EXHIBIT 1.1
$175,000,000
NGC CORPORATION
7 1/8% SENIOR DEBENTURES DUE 2018
UNDERWRITING AGREEMENT
----------------------
May 15, 1998
Salomon Brothers Inc
Chase Securities Inc.
Citicorp Securities, Inc.
NationsBanc Xxxxxxxxxx Securities LLC
c/o Salomon Brothers Inc
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
NGC Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell $175,000,000 aggregate principal amount of its Senior Debentures
due 2018 (the "Debentures") to you (the "Underwriters"). The Debentures will be
issued pursuant to an Indenture dated as of September 26, 1996 and amended and
restated as of March 23, 1998 (the "Indenture") between the Company and The
First National Bank of Chicago, as Trustee (the "Trustee"). This agreement
(this "Agreement") is to confirm the agreement concerning the purchase of the
Debentures from the Company by the Underwriters.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter that:
(a) A registration statement on Form S-3 (File No. 333-12987) with
respect to the Debentures (i) has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, (ii) has been
filed with the Commission under the Securities Act and (iii) either has become
effective under the Securities Act and is not proposed to be amended or is
proposed to be amended by amendment or post-effective amendment. If the Company
does not propose to amend such Registration Statement and if any post-effective
amendment to such registration statement has been filed with the Commission
prior to the execution and delivery of this Agreement, the most recent such
amendment has been declared effective by the Commission. Copies of such
registration statement as amended to date have been delivered by the Company to
you. For purposes of this Agreement, "Effective Time" means the date and the
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; "Effective
Date" means the date of the Effective Time; "Preliminary Prospectus" means each
prospectus included in such registration statement, or amendments thereof,
before it
became effective under the Securities Act and any prospectus filed with the
Commission by the Company with the consent of the Underwriters pursuant to Rule
424(a) of the Rules and Regulations prior to the filing of the Prospectus;
"Registration Statement" means such registration statement, as amended at the
Effective Time, including any documents incorporated by reference therein and,
if the Effective Date is on or before the date of this Agreement, all
information contained in the final prospectus filed with the Commission pursuant
to Rule 424(b) of the Rules and Regulations ("Rule 424(b)") in accordance with
Section 4(a) hereof and deemed to be a part thereof as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations;
"Prospectus" means the form of prospectus relating to the Debentures (including
the prospectus supplement), as first used to confirm sales of the Debentures;
and "described in the Prospectus" or "disclosed in the Prospectus" means
described or disclosed, as applicable, in the Prospectus or any document
incorporated by reference therein. If it is contemplated, at the time this
Agreement is executed, that a registration statement will be filed pursuant to
Rule 462(b) under the Securities Act before the offering of the Debentures may
commence, the term "Registration Statement" as used in this Agreement includes
such registration statement, as the same may be amended from time to time.
Reference made herein to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include any documents incorporated by reference therein
as of the date of such Preliminary Prospectus or Prospectus, as the case may be,
and any reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the date of such Preliminary Prospectus or Prospectus, as the case may be,
and incorporated by reference in such Preliminary Prospectus or Prospectus. For
purposes of this Section l, all references to the Registration Statement, any
post-effective amendments thereto and the Prospectus shall be deemed to include,
without limitation, any electronically transmitted copies thereof, including,
without limitation, any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis, and Retrieval system ("XXXXX"). The
Commission has not issued any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus.
