1
EXHIBIT 1.a
[Form of Underwriting Agreement
incorporating Enron
Oil & Gas Company Underwriting
Agreement Standard
Provisions dated December 20, 1996]
ENRON OIL & GAS COMPANY
UNDERWRITING AGREEMENT
Enron Oil & Gas Company , 199
0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 00000-0000
Ladies and Gentlemen:
The underwriter or underwriters named below [, acting through
_____________, as representatives (the "Representatives"),] understand that
Enron Oil & Gas Company, a Delaware corporation (the "Company"), proposes to
issue and sell $__________ aggregate principal amount of [Title of Securities]
(the "Purchased Securities"), registered on Registration Statement(s) No(s).
__________. Subject to the terms and conditions set forth herein or
incorporated by reference herein and referred to below, the Company hereby
agrees to sell and the underwriter or underwriters named below (such
underwriter or underwriters being herein called the "Underwriters") agree to
purchase, severally and not jointly, the principal amounts of such Purchased
Securities set forth below opposite their names at a purchase price equal to
________% of the principal amount thereof [plus accrued interest on the
Purchased Securities from __________, 199__ to the date of payment and
deliver]:
Name Principal Amt. Name Principal Amt.
---- -------------- ---- --------------
-----------------
Total:
=================
[The aggregate principal amount of Purchased Securities to be
purchased by the several Underwriters may be
reduced by the aggregate principal amount of Purchased Securities sold pursuant
to delayed delivery contracts with institutional investors.]*
The Underwriters will pay for such Purchased Securities (less any
Purchased Securities sold pursuant to delayed delivery contracts) upon delivery
thereof at [state location] at 10:00 a.m. New York time on [state date].
The Purchased Securities shall have the following terms:
Maturity:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
Sinking Fund:
Date referred to in Section 6(1) of the Standard Provisions:
Purchase Price: _____% of the principal amount [plus accrued
interest from ________, 199__ to the date of
payment and delivery]
Listing:
[other terms]:
______________
* To be added only if delayed delivery contracts are contemplated.
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[The commission to be paid to the Underwriters in respect of Purchased
Securities purchased pursuant to delayed delivery contracts arranged by the
Underwriters shall be an amount equal to _______% of the principal amount
thereof.]*
All statements, requests, notices, communications and agreements
hereunder shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to the Underwriters in care of
__________________ at _____________________, Attention: ________________,
Facsimile No. ___________; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to it at 0000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxx 00000-0000, Attention: Xxxxxx Xxxxxx, Senior Vice President and Chief
Financial Officer, Facsimile No. (000) 000-0000.
Unless otherwise provided herein, all the provisions contained in the
document entitled Enron Oil & Gas Company Debt Securities Underwriting
Agreement Standard Provisions dated December __, 1996, a copy of which was
filed as an exhibit to Registration Statement No. 333- , are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and returning the signed
copy to us, and in addition have an authorized officer send us no later than
[state date and time] by wire, telex, facsimile transmission or other written
means, the following message:
"We have entered into the Underwriting Agreement dated [insert
date] relating to the Purchased Securities referred to therein by
signing a copy of the Underwriting Agreement and returning the same or
depositing the same in the mail to you."
Very truly yours,
[Name or names of Underwriter or Underwriters]
OR
[Names of Representatives]
By
------------------------------------
Name:
Title:
[Acting severally on behalf of [itself]
[themselves] and the several
Underwriters named above]
Accepted:
Enron Oil & Gas Company
By
--------------------------------
Name:
Title:
_____________
* To be added only if delayed delivery contracts are contemplated.
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ENRON OIL & GAS COMPANY
DEBT SECURITIES
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
December 20, 1996
Enron Oil & Gas Company, a Delaware corporation (the "Company"),
proposes to issue and sell from time to time certain of its debt securities
("Debt Securities") registered under the Securities Act of 1933, as amended
(the "Securities Act"), as set forth in Section 3. The Debt Securities are to
be issued under an indenture, dated as of September 1, 1991 (the "Indenture"),
between the Company and Texas Commerce Bank National Association, as Trustee
(the "Trustee").
From time to time, the Company may enter into one or more underwriting
agreements that provide for the sale of certain of the Debt Securities to the
underwriter or several underwriters named therein (the "Underwriters"). The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions hereof incorporated therein by reference,
is herein referred to as this Agreement.
1. Sale and Purchase of the Debt Securities.
On the basis of the representations, warranties and agreements herein
contained, the Company proposes to issue and sell the Debt Securities in one or
more series, which series may vary as to their terms (including, but not
limited to, interest rate, maturity, any redemption provisions and any sinking
fund requirements, all of such terms for any particular series being determined
at the time of sale. All or a portion of particular series of the Debt
Securities will be purchased by the Underwriters for resale upon terms of
offering determined at the time of sale. The Debt Securities so to be
purchased in any such offering are hereinafter referred to as the "Purchased
Securities," and any firm or firms acting as representatives of such
Underwriters are hereinafter referred to as the "Representatives." If with
respect to the Purchased Securities such Representatives are acting on behalf
of the Underwriters, references herein to the Underwriters (or a majority in
interest thereof) or the Representatives in the alternative shall be deemed to
refer only to the Representatives. The term "Underwriters' Securities" means
Purchased Securities other than Contract Securities. The term "Contract
Securities" means Purchased Securities, if any, to be purchased pursuant to
delayed delivery contracts referred to below.
