Exhibit 1.01
QUESTAR PIPELINE COMPANY
(a Utah corporation)
Medium-Term Notes, Series B
Due From Nine Months to Thirty Years From Date of Issue
DISTRIBUTION AGREEMENT
____________, 2001
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Table of Contents
Page
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SECTION 1. Appointment as Agents. .........................................2
Section 2. Representations and Warranties..................................4
Section 3. Solicitations as Agent; Purchases as Principal..................8
Section 4. Covenants of the Company........................................9
Section 5. Conditions of Agents' Obligations...............................13
Section 6. Delivery of and Payment for Notes Sold through the Agents.......19
Section 7. Additional Covenants of the Company.............................20
Section 8. Indemnification.................................................21
Section 9. Contribution....................................................24
Section 10. Payment of Expenses.............................................25
Section 11. Representations, Warranties and Agreements to Survive
Delivery........................................................26
Section 12. Termination.....................................................26
Section 13. Notices. .......................................................27
Section 14. Governing Law and Time. ........................................28
Section 15. Parties.........................................................28
Section 16. Captions........................................................29
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QUESTAR PIPELINE COMPANY
Medium-Term Notes, Series B, Due from
Nine Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
, 2001
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Four World Financial Center, FL 00
Xxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10080
BANC OF AMERICA SECURITIES LLC
Banc of America Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
BANC ONE CAPITAL MARKETS, INC.
One Banc Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S. BANCORP XXXXX XXXXXXX
U.S. Bancorp Center
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Questar Pipeline Company, a Utah corporation (the "Company"),
confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), Banc of America Securities
LLC, Banc One Capital Markets, Inc. and U.S. Bancorp Xxxxx Xxxxxxx (each,
an "Agent", and together, the "Agents") with respect to the issue and sale
by the Company of its Medium-Term Notes, Series B, due from nine months to
30 years from date of issue, described herein (the "Notes"). The Notes are
to be issued pursuant to an indenture dated as of August 17, 1998, as
amended, supplemented or modified from time to time (the "Indenture"),
between the Company and Xxxxx Fargo Bank Northwest, National Association
(f/k/a First Security Bank, N.A.), as trustee (the "Trustee").
As of the date hereof, the Company has authorized the issuance and
sale of up to $250,000,000 aggregate principal amount of Notes directly or
through the Agents pursuant to the
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terms of this Agreement. It is understood, however, that the Company may
from time to time authorize the issuance of additional Notes and that such
additional Notes may be distributed by the Company or through or to the
Agents pursuant to the terms of this Agreement, all as though the issuance
of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company
directly to purchasers, in which case the Agents will act as agents of the
Company in soliciting Note purchases, and (as may from time to time be
agreed to by the Company and the related Agent or the Agents) to one or
more Agents as principal for resale to purchasers.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-_____) for
the registration of the Notes under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance
with Rule 415 of the rules and regulations of the Commission under the 1933
Act (the "1933 Act Regulations"). Such 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"). Such
registration statement (and any further registration statements which may
be filed by the Company for the purpose of registering additional Notes and
in connection with which this Agreement is included or incorporated by
reference as an exhibit) and the prospectus constituting a part thereof,
and any prospectus supplements relating to the Notes, including all
documents incorporated therein by reference, as from time to time amended
or supplemented by the filing of documents pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or the 1933 Act or
otherwise, are referred to herein as the "Registration Statement" and the
"Prospectus", respectively, except that if any revised prospectus shall be
provided to the Agents by the Company for use in connection with the
offering of the Notes whether or not such revised prospectus is required to
be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations, the term "Prospectus" shall refer to such revised prospectus
from and after the time it is first provided to the Agents for such use.
Section 1. Appointment as Agent.
--------------------
(a) Appointment of Agents. Subject to the terms and conditions stated
herein and subject to the reservation by the Company of the right to sell
Notes directly on its own behalf, the Company hereby appoints the Agents,
except as otherwise provided in this Section 1(a), as the exclusive agents
for the purpose of soliciting purchases of the Notes from the Company by
others and agrees that, except as otherwise contemplated herein, whenever
the Company determines to sell Notes directly to one or more of the Agents
as principal for resale to others, it will enter into a Terms Agreement (as
hereafter defined) relating to such sale in accordance with the provisions
of Section 3(b) hereof if requested by such Agent. The Company agrees that,
except as otherwise provided in this Section 1(a), during the period the
Agents are acting as the Company's agents hereunder, the Company will not
engage any other party to assist in the placement of the Notes (other than
any person or entity which, by executing a counterpart of this Agreement,
becomes an Agent hereunder). Notwithstanding the foregoing, the Company
reserves the right to (i) appoint additional agents for the purpose of
placing Notes in one or more discrete transactions during the term of this
Agreement under the terms of an agreement substantially identical to this
Agreement (provided that the commission to be paid to such additional
agents in connection with the sale of any Note shall be the applicable
commission
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determined pursuant to Section 3(a) hereof), and (ii) sell Notes
to one or more underwriters in one or more underwritten transactions so
long as such underwriter or underwriters shall execute an agreement
substantially identical to this Agreement relating to such underwritten
transaction or transactions, provided that in each such case no such
agreement will appoint any such agent or underwriter as an agent under this
Agreement except as relates to the related transaction or transactions. The
Company shall give prompt written notice to the Agents of the occurrence of
any event described in clause (i) or (ii) above. As used herein, the term
"Agent", in addition to Xxxxxxx Xxxxx, Banc of America Securities LLC, Banc
One Capital Markets, Inc. and U.S. Bancorp Xxxxx Xxxxxxx refers to each
person or entity which, at any particular time, is an agent or underwriter,
as the case may be, for the Company hereunder as evidenced by its execution
of a counterpart of this Agreement.
(b) Reasonable Efforts Solicitations; Right to Reject Offers. Upon receipt
of instructions from the Company, the Agents will use their reasonable
efforts to solicit offers to purchase such principal amount of the Notes as
the Company and the Agents shall agree upon from time to time during the
term of this Agreement, it being understood that the Company shall not
approve the solicitation of offers to purchase Notes in excess of the
amount which shall be authorized by the Company from time to time or in
excess of the principal amount of Notes registered pursuant to the
Registration Statement. The Agents will have no responsibility for
maintaining records with respect to the aggregate principal amount of Notes
sold, or of otherwise monitoring the availability of Notes for sale under
the Registration Statement. Each Agent will communicate to the Company,
orally or in writing, each reasonable offer to purchase Notes, other than
those offers rejected by such Agent. Each Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of
Notes, as a whole or in part, and any such rejection shall not be deemed a
breach of the Agent's agreement contained herein. The Company shall have
the sole right to accept or reject any proposed purchase of the Notes, in
whole or in part and any such rejection shall not be deemed a breach of the
Company's agreement contained herein.