(b) If the Effective Date is on or before the date of this Agreement,
(i) the Registration Statement conforms, and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus will
when they become effective or are first used to confirm sales of the Debentures,
as the case may be, conform to the requirements of the Securities Act and the
Rules and Regulations, (ii) the Registration Statement and any amendment thereto
does not and will not, as of the applicable effective date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) the Prospectus and any amendment or supplement thereto will not, as of the
first date of its use to confirm sales of the Debentures, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Effective
Date is after the date of this Agreement, (i) the Registration Statement and the
Prospectus and any further amendments or supplements thereto will, when they
become effective or are first used to confirm sales of the Debentures, as the
case may be, conform to the requirements of the Securities Act and the Rules and
Regulations, (ii) the Registration Statement and any amendment thereto will not,
as of the applicable effective date, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) the Prospectus
and any amendment or supplement thereto will not, as of the date on which the
Prospectus and any amendment or supplement thereto is first used to confirm
sales of the Debentures, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the
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statements therein, in light of the circumstances under which they were made,
not misleading. Notwithstanding the foregoing, the Company makes no
representation or warranty as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon, and in conformity
with written information furnished to the Company by you, expressly for
inclusion therein. There is no contract or document required to be described in
the Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement or to a document incorporated by reference into the
Registration Statement which is not described or filed as required.
(c) Xxxxxx Xxxxxxxx LLP, whose report is included or incorporated by
reference in the Prospectus, are independent certified public accountants with
respect to the Company and its Subsidiaries (as defined in Section 13 hereof),
as required by the Securities Act and the Rules and Regulations. The financial
statements (including the related notes and supporting schedules) included or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus and the Prospectus present fairly the financial condition, results of
operations and cash flows of the entities purported to be shown thereby at the
dates and for the periods indicated and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated, except as otherwise noted therein; and the
supporting schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein.
(d) Each of the Company and its Significant Subsidiaries (as defined
in Exhibit A hereto) has been duly organized or formed and is validly existing
in good standing under the laws of the jurisdiction of its organization or
formation, with full power and authority to own, lease and operate its
properties and conduct its business and to enter into and perform its
obligations under this Agreement and the Indenture; and each of the Company and
its Subsidiaries is duly qualified to do business and is in good standing in
each jurisdiction in which the character of the business conducted by it or the
location of the properties owned, leased or operated by it make such
qualification necessary, except where the failure to so qualify would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole.
(e) All of the outstanding shares of capital stock of each Significant
Subsidiary of the Company that is a corporation have been duly authorized and
validly issued and are fully paid and nonassessable. Except as disclosed in the
Prospectus, all of the outstanding shares of capital stock or partnership
interests of each Significant Subsidiary of the Company are owned directly or
indirectly by the Company, free and clear of any claim, lien, encumbrance,
security interest, restriction upon voting or transfer, preemptive rights or any
other claim of any third party, except such as are described in the Prospectus
and except for certain restrictions on transfer and preemptive rights relating
to the shares of capital stock owned by the Company in Accord Energy Limited.
(f) Except as described in or contemplated by the Registration
Statement and the Prospectus, there has not been any material adverse change in,
or adverse development which, individually or in the aggregate, materially
affects or may materially affect, the condition (financial or other), results of
operations, business or prospects of the Company and its Subsidiaries taken as a
whole from the respective dates as of which information is given in the
Prospectus.
(g) Neither (i) the execution or delivery hereof by the Company, (ii)
the consummation of the transactions contemplated hereby, (iii) the execution
and delivery of the Indenture and the Debentures by the Company nor (iv)
compliance by the Company with all of the
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provisions of this Agreement, the Indenture, and the Debentures, will result in
a breach or violation of, or constitute a default under, the certificate of
incorporation, by-laws, partnership agreement or other governing documents of
the Company or any of its Subsidiaries, or any agreement, indenture or other
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them is bound, or to which any of their properties is subject, nor
will any such action or the performance by the Company of its obligations
hereunder violate any law, rule, administrative regulation or decree of any
court, or any governmental agency or body having jurisdiction over the Company,
its Subsidiaries or any of their respective properties, or result in the
creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company or any of its Subsidiaries. Except for permits,
consents, approvals and similar authorizations required under the securities or
"Blue Sky" laws of certain jurisdictions, and except for such permits, consents,
approvals and authorizations which have been obtained, no permit, consent,
approval, authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation of the
transactions contemplated by this Agreement.