If this Agreement provides for sales of Debt Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus (as hereinafter defined) pursuant to
delayed delivery contracts substantially in the form of Schedule I attached
hereto (the "Delayed Delivery Contracts"), but with such changes therein as the
Company may authorize or approve. Delayed Delivery Contracts are to be with
institutional investors approved by the Company and of the types set forth in
the Prospectus. On the Closing Date (as hereinafter defined), the Company will
pay (by certified or official bank check or checks in New York Clearing House
funds (available on the next business day)) the Underwriters the fee set forth
in the Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of
the validity or the performance of Delayed Delivery Contracts.
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If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Debt Securities to be purchase by the several Underwriters and the aggregate
principal amount of Debt Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Debt Securities
set forth opposite each Underwriter's name in the Underwriting Agreement,
except to the extent that the Representatives, if any, determine that such
reduction shall be otherwise and so advise the Company.
The obligations of the Underwriters under this Agreement are several
and not joint.
2. Payment and Delivery.
Delivery by the Company of the Underwriters' Securities and payment by
the Underwriters therefor by certified or official bank check or checks payable
to the Company in New York Clearing House funds (available on the next business
day) shall take place at the office, on the date and at the time specified in
this Agreement, which date and time may be postponed for not more than ten
business days by agreement between a majority in interest of the Underwriters
or the Representatives and the Company (such date and time of delivery and
payment for the Underwriters' Securities is hereinafter referred to as the
"Closing Date").
The Underwriters' Securities shall be registered in such names and
shall be in such denominations as the underwriters or Representatives shall
request at least one full business day prior to the Closing Date and shall be
made available to the Underwriters or the Representatives for checking and
packaging at least one full business day prior to the Closing Date.
3. Registration Statement and Prospectus; Public Offering.
The Company has filed with the Securities and Exchange Commission (the
"Commission"), pursuant to the Securities Act and the rules and regulations
adopted by the Commission thereunder (the "Rules"), a registration statement or
statements on Form S-3, including a prospectus, relating to the Debt
Securities, and such registration statement has or such registration statements
have become effective. Such registration statement or statements referred to
in the first paragraph of the Underwriting Agreement, including financial
statements, exhibits and Incorporated Documents (as hereinafter defined), as
amended to the date of this Agreement, is or are hereinafter referred to as the
"Registration Statement," and the prospectus or prospectuses included in the
Registration Statement or deemed, pursuant to Rule 429 under the Securities
Act, to relate to the Registration Statement, as proposed to be supplemented by
a prospectus supplement (including any preliminary prospectus supplement)
relating to any Purchased Securities to be filed pursuant to Rule 424 under the
Securities Act, is or are hereinafter referred to as the "Prospectus." For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the Prospectus or any amendment or supplement to the
foregoing shall include the copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system. Any reference herein
to the Registration Statement or Prospectus shall include all documents
incorporated, or deemed to be incorporated, therein by reference pursuant to
the requirement of Item 12 of Form S-3 under the Securities Act (the
"Incorporated Documents").
The Company understands that the Underwriters propose to make a public
offering of their respective portions of the Purchased Securities, as set forth
in and pursuant to the Prospectus relating thereto.
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4. Representations and Warranties.
The Company represents and warrants to each Underwriter that:
(a) The Company has reasonable grounds to believe that it
meets the requirements for the use of Form S-3 under the Securities
Act.
(b) The Registration Statement, at the time it became
effective, and the prospectus contained therein, complied, and on the
date of the Underwriting Agreement and when any post-effective
amendment to the Registration Statement becomes effective or any
supplement to such prospectus is filed with the Commission, the
Registration Statement, the Prospectus and any such amendment or
supplement, respectively, will comply, in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations adopted by the
Commission thereunder; the Indenture complied and will comply in all
material respects with the requirements of the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); and each part of the
Registration Statement, the Prospectus or any amendment or supplement
thereto filed with the Commission pursuant to the Securities Act, when
such part became effective, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that
this representation and warranty does not apply to (i) statements or
omissions in the Registration Statement or Prospectus (or in
amendments or supplements thereto) made in reliance upon information
furnished in writing to the Company by any Underwriter or the
Representatives on behalf of any Underwriter expressly for use
therein, or (ii) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification of the
Trustee, under the Trust Indenture Act on Form T-1, except statements
or omissions in such Statement made in reliance upon information
furnished in writing to the Trustee or behalf of the Company for use
therein.
5. Conditions of the Underwriters' Obligations.
The obligations of the Underwriters hereunder to purchase and pay for
the Underwriters' Securities are subject to the following conditions:
(a) Within 24 hours after the execution of the
Underwriting Agreement by the Company (or at such later time
acceptable to the Representatives, or if there are none, such firm as
may be designated by a majority in interest of the Underwriters) and
on the Closing Date, the Representatives or such designated firm shall
have received from the independent accountants of the Company who have
certified the financial statements of the Company and its subsidiaries
included or incorporated by reference in the Registration Statement
signed letters dated the respective dates of delivery, in form and
substance satisfactory to the Representatives or such designated firm
and stating to the effect set forth in Schedules II-A and II-B hereto,
respectively.