(c) Solicitations as Agent; Purchases as Principal. In soliciting offers to
purchase the Notes on behalf of the Company and in performing its other
obligations hereunder (other than with respect to any purchase by the
Agents as principal, pursuant to a Terms Agreement or otherwise), each
Agent shall act solely as agent for the Company and not as principal. Each
Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been
solicited by such Agent and accepted by the Company. No Agent shall have
any liability to the Company in the event any such purchase is not
consummated for any reason. If the Company shall default on its obligation
to deliver Notes to a purchaser whose offer it has accepted, the Company
shall (i) hold the Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company and (ii) notwithstanding
such default, pay to the Agent any commission to which it would be entitled
in connection with such sale. No Agent shall have any obligation to
purchase Notes from the Company as principal, but an Agent may agree from
time to time to purchase Notes as principal. Any such purchase of Notes by
an Agent as principal shall be made in accordance with Section 3(b) hereof
if requested by such Agent.
(d) Reliance. The Company and the Agents agree that any Notes the placement
of which the Agents arrange shall be placed by the Agents, and any Notes
purchased by the Agents
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shall be purchased, in reliance on the representations, warranties,
covenants and agreements of the Company contained herein and on the terms
and conditions and in the manner provided herein.
Section 2. Representations and Warranties.
------------------------------
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Agent as of the date hereof, as of the date
of each acceptance by the Company of an offer for the purchase of Notes
(whether through an Agent as agent or from an Agent as principal), as of
the date of each delivery of Notes (whether through an Agent as agent or to
an Agent as principal) (the date of each such delivery to an Agent as
principal being hereafter referred to as a "Settlement Date"), and as of
any time that the Registration Statement or the Prospectus shall be amended
or supplemented or there is filed with the Commission any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(i) Registration Statement and Prospectus. At the time the
Registration Statement became effective, the Registration
Statement complied, and as of each Representation Date will
comply, in all material respects with the requirements of the 1933
Act, the 1933 Act Regulations, the 1939 Act and the rules and
regulations of the Commission promulgated under the 1939 Act. The
Registration Statement, at the time it became effective, did not,
and at each time thereafter at which any amendment to the
Registration Statement becomes effective or any Annual Report on
Form 10-K is filed by the Company with the Commission and as of
each Representation Date, 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. The Prospectus, as of the date hereof does not, and as
of each Representation Date will not, contain an untrue statement
of a material fact or 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;
provided, however, that 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
or on behalf of the Agents expressly for use in the Registration
Statement or Prospectus.
The prospectus and any pricing supplement filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 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 Agents 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 to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or at the
times they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the 1934 Act
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and the rules and regulations promulgated thereunder (the "1934
Act Regulations"), and, when read together with the other
information in the Prospectus, at the times the Registration
Statement became effective and at the time the Prospectus was
issued did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, not
misleading.
(iii) Accountants. The accountants who certified the financial
statements and supporting schedules included or incorporated by
reference in the Prospectus are, to the best knowledge of the
Company, independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(iv) Financial Statements. The financial statements included
in the Registration Statement and the Prospectus present fairly
the financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their
operations for the periods specified; except as otherwise stated
in the Registration Statement, such financial statements have been
prepared in conformity with generally accepted accounting
principles applied on a consistent basis; and the supporting
schedules included in the Registration Statement present fairly
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 in the Registration Statement.
(v) Material Changes or Material Transactions. Since the
respective 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 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, (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 the
regular dividends, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any class of its
capital stock.
(vi) Due Incorporation and Qualification. The Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Utah with corporate power
and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus; and 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 to so qualify or be in good standing would not have a
material adverse effect on the condition, financial or otherwise,
or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise (a
"Material Adverse Effect").
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(vii) Subsidiaries. Each subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has corporate 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 corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership of property or the conduct of business, except where the
failure to so qualify or be in good standing would not have a
Material Adverse Effect; and all of the issued and outstanding
capital stock of each subsidiary has been duly authorized and
validly issued, is fully paid and nonassessable and is owned by
the Company, directly or through subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(viii) Capital Stock. The shares of issued and outstanding
common stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable.
(ix) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(x) Authorization and Validity of the Indenture and the Notes.
The Notes have been duly authorized for issuance and sale pursuant
to this Agreement and, when issued and delivered pursuant to this
Agreement against payment of the consideration therefor specified
in the Prospectus or pursuant to any Terms Agreement, the Notes
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
legally binding obligations of the Company enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and general equitable principles, and will be
entitled to the benefits provided by the Indenture, which will be
substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized by the Company
and the Indenture has been duly qualified under the 1939 Act and
constitutes a valid and legally binding instrument of the Company,
enforceable against the Company in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and
general equitable principles; and the Notes and the Indenture
conform to the respective descriptions thereof in the Prospectus.
(xi) No Defaults; Regulatory Approvals. Neither the Company
nor any of its subsidiaries is in violation of its charter or in
default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
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 of its
subsidiaries is subject, which violations or defaults in the
aggregate would have a Material Adverse Effect; and the execution
and delivery of this Agreement and the consummation of the
transactions
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contemplated herein and therein and pursuant to any
applicable Terms Agreement have been duly authorized by all
necessary corporate action and will not conflict with or
constitute a breach of, or a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries,
except as expressly contemplated in the Indenture or except as
would not have a Material Adverse Effect, pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or
other 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 of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the charter or by-laws of the
Company or, except as would not have a Material Adverse Effect,
any applicable law, administrative regulation or administrative or
court decree.
(xii) Legal Proceedings; Contracts. There is no action, suit
or proceeding 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, the Company or any
of its subsidiaries, which is required to be disclosed in the
Registration Statement (other than as disclosed therein) or which
would reasonably be expected to result in a Material Adverse
Effect, all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or which any of
their respective property is subject which are not described in
the Registration Statement, including ordinary routine litigation
incidental to the business, considered in the aggregate, would not
reasonably be expected to cause a Material Adverse Effect; and
there are no contracts or documents of the Company or any of its
subsidiaries which are required to be filed as exhibits to the
Registration Statement by the 1933 Act or by the 1933 Act
Regulations which have not been so filed.
(xiii) No Governmental Authorization. No authorization,
approval or consent of any court or governmental authority or
agency is necessary in connection with the sale of the Notes
hereunder, except such as may be required under the 1933 Act, the
1933 Act Regulations and state securities laws and except as have
been obtained.
(xiv) Possession of Permits. The Company and its subsidiaries
possess such valid franchises, certificates of convenience and
necessity, easements, rights-of-way, operating rights, licenses,
permits, consents, authorizations and orders of governmental
political subdivisions or regulatory authorities as are necessary
to conduct the business now operated by them, except those the
failure of which to possess 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 thereof which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding would have a
Material Adverse Effect.
(xv) Investment Company Act. Neither the Company nor any of
its subsidiaries is regulated or required to be registered as an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act").
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(xvi) Ratings. The Medium-Term Note Program under which the
Notes are issued (the "Program"), as well as the Notes, are rated
A1 by Xxxxx'x Investors Service, Inc. and A+ by Standard & Poor's
Ratings Services, or such other rating as to which the Company
shall have most recently notified the Agents pursuant to Section
4(a) hereof.