(h) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes the valid and binding agreement of the Company, and
is enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(i) Neither the Company nor any of its Subsidiaries (i) is in
violation of its certificate of incorporation or by-laws or other governing
documents, (ii) is in default and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any agreement,
indenture or other instrument to which it is a party or by which it is bound or
to which any of its properties is subject, except for any such defaults that
would not, individually or in the aggregate, have a material adverse effect on
the condition (financial or other), results of operations, business or prospects
of the Company and its Subsidiaries taken as a whole, or (iii) is in violation
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property may be subject, except for any such violations that would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole.
(j) The Indenture has been duly and validly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or similar laws relating to or affecting creditors' rights generally and by
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law). The Indenture (i) has been
duly qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), (ii) complies as to form with the requirements of the Trust
Indenture Act and (iii) conforms to the description thereof in the Registration
Statement and the Prospectus.
(k) The Debentures have been duly and validly authorized by the
Company for issuance and sale to the Underwriters pursuant to this Agreement
and, when executed by the Company and authenticated by the Trustee in accordance
with the Indenture and delivered to the Underwriters against payment therefor in
accordance with the terms hereof, will have been validly
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issued and delivered, free of any preemptive or similar rights to subscribe to
or purchase the same arising by operation of law or under the charter or by-laws
of the Company or otherwise, and will constitute valid and binding obligations
of the Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting the enforcement of creditors' rights generally and by general
equitable principles, and the Debentures conform, or will conform, to the
description thereof in the Registration Statement and the Prospectus. Neither
the filing of the Registration Statement nor the offering or sale of the
Debentures as contemplated by this Agreement gives rise to any rights, other
than those which have been duly waived or satisfied, for or relating to the
registration of any securities of the Company. The capitalization of the Company
as of the date of the most recent balance sheet included in the Prospectus is as
set forth in the Prospectus. The Company has all requisite corporate power and
authority to issue, sell, and deliver the Debentures in accordance with and upon
the terms and conditions set forth in this Agreement and in the Registration
Statement and Prospectus. All corporate action required to be taken by the
Company for the authorization, issuance, sale and delivery of the Debentures to
be sold by the Company hereunder has been validly and sufficiently taken.
(l) Each contract, agreement or arrangement 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 is material to the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole, has been duly and validly authorized, executed
and delivered by the Company or its Subsidiary, as applicable; none of such
contracts, agreements or arrangements has been assigned by the Company or any of
its Subsidiaries to any non-affiliated party other than in the ordinary course
of business, and the Company knows of no present condition or fact which would
prevent compliance by the Company or any of its Subsidiaries or any other party
thereto with the terms of any such contract, agreement or arrangement in
accordance with its terms in all material respects, except for any such failures
to comply that would not, individually or in the aggregate, have a material
adverse effect on the condition (financial or other), results of operations,
business or prospects of the Company and its Subsidiaries taken as a whole;
neither the Company nor any of its Subsidiaries has any present intention to
exercise any right that it may have to cancel any such contract, agreement or
arrangement or otherwise to terminate its rights and obligations thereunder, and
none of them has any knowledge that any other party to any such contract,
agreement or arrangement has any intention not to render full performance in all
material respects as contemplated by the terms thereof, except for any such
cancellations, terminations or failures to perform that would not, individually
or in the aggregate, result in a material adverse effect on the condition
(financial or other), results of operations, business or prospects of the
Company and its Subsidiaries taken as a whole.
(m) There is no litigation or governmental proceeding to which the
Company or any of its Subsidiaries is a party or to which any property of the
Company or any of its Subsidiaries is subject or which is pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries that could reasonably be expected to, individually or in the
aggregate, result in a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole or which is required to be disclosed in the
Prospectus and is not disclosed.
(n) Neither the Company nor any Subsidiary is in violation of any law,
ordinance, governmental rule or regulation or court decree to which it may be
subject which violation could
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reasonably be expected to, individually or in the aggregate with all such
violations, have a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole.