(b) No stop order suspending the effectiveness of the
Registration Statement under the Securities Act shall be in effect and
no proceedings for such purpose shall be pending before or threatened
by the Commission and any requests for additional information on the
part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
reasonable satisfaction of the Underwriters or the Representatives.
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(c) Subsequent to the execution of this Agreement, there
shall not have been any material adverse change in the general
affairs, management, financial position or results of operations of
the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, in each case other than as
set forth in or contemplated by the Registration Statement and
Prospectus, if in the reasonable judgment of a majority in interest of
the Underwriters or the Representatives any such change makes it
impracticable or inadvisable to consummate the sale and delivery of
the Underwriters' Securities by the Underwriters as contemplated in
the Prospectus.
(d) The representations and warranties of the Company
contained herein shall be true and correct on and as of the Closing
Date and the Company shall have performed all covenants and agreements
herein contained to be performed on its part at or prior to the
Closing Date.
(e) The Underwriters or the Representatives shall have
received on the Closing Date a certificate, dated the Closing Date, of
the Chief Executive Officer, the President, any Executive Vice
President, any Senior Vice President, the Vice President and
Controller or the Vice President and Treasurer of the Company, which
shall certify that (i) no order suspending the effectiveness of the
Registration Statement or the qualification of the Indenture has been
issued and, to the knowledge of such officer, no proceedings for such
purpose are pending before or threatened by the Commission, (ii) the
representations and warranties of the Company contained herein are
true and correct on and as of the Closing Date, and (iii) the Company
has performed all covenants and agreements herein contained to be
performed on its part at or prior to the Closing Date.
(f) The Underwriters or the Representatives shall have
received on the Closing Date from Xxxxx Xxxxxxxx, Xx., Esq., Senior
Vice President and General Counsel of the Company, an opinion, dated
the Closing Date, substantially to the effect as set forth in Schedule
III hereto. In rendering such opinion, Xx. Xxxxxxxx may rely upon
Xxxxxxxxx & Xxxxxxxxx, L.L.P. as to matters of New York law.
(g) The Underwriters or the Representatives shall have
received on the Closing Date from Xxxxxxxxx & Xxxxxxxxx, L.L.P.,
counsel for the Underwriters, an opinion, dated the Closing Date, with
respect to the Company, the Indenture, the Purchased Securities, the
Registration Statement and Prospectus and this Agreement. The Company
shall have furnished to counsel for the Underwriters such documents as
they may reasonably request for the purpose of enabling them to render
such opinions.
(h) Subsequent to the date of the Underwriting Agreement,
no downgrading shall have occurred in the rating accorded the
Company's debt securities by any "nationally recognized statistical
rating organization" (as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act), and no such
organization shall have publicly announced that it has under
surveillance or review its rating of any of the Company's debt
securities with implications of a possible downgrading.
6. Covenants.
The Company covenants and agrees with the several Underwriters as
follows:
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(a) To advise the Underwriters or the Representatives
promptly of any amendment or supplement of the Registration Statement
or the Prospectus and not to effect such amendment or supplement in a
form to which the Underwriters or the Representatives reasonably
object.
(b) To furnish to each of the Underwriters or the
Representatives and to the counsel for the Underwriters, one signed
copy of the Registration Statement, including exhibits and
Incorporated Documents, relating to the Debt Securities in the form it
became effective and of all amendments thereto, including exhibits;
and to each such firm and counsel, copies of each preliminary
prospectus supplement and Prospectus relating to the Debt Securities.
(c) As soon as the Company is advised thereof, to advise
the Underwriters or the Representatives (i) of the initiation or
threatening by the Commission of any proceedings for the issuance of
any order suspending the effectiveness of the Registration Statement
or the qualification of the Indenture and (ii) of receipt by the
Company or any representative or attorney of the Company of any other
communication from the Commission relating to the Company, the
Registration Statement or the Prospectus. The Company will make every
reasonable effort to prevent the issuance of an order suspending the
effectiveness of the Registration Statement or the qualification of
the Indenture and if any such order is issued to obtain as soon as
possible the lifting thereof.
(d) To deliver to the Underwriters or the
Representatives, without charge, as many conformed copies of the
Indenture, the Registration Statement (excluding exhibits, but
including the Incorporated Documents), each preliminary prospectus
supplement, the Prospectus and all amendments and supplements to such
documents as the Underwriters or the Representatives may reasonably
request.
(e) During such period as a prospectus is required by law
to be delivered by an Underwriter or dealer, to deliver, without
charge, to Underwriters and dealers, at such office or offices as the
Underwriters or the Representatives may designate, as many copies of
the Prospectus as the Underwriters or the Representatives may
reasonably request.