(b) Additional Certifications. Any certificate signed by any
director or officer of the Company and delivered to the Agents or to
counsel for the Agents in connection with an offering of Notes or the sale
of Notes to one or more Agents as principal shall be deemed a
representation and warranty by the Company to the Agents as to the matters
covered thereby on the date of such certificate and at each Representation
Date subsequent thereto.
Section 3. Solicitations as Agent; Purchases as Principal.
----------------------------------------------
(a) Solicitations as Agent. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions
herein set forth, each Agent agrees, when acting as an agent of the
Company, to use its reasonable efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the Prospectus.
In connection with the solicitation of offers to purchase Notes, the Agents
are not authorized to provide any written information relating to the
Company to any prospective purchaser other than the Prospectus and
documents incorporated by reference in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase the Notes through the Agents, as agents,
commencing at any time for any period of time or permanently. Upon receipt
of instructions from the Company, the Agents will forthwith suspend
solicitation of offers to purchase from the Company until such time as the
Company has advised the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of
a discount, equal to the applicable percentage of the principal amount of
each Note sold by the Company as a result of a solicitation made by such
Agent as set forth in Schedule A hereto; provided, however, that the
Company shall only be obligated to pay one such fee with respect to any
particular Note so sold.
The purchase price, interest rate, maturity date and other terms
of the Notes shall be agreed upon by the Company and the Agents and set
forth in a pricing supplement to the Prospectus to be prepared following
each acceptance by the Company of an offer for the purchase of Notes.
Except as may be otherwise provided in such supplement to the Prospectus,
the Notes will be issued in denominations of $1,000 or any larger amount
that is an integral multiple of $1,000. All Notes sold through the Agents
as agents will be sold at 100% of their principal amount unless otherwise
agreed to by the Company and the Agents. Each Agent acknowledges and agrees
that any funds which such Agent receives in respect of a purchase of Notes,
which purchase has been solicited by such Agent, as agent of the Company,
will be received, held and disposed of by such Agent, as agent of the
Company.
(b) Purchases as Principal. Each sale of Notes to one or more
Agents as principal shall be made in accordance with the terms contained
herein and, if requested by such Agent, pursuant to a separate agreement
which will provide for the sale of such Notes to, and the
8
purchase and reoffering thereof by, such Agent or Agents. Each such
separate agreement (which may be an oral agreement) between one or more
Agents and the Company is herein referred to as a "Terms Agreement". Unless
the context otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any Terms Agreement between the
Company and one or more Agents. Each such Terms Agreement, whether oral or
in writing, shall be with respect to such information (as applicable) as is
specified in Exhibit A hereto. An Agent's commitment to purchase Notes as
principal pursuant to any Terms Agreement or otherwise shall be deemed to
have been made on the basis of the representations and warranties of the
Company herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall specify the principal amount
of Notes to be purchased by each Agent pursuant thereto, the price to be
paid to the Company for such Notes (which, if not so specified in a Terms
Agreement, shall be at a discount equivalent to the applicable commission
set forth in Schedule A hereto), the time and place of delivery of and
payment for such Notes, any provisions relating to rights of, and default
by purchasers acting together with the Agents in the reoffering of the
Notes, and such other provisions (including further terms of the Notes) as
may be mutually agreed upon. The Agents may utilize a selling or dealer
group in connection with the resale of the Notes purchased by the Agents.
Such Terms Agreement shall also specify whether or not any officer's
certificate, opinions of counsel or comfort letter specified in Sections
7(b), 7(c) and 7(d) hereof shall be required to be delivered by the Company
on the related Settlement Date.
(c) Administrative Procedures. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents and the Company (the "Procedures"). The initial Procedures, which
are set forth in Exhibit B hereto, shall remain in effect until changed by
agreement between the Company and the Agents or, with respect to the sale
of the Notes to one or more Agents as principal, unless modified by the
applicable Terms Agreement. The Agents and the Company agree to perform the
respective duties and obligations specifically provided to be performed by
them in the Procedures.
(d) Delivery of Closing Documents. The documents required to be
delivered by Section 5 hereof shall be delivered at the office of Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 on the date hereof, or at such other time or place as the Agents and
the Company may agree.
Section 4. Covenants of the Company.
------------------------
The Company covenants with each Agent as follows:
(a) Compliance with Securities Regulations and Commission
Requests. The Company, subject to Section 4(b), will comply with the
requirements of Rule 434, and will notify the Agents immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any document to be filed pursuant to the 1934 Act which will
be incorporated by reference into the Prospectus shall have been filed,
(ii) of the receipt of any comments from the Commission concerning the
Registration Statement, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of the
9
qualification of the Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such
purposes and (v) any change in the rating assigned by any nationally
recognized statistical rating organization to the Program or any debt
securities (including the Notes) of the Company or the public announcement
by any nationally recognized statistical rating organization that it has
under surveillance or review, with possible negative implications, its
rating of the Program or any such debt securities, or the withdrawal by any
nationally recognized statistical rating organization of its rating of the
Program or any such debt securities. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company will give the Agents notice
of its intention to file or prepare any additional registration statement
with respect to the registration of additional Notes, any amendment to the
Registration Statement or any amendment or supplement to the Prospectus
(other than an amendment or supplement providing solely for a change in the
interest rates, maturity or price of Notes or relating solely to an
offering of debt securities other than the Notes), whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the
Registration Statement at the times it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise,
will furnish the Agents 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 Agents or counsel
for the Agents shall reasonably object. Such consent does not constitute a
waiver of any of the conditions set out in Section 5.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Agents and counsel for the Agents, 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 Agents, without charge, a conformed
copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Agents. The copies of
the Registration Statement and each amendment thereto furnished to the
Agents 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.
(d) Delivery of Prospectuses. The Company will furnish to each
Agent, 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 Agent may reasonably
request. The Prospectus and any amendments or supplements thereto furnished
to the Agents 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.
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(e) Preparation of Pricing Supplements. The Company will prepare,
with respect to any Notes to be sold through or to the Agents pursuant to
this Agreement, a Pricing Supplement with respect to such Notes in a form
previously approved by the Agents and will file such Pricing Supplement
pursuant to Rule 424(b)(3) under the 1933 Act not later than the close of
business of the Commission on the fifth business day after the date on
which such Pricing Supplement is first used.
(f) Revisions of Prospectus -- Material Changes. Except as
otherwise provided in subsection (l) of this Section, if at any time during
the term of this Agreement any event shall occur or condition exist as a
result of which it is necessary, in the reasonable opinion of counsel for
the Agents or counsel for the Company, to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of either
such counsel, to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the
1933 Act Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to purchase the
Notes in the Agents' capacity as agents and to cease sales of any Notes the
Agents may then own as principal pursuant to a Terms Agreement, and the
Company will promptly prepare and file with the Commission such amendment
or supplement, whether by filing documents pursuant to the 1934 Act, the
1933 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply
with such requirements purchasing prior to the date on which such financial
information is released to the general public.