(o) The documents incorporated by reference into each Preliminary
Prospectus and the Prospectus, at the time they were or are filed with the
Commission, conform or will conform, as the case may be, with the requirements
of the Securities Act and the Rules and Regulations and the Exchange Act and the
rules and regulations adopted by the Commission thereunder, and did not or will
not, as the case may be, include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(p) Each of the Company and its Subsidiaries owns or possesses, and is
operating in compliance with, all approvals, licenses, permits, certificates,
franchises, easements, consents, orders and other governmental authorizations
and rights necessary to own or lease its properties and conduct its business
(collectively, "Approvals"), except such Approvals as to which the failure to
own, possess or operate in compliance with would not, individually or in the
aggregate, result in a material adverse effect on the condition (financial or
other), results of operations, business or prospects of the Company and its
Subsidiaries taken as a whole ("Material Approvals"); all such Material
Approvals are valid and in full force and effect; and the Company has no reason
to believe that any governmental agency or body is considering limiting,
suspending or revoking any such Material Approval.
(q) From the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, neither the Company nor any of its Subsidiaries has (i) issued,
granted, repurchased, reclassified, or exchanged any of their respective
securities (other than in respect of intercompany transactions or pursuant to
employee stock options, the Company's director and key employee stock purchase
plan, the Company's director compensation plan or the Company's savings plan),
(ii) incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any material transaction not in the ordinary course
of business or (iv) entered into any material transaction with an affiliate of
the Company, other than a Subsidiary; and the Company has not declared or paid
any dividend on its capital stock other than the regular quarterly dividend on
its Common Stock.
(r) There has been no storage, disposal, generation, transportation,
handling or treatment of hazardous substances or hazardous wastes by the Company
or any of its Subsidiaries (or to the knowledge of the Company, any of its
predecessors in interest) at, upon or from any of the property now or previously
owned or leased by the Company or any of its Subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not, individually or in the aggregate with all such
violations and remedial actions, result in a material adverse effect on the
condition (financial or other), results of operations, business or prospects of
the Company and its Subsidiaries taken as a whole; there has been no material
spill, discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property of any
hazardous wastes or hazardous substances due to or caused by the Company or any
of its Subsidiaries, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not, individually or in the
aggregate with all such spills, discharges, leaks,
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emissions, injections, escapes, dumpings and releases result in a material
adverse effect on the condition (financial or other), results of operations,
business or prospects of the Company and its Subsidiaries taken as a whole; none
of the facilities of the Company or any of its Subsidiaries is a solid waste
facility for purposes of any applicable environmental law; and the terms
"hazardous substances" and "hazardous wastes" shall have the meanings specified
in any applicable local, state and federal laws or regulations with respect to
environmental protection.
(s) The Company has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or which has constituted
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the Debentures to facilitate the sale or resale of
the Debentures.
(t) The Debentures will be pari passu with all existing and future
unsecured and unsubordinated indebtedness of the Company.
(u) The conditions for the Company's use of Form S-3 for filing the
Registration Statement, as set out in the general instructions to such form,
have been satisfied.
(v) Neither the Company nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended
(the "1940 Act"), or is subject to regulation as an "investment company" under
the 1940 Act.
2. Purchase of the Debentures by the Underwriters. Subject to the
terms and conditions and upon the basis of the representations and warranties
herein set forth, the Company agrees to issue and sell to the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a price equal to 98.779% of the principal amount thereof, plus
accrued interest, if any, from May 20, 1998, the principal amount of Debentures
set forth opposite such Underwriter's name in Schedule I hereto. The
Underwriters propose to offer the Debentures to the public as set forth in the
Prospectus.
3. Delivery of and Payment for Debentures. Delivery of the
Debentures shall be made at such place or places as mutually may be agreed upon
by the Company and the Underwriters, at 10:00 A.M., New York City time, on May
20, 1998 or on such later date not more than three Business Days after the
foregoing date as shall be determined by you and the Company (the "Closing
Date").
