company has been duly
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organized and is validly existing as a corporation in good standing under
the laws of the State of Texas and the Commonwealth of Virginia and has
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Prospectus and to enter into
and perform its obligations under this Agreement and the Indenture; and the
Company is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary"
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of the Company (as such term is defined in Rule 1-02 of Regulation S-X)
(each a "Subsidiary" and, collectively, the "Subsidiaries") (a) has been
duly organized and is validly existing as an entity in good standing under
the laws of the jurisdiction of its formation, other than EnerMart Energy
Services Trust, a Pennsylvania business trust, and Energas Energy Services
Trust, a Pennsylvania business trust, each of which has been duly organized
and is validly existing as a business trust in good standing under the laws
of the
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Commonwealth of Pennsylvania and (b) has power and authority or business
trust power and authority, as the case may be, to own, lease and operate
its properties and to conduct its business as described in the Prospectus
and is duly qualified as a foreign entity to transact business and is in
good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement and the Prospectus, all of the
issued and outstanding capital stock or limited liability company
membership interests, as the case may be, of each such Subsidiary have been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock or limited
liability company membership interests, as the case may be, of any
Subsidiary was issued in violation of the preemptive or similar rights of
any securityholder of such Subsidiary. The only Subsidiaries of the Company
are the subsidiaries listed on Schedule C hereto.
(viii) Capitalization. The authorized, issued and outstanding capital
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stock of the Company is as set forth in the Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to reservations, agreements or employee benefit
plans each referred to in the Prospectus or pursuant to the exercise of
convertible securities or options each referred to in the Prospectus). The
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
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authorized, executed and delivered by the Company.
(x) Authorization of Indenture. The Indenture has been duly
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authorized by the Company and duly qualified under the 1939 Act and, when
executed and delivered by the Company and, assuming the due authorization,
execution and delivery by the Trustee, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting the enforcement of creditors' rights generally and by
equitable principles of general applicability, regardless of whether such
enforceability is considered in a proceeding at equity or at law.
(xi) Authorization of Securities. The Securities have been duly
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authorized by the Company and, at the Closing Time, will have been duly
executed by the Company and, when authenticated, issued and delivered in
the manner provided for in the Indenture and delivered against payment of
the purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of the Company and enforceable against the
Company in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws relating
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to or affecting the enforcement of creditors' rights generally and by
equitable principles of general applicability, regardless of whether such
enforceability is considered in a proceeding at equity or at law, and will
be in the form contemplated by, and entitled to the benefits of, the
Indenture.
(xii) Description of Securities and the Indenture. The Securities
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and the Indenture will conform in all material respects to the respective
statements relating thereto contained in the Prospectus and will be in
substantially the respective forms filed or incorporated by reference, as
the case may be, or to be filed or to be incorporated by reference prior to
the Closing Time, as the case may be, as exhibits to the Registration
Statement.
(xiii) Absence of Defaults and Conflicts. Neither the Company nor any
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of its subsidiaries is in violation of its charter, bylaws or other
organizational documents or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the Indenture and
any other agreement or instrument entered into or issued or to be entered
into or issued by the Company in connection with the consummation of the
transactions contemplated herein and in the Registration Statement and the
Prospectus (including the issuance and sale of the Securities and the use
of the proceeds from the sale of the Securities as described in the
Prospectus under the caption "Use of Proceeds") and compliance by the
Company with its obligations hereunder and thereunder have been duly
authorized by all necessary corporate or other action on the part of the
Company and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of,
or default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults or liens,
charges, encumbrances or a Repayment Event that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter, bylaws or other organizational document of
the Company or any subsidiary or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their assets, properties or operations.
As used herein, a "Repayment Event" means any event or condition which
gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xiv) Absence of Labor Dispute. No labor dispute with the employees
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of the Company or any subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the
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employees of any of its or any subsidiary's principal suppliers,
manufacturers, customers or contractors, which, in either case, may
reasonably be expected to result in a Material Adverse Effect.
(xv) Absence of Proceedings. There is no action, suit, proceeding,
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inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which might reasonably be expected to
result in a Material Adverse Effect, or which might reasonably be expected
to affect the properties, assets or operations of the Company and its
subsidiaries, except what does not result in a Material Adverse Effect, or
the consummation of the transactions contemplated in this Agreement or the
performance by the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property, assets
or operations is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material Adverse
Effect.
(xvi) Accuracy of Exhibits. There are no contracts or documents
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which are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or to be
filed as exhibits thereto which have not been so described and filed as
required.