(f) During the period in which copies of the Prospectus
are to be delivered as provided in paragraph (d) above, if any event
occurs as a result of which it shall be necessary to amend or
supplement the Prospectus in order to make the statements therein not
misleading or to file any document which will be deemed an
Incorporated Document in order to comply with the Exchange Act and the
rules and regulations thereunder, forthwith to prepare, submit to the
Underwriters or the Representatives, file with the Commission and
deliver, without charge, to the Underwriters either (i) amendments or
supplements to the Prospectus so that the statements in the
Prospectus, as so amended or supplemented, will not be misleading or
(ii) documents which will effect such compliance. Delivery by
Underwriters of any such amendments or supplements to the Prospectus
or documents shall not constitute a waiver of any of the conditions
set forth in Section 5 hereof.
(g) To make generally available to the Company's security
holders, as soon as practicable, an earnings statement, which
satisfies the provisions of Section 11(a) of the Securities Act.
(h) To cooperate with the Underwriters or Representatives
in qualifying the Purchased Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the
Underwriters or the Representatives may reasonably request; provided
that in no event shall the
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Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified, to take action which would subject
it to service of process in suits, other than those arising out of the
offering or sale of the Purchased Securities, in any jurisdiction
where it is not now so subject, to qualify in any jurisdiction as a
broker-dealer or to subject itself to any taxing authority where it is
not now so subject.
(i) Unless otherwise specified, to endeavor to obtain as
promptly as practicable the listing of the Purchased Securities on the
New York Stock Exchange.
(j) During the period of five years from the date hereof,
to supply to the Representatives, if any, and to each other
Underwriter who may so request in writing, copies of such financial
statements and other periodic and special reports as the Company may
from time to time distribute generally to its lenders or to the
holders of any class of its securities registered under Section 12 of
the Exchange Act and to furnish to the Underwriters or the
Representatives a copy of each annual or other report it shall be
required to file with the Commission.
(k) To pay, or reimburse if paid by the Underwriters or
the Representatives, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, all reasonable
costs and expenses incident to the performance of the obligations of
the Company under this Agreement, including those relating to (i) the
preparation, printing and filing of the Registration Statement and
exhibits thereto, each preliminary prospectus, any preliminary
prospectus supplement, the Prospectus, all amendments and supplements
to the Registration Statement and the Prospectus, the printing of the
Indenture and the printing and filing of the Registration Statement
and exhibits thereto, each preliminary prospectus, any preliminary
prospectus supplement, the Prospectus, all amendments and supplements
to the Registration Statement and the Prospectus, the printing of the
Indenture and the printing or typing of the Underwriting Agreement
(including the Agreement Among Underwriters), (ii) the issuance of the
Purchased Securities, the preparation of the Purchased Securities and
the delivery of the Purchased Securities to the Underwriters, (iii)
the registration or qualification of the Purchased Securities for
offer and sale under the securities or "blue sky" laws of the various
jurisdictions referred to in paragraph (h) above, including the fees
and disbursements of counsel for the Underwriters in connection
therewith and the preparation and printing or typing of legal
investment and preliminary and supplementary "blue sky" memoranda,
(iv) the furnishing to the Underwriters and the Representatives, if
any, of copies of the Prospectus and all amendments or supplements to
the Prospectus, and of the several documents required by this Section
to be so furnished, including costs of shipping and mailing, (v) the
listing of the Purchased Securities on any national securities
exchange, (vi) the rating of the Purchased Securities by rating
agencies, and (vii) the furnishing to the Underwriters and the
Representatives, if any, of copies of all reports and information
required by paragraph (j) above, including costs of shipping and
mailing; but the Company shall not in any event be liable to any of
the several Underwriters for damages on account of loss of anticipated
profits from the sale by them of the Purchased Securities.
(l) During the period beginning on the date of the
Underwriting Agreement and continuing to the date specified in the
Underwriting Agreement, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially
similar to the Purchased Securities, without the prior written consent
of a majority in interest of the Underwriters or the Representatives.
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7. Indemnification.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act against any and
all losses, claims, damages and liabilities, joint or several
(including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact in the Registration Statement, the
Prospectus or any amendment or supplement thereto, or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except insofar as any such untrue statement or omission or
alleged untrue statement or omission was made in the Registration
Statement, the Prospectus or such amendment or supplement in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriters expressly for use therein;
provided, however, that in no event shall the indemnification
agreement contained in this Section 7(a) inure to the benefit of any
Underwriter (or any person controlling such Underwriter) on account of
any losses, claims, damages, liabilities or actions arising from the
sale of the Underwriters' Securities upon the public offering to any
person by such Underwriter if such losses, claims, damages,
liabilities or actions arise out of or are based upon an untrue
statement or omission or alleged untrue statement or omission in the
Registration Statement which was corrected in the Prospectus (not
including the Incorporated Documents) and a copy of the Prospectus
(not including the Incorporated Documents) had not been sent or given
to such person at or prior to the confirmation of such sale to such
person, unless such failure to deliver the Prospectus (not including
the Incorporated Documents) was a result of noncompliance by the
Company with Section 6(e) hereof.
(b) Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, each person, if any, who
controls the Company within the meaning of Section 15 of the
Securities Act, each director of the Company and each officer of the
Company who signs the Registration Statement to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only
insofar as losses, claims, damages or liabilities arise out of or are
based upon any untrue statement or omission or alleged untrue
statement or omission which was made in the Registration Statement,
the Prospectus or any amendment or supplement thereto, in reliance
upon and in conformity with information furnished in writing by such
Underwriter expressly for use therein.