(g) Prospectus Revisions -- Periodic Financial Information. Except
as otherwise provided in subsection (1) of this Section, on or prior to the
date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each
of the first three quarters of any fiscal year or preliminary financial
statement information with respect to any fiscal year, the Company shall
furnish such information to the Agents, confirmed in writing, and shall,
prior to the delivery of the Prospectus to any purchaser of the Notes
purchasing after the date on which such financial information is released
to the general public, by the filing of documents pursuant to the 1934 Act
in the ordinary course, the 1933 Act or otherwise cause the Prospectus to
be amended or supplemented to include or incorporate by reference financial
information with respect thereto and corresponding information for the
comparable period of the preceding fiscal year included in such release
(but not any narrative information included in each such release), as well
as such other information and explanations as shall be necessary for an
understanding thereof or as shall be required by the 1933 Act or the 1933
Act Regulations.
(h) Prospectus Revisions -- Audited Financial Information. Except
as otherwise provided in subsection (1) of this Section, on or prior to the
date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of
the Company for the preceding fiscal year, the Company shall furnish such
information to the Agents, confirmed in writing, and shall, prior to the
delivery of the Prospectus to any purchaser of the Notes purchasing after
the date on which such financial information is released to the general
public, cause the Registration Statement and the Prospectus to be
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amended, by the filing of documents pursuant to the 1934 Act in the
ordinary course, the 1933 Act or otherwise, to include or incorporate by
reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an understanding of
such financial statements or as shall be required by the 1933 Act or the
1933 Act Regulations.
(i) Earnings Statements. The Company, by applying the provisions
of Rule 158 under the 1933 Act, will make generally available to its
security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 0000 Xxx) covering each
twelve month period beginning, in each case, not later than the first day
of the Company's fiscal quarter next following the "effective date" (as
defined in such Rule 158) of the Registration Statement. Nothing in this
Section 4(h) shall require the Company to make such earnings statement
available more frequently than once in any period of twelve months.
(j) Blue Sky Qualifications. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale
under the applicable securities laws of such states and other jurisdictions
of the United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the
distribution of the Notes; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Notes have been
qualified as above provided. The Company will promptly advise the Agents of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any such state or
jurisdiction or the initiating or threatening of any proceeding for such
purpose.
(k) 1934 Act Filings. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file
promptly all documents required to be filed with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act. Such documents will
comply in all material respects with the requirements of the 1934 Act and
the 1934 Act Regulations and to the extent such documents are incorporated
by reference in the Prospectus, when read together with the other
information in or incorporated by reference into the Prospectus, will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading.
(l) Stand-Off Agreement. If required pursuant to the terms of a
Terms Agreement, between the date of any Terms Agreement and the Settlement
Date with respect to such Terms Agreement, the Company will not, without
the prior written consent of each Agent party to such Terms Agreement,
directly or indirectly, sell, offer to sell, contract to sell, grant any
option for the sale of or otherwise dispose of, or announce the offering
of, any debt securities of the Company (other than the Notes that are to be
sold pursuant to such Terms Agreement and commercial paper or borrowings
from commercial banks or affiliates of the Company in the ordinary course
of business), except as may otherwise be provided in any such Terms
Agreement.
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(m) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (e), (f) or (g) of
this Section or the provisions of Section 7 hereof during any period from
the time (i) the Agents shall have been notified by the Company to suspend
solicitation of offers to purchase the Notes in their capacity as agents
and (ii) the earlier of the date on which no Agent shall then hold any
Notes as principal purchased pursuant to a Terms Agreement and the date
which is 30 days (nine months with respect to subsection (e) of this
Section) from the date on which the Agents shall have received written
notice from the Company to suspend solicitation of purchases of the Notes,
to the time the Company shall determine that solicitation of offers to
purchase the Notes should be resumed or shall subsequently enter into a new
Terms Agreement with any Agent.
Section 5. Conditions of Agents' Obligations.
---------------------------------
The obligations of the several Agents hereunder to solicit offers
to purchase the Notes as agents of the Company, the obligations of any
purchasers of the Notes sold through the Agents as agents, and any
obligation of the Agents to purchase Notes as principals pursuant to a
Terms Agreement or otherwise will be subject to the accuracy of the
representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any
certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all its covenants and agreements herein
contained and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and as of the date hereof no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Agents. If the Company has elected to rely upon Rule 434, a
Term Sheet shall have been filed with the Commission in accordance with
Rule 424(b).
(1) Opinion of Xxxxxx X. Xxxxxxxx. On the date hereof, the
Agents shall have received the favorable opinion, in form and
substance reasonably satisfactory to the Agents, dated as of the
date hereof, of Xxxxxx X. Xxxxxxxx, counsel for the Company, who
may rely as to all matters governed by Federal and New York law
upon the opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
referred to below, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Utah.
(ii) The Company has corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation and is in good standing in all other
jurisdictions in which it owns or leases substantial
properties or in which the conduct of its business requires
such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect.
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(iii) The offering, sale and issuance of the Notes have
been duly authorized by the requisite corporate action on the
part of the Company and, the Notes, when executed and
authenticated by the Trustee in accordance with the terms of
the Indenture, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, except to the extent that enforcement thereof may
be limited by (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or
hereinafter in effect relating to or affecting creditors'
rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity); in expressing the opinion set
forth in this paragraph (iii), such counsel may assume that
the Trustee's certificate of authentication of the Notes have
been manually signed by one of the Trustee's authorized
officers and that the Notes, in the form delivered to the
Agents, conform to the specimens of the Notes examined by such
counsel, which facts need not be verified by an inspection of
the individual Notes.
(iv) The execution, delivery and performance of the
Indenture and of this Agreement and any applicable Terms
Agreement and the issuance and sale of the Notes and
compliance with the terms and provisions hereof and thereof
will not (a) result in a breach or violation of any of the
terms or provisions of, or constitute a default under, (1) any
order known to such counsel of any governmental agency having
jurisdiction over the Company or any of its properties or any
agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to
which any of the properties of the Company is subject, which
would cause a material adverse change in the financial
position, shareholders' equity or results of operations of the
Company or affect the validity of the Notes or the legal
authority of the Company to comply with the terms of the
Notes, the Indenture, this Agreement or any applicable Terms
Agreement or (2) the charter or by-laws of the Company or (b)
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 such counsel, 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
liens, charges or encumbrances that would not have a Material
Adverse Effect); and the Company has full power and authority
to authorize, issue and sell the Notes as contemplated by this
Agreement and any Terms Agreement.
(v) The Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due authorization,
execution and delivery of the Indenture by the Trustee) is a
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to
the extent enforcement thereof may be limited by (a)
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other similar laws now or hereinafter in effect
relating to or affecting creditors' rights generally, and
14
(b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity).
(vi) This Agreement and any applicable Terms Agreement
have each been duly authorized, executed and delivered by the
Company.
(vii) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the transactions contemplated by this Agreement and any
Terms Agreement, except such as may be required under the 1933
Act, the 1939 Act, state securities or Blue Sky laws, and
except as have been obtained.
(viii) The documents incorporated by reference in the
Prospectus (other than the financial statements and supporting
schedules included therein or omitted therefrom, as to which
such counsel 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.