(xvii) Possession of Intellectual Property. The Company and its
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Subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xviii) Absence of Further Requirements. There have been issued and,
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at the Closing Time, there shall be in full force and effect orders or
authorizations of the regulatory authorities of the States of Colorado,
Georgia, Illinois, Kentucky, Missouri, and Virginia, respectively,
authorizing the issuance and sale of the Securities on terms herein set
forth or contemplated and no other filing with, or authorization, approval,
consent, license, order, registration, qualification or decree of, any
court or governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder, in connection with
the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or
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for the due execution, delivery or performance of the Indenture by the
Company, except such as have been already obtained or as may be required
under the 1933 Act or the 1933 Act Regulations or state securities or blue
sky laws.
(xix) Possession of Licenses and Permits. The Company and its
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subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the
failure to do so would not have a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, would result in a Material Adverse Effect.
(xx) Title to Property. The Company and its subsidiaries have good
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title to all real property owned by the Company and its subsidiaries and
good title to all other properties owned by them, in each case, free and
clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described
in the Registration Statement and the Prospectus or (b) do not, singly or
in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company or any of its subsidiaries; and all of the leases and subleases
material to the business of the Company and its subsidiaries, considered as
one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus, are in full force and effect,
and neither the Company nor any subsidiary has any notice of any claim of
any sort that has been asserted by anyone adverse to the rights of the
Company or any subsidiary under any of the leases or subleases mentioned
above, or affecting or questioning the rights of the Company or such
subsidiary to the continued possession of the leased or subleased premises
under any such lease or sublease, which, singly or in the aggregate, would
result in a Material Adverse Effect.
(xxi) Investment Company Act. The Company is not, and upon the
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issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xxii) Environmental Laws. Except as would not, singly or in the
--------------------------
aggregate, result in a Material Adverse Effect, (A) neither the Company nor
any of its subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or rule of
common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment,
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relating to pollution or protection of human health, the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, "Environmental Laws"), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their
requirements, (C) there are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxiii) Registration Rights. There are no persons or entities with
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registration rights or other similar rights to have any securities
registered under the Registration Statement.
(b) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representative or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
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(a) Securities. On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at the purchase price
to the Underwriters set forth in Schedule B, the principal amount of Securities
set forth opposite the name of such Underwriter in Schedule A, plus any
additional principal amount of Securities that such Underwriter may become
obligated to purchase pursuant to Section 10 of this Agreement.
(b) Payment. Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of Shearman & Sterling, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon
by the Company and the Underwriters, at 9:00 A.M. (Eastern Standard Time) on May
22, 2001 (unless postponed pursuant to Section 10), or at such other time not
later than ten business days after such date as shall be agreed upon by the
Underwriters and the Company (such date and time of payment and delivery being
herein called the "Closing Time"). Payment shall be made to the Company by wire
transfer of immediately available funds to an account designated by the Company,
against delivery to the Underwriters for the respective accounts of the several
Underwriters of the Securities to be purchased by them.
9
(c) Denominations; Registration. The Securities to be purchased by
the Underwriters shall be in such denominations ($1,000 or integral multiples
thereof) and registered in such names as the Underwriters may request in writing
at least one full business day before the Closing Time. The Securities will be
made available in New York City for examination by the Underwriters not later
than 10:00 A.M. (Eastern Standard Time) on the last business day prior to the
Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
-----------------------------------
Underwriter as follows:
(a) Prospectus Supplement; Delivery of Prospectus. Immediately
following the execution of this Agreement, the Company will, if it has not
already done so, prepare a Prospectus Supplement that complies with the
1933 Act and the 1933 Act Regulations and that sets forth the principal
amount of the Securities and their terms not otherwise specified in the
Indenture, the name of each Underwriter participating in the offering and
the principal amount of the Securities that each severally and not jointly
has agreed to purchase, the name of each Underwriter, if any, acting as
representative of the Underwriters in connection with the offering, the
price at which the Securities are to be purchased by the Underwriters from
the Company, any initial public offering price, any selling concession and
reallowance and any delayed delivery arrangements, and such other
information as the Underwriters and the Company deem appropriate in
connection with the offering of the Securities. The Company will promptly
transmit copies of the Prospectus Supplement to the Commission for filing
pursuant to Rule 424 under the 1933 Act and will furnish to the
Underwriters as many copies of the Prospectus as the Underwriters shall
reasonably request.