(c) Any party which proposes to assert the right to be
indemnified under this Section 7 will, promptly after receipt of
notice of commencement of any action or proceeding against such party
in respect of which a claim for indemnification is to be made against
an indemnifying party or parties under this Section 7, notify each
such indemnifying party of the commencement of such action or
proceeding, enclosing a copy of all papers served, but the omission so
to notify any such indemnifying party of any such action or proceeding
shall not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any
such action or proceeding shall be brought against any indemnified
party and it shall notify such indemnifying party or parties of the
commencement thereof, such indemnifying party or parties shall be
entitled to participate therein, and, to the extent that it or they
shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified
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party, and after notice from the indemnifying party or parties to such
indemnified party of its or their election so to assume the defense
thereof the indemnifying party or parties shall not be liable to such
indemnified party for any legal or other expenses, other than
reasonable costs of investigation subsequently incurred by such
indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any
such action or proceeding, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized by
the indemnifying party or parties, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of interest
between the indemnifying party or parties and the indemnified party in
the conduct of the defense of such action or proceeding (in which case
the indemnifying party or parties shall not have the right to direct
the defense of such action or proceeding on behalf of the indemnified
party) or (iii) the indemnifying party or parties shall not in fact
have employed counsel to assume the defense of such action or
proceeding, in each of which cases the fees and expenses of counsel
shall be at the expense of the indemnifying party or parties. An
indemnifying party may participate at its own expense in the defense
of such action or proceeding. In no event shall the indemnifying
party be liable for the fees and expenses of more than one 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 7 (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party. Further, an
indemnifying party shall not be liable for any settlement of any
action or claim effected without its consent, which consent shall not
be unreasonably withheld.
(d) If recovery is not available under the foregoing
indemnification provisions of this Section, for any reason other than
as specified therein, the parties entitled to indemnification by the
terms thereof shall be entitled to contribution to liabilities and
expenses, except to the extent that contribution is not permitted
under Section 11(f) of the Securities Act. In determining the amount
of contribution to which the respective parties are entitled, there
shall be considered the relative benefits received by each party from
the offering of the Purchased Securities (taking into account the
portion of the proceeds of the offering realized by each), the
parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity
to correct and prevent any statement or omission, and any other
equitable considerations appropriate under the circumstances. The
Company and the Underwriters agree that it would not be equitable if
the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity
for such purpose). No Underwriter or person controlling such
Underwriter shall be obligated to make contribution hereunder which in
the aggregate exceeds the total public offering price of the Purchased
Securities purchased by such Underwriter under the Underwriting
Agreement, less the aggregate amount of any damages which such
Underwriter and its controlling persons have otherwise been required
to pay in respect of the same claim or any substantially similar
claim. The Underwriters' obligations to contribute are several in
proportion to their respective underwriting obligations and not joint.
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8. Termination.
This Agreement may be terminated by a majority in interest of the
Underwriters or by the Representatives by notifying the Company at any time
(a) at or prior to the Closing Date if, in the judgment
of such Underwriters or the Representatives, sale and delivery of the
Underwriters' Securities as contemplated in the Prospectus is rendered
impracticable or inadvisable because (i) additional material
governmental restrictions, not in force and effect on the date hereof,
shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the
New York Stock Exchange or on the American Stock Exchange, or trading
in securities generally shall have been suspended on either such
Exchange or a general banking moratorium shall have been established
by Federal or New York authorities, (ii) any event shall have occurred
or shall exist which make untrue or incorrect in any material respect
any statement or information contained in the Registration Statement
or Prospectus or which is not reflected in the Registration Statement
or Prospectus, but should be reflected therein in order to make the
statements or information contained therein not misleading in any
material respect or (iii) a war or major hostilities involving the
United States or other national calamity shall have occurred or shall
have accelerated to such an extent as to affect adversely the
marketability of the Underwriters' Securities, or
(b) at or prior to the Closing Date, if any of the
conditions specified in Section 5 hereof shall not have been fulfilled
when and as required by this Agreement.
If this Agreement is terminated pursuant to any of the provisions
hereof, except as otherwise provided herein, the Company shall not be under any
liability to any Underwriter and no Underwriter shall be under any liability to
the Company, except that (a) if this Agreement is terminated by the
Underwriters or the Representatives because of any failure or refusal on the
part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, the Company will reimburse the Underwriters for
all reasonable out-of-pocket expenses (including the fees and disbursements of
their counsel) reasonably incurred by them and (b) no Underwriter who shall
have failed or refused to purchase the Underwriters' Securities agreed to be
purchased by it hereunder, without some reason sufficient hereunder to justify
its cancellation or termination of its obligations hereunder, shall be relieved
of liability to the Company or the other Underwriters for damages occasioned by
its default.