(2) Opinion of Company Counsel. On the date hereof, the Agents
shall have received the favorable opinion, dated as of the date
hereof, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special
counsel for the Company, in form and substance reasonably
satisfactory to counsel for the Agents, to the effect that:
(i) The Notes, when executed and authenticated in
accordance with the terms of the Indenture, will be valid and
binding obligations of the Company under the laws of the State
of New York, enforceable against the Company in accordance
with their terms, except to the extent that enforcement
thereof may be limited by (a) bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other
similar laws now or hereinafter in effect relating to or
affecting creditors' rights generally and (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity); in expressing
the opinion set forth in this paragraph (i), such counsel may
assume that the Trustee's certificates of authentication of
the Notes have been manually signed by one of the Trustee's
authorized officers and that the Notes, in the form delivered
to the Agents, conform to the specimens thereof, examined by
such counsel, which facts need not be verified by an
inspection of the individual Notes.
(ii) The Notes and the Indenture conform in all material
respects to the descriptions thereof contained in the
Prospectus.
(iii) The Indenture has been duly executed and delivered
by the Company (to the extent such execution and delivery are
matters governed by the laws of the State of New York) and
(assuming the due authorization, execution and delivery of the
Indenture by the Trustee) is a valid and binding agreement of
the Company, enforceable against the Company in accordance
with its terms under the laws of the State of New York, except
to the extent enforcement thereof may be limited
15
by (a) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws now or
hereinafter in effect relating to or affecting creditors'
rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity).
(iv) This Agreement and any applicable Terms Agreement
have each been duly executed and delivered by the Company (to
the extent such execution and delivery are matters governed by
the laws of the State of New York).
(v) The Registration Statement and the Prospectus, as of
their respective effective or issue dates (but excluding the
Form T-1 and the financial statements and the related notes,
schedules and other financial data included or incorporated by
reference in or excluded from the Registration Statement or
the exhibits thereto, as to which such counsel need express no
opinion), appeared on their face to be appropriately responsive
in all material respects to the requirements of the 1933 Act
and the 1933 Act Regulations, as applicable, except that such
counsel need not assume any responsibility for the accuracy,
completeness or fairness of the statements contained or
incorporated by reference in the Registration Statement or the
Prospectus except to the extent set forth in paragraph (ii)
above.
(vi) Such counsel does not know of any legal or
governmental proceedings required to be disclosed in the
Registration Statement or the Prospectus pursuant to
Regulation S-K of the 1933 Act Regulations which are not
disclosed as required, nor of any contracts or documents
required to be filed as exhibits to the Registration Statement
which are not filed as required.
(vii) No authorization, approval or consent of any
governmental authority or agency is necessary in connection
with the consummation by the Company of the transactions
contemplated by this Agreement and any applicable Terms
Agreement, except such as may be required by the 1933 Act, the
1939 Act, state securities or Blue Sky laws, and other than
any that has been obtained.
(viii) The statements set forth in the Prospectus under
the caption "Description of the Medium-Term Notes", insofar as
such statements purport to summarize certain provisions of the
documents referred to therein, fairly summarize such
provisions in all material respects.
(3) Opinion of Counsel to the Agents. The opinion of Sidley
Xxxxxx Xxxxx & Xxxx LLP, counsel to the Agents, who may rely as to
all matters governed by Utah law upon the opinion of Xxxxxx X.
Xxxxxxxx, referred to above, covering the matters referred to in
subparagraph (1) under the subheading (i) and subparagraph (2)
under the subheadings (i) through (v), inclusive, above.
(4) In giving their opinions as of the date hereof required by
subsection (a)(2) and (a)(3) of this Section, Skadden, Arps,
Slate, Xxxxxxx & Xxxx LLP and Sidley Xxxxxx Xxxxx & Xxxx LLP shall
each additionally state the time and date on which Registration
16
Statement was declared effective under the 1933 Act, or if such
counsel have not received an effectiveness order from the
Commission, that such counsel have been advised by the Commission
of the time and date on which the Registration Statement was
declared effective and the Indenture was qualified under the Trust
Indenture Act and, to the best of such counsel's knowledge, that
no stop order suspending the Registration Statement's
effectiveness has been issued and no proceedings for that purpose
have been instituted or are pending or threatened by the
Commission. In addition, each such counsel (other than Xxxxxx X.
Xxxxxxxx) shall state that they have participated in conferences
with officers and representatives of the Company, representatives
of the independent accountants of the Company, and the Agents, at
which the contents of the Registration Statement, the Prospectus
and any amendments or supplements thereto and related matters were
discussed and, although such counsel are not passing upon, and do
not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement
or the Prospectus and have made no independent check or
verification thereof, on the basis of the foregoing, no facts have
come to such counsel's attention that lead them to believe that
the Registration Statement, at the time it became effective, and
if an amendment to the Registration Statement or an Annual Report
on Form 10-K has been filed by the Company with the Commission
subsequent to the effectiveness of the Registration Statement and
prior to the date of such statement, then at the time such
amendment became effective or at the time of the most recent such
filing (to the extent deemed to be incorporated by reference in
the Registration Statement and Prospectus), or (if such opinion is
being delivered in connection with a Terms Agreement pursuant to
Section 7(c) hereof) at the date of any Terms Agreement and at the
Settlement Date with respect thereto, as the case may be,
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading or that the
Prospectus, as amended or supplemented at the date hereof, or (if
such opinion is being delivered in connection with a Terms
Agreement pursuant to Section 7(c) hereof) at the date of any
Terms Agreement and at the Settlement Date with respect thereto,
as the case may be, contains or contained an untrue statement of a
material fact or omits 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. Such
counsel may state that they express no opinion or belief with
respect to the Form T-1 or to the financial statements and the
related notes, schedules and other financial data included in or
excluded from the Registration Statement or the exhibits thereto
or incorporated by reference in such Registration Statement or
Prospectus.
(b) Officer's Certificate. At the date hereof the Agents shall
have received a certificate of the President or any Vice President and a
principal financial or accounting officer of the Company, dated as of the
date hereof, to the effect that (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus or
since the date of any applicable Terms Agreement, there has not been 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, (ii) the other representations and warranties
of the Company contained in Section 2 hereof are true and correct with the
same force and effect as though expressly made at and as of the date of
such certificate, (iii) the Company has complied with all agreements and
17
satisfied all conditions on its part to be performed or satisfied at or
prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statement under the 1933 Act has been
issued and no proceedings for that purpose have been initiated or
threatened by the Commission. As used in this Section 5(b), the term
"Prospectus" means the Prospectus in the form first provided to the
applicable Agent or Agents for use in confirming sales of the Notes.
(c) Comfort Letter. On the date hereof, the Agents shall have
received a letter from Ernst & Young LLP, dated as of the date hereof and
in form and substance reasonably satisfactory to the Agents, to the effect
that:
(i) They are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the 1933
Act and the 1933 Act Regulations and no information concerning
their relationship with or interest in the Company is required by
Item 10 of the Registration Statement.