(b) Filing of Amendments. The Company will give the Representative
notice of its intention to file or prepare any amendment to the
Registration Statement, or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus, whether pursuant to the 1933 Act, the 1934
Act, or otherwise, will furnish the Representative with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representative shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Representative and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representative,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
10
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed
with the Commission pursuant to XXXXX, except to the extent permitted by
Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the
1934 Act Regulations and the 1939 Act and the 1939 Act Regulations so as to
permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when a prospectus
is required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or
for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Representative may
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement; provided, however, that the Company shall not be obligated to
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file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Securities have been so qualified, the
Company will file such statements and reports as may be required by the
laws of such jurisdiction to continue such qualification in effect for a
period of not less than one year from the date of the Prospectus.
11
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds".
(i) Notice upon Effectiveness; Commission Requests. During the period
when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Securities, the Company will notify the Underwriters
immediately, and confirm the notice in writing, (i) of the effectiveness of
any amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of any supplement to the Prospectus
or any document that would as a result thereof be incorporated by reference
in the Prospectus, (iii) of the receipt of any comments from the Commission
with respect to the Registration Statement, the Prospectus or the
Prospectus Supplement, (iv) of any request by the Commission for any
amendment to the Registration Statement or any supplement to the Prospectus
or for additional information relating thereto or to any document
incorporated by reference in the Prospectus and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the institution
or threatening of any proceeding for any of such purposes. The Company will
use every reasonable effort to prevent the issuance of any such stop order
or of any order suspending such qualification and, if any such order is
issued, to obtain the lifting thereof at the earliest possible moment.
(j) Restriction on Sale of Securities. Between the date hereof and
the Closing Time, the Company will not, without the prior written consent
of the Underwriters, directly or indirectly, issue, sell, offer or contract
to sell, grant any option for the sale of, or otherwise transfer or dispose
of, any debt securities issued or guaranteed by the Company.
(k) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act
in connection with sales of the Securities, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within
the time periods required by the 1934 Act and the 1934 Act Regulations.
(l) Rating of Securities. The Company shall take all reasonable
action necessary to enable Standard & Poor's Ratings Services, a division
of McGraw Hill, Inc. ("S&P"), Xxxxx'x Investors Service Inc. ("Moody's")
and Fitch IBCA, Inc. ("Fitch") to provide their respective credit ratings
of the Securities.
(m) The Depository Trust Company. The Company will cooperate with the
Underwriters and use its best efforts to permit the Securities to be
eligible for clearance and settlement through the facilities of The
Depository Trust Company.
12
SECTION 4. Payment of Expenses.
------------------------------
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits, including any documents incorporated therein
by reference) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, the
Indenture, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the delivery of the Securities to the Underwriters,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including the filing fees
incident to any necessary filings under state securities laws and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, and of the Prospectus and any amendments or supplements
thereto, (vii) the preparation, printing and delivery to the Underwriters of
copies of the Blue Sky Survey and any supplement thereto, (viii) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the
Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities, if any, (ix) any fees payable in connection with the rating of the
Securities and (x) the reasonable fees and expenses of the Trustee, including
the fees and disbursements of counsel for the Trustee, in connection with the
Indenture and the Securities.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their out-of-
pocket expenses, including the reasonable fees and disbursements of counsel for
the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
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the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company or any subsidiary of the Company
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement has become effective and at Closing Time no stop order suspending
the effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated, pending or threatened
by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. A Prospectus Supplement shall
have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representative shall have received the favorable opinion, dated as of
Closing Time, of (i) Xxxxxx, Xxxx
13
& Xxxxxxxx LLP, counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A hereto, (ii) Hunton & Xxxxxxxx, Xxxxxxxx
counsel for the Company, in form and substance reasonably satisfactory to
counsel for the Underwriters, together with signed or reproduced copies of
such letter for each of the other Underwriters to the effect set forth in
Exhibit B hereto and (iii) Xxxxx X. Xxxxxxx, General Counsel of the
Company, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for
each of the other Underwriters to the effect set forth in Exhibit C hereto.
(c) Opinion of Counsel for Underwriters. At Closing Time, the
Representative shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling, counsel for the Underwriters, as the
Representative may reasonably require. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United
States, upon the opinions of counsel satisfactory to the Representative.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(d) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change or a
development known to the Company involving a prospective material adverse
change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, and the Representative shall have received a certificate of
the President or a Senior Vice President of the Company and of the
Treasurer of the Company, dated as of Closing Time, to the effect that (i)
there has been no such material adverse change, (ii) the representations
and warranties in Section 1(a) hereof are true and correct with the same
force and effect as though expressly made at and as of Closing Time, (iii)
the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(e) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young a
letter dated such date, in form and substance satisfactory to the
Representative, together with signed or reproduced copies of such letter
for each of the other Underwriters containing statements and information of
the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus.