9. Default of Underwriters.
If one or more of the Underwriters shall fail (other than for a reason
sufficient to justify the termination of this Agreement) to purchase on the
Closing Date the principal amount of Underwriters' Securities agreed to be
purchased by such Underwriter or Underwriters, the Representatives, or if there
are none, such firm as may be designated by a majority in interest of the
Underwriters, may find one or more substitute underwriters to purchase such
Underwriters' Securities or make such other arrangements as they may deem
advisable or one or more of the remaining Underwriters may agree to purchase
such Underwriters' Securities in such proportions as may be approved by the
Representatives or such designated firm, in each case upon the terms herein set
forth. If no such arrangements have been made within 24 hours after the
Closing Date, and
(a) the aggregate principal amount of Underwriters'
Securities to be purchased by the defaulting Underwriter or
Underwriters shall not exceed 10% of the total principal amount of
-9-
12
Underwriters' Securities, each of the non-defaulting Underwriters
shall be obligated to purchase such Underwriters' Securities on the
terms herein set forth in proportion to their respective obligations
hereunder, or
(b) the aggregate principal amount of Underwriters'
Securities to be purchased by the defaulting Underwriter or
Underwriters shall exceed 10% of the total principal amount of
Underwriters' Securities, the Company shall be entitled to an
additional period of 24 hours within which to find one or more
substitute underwriters satisfactory to the Representatives, or if
there are none, to such designated firm to purchase such Underwriters'
Securities upon the terms set forth herein.
In any such case, either the Representatives, or if there are none,
such designated firm or the Company shall have the right to postpone the
Closing Date for a period of not more than seven business days in order that
necessary changes and arrangements may be effected. If the aggregate principal
amount of Underwriters' Securities to be purchased by such defaulting
Underwriters shall exceed 10% of the total principal amount of Underwriters'
Securities, and neither the non-defaulting Underwriters nor the Company shall
make arrangements pursuant to this Section 9 within the period stated for the
purchase of the Underwriters' Securities which the defaulting Underwriter or
Underwriters agreed to purchase, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter to the Company and
without liability on the part of the Company, except, in both cases, as
provided in Sections 6(k), 7 and 8 hereof. The provisions of this Section 9
shall not in any way affect the liability of any defaulting Underwriter to the
Company or the non-defaulting Underwriters arising out of such default. A
substitute underwriter hereunder shall become an Underwriter for all purposes
of this Agreement.
10. Miscellaneous.
The reimbursement and indemnification agreements contained in Sections
6(k) and 7 hereof and the representations, warranties, covenants and agreements
of the Company in this Agreement shall remain in full force and effect
regardless of (a) any termination of this Agreement, (b) any investigation made
by or on behalf of any Underwriter or controlling person or by or on behalf of
the Company or any controlling person, director or officer, and (c) delivery of
and payment for Purchased Securities under this Agreement.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters or the Company, directors and officers of the Company, and
their respective successors and assigns, and no other person, partnership,
association or corporation shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Underwriters' Securities or Contract Securities merely because of
such purchase.
In dealings hereunder, the Representatives, if designated, shall act
on behalf of each of the Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by such firm as the Representatives may designate
to the Company.
Except as otherwise provided in this Agreement, all notices and
communications hereunder shall be in writing and mailed, delivered, telexed,
telegraphed or telecopied and confirmed to the Underwriters at their addresses
furnished to the Company in writing, and to the Company at 0000 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000-0000.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
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13
Schedule I
DELAYED DELIVERY CONTRACT
, 199
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Enron Oil & Gas
Company, a Delaware corporation (the "Company"), and the Company agrees to sell
to the undersigned
$
principal amount of the Company's [state title of issue] (the "Securities"),
offered by the Company's Prospectus dated , 199 and Prospectus Supplement
dated , 199 , receipt of copies of which are hereby acknowledged, at
a purchase price equal to % of the principal amount thereof plus accrued
interest from , 199 to the date or dates for payment and delivery thereof
and on the further terms and conditions set forth in this contract. The
undersigned does not contemplate selling Securities prior to making payment
therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery date or dates set forth below:
Principal Plus Accrued
Delivery Date Amount Interest From:
------------- ------ --------------
$
$
$
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to
purchase on each Delivery Date shall be made to the Company or its order by
certified or official bank check in New York Clearing House funds (available on
the next business day) at the office of , New York,
New York, at 10:00 a.m. (New York time) on the Delivery Date, upon delivery to
the undersigned of the Securities to be purchased by the undersigned on the
Delivery Date, in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to the Delivery Date.
If no such request is received, the Securities will be registered in the name
of the undersigned and issued in a denomination equal to the aggregate
principal amount of Securities to be purchased by the Delivery Date.
By the execution hereof, the undersigned represents and warrants to
the Company that (i) all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Securities
has been taken by it, (ii) no further authorization or approval of any
governmental or other regulatory authority is required for such execution,
delivery, payment or purchase, and (iii) its
14
investment in the Securities is not, as of the date hereof, prohibited under
the laws of any jurisdiction to which the undersigned is subject and which
govern such investment.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above, of such part of the Securities as is
to be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its
address set forth below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the Underwriters in connection
therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first-come, first-served basis.
If this contract is acceptable to the Company, it is requested that
the Company sign the form of acceptance below and mail or deliver one of the
counterparts hereof to the undersigned at its address set forth below. This
will become a binding contract, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
I-2
15
THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Yours very truly,
---------------------------------------
(Purchaser)
By
-------------------------------------
Name:
Title:
---------------------------------------
---------------------------------------
(Address)
Accepted:
Enron Oil & Gas Company
By
-----------------------------------
Name:
Title:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name, telephone number and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows: (Please print.)