Delivery of the Debentures shall be made to you by or on behalf of the
Company against payment of the purchase price therefor by wire transfer of
immediately available funds. Delivery of the Debentures shall be made through
the facilities of The Depository Trust Company unless you shall otherwise
instruct. Time shall be of the essence, and delivery of the Debentures at the
time and place specified in this Agreement is a further condition to the
obligations of each Underwriter.
4. Covenants of the Company. The Company covenants and agrees with
each Underwriter that:
(a) If the Effective Date is on or before the date of this Agreement,
the Company shall comply with the provisions of and make all requisite filings
with the Commission pursuant to Rule 424(b) not later than the Commission's
close of business on the second Business Day following
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the execution and delivery of this Agreement or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) of the Rules and Regulations. The
Company shall advise you, promptly after it receives notice thereof, of the time
when, if the Effective Date is on or before the date of this Agreement, any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed. The
Company shall notify you promptly of any request by the Commission for any
amendment of or supplement to the Registration Statement or the Prospectus or
for additional information; the Company shall prepare and file with the
Commission, promptly upon your request, any amendments or supplements to the
Registration Statement or the Prospectus which, in your opinion, may be
necessary or advisable in connection with the distribution of the Debentures;
and the Company shall not file any amendment or supplement to the Registration
Statement or the Prospectus or file any document under the Exchange Act before
the termination of the offering of the Debentures by the Underwriters if such
document would be deemed to be incorporated by reference into the Prospectus,
which filing is not consented to by you after reasonable notice thereof, such
consent not to be unreasonably withheld or delayed. The Company shall advise you
promptly of the issuance by the Commission or any State or other regulatory body
of any stop order or other order suspending the effectiveness of the
Registration Statement, suspending or preventing the use of any Preliminary
Prospectus or the Prospectus or suspending the qualification of the Debentures
for offering or sale in any jurisdiction, or of the institution of any
proceedings for any such purpose; and the Company shall use its best efforts to
prevent the issuance of any stop order or other such order and, should a stop
order or other such order be issued, to obtain as soon as possible the lifting
thereof.
(b) The Company shall furnish to each of you and to counsel for the
Underwriters a signed copy of the Registration Statement as originally filed and
each amendment thereto filed with the Commission, including all consents and
exhibits filed therewith, and shall furnish to the Underwriters such number of
conformed copies of the Registration Statement, as originally filed and each
amendment thereto (excluding exhibits other than this Agreement), the Prospectus
and all amendments and supplements to any of such documents (including any
document filed under the Exchange Act and deemed to be incorporated by reference
in the Preliminary Prospectus or Prospectus), in each case as soon as available
and in such quantities as you may from time to time reasonably request.
(c) Within the time during which the Prospectus relating to the
Debentures is required to be delivered under the Securities Act, the Company
shall comply with all requirements imposed upon it by the Securities Act, as now
and hereafter amended, and by the Rules and Regulations, as from time to time in
force, so far as is necessary to permit the continuance of sales of or dealings
in the Debentures as contemplated by the provisions hereof and by the
Prospectus. If during such period any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend the Registration
Statement or supplement the Prospectus or file any document to comply with the
Securities Act, the Company shall promptly notify you and shall, subject to
Section 4(a) above, amend the Registration Statement or supplement the
Prospectus or file any document (at the expense of the Company) so as to correct
such statement or omission or to effect such compliance.
(d) The Company shall take or cause to be taken all necessary action
and furnish to whomever you may direct such information as may be required in
qualifying the Debentures for offering and sale under the laws of such
jurisdictions as you shall designate, and to continue such
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qualifications in effect for as long as may be necessary for the distribution of
the Debentures; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction where it is not currently so
subject.
(e) As soon as practicable, the Company shall make generally available
to its security holders (and shall deliver to you) an earnings statement
satisfying the requirements of Section 11(a) of the Securities Act and Rule 158
of the Rules and Regulations.