(ii) It is their opinion that the consolidated financial
statements and supporting schedules included or incorporated by
reference in the Registration Statement and covered by their
opinions incorporated therein comply as to form in all material
respects with the applicable accounting requirements of the 1933
Act and the 1933 Act Regulations.
(iii) They have read any unaudited financial statements
included in the Registration Statement and Prospectus.
(iv) On the basis of the reading referred to in clause (iii)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company
who have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that: (A) the unaudited financial
statements, if any, included or incorporated by reference in the
Registration Statement and Prospectus do not comply as to form in
all material respects with the applicable accounting requirements
of the 1933 Act, the 1933 Act Regulations, the 1934 Act and the
regulations promulgated under the 1934 Act or are not in
conformity with generally accepted accounting principles applied
on a basis substantially consistent with that of the audited
financial statements included or incorporated by reference
therein; (B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date not
more than five days prior to the date of such letter, there was
any change in the capital stock or any increase in the short-term
indebtedness or long-term debt of the Company or, at the date of
the latest available balance sheet read by such accountants, or at
a subsequent specified date not more than five days prior to the
date of such letter, there was any decrease in the net current
assets or net assets, in each case as compared with amounts shown
in the latest balance sheet included or incorporated by reference
in the Prospectus; or (C) for the twelve-month period ending on
the closing date of the latest available income statement read by
such accountants, or from such latest available income statement
read by such accountants to a specified date not more than five
days prior to the date of such letter, there were any decreases,
as compared with the corresponding period of the previous
18
year, in total revenues, operating income or income (in each case,
from continuing operations), or (with respect only to quarterly
accounting periods) in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur.
(v) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included or incorporated by reference in the
Registration Statement and the Prospectus (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Company and its subsidiaries subject to the internal controls of
the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results.
(d) Other Documents. On the date hereof and on each Settlement
Date with respect to any applicable Terms Agreement, counsel to the Agents
shall have been furnished with such documents and opinions as such counsel
may reasonably require for the purpose of enabling such counsel to pass
upon the issuance and sale of Notes as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any
of the representations and warranties or the fulfillment of any of the
conditions herein contained.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement (or, at the
option of the Agent party thereto, any applicable Terms Agreement) may be
terminated by any of the Agents (as to itself only) by notice to the
Company at any time and any such termination shall be without liability of
any party to any other party, except that the covenant regarding provision
of an earnings statement set forth in Section 4(h) hereof, the provisions
concerning payment of expenses under Section 10 hereof, the indemnity and
contribution agreements set forth in Sections 8 and 9 hereof, the
provisions concerning the representations, warranties and agreements to
survive delivery set forth in Section 11 hereof, the provisions relating to
governing law and forum set forth in Section 14 and the provisions set
forth under "Parties" of Section 15 hereof shall remain in effect.
Section 6. Delivery of and Payment for Notes Sold through the
Agents.
Delivery of Notes sold through an Agent as agent shall be made by
the Company to such Agent for the account of any purchaser only against
payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a
Note on the date fixed for settlement, the Agent shall promptly notify the
Company and deliver the Note to the Company, and, if the Agent has
theretofore paid the Company for such Note, the Company will promptly
return such funds to the Agent. If such failure occurred for any reason
other than default by the Agent in the performance of its obligations
hereunder, the Company will reimburse such Agent on an equitable basis for
its reasonable loss of the use of the funds for the period such funds were
credited to the Company's account.
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Section 7. Additional Covenants of the Company.
-----------------------------------
The Company covenants and agrees with the Agents that:
(a) Reaffirmation of Representations and Warranties. Each
acceptance by it of an offer for the purchase of Notes, and each delivery
of Notes to one or more of the Agents pursuant to a Terms Agreement, shall
be deemed to be an affirmation that the representations and warranties of
the Company contained in this Agreement and in any certificate theretofore
delivered to the Agents pursuant hereto are true and correct at the time of
such acceptance or sale, as the case may be, and an undertaking that such
representations and warranties will be true and correct at the time of
delivery to the purchaser or his agent, or to the Agent or Agents, of the
Note or Notes relating to such acceptance or sale, as the case may be, as
though made at and as of each such time (and it is understood that such
representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Subject to the provisions
of Section 4(l) hereof, each time that the Registration Statement or the
Prospectus shall be amended or supplemented (other than by an amendment or
supplement providing solely for the establishment of or a change in the
interest rates, maturity or price of Notes or similar changes or an
amendment or supplement which relates exclusively to an offering of debt
securities other than the Notes), or there is filed with the Commission any
document incorporated by reference into the Prospectus or (if required
pursuant to the terms of a Terms Agreement) the Company sells Notes to one
or more Agents pursuant to a Terms Agreement, the Company shall furnish or
cause to be furnished to the Agents as soon as practicable a certificate
dated the date of filing with the Commission of such supplement or
document, the date of effectiveness of such amendment, or the date of such
sale, as the case may be, in form satisfactory to the Agents and to counsel
to the Agents to the effect that the statements contained in the
certificate referred to in Section 5(b) hereof which was last furnished to
the Agents are true and correct at the time of such amendment, supplement,
filing or sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or,
in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in said Section 5(b), modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate.
(c) Subsequent Delivery of Legal Opinions. Subject to the
provisions of Section 4(l) hereof and unless the Agents shall otherwise
specify, each time that the Registration Statement or the Prospectus shall
be amended or supplemented (other than by an amendment or supplement
providing solely for the establishment of or a change in the interest
rates, maturity or price of the Notes or similar changes or an amendment or
supplement which relates exclusively to an offering of debt securities
other than the Notes), or there is filed with the Commission any document
incorporated by reference into the Prospectus, or, if required pursuant to
the terms of a Terms Agreement, the Company sells Notes to one or more
Agents pursuant to a Terms Agreement, the Company shall furnish or cause to
be furnished as soon as practicable to the Agents and to counsel to the
Agents a written opinion of each of Xxxxxx X. Xxxxxxxx, counsel for the
Company and Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, special counsel for
the Company, or other counsel satisfactory to the Agents dated the date of
filing with the
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Commission of such supplement or document, the date of effectiveness of
such amendment, or the date of such sale, as the case may be, in form and
substance satisfactory to the Agents and to counsel to the Agents, of the
same tenor as the opinions referred to in Section 5(a)(1), 5(a)(2) and
5(a)(5) hereof, but modified, as necessary, to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such opinions; or, in lieu of such opinions, counsel last
furnishing such opinion to the Agents shall furnish the Agents with a
letter substantially to the effect that the Agents may rely on such last
opinion to the same extent as though it was dated the date of such letter
authorizing reliance (except that statements in such last opinion shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance).