Telephone Number
Name (Including Area Code) Dept.
---- --------------------- -----
I-3
16
Schedule II-A
[FORM OF FIRST LETTER OF ACCOUNTANTS
TO BE DELIVERED PURSUANT TO SECTION 5(A)]
(i) They are independent public accountants within the meaning of
the Securities Act and the Exchange Act and the respective applicable published
rules and regulations thereunder and the answer to Item 10 of Form S-3 set
forth in the Registration Statement is correct insofar as it relates to them;
(ii) In their opinion the audited financial statements and
financial statement schedules included or incorporated in the Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the Exchange Act and the published rules
and regulations thereunder;
(iii) On the basis of a reading of the unaudited financial
statements, the unaudited notes to the audited financial statements and the
supplementary financial information incorporated in the Prospectus and of the
latest unaudited financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an examination
in accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments set
forth in such letter; a reading of the minutes of the meetings of the
stockholders, directors and executive committees of the Company and certain of
its subsidiaries; and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date of the latest
audited financial statements incorporated in the Prospectus, nothing came to
their attention which caused them to believe that:
(1) the unaudited notes to the audited financial
statements and the supplementary financial information incorporated in
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and with
the published rules and regulations of the Commission thereunder; or
(2) the unaudited financial statements included or
incorporated in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Exchange Act and with the published rules and regulations thereunder;
and said unaudited financial statements are not presented in
conformity with generally accepted accounting principles applied on a
basis substantially consistent with that of the audited financial
statements incorporated in the Prospectus; or
(3) (a) with respect to the period subsequent to the date
of the latest consolidated balance sheet included or incorporated in
the Prospectus, there was, at a subsequent specified date not more
than five business days prior to the date of such letter, any change
in the capital stock or increases in short-term debt or long-term debt
of the Company and consolidated subsidiaries or any decreases in the
consolidated net current assets or net assets as compared with the
amounts shown on the latest consolidated balance sheet included or
incorporated in the Prospectus; or (b) for the period from the date of
the latest financial statements included or incorporated in the
Prospectus to such specified date there were any decreases, as
compared with the corresponding period in the preceding year, in
consolidated operating revenues, net income or earnings per common
share, except in all instances for changes or decreases which the
Prospectus discloses have occurred or may occur or which are set forth
in such letter; and
(iv) They have performed certain other specified procedures as a
result of which they determined that certain information (if any) specified by
the Representatives or, if there are none, such firm as may be designated by a
majority in interest of the Underwriters, of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company)
incorporated in the Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal interpretation.
17
Schedule II-B
[FORM OF SECOND LETTER OF ACCOUNTANTS
TO BE DELIVERED PURSUANT TO SECTION 5(A)]
(i) On the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries; carrying out
certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the commitments set forth in such
letter; a reading of the minutes of the meetings of the stockholders, directors
and executive committees of the Company and certain of its subsidiaries; and
inquiries of certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to the date of the latest financial
statements included or incorporated in the Prospectus, nothing came to their
attention which caused them to believe that: (a) with respect to the period
subsequent to the date of the latest consolidated balance sheet included or
incorporated in the Prospectus, there was, at a subsequent specified date not
more than three business days prior to the Closing Date, any change in the
capital stock or increases in short-term debt or long-term debt of the Company
and consolidated subsidiaries or any decreases in the consolidated net current
assets or net assets as compared with the amounts shown on the latest
consolidated balance sheet included or incorporated in the Prospectus; or (b)
for the period from the date of the latest financial statements included or
incorporated in the Prospectus to such specified date there were any decreases,
as compared with the corresponding period in the preceding year, in
consolidated operating revenues, net income or earnings per common share,
except in all instances for changes or decreases which the Prospectus discloses
have occurred or may occur or which are set forth in such letter; and
(ii) They have performed certain other specified procedures as a
result of which they determined that certain information (if any) specified by
the Representatives or, if, there are none, such firm as may be designated by a
majority in interest of the Underwriters, of an accounting, financial or
statistical nature (which is limited to accounting, financial or statistical
information derived from the general accounting records of the Company)
included in the Prospectus and not covered by their first letter delivered
pursuant to Section 5(a), agrees with the accounting records of the Company and
its subsidiaries, excluding any questions of legal interpretation.