(f) Bring-down Comfort Letter. At Closing Time, the Representative
shall have received from Ernst & Young a letter, dated as of Closing Time,
to the effect that
14
they reaffirm the statements made in the letter furnished pursuant to
subsection (e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(g) Maintenance of Rating. At the Closing Time, the Securities shall
be rated at least A3 by Moody's Investor's Service Inc., A- by Standard &
Poor's Ratings Services and A- by Fitch IBCA, Inc., and the Company shall
have delivered to the Underwriters a letter dated the Closing Time, from
each such rating agency, or other evidence satisfactory to the
Underwriters, confirming that the Securities have such ratings; and since
the date of this Agreement, there shall not have occurred a downgrading in
the rating assigned to the Securities or any of the Company's other debt
securities by any "nationally recognized statistical rating agency", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 1933 Act, and no such securities rating agency shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of the Securities or any of the Company's other
debt securities.
(h) No Objection. If required, the NASD has confirmed that it has not
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(i) Additional Documents. At Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence
the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and
substance to the Representative and counsel for the Underwriters.
(j) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Representative by notice to the
Company at any time at or prior to Closing Time, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------------------
(a) Indemnification of Underwriters. (1) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto) or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary
15
to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus, Prospectus Supplement or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Banc of America),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
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liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through Banc of America expressly for use in the Registration
Statement (or any amendment thereto), or any preliminary prospectus, Prospectus
Supplement or the Prospectus (or any amendment or supplement thereto). The
foregoing indemnity with respect to any untrue statement contained in or any
omission from the Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss, liability, claim, damage or expense purchased any of the Securities
that are the subject thereof if the Company shall sustain the burden of proving
that (i) the untrue statement or omission contained in the Prospectus was
corrected; (ii) such person was not sent or given a copy of the Prospectus
(excluding documents incorporated by reference) which corrected the untrue
statement or omission at or prior to the written confirmation of the sale of
such Securities to such person if required by applicable law; and (iii) the
Company satisfied its obligation pursuant to Section 3(d) of this Agreement to
provide a sufficient number of copies of the Prospectus to the Underwriters.
(b) Indemnification of Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any
16
amendment thereto), or any preliminary prospectus, Prospectus Supplement or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through Banc of America expressly for use in the Registration Statement (or any
amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by Banc of America,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
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the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement Without Consent If Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel and such
indemnified party shall be entitled to such reimbursement, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in
-----------------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
17
damages and expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus bear to the aggregate initial public
offering price of the Securities as set forth on such cover.
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 any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the 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 Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section. The aggregate amount
of losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section, 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 any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the
18
same rights to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration Statement, and
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The Underwriters' respective obligations to
contribute pursuant to this Section are several in proportion to the number of
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
----------------------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
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Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
-----------------------------------
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to Closing Time (i)
if there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, or (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if a
banking moratorium has been declared by either Federal, New York, Texas or
Virginia authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------------------
of the Underwriters shall fail at Closing Time to purchase the Securities which
it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of
19
the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Securities does
not exceed 10% of the aggregate principal amount of the Securities to be
purchased on such date, the non-defaulting Underwriters shall be obligated,
each severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of Securities to be purchased on such
date, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone Closing Time, for a period not exceeding seven days
in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section.
SECTION 11. Notices. All notices and other communications hereunder
-------------------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative at Banc of America
Securities LLC, Banc of America Corporate Center, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000 attention of Xxxx X. XxXxxxxxx and notices to
the Company shall be directed to it at 1800 Three Lincoln Centre, 0000 XXX
Xxxxxxx, Xxxxxx, Xxxxx, 00000, attention of Xxxxx X. Xxxxxxx.
SECTION 12. Parties. This Agreement shall inure to the benefit of and
-------------------
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the controlling
persons within the meaning of Section 15 of the 1933 Act and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters and the Company and their respective
successors and assigns, 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 Securities from any Underwriter
shall be deemed to be a successor by reason merely of such purchase.
20
SECTION 13. Representation of Underwriters. Banc of America will act
------------------------------------------
for the several Underwriters in connection with the transactions contemplated by
this Agreement, and any action under or in respect of this Agreement taken by
Banc of America will be binding upon all Underwriters.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings
------------------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 16. Counterparts. This Agreement may be executed in one or
------------------------
more counterparts, and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
ATMOS ENERGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President, Corporate
Development and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
As Representative of the several Underwriters
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxx XxXxxxxxx
-----------------------
Authorized Signatory
For themselves and as Representative of the other Underwriters named in Schedule
A hereto.