(d) Subsequent Delivery of Comfort Letters. Subject to the
provisions of Section 4(l) hereof and unless the Agents shall otherwise
specify, each time that the Registration Statement or the Prospectus shall
be amended or supplemented to include additional financial information or
there is filed with the Commission any document incorporated by reference
into the Prospectus which contains additional financial information or, (if
required pursuant to the terms of a Terms Agreement) the Company sells
Notes to one or more Agents pursuant to a Terms Agreement, the Company
shall cause Ernst & Young LLP or other independent certified public
accountants reasonably satisfactory to the Agents, as soon as practicable
to furnish the Agents a letter, dated the date of the date of filing with
the Commission of such supplement or document, the date of effectiveness of
such amendment, or the date of such sale, as the case may be, in form
reasonably satisfactory to the Agents, of the same tenor as the letter
referred to in Section 5(c) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the
date of such letter, and with such changes as may be necessary to reflect
changes in the financial statements and other information derived from the
accounting records of the Company; provided, however, that if the
Registration Statement or the Prospectus is amended or supplemented solely
to include financial information as of and for a fiscal quarter, Ernst &
Young LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other
information included therein of an accounting, financial or statistical
nature is of such a nature that, in the reasonable judgment of the Agents,
such letter should cover such other information.
Section 8. Indemnification.
---------------
(a) Indemnification of the Agents. The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls any
Agent 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 to make the statements therein
not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact contained in 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;
21
(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, if such settlement is effected with the written consent
of the Company; and
(iii) against any and all expense whatsoever, as incurred,
(including, subject to Section 8(c) hereof, the fees and
disbursements of counsel chosen by each Agent), 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, 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 or special counsel to the Company by or on behalf of any Agent
expressly for use in the Registration Statement (or any amendment thereto),
or the Prospectus (or any amendment or supplement thereto). The foregoing
indemnity with respect to any untrue statement contained in or omitted from
a preliminary prospectus shall not inure to the benefit of any Agent (or
any person controlling such Agent) from whom the person asserting any such
loss, liability, claim, damage or expense purchased any of the Notes which
are the subject thereof if such person did not receive a copy of the
Prospectus (or any amendment or supplement thereto) (in each case exclusive
of the documents from which information is incorporated by reference) at or
prior to the written confirmation of the sale of such Notes to such person
and the untrue statement contained in or omission from such preliminary
prospectus was corrected in the Prospectus (or any amendment or supplement
thereto).
(b) Indemnification of Company, Directors and Officers. Each Agent
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 amendment thereto) including the
Rule 424 Information, if applicable, or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Agent
expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto) and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, liability, claim,
damage, expense or action as such expenses are incurred.
(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
22
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 8(a) above, counsel to
the indemnified parties shall be selected by the Agents, and, in the case
of parties indemnified pursuant to Section 8(b) above, counsel to the
indemnified parties shall be selected by the Company. If it so elects
within a reasonable time after receipt of such notice, an indemnifying
party, jointly with any other indemnifying parties receiving such notice,
may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action (which
approval shall not be unreasonably withheld), unless such indemnified
parties reasonably object to such assumption on the ground that there may
be legal defenses available to them which are different from or in addition
to those available to such indemnifying party. If an indemnifying party
assumes the defense of such action, the indemnifying party shall not be
liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action other than the
reasonable costs of investigation. 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 8 or Section 9 hereof (whether or not
the indemnified parties are actual or potential parties hereto), 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, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel, an indemnifying
party shall not be liable for any settlement of the nature contemplated by
Section 8(a)(ii) effected without its consent if such indemnifying party
(i) reimburses such indemnified party in accordance with such request to
the extent it considers such request to be reasonable and (ii) provides
written notice to the indemnified party substantiating the unpaid balance
as unreasonable, in each case prior to the date of such settlement.
23
Section 9. Contribution. If the indemnification provided for in
Section 8 hereof is for any reason (except as provided therein) unavailable
to or insufficient to hold harmless an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and
the Agents on the other hand from the offering of the Notes 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 Agents 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 Agents on the other hand in connection with the offering of the Notes
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Notes
pursuant to this Agreement (before deducting expenses) received by the
Company and the total underwriting discount received by the Agents, in each
case as set forth on the cover of the Prospectus, or, if Rule 434 is used,
the corresponding location on the Term Sheet, bear to the aggregate initial
public offering price of the Notes as set forth on such cover.
The relative fault of the Company on the one hand and the Agents
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 Agents and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Agents 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 9. The
aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 9
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 9, no Agents shall
be required to contribute any amount in excess of the amount by which the
total price at which the Notes underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Agents has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
24
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 9, each person, if any, who controls
an Agent within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Agent, 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 Agents'
respective obligations to contribute pursuant to this Section 9 are several
in proportion to the principal amount of Notes set forth opposite their
respective names in Schedule A hereto and not joint.
Section 10. Payment of Expenses.
-------------------
The Company will pay all expenses incident to the performance of
its obligations under this Agreement, including:
(a) The printing and filing of the Registration Statement as
originally filed and each amendment thereto and the Prospectus and any
amendments or supplements thereto;
(b) The preparation, filing and reproduction of this Agreement;
(c) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of book-entry notes;
(d) The fees and disbursements of the Company's accountants and
counsel, of the Trustee and its counsel, and of any Calculation Agent;
(e) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions contemplated
hereby;
(f) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(i) hereof, including filing
fees and the fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey and
any Legal Investment Survey;
(g) The printing and delivery to the Agents of copies of the
Registration Statement and any amendments thereto, and of the Prospectus
and any amendments or supplements thereto, and the delivery by the Agents
of the Prospectus and any amendments or supplements thereto in connection
with solicitations or confirmations of sales of the Notes;
(h) The preparation, printing, reproducing and delivery to the
Agents of copies of the Indenture and all supplements and amendments
thereto;
(i) Any fees charged by rating agencies for the rating of the
Notes;
25
(j) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.;
(k) Any advertising and other out-of-pocket expenses of the Agent
incurred with the prior written approval of the Company;
(l) The cost of providing any CUSIP or other identification
numbers for the Notes; and
(m) The fees and expenses of any Depositary (as defined in the
Indenture) and any nominees thereof in connection with the Notes.
Section 11. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
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 Agent or controlling person of, or by or on behalf of the Company, and
shall survive each delivery of and payment for any of the Notes.
Section 12. Termination.
-----------
(a) Termination of this Agreement. The Agents may terminate this
Agreement (excluding any Terms Agreement) by notice to the Company at any
time at or prior to the Settlement Date relating thereto; provided,
however, that the termination of this Agreement by an Agent shall terminate
this Agreement only between such Agent and the Company and the Company's
notice of termination as to any one Agent shall terminate this Agreement
only between itself and such Agent.
(b) Termination of a Terms Agreement. The Agent or Agents party to
a Terms Agreement may terminate any Terms Agreement, immediately upon
notice to the Company, at any time prior to the Settlement Date relating
thereto (i) if there has been, since the date of such Terms Agreement or
since the respective dates as of which information is given in the
Registration Statement, 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 any outbreak of hostilities or escalation thereof or other
calamity or crisis, in each case the effect of which is such as to make it,
in the reasonable judgment of the Agent or Agents party to such Terms
Agreement, impracticable to market the Notes subject to such Terms
Agreement or enforce contracts for the sale of such Notes, or (iii) if
trading in the Notes has been suspended or materially limited by the
Commission, or if trading generally on either 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 for securities have been
required, by any of said exchanges or by such system has or by order of the
Commission, the National Association of Securities Dealers, Inc. or any
other governmental authority, or if a banking moratorium shall have
been declared by either Federal, New York or Utah authorities or (iv) the
rating assigned by any
26
nationally recognized statistical rating organization to the Program or any
debt securities (including the Notes) of the Company as of the date of such
agreement shall have been lowered since that date or if any such rating
organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of the Program
or any debt securities (including the Notes) of the Company, or (v) if
there shall have come to the Agent's or Agents' attention any facts that
would cause such Agent or Agents to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of Notes, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading. As
used in this Section 12(b), the term "Prospectus" means the Prospectus in
the form first provided to the applicable Agent or Agents for use in
confirming sales of the related Notes.