18
Schedule III
[FORM OF OPINION OF BARRY, HUNSAKER, JR., ESQ.,
TO BE DELIVERED PURSUANT TO SECTION 5(F)]
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware and has full
corporate power and authority to own its properties and to conduct its business
as such business is described in the Prospectus;
(ii) Each of the Company's material subsidiaries is a corporation
duly incorporated and validly existing in good standing under the laws of its
jurisdiction of incorporation, and has full corporate power and authority to
own its properties and to conduct its business as such business is described in
the Prospectus;
(iii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(iv) The Indenture has been duly authorized and validly executed,
acknowledged and delivered by the Company and, assuming due authorization,
execution and delivery by the Trustee, constitutes a valid and binding
agreement of the Company enforceable in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or affecting creditors' rights generally, including
the effect of the provisions of Article Seventh of the Company's Restated
Certificate of Incorporation, and to general equity principles;
(v) In the event any of the Purchased Securities are to be
purchased pursuant to Delayed Delivery Contracts, each of such Delayed Delivery
Contracts has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the purchaser named
therein, constitutes a valid and binding agreement of the Company enforceable
in accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and to general equity principles;
(vi) The Purchased Securities are in the form contemplated by the
Indenture and have been duly authorized by all necessary corporate action on
the part of the Company; the Underwriters' Securities, when executed and
authenticated as specified in the Indenture (which facts, such counsel may
state, such counsel has not determined by an inspection of individual
Underwriters' Securities) and issued and delivered against payment pursuant to
the Underwriting Agreement, will be valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting creditors'
rights generally, including the effect of the provisions of Article Seven of
the Company's Restated Certificate of Incorporation, and to general equity
principles; the Contract Securities, if any, when executed, authenticated,
issued and delivered pursuant to the Indenture and Delayed Delivery Contracts,
if any, will be valid and binding obligations of the Company entitled to the
benefits of the indenture and enforceable in accordance with their terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights
generally, including the effect of the provisions of Article Seven of the
Company's Restated Certificate of Incorporation, and to general equity
principles;
(vii) The Indenture, the Purchased Securities and the Delayed
Delivery Contracts, if any, conform in all material respects to the
descriptions thereof in the Prospectus;
19
(viii) The Indenture has been qualified under the Trust Indenture
Act;
(ix) The Registration Statement has become effective under the
Securities Act and, to such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been issued
under the Securities Act and no proceedings therefor have been initiated or
threatened by the Commission;
(x) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to the Closing
Date (except for the reports of experts pertaining to natural resource reserves
and the financial statements and other financial data included therein, as to
which such counsel need express no opinion, and exclusive of the documents
incorporated by reference therein) comply as to form in all material respects
with the requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations thereunder;
(xi) Each document filed with the Commission pursuant to the
Exchange Act (except for the reports of experts pertaining to natural resource
reserves and the financial statements and other financial data included in the
Prospectus, as to which such counsel need express no opinion) which is
incorporated by reference in the Prospectus complied as to form, when so filed,
in all material respects with the requirements of the particular form of the
Commission upon which it was filed;
(xii) The Company is not an "investment company" within the meaning
of the Investment Company Act of 1940, as amended;
(xiii) The Company is not subject to, or is exempt from, regulation
as a "holding company" or a "subsidiary company" of a "holding company," in
each case as such terms are defined in the Public Utility Holding Company Act
of 1935, as amended;
(xiv) The execution and delivery of the Underwriting Agreement, each
of the Delayed Delivery Contracts, if any, and the Indenture and the
consummation of the transactions therein contemplated and the compliance with
the terms of the Underwriting Agreement, each of the Delayed Delivery
Contracts, if any, and the Indenture do not and will not conflict with, violate
or result in a breach of any of the terms or provisions of, or constitute a
default under, the Restated Certificate of Incorporation, as amended, or
By-laws, as amended, of the Company or any material subsidiary, or any
indenture, mortgage or, to such counsel's knowledge, other agreement to which
the Company or any such subsidiary is a party or by which any of the property
or assets of any of them is subject, or any existing applicable law, rule,
regulation, judgment, order or decree of any domestic government, governmental
instrumentality or court known to such counsel and having jurisdiction over the
Company or any such subsidiary or any of their respective properties; and
(xv) To such counsel's knowledge, no action, suit or proceeding at
law or in equity, or before or by any federal, state or other commission, board
or administrative agency, is pending or threatened against the Company or any
of the Company's material subsidiaries which would be required to be described
in the Prospectus and is not described as required.
Such counsel's opinion shall also state that: Members of such
counsel's legal staff, acting under such counsel's direction and supervision,
have participated in the preparation of the Registration Statement and the
Prospectus and discussed with management of the Company and representatives of
its accountants the
III-2
20
contents of the Registration Statement and the Prospectus. Although such
counsel has not independently verified, and is not passing upon and does not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained therein, nothing has come to such counsel's attention that
has caused him to believe that the Registration Statement (except for the
reports of experts pertaining to natural resource reserves and the financial
statements and other financial data included in the Registration Statement, as
to which such counsel need express no belief) contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (except for the reports of experts pertaining to natural resource
reserves and the financial statements and other financial data included in the
Prospectus, as to which such counsel need express no belief), at the date of
the prospectus supplement relating to the Purchased Securities filed pursuant
to Rule 424 under the Securities Act or at the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering the opinion expressed in paragraph (xv) above, such
counsel may state that such counsel has only reviewed the files and records of
the Company and consulted with certain senior officers of the Company and its
material subsidiaries, as I or members of my legal staff have deemed necessary.
In rendering the opinion expressed in paragraphs (iii) and (v) above,
such counsel may rely, as to all matters of New York law, upon the opinion of
Xxxxxxxxx & Xxxxxxxxx, L.L.P. dated the Closing Date and delivered pursuant to
Section 5(g) of the Underwriting Agreement.
III-3