(f) Whether or not this Agreement becomes effective or is terminated
or the sale of the Debentures to the Underwriters is consummated, the Company
shall pay or cause to be paid (A) all fees and expenses (including, without
limitation, all registration and filing fees and fees and expenses of the
Company's accountants but excluding fees and expenses of counsel for the
Underwriters) incurred in connection with the preparation, printing, filing,
delivery and shipping of the Registration Statement (including the financial
statements therein and all amendments and exhibits thereto), each Preliminary
Prospectus, the Prospectus, the Indenture, the Statement of Eligibility and
Qualification of the Trustee on Form T-1 filed with the Commission (the "Form T-
1") and any amendments or supplements of the foregoing and any documents
incorporated by reference into any of the foregoing and the copying, delivery
and shipping of this Agreement and Blue Sky Memoranda, (B) all fees and expenses
incurred in connection with the preparation and delivery to the Underwriters of
the Debentures (including the cost of printing the Debentures), (C) all filing
fees and fees and disbursements of counsel to the Underwriters incurred in
connection with the qualification of the Debentures under state securities or
Blue Sky laws as provided in Section 4(d) hereof, (D) any fees required to be
paid to rating agencies incurred in connection with the rating of the
Debentures, (E) the fees, costs and charges of the Trustee, including the fees
and disbursements of counsel for the Trustee, and (F) all other costs and
expenses incident to the performance of its obligations hereunder for which
provision is not otherwise made in this Section. It is understood, however,
that, except as provided in this Section, Section 6 and Section 8 hereof, the
Underwriters shall pay all of their own costs and expenses, including the fees
of their counsel and any advertising expenses incurred in connection with any
offers they may make. If the sale of the Debentures provided for herein is not
consummated by reason of acts of the Company or changes in circumstances of the
Company pursuant to Section 8 hereof which prevent this Agreement from becoming
effective, or by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed or because any
other condition of the Underwriters' obligations hereunder is not fulfilled or
if the Underwriters shall decline to purchase the Debentures for any reason
permitted under this Agreement other than by reason of a default by any of the
Underwriters pursuant to Section 7, the Company shall reimburse the several
Underwriters for all reasonable out-of-pocket disbursements (including fees and
disbursements of counsel) incurred by the Underwriters in connection with any
investigation or preparation made by them in respect of the marketing of the
Debentures or in contemplation of the performance by them of their obligations
hereunder.
(g) During the period of one year from the Closing Date, the Company
shall furnish to the Underwriters, copies of all reports or other communications
furnished to stockholders and copies of any reports or financial statements
furnished to or filed with the Commission or the New York Stock Exchange (the
"NYSE") or any other national securities exchange or association on which any
class of securities of the Company is quoted or listed, and the Company shall
furnish to the Underwriters copies of all reports and other communications
furnished to the Noteholders.
-9-
(h) Until termination of the offering of the Debentures, the Company
shall timely file all documents and amendments to previously filed documents
required to be filed by it pursuant to Section 12, 13, 14 or 15(d) of the
Exchange Act.
(i) The Company shall apply the net proceeds from the sale of the
Debentures as set forth in the Prospectus.
5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and
the Closing Date (as if made at the Closing Date), of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder and to the following additional conditions:
(a) The Prospectus shall have been filed with the Commission in a
timely fashion in accordance with Section 4(a) hereof, the Registration
Statement and all post-effective amendments to the Registration Statement shall
have become effective, all filings required by Rule 424 and Rule 430A of the
Rules and Regulations shall have been made and no such filings shall have been
made without the consent of the Underwriters; no stop order suspending the
effectiveness of the Registration Statement or any amendment or supplement
thereto or suspending the qualification of the Debentures for offering or sale
in any jurisdiction shall have been issued; no proceedings for the issuance of
any such order shall have been initiated or threatened; and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been disclosed to you and
complied with to your satisfaction.