SCHEDULE A
Principal Amount
of
Name of Underwriter Securities
------------------------------------------------------------------------------ -----------------
Banc of America Securities LLC............................................ $227,500,000
Banc One Capital Markets, Inc............................................. $ 70,000,000
First Union Securities, Inc............................................... $ 17,500,000
Fleet Securities, Inc..................................................... $ 17,500,000
XX Xxxxx Securities Corporation........................................... $ 17,500,000
------------
Total........................................................... $350,000,000
============
SCHEDULE B
Dated: May 15, 2001
ATMOS ENERGY CORPORATION, as Issuer
7 3/8% Senior Notes due 2011
Principal amount to be issued: $350,000,000
Current ratings: Xxxxx'x A3, Standard & Poor's A-, Fitch A-
Interest rate: 7 3/8% payable semiannually on May 15 and November 15 of each
year, beginning November 15, 2001
Interest accrues from: May 22, 2001
Date of maturity: May 15, 2011
Redemption provisions: The Securities will be redeemable, as a whole or in part,
at the option of the Company, at any time or from time to time, at a redemption
price equal to the greater of (i) 100% of the principal amount of the Securities
to be redeemed or (ii) the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities discounted to the
redemption date on a semi-annual basis at the treasury rate plus 25 basis
points, plus, in the case of each clause (i) and (ii), accrued interest to the
date of redemption.
Sinking fund requirements: None
Initial public offering price: 99.940% of the principal amount plus accrued
interest from May 22, 2001
Purchase price to be paid by the Underwriters: 99.290% of the principal amount
plus accrued interest from May 22, 2001
Closing date, time and location: May 22, 2001, 9:00 A.M., New York City time, at
Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
Delayed delivery contracts: Not authorized
Listing requirement: None
Other terms and conditions: None
SCHEDULE C
List of Subsidiaries
--------------------
1. Atmos Energy Holdings, Inc.
2. Atmos Energy Services, LLC
3. Atmos Energy Marketing, LLC
Exhibit A
---------
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)(i)
For the purposes of this opinion the term "Prospectus" shall have the
meaning set forth in the Purchase Agreement and shall include the Prospectus
Supplement, the Company's Annual Report on Form 10-K for the year ended
September 30, 2000, the Company's Quarterly Report on Form 10-Q for the period
ended December 31, 2000, the Company's Quarterly Report on Form 10-Q for the
period ended March 31, 2001 and any other document incorporated by reference
therein.
(i) The Company is validly existing as a corporation in good
standing under the laws of the State of Texas.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(iv) The Registration Statement has been declared effective under
the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b); and,
to the best of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings for
that purpose have been instituted or are pending or threatened by the
Commission.
(v) The Indenture has been duly authorized, executed and delivered
by the Company and (assuming the due authorization, execution and delivery
thereof by the Trustee) constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms.
(vi) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, assuming that the Securities have
been duly authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel need not determine
by an inspection of the Securities), the Securities have been duly executed,
issued and delivered by the Company and constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms
and will be entitled to the benefits of the Indenture.
A-1
(vii) The Registration Statement, the Prospectus, including the
documents incorporated by reference therein, and each amendment or supplement to
the Registration Statement and Prospectus, including the documents incorporated
by reference therein, as of their respective effective or issue dates (other
than the financial statements and supporting schedules and other financial data
included therein or omitted therefrom, and the Statements of Eligibility of
Trustee on Form T-1 included as exhibits to the Registration Statement (the
"Form T-1"), as to which we express no comment) complied as to form in all
material respects with the requirements of the 1933 Act, the 1933 Act
Regulations, the 1934 Act and the 1934 Regulations, as applicable.
(viii) The Securities and the Indenture conform in all material
respects to the respective descriptions thereof in the Prospectus under the
captions "Description of Debt Securities" and "Description of the Notes."
(ix) The documents incorporated by reference in the Prospectus
(other than the financial statements and supporting schedules and other
financial data included therein or omitted therefrom, as to which we need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the 1933 Act or the 1934 Act, as applicable, and the
published rules and regulations of the Commission thereunder.
(x) To the best of our knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject, before or brought by any court or governmental agency
or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder or that are required to be described in
the Prospectus that are not described as required (except for regulatory
proceedings, as to which we express no opinion).