(c) General. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) each
Agent shall be entitled to any commission earned in accordance with the
third paragraph of Section 3(a) hereof, (ii) if at the time of termination
(a) the Agents shall own any Notes purchased pursuant to a Terms Agreement
with the intention of reselling them or (b) an offer to purchase any of the
Notes has been accepted by the Company but the time of delivery to the
purchaser or his agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain
in effect until such Notes are so resold or delivered, as the case may be,
and (iii) the covenant set forth in Section 4(h) hereof, the provisions of
Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11 and 15 hereof
shall remain in effect.
Section 13. Notices
---------
Unless otherwise provided herein, all notices required under the
terms and provisions hereof shall be in writing, either delivered by hand,
by mail or by telex, telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Questar Pipeline Company
000 Xxxx 000 Xxxxx Xxxxxx
X.X. Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
Attention: Vice President, Treasurer and
Chief Financial Officer
Telecopy: (000) 000-0000
If to Xxxxxxx Xxxxx:
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
27
Attention: MTN Product Management,
Telecopy: (000) 000-0000
If to Banc of America Securities LLC:
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx
Attention: _________________
Telecopy: _________________
If to Banc One Capital Markets, Inc.:
BANC ONE CAPITAL MARKETS, INC.
One Banc Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: ________________
Telecopy: ________________
If to U.S. Bancorp Xxxxx Xxxxxxx:
U.S. Bancorp Xxxxx Xxxxxxx
U.S. Bancorp Center
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: _________________
Telecopy: _________________
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
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. Parties.
-------
This Agreement shall inure to the benefit of and be binding upon
the Agents 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 parties hereto and
their respective successors and the controlling persons and officers and
directors referred to in Sections 8 and 9 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole
and exclusive benefit of the parties hereto and their respective successors
and said controlling persons and officers and directors and their heirs and
legal representatives, and for the benefit of
28
no other person, firm or corporation. No purchaser of Notes shall be deemed
to be a successor by reason merely of such purchase.
Section 16. Captions.
--------
The captions in this Agreement are for convenience of reference
only and shall not define or limit any of the terms or provisions hereof.
29
If the foregoing is in accordance with the Agents' 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 Agents and the Company in accordance with its
terms.
Very truly yours,
QUESTAR PIPELINE COMPANY
By: ______________________________
Xxxxxxx X. Xxxxx
Vice President, Treasurer
and Chief Financial Officer
Accepted:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _________________________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By: _________________________________
Name:
Title:
U.S. BANCORP XXXXX XXXXXXX
By: _________________________________
Name:
Title:
30
BANC ONE CAPITAL MARKETS, INC.
By: _________________________________
Name:
Title:
31
EXHIBIT A
Questar Pipeline Company
180 East 000 Xxxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Re: Distribution Agreement by and among Questar Pipeline Company,
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Bank of America Securities LLC, Banc
One Capital Markets, Inc. and U.S. Bancorp Xxxxx Xxxxxxx
dated ___________, 2001
The undersigned agrees to purchase the following principal amount of the
Medium-Term Notes, Series B, referred to in the above-mentioned Agreement:
$___________________
[The undersigned agrees to purchase the aggregate principal amount
of Medium-Term Notes, Series B, referred to in the above-mentioned
Agreement set forth below:]
[Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ......... $_____]
[Banc of America Securities LLC .............................. $_____]
[U.S. Bancorp Xxxxx Xxxxxxx .................................. $_____]
The terms of such Medium-Term Notes, Series B, shall be as set
forth below.
Interest Rate:
If Fixed Rate Note:
Interest Rate:
Interest Payment Dates (if other than June 1 and
December 1): Regular Record Dates (if other than May 15
and November 15):
If Floating Rate Note:
Base Rate or Rates:
Initial Interest Rate:
Initial Interest Reset Date:
Spread, if any:
Spread Multiplier, if any:
Interest Reset Date(s):
Interest Payment Date(s):
Index Maturity:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Payment Period:
Interest Reset Period:
A-1
Calculation Agent (if other than First Security Bank, N.A.):
If Redeemable:
Redemption Commencement Date:
Redemption Percentage:
Annual Redemption Percentage:
If Repayable:
Optional Repayment Date(s):
Principal Amount: $
------------
Stated Maturity:
Trade Date:
Issue Price: %
-------
Agent's Discount or Commission:
Original Issue Date:
Settlement Date and Time:
Additional Terms:
The Certificate referred to in Section 7(b), the opinions of
counsel referred to in Section 7(c) and the accountants' letter referred to
in Section 7(d) of the above-mentioned Agreement will [not] be required,
and the stand-off agreement set forth in Section 4(k) of the
above-mentioned Agreement will [not] be applicable.
This Agreement and all of the rights and obligations of the
parties hereto shall be governed by and construed in accordance with the
laws of the State of New York applicable to agreements made and to be
performed in such State.
A-2
EXHIBIT B
ADMINISTRATIVE PROCEDURES
B-1
If the foregoing is in accordance with our agreement, please
indicate your acceptance hereof in the space provided for that purpose
below.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: ______________________________
Authorized Signatory
BANC ONE CAPITAL MARKETS
By: ______________________________
Authorized Signatory
U.S. BANCORP XXXXX XXXXXXX
By: ______________________________
Authorized Signatory
BANC OF AMERICA SECURITIES LLC
By: ______________________________
Authorized Signatory
CONFIRMED AND ACCEPTED, as of the date first above written.
QUESTAR PIPELINE COMPANY
By: ______________________________
Name:
Title:
B-2
SCHEDULE A
As compensation for the services of the Agents hereunder, the
Company shall pay the related Agent, on a discount basis, a commission for
the sale of each Note by such Agent equal to the principal amount of such
Note multiplied by the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
--------------- ----------------
%
From 9 months to less than 1 year.............................
From 1 year to less than 18 months............................
From 18 months to less than 2 years...........................
From 2 years to less than 3 years.............................
From 3 years to less than 4 years.............................
From 4 years to less than 5 years.............................
From 5 years to less than 6 years.............................
From 6 years to less than 7 years.............................
From 7 years to less than 10 years............................
From 10 years to less than 15 years...........................
From 15 years to less than 20 years...........................
From 20 years to 30 years.....................................
B-3
SCHEDULE B
NAME OF UNDERWRITER PRINCIPAL AMOUNT OF SECURITIES
B-4