(b) No Underwriter shall have been advised by the Company or shall
have discovered and disclosed to the Company that the Registration Statement or
the Prospectus or any amendment or supplement thereto, contains an untrue
statement of fact which in your opinion, or in the opinion of counsel to the
Underwriters, is material, or omits to state a fact which, in your opinion, or
in the opinion of counsel to the Underwriters, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) On the Closing Date, you shall have received from Xxxxx & Xxxxx,
L.L.P., counsel for the Underwriters, such opinion or opinions with respect to
the validity of the Debentures and other related matters as you may reasonably
request and such counsel shall have received such documents and information as
they request to enable them to pass upon such matters.
(d) On the Closing Date there shall have been furnished to you the
opinion (addressed to the Underwriters) of Xxxxxx & Xxxxxx L.L.P., counsel for
the Company, dated the Closing Date and in form and substance satisfactory to
the Underwriters, to the effect that:
(i) The Company has been duly incorporated and is validly existing and
in good standing as a corporation under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus. To the knowledge of such counsel, the Company is duly
qualified to do business and is in good standing in each jurisdiction in
which the character of the business conducted by it or the location of the
properties owned, leased or operated by it makes such qualification
necessary (except where the failure to so qualify would not, individually
or in the aggregate, have a material adverse effect on the condition
(financial or other), results of operations, business or prospects of the
Company and its Subsidiaries taken as a whole).
-10-
(ii) To the best of such counsel's knowledge, neither the filing of
the Registration Statement nor the offering or sale of the Debentures as
contemplated by this Agreement gives rise to any rights, other than those
which have been waived or satisfied, for or relating to the registration of
any securities of the Company or any of its Subsidiaries. The authorized
equity capitalization of the Company as of the date of the most recent
balance sheet included or incorporated by reference in the Prospectus is as
set forth in the Prospectus. The Company has all requisite corporate power
and authority to issue, sell and deliver the Debentures in accordance with
and upon the terms and conditions set forth in this Agreement and in the
Registration Statement and Prospectus.
(iii) The Indenture has been duly authorized, executed and delivered
by the Company and is a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and by general equitable principles (regardless
of whether such enforceability is considered in a proceeding in equity or
at law); and the Indenture has been duly qualified under the Trust
Indenture Act and the rules and regulations thereunder.
(iv) The Debentures have been duly authorized and executed by the
Company for issuance and sale to the Underwriters pursuant to this
Agreement and, assuming due authentication of the Debentures by the
Trustee, upon delivery to the Underwriters against payment therefor in
accordance with the terms of this Agreement, will have been validly issued
and delivered, will be entitled to the benefits of the Indenture and will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws or judicial decisions relating to or
affecting creditors' rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(v) Neither the execution or delivery of this Agreement nor
consummation of the transactions contemplated hereby will result in a
breach or violation of, or constitute a default under, the certificate of
incorporation or by-laws of the Company, nor will the performance by the
Company of its obligations hereunder violate any law, rule, administrative
regulation or (to the knowledge of such counsel) decree (except that such
counsel need not express an opinion as to federal or state securities or
Blue Sky laws with respect to this subparagraph) of any court or any
governmental agency or body having jurisdiction over the Company, its
Subsidiaries or their respective properties. Except for permits, consents,
approvals and similar authorizations required under the securities or Blue
Sky laws of certain jurisdictions and except for such permits, consents,
approvals and authorizations which have been obtained, no permit, consent,
approval, authorization or order of any court, governmental agency or body
or financial institution is required of the Company for the valid
authorization, issuance, sale and delivery of the Debentures.
(vi) The Company has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder.
This Agreement has been duly authorized, executed and delivered by the
Company.
-11-
(vii) The Registration Statement and all post-effective amendments
thereto have become effective under the Securities Act and, to the
knowledge of such counsel, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending before or threatened by the
Commission. To the knowledge of such counsel, no order of the Commission
directed to any document incorporated by reference in the Registration
Statement has been issued, and no challenge by appropriate proceedings has
been made to the accuracy or adequacy of any document incorporated by
reference in the Registration Statement.