(xi) The information in the Prospectus under "Description of Common
Stock", "Description of Debt Securities" and "Description of Notes" and in the
Registration Statement under Item 15, to the extent that it constitutes matters
of law, summaries of legal matters, the Company's charter and bylaws or legal
proceedings, or legal conclusions, has been reviewed by us and is correct in all
material respects.
(xii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states or the regulatory authorities
of the various states, and except for the qualification of the Indenture under
the 1939 Act, as to which we express no opinion) is necessary or required in
connection with the due authorization, execution and delivery of the Purchase
Agreement or the due execution, delivery and performance of the Indenture by the
Company or for the offering, issuance, sale or delivery of the Securities.
A-2
(xiii) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Purchase Agreement, the Indenture and in the
Registration Statement and the Prospectus (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") by the Company,
and compliance by the Company with its obligations under the Purchase Agreement,
the Indenture and the Securities do not and will not, whether with or without
the giving of notice or lapse of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined in Section 1(a)(xiii) of
the Purchase Agreement) under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, any document filed as an exhibit to the Registration
Statement or incorporated by reference therein or any document incorporated as
an exhibit into the Registration Statement (except for such conflicts, breaches
or defaults or liens, charges or encumbrances that would not have a Material
Adverse Effect), nor will such action result in any violation of the provisions
of the charter or bylaws of the Company, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its properties, assets or operations. (other than as
to regulatory matters, as to which we express no opinion).
(xiv) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
(xv) To the best of our knowledge, no person or corporation which
is a "holding company" or a "subsidiary of a holding company", within the
meaning of such terms as defined in the Public Utility Holding Company Act of
1935, directly or indirectly owns, controls or holds with power to vote 10% or
more of the outstanding voting securities of the Company; and the Company is not
a "holding company" or to the best of our knowledge, a "subsidiary of a holding
company" as so defined.
(xvi) The Indenture has been qualified under the 1939 Act, as
amended.
During the course of the preparation of the Registration Statement and
the Prospectus, we have participated in conferences with representatives of the
Company and the Underwriters at which the contents of the Registration Statement
and the Prospectus and related matters were discussed. Based upon the foregoing,
no facts have come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto (except for financial statements
and schedules and other financial data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which we make no statement
and except as to any Incorporated Document, which is dealt with below), at the
time such Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Prospectus or any amendment or supplement thereto
(except for financial statements and schedules and other financial data included
or incorporated by reference therein or omitted therefrom and the Form T-1, as
to which we make no statement), at the time the Prospectus was issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or
A-3
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or that any document incorporated by reference in the
Registration Statement (each an "Incorporated Document") or any amendment or
supplement thereto made by the Company prior to the Closing Time, when they were
filed with the Commission, as the case may be, contained (except for financial
statements and schedules and other financial data included or incorporated by
reference or omitted therefrom, as to which we make no statement) an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. We have not independently verified the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or incorporated by reference therein, and we are not
passing upon and do not assume any responsibility for the accuracy, completeness
or fairness of such statements.
In rendering such opinion, such counsel may state that its opinion is
limited to the Federal laws of the United States and the laws of the State of
Texas and the State of New York. Such opinion shall not state that it is to be
governed or qualified by, or that it is otherwise subject to, any treatise,
written policy or other document relating to legal opinions, including, without
limitation, the Legal Opinion Accord of the ABA Section of Business Law (1991).
This opinion is furnished by us as counsel for the Company to you
pursuant to the terms of the Purchase Agreement and is solely for your benefit.
Without our prior written consent, this opinion may not be relied upon by you in
any other context or by any other person. We are aware that Shearman & Sterling,
your counsel, is relying, solely with respect to matters involving the laws of
the State of Texas, on opinion paragraphs 1-3 and 5-6 herein in rendering their
opinion to you required under Section 5(c) of the Purchase Agreement. This
opinion may not be quoted, in whole or in part, or copies thereof furnished, to
any other person without our prior written consent, except that you may furnish
copies hereof (a) to your independent auditors and attorneys, (b) to any state
or federal authority having regulatory jurisdiction over you or the Company, (c)
pursuant to order or legal process of any court or governmental agency, and (d)
in connection with any legal or governmental action, proceeding or investigation
to which you are a party arising out of the transactions contemplated by the
Purchase Agreement.
A-4
Exhibit B
---------
FORM OF OPINION OF VIRGINIA COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)(ii)
For the purposes of this opinion the term "Prospectus" shall have the
meaning set forth in the Purchase Agreement and shall include the Prospectus
Supplement, the Company's Annual Report on Form 10-K for the year ended
September 30, 2000, the Company's Quarterly Report on Form 10-Q for the period
ended December 31, 2000, the Company's Quarterly Report on Form 10-Q for the
period ended March 31, 2001 and any other document incorporated by reference
therein.
(i) The Company is validly existing as a corporation in good
standing under the laws of the Commonwealth of Virginia.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Indenture has been duly authorized, executed and delivered
by the Company.
(iv) The Securities are in the form contemplated by the Indenture,
have been duly authorized by the Company and, assuming that the Securities have
been duly authenticated by the Trustee in the manner described in its
certificate delivered to you today (which fact such counsel need not determine
by an inspection of the Securities), the Securities have been duly executed,
issued and delivered by the Company and constitute valid and binding obligations
of the Company and will be entitled to the benefits of the Indenture.
In rendering such opinion, such counsel may state that its opinion is
limited to the Federal laws of the United States and the laws of the
Commonwealth of Virginia.
Except with our prior written consent, no person other than the
addressees of this opinion and Shearman & Sterling, counsel for the Underwriters
shall be entitled to rely upon it. We are aware that this opinion will be relied
upon by Shearman & Sterling.
B-1
Exhibit C
---------
FORM OF OPINION OF GENERAL COUNSEL OF THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)(iii)
For the purposes of this opinion the term "Prospectus" shall have the
meaning set forth in the Purchase Agreement and shall include the Prospectus
Supplement, the Company's Annual Report on Form 10-K for the year ended
September 30, 2000, the Company's Quarterly Report on Form 10-Q for the period
ended December 31, 2000, the Company's Quarterly Report on Form 10-Q for the
period ended March 31, 2001 and any other document incorporated by reference
therein.
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Texas and the
Commonwealth of Virginia.
(ii) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Purchase
Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any, pursuant
to the Purchase Agreement or pursuant to reservations, agreements, employee
benefit plans referred to in the Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Prospectus); the shares of
issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(v) Each subsidiary (other than EnerMart Energy Services Trust, a
Pennsylvania business trust ("EnerMart Trust") and Energas Energy Services
Trust, a Pennsylvania business trust ("EnerGas Trust"), has been duly
incorporated or formed, as the case may be, and is validly existing as an entity
in good standing under the laws of the jurisdiction of its incorporation or
formation, as the case may be, has the power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign entity to transact business and is
in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property
C-1
or the conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as otherwise
disclosed in the Registration Statement, all of the issued and outstanding
capital stock of each subsidiary or limited liability company membership
interests of each subsidiary (other than EnerMart Trust and EnerGas Trust) has
been duly authorized and validly issued, is fully paid and non-assessable and,
to the best of my knowledge, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital stock or
limited liability company membership interests of any subsidiary (other than
EnerMart Trust and EnerGas Trust) was issued in violation of the preemptive or
similar rights of any securityholder of such subsidiary.
(vi) EnerMart Trust and EnerGas Trust has been duly organized and
validly existing as a business trust under laws of the Commonwealth of
Pennsylvania, has power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus, is duly qualified as
a foreign business trust to transact business and is in good standing in each
jurisdiction in which such qualification is required, except where the failure
so to qualify or to be in good standing would not result in a Material Adverse
Effect and is wholly-owned, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity.
(vii) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(viii) The documents incorporated by reference in the Prospectus
(other than the financial statements and data and supporting schedules included
therein or omitted therefrom, as to which I need express no opinion), when they
were filed with the Commission complied as to form in all material respects with
the requirements of the 1934 Act and the 1934 Act Regulations.
(ix) To the best of my knowledge, there is not pending or
threatened any action, suit, proceeding, inquiry or investigation, to which the
Company or any subsidiary is a party, or to which the property of the Company or
any subsidiary is subject, before or brought by any court or governmental agency
or body, domestic or foreign, which might reasonably be expected to result in a
Material Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Purchase Agreement or the performance by the
Company of its obligations thereunder or that are required to be described in
the Prospectus that are not described as required.
(x) The information in (a) the Prospectus under "Atmos--
Operations" "Atmos--Recent Developments", (b) the Company's Annual Report on
Form 10-K for the year ended September 30, 2000 (the "Form 10-K") under "Part I,
Item 1-Business-Regulation", "Part I, Item 1-Business-Rates", "Item 2-
Properties" and Item 3-Litigation Matters and (c) Note 5 to the Company's 2000
Consolidated Financial Statements (contained in the Form 10-K), (d) the
Company's Quarterly Report on Form 10-Q for the period ended December 31, 2000
under Note 2, Note 3 and Note 7 to the Company's Condensed Consolidated
Financial Statements (Unaudited) December 31, 2000 and "Part I, Item 2 -
Management's Discussion and Analysis of
C-2
Financial Condition and Results of Operations - Ratemaking Activity", (e) the
Company's Quarterly Report on Form 10-Q for the period ended March 31, 2001
under Note 2, Note 3, Note 7 and Note 8 to the Company's Condensed Consolidated
Financial Statements (Unaudited) March 31, 2001 and "Part I, Item 2 -
Management's Discussion and Analysis of Financial Condition and Results of
Operations -Ratemaking Activity", "Part I, Item 2 - Management's Discussion and
Analysis of Financial Condition and Results of Operations - Status of Pending
Acquisition" to the extent that it constitutes matters of law, summaries of
legal matters, the Company's Restated Articles of Incorporation, as amended, and
Amended and Restated Bylaws or legal proceedings, or legal conclusions, has been
reviewed by me and is correct in all material respects.
(xi) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectus that are not
described as required.
(xii) All descriptions in the Registration Statement and the
Prospectus of contracts and other documents to which the Company or its
subsidiaries are a party are accurate in all material respects; to the best of
my knowledge, there are no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments required to be described or
referred to in the Registration Statement or the Prospectus or to be filed as
exhibits thereto other than those described or referred to therein or filed or
incorporated by reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(xiii) To the best of my knowledge, neither the Company nor any
subsidiary is in violation of its charter, bylaws or other organizational
document and no default by the Company or any subsidiary exists in the due
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other agreement or instrument that is described or referred to in the
Registration Statement or the Prospectus or filed or incorporated by reference
as an exhibit to the Registration Statement.
(xiv) The material franchises, permits and rights of the Company and
its subsidiaries in each jurisdiction in which such franchise, permit or right
is required are valid and adequate for the business in which it is engaged, and
there do not exist, to the best of my knowledge, any restrictions in connection
therewith that, solely or in the aggregate, would result in a Material Adverse
Effect.
(xv) There have been issued and, as of the dated hereof, are in
full force and effect orders or authorizations of the regulatory authorities of
Colorado, Georgia, Illinois, Kentucky, Missouri, and Virginia, respectively,
authorizing the issuance and sale of the Securities on the terms set forth or
contemplated in the Purchase Agreement; and no other filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency, domestic or foreign
(other than under the 1933 Act and the 1933 Act Regulations, which have been
obtained, or as may be required under the securities or blue sky laws of the
various states, as to which I express no opinion), is necessary or required in
connection with the due authorization, execution and delivery of the Purchase
Agreement, the Indenture or for the offering, issuance, sale or delivery of the
Securities.
C-3
(xvi) The execution, delivery and performance of the Purchase
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Purchase Agreement, the Indenture and in the
Registration Statement and the Prospectus (including the issuance and sale of
the Securities and the use of the proceeds from the sale of the Securities as
described in the Prospectus under the caption "Use of Proceeds") and compliance
by the Company with its obligations under the Purchase Agreement, the Indenture
and the Securities do not and will not, whether with or without the giving of
notice or lapse of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined in Section 1(a)(xiii) of the Purchase
Agreement) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or any other agreement or instrument, known to me, to
which the Company or any subsidiary is a party or by which it or any of them may
be bound, or to which any of the property or assets of the Company or any
subsidiary is subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the charter or bylaws
of the Company or the charter, bylaws or other organizational documents of any
subsidiary, or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to me, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their respective properties, assets or operations.
Nothing has come to my attention that would lead me to believe that
the Registration Statement or any amendment thereto (except for financial
statements and schedules and other financial data included or incorporated by
reference therein or omitted therefrom and Statements of Eligibility of Trustee
on Form T-1 included as exhibits to the Registration Statement (the "Form T-1"),
as to which I make no statement), at the time such Registration Statement or any
such amendment became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus
or any amendment or supplement thereto (except for financial statements and
schedules and other financial data included or incorporated by reference therein
or omitted therefrom and the Form T-1, as to which I make no statement), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
[In rendering such opinion, such counsel may state that his opinion is
limited to the Federal laws of the United States, the laws of the State of Texas
and the Virginia Stock Corporation Act.]
Except with our prior written consent, no person other than the
addressees of this opinion and Shearman & Sterling, counsel for the Underwriters
shall be entitled to rely upon it. We are aware that this opinion will be relied
upon by Shearman & Sterling.
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