(viii) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company and the Form T-1, as
of their respective effective or issue dates, complied as to form in all
material respects with the applicable requirements of the Securities Act
and the Rules and Regulations and the Trust Indenture Act and the rules and
regulations thereunder (except that no opinion need be expressed as to the
financial statements or notes thereto or other financial and statistical
data contained therein or omitted therefrom).
(ix) The Indenture and the Debentures conform in all material respects
as to legal matters to the respective statements concerning them contained
in the Registration Statement and Prospectus. There are no legal
proceedings pending or threatened against the Company or any of its
Subsidiaries to which such counsel has given substantive attention or in
which such counsel has been engaged to represent the Company or any of its
Subsidiaries that are required to be disclosed in the Prospectus and are
not disclosed.
Such opinion shall also contain a statement that such counsel has no
reason to believe that (i) the Registration Statement, as of the Effective Time,
or any amendment thereto (other than the financial statements and notes thereto
and the other financial and statistical data contained therein, as to which such
counsel need not comment), at the time it became effective, including in each
case any document filed under the Exchange Act and incorporated by reference
therein, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or (ii) the Prospectus or any supplement
or amendment thereto (other than the financial statements and notes thereto and
the other financial and statistical data contained therein, as to which such
counsel need not comment), including in each case any document filed under the
Exchange Act and incorporated by reference therein, on such Closing Date and at
the time such Prospectus or supplement or amendment thereto was issued contains
or contained any untrue statement of a material fact or omits or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) On the Closing Date there shall have been furnished to you the
opinion (addressed to the Underwriters) of Senior Vice President and General
Counsel of the Company, dated the Closing Date and in form and substance
satisfactory to the Underwriters, to the effect that:
(i) Each of the Company's Significant Subsidiaries has been duly
incorporated or formed as a corporation or partnership, as applicable, and
is validly existing as a corporation, a general partnership or a limited
partnership under the laws of its jurisdiction of incorporation
-12-
or formation (and each of the Significant Subsidiaries that is a
corporation or a limited partnership is in good standing under the laws of
its jurisdiction of incorporation or formation), with full corporate or
partnership (as applicable) power and authority to own, lease and operate
its properties and conduct its business as described in the Prospectus.
(ii) To the knowledge of such counsel, except as disclosed in the
Prospectus, all of the outstanding shares of capital stock or partnership
interests (or such percentage of the partnership interest as is set forth
in the respective partnership agreements) of each Significant Subsidiary
are owned directly or indirectly by the Company, free and clear of any
perfected security interest.
(iii) Neither the execution or delivery of this Agreement nor
consummation of the transactions contemplated hereby will result in a
breach or violation of, or constitute a default under, the certificate of
incorporation, by-laws, partnership agreement or other governing documents
of the Significant Subsidiaries or any agreement indenture or other
instrument filed as an exhibit to the Registration Statement or any
document incorporated by reference therein.
(iv) Each document incorporated by reference in the Registration
Statement as filed under the Exchange Act complied when so filed as to form
in all material respects with the applicable requirements of the Exchange
Act and the rules and regulations of the Commission thereunder (except that
no opinion need be expressed as to the financial statements or notes
thereto and other financial and statistical data contained therein).
(v) The descriptions in the Registration Statement and Prospectus of
statutes, regulations, legal or governmental proceedings, to the extent
they constitute matters of law and summaries of legal matters are accurate
in all material respects. To the knowledge of such counsel, there are no
contracts or documents required to be described in the Registration
Statement or Prospectus or to be filed as exhibits thereto which are not
described or filed as required.
(f) There shall have been furnished to you a certificate, dated the
Closing Date and addressed to you, signed by the Chairman of the Board or the
President and by the Chief Financial Officer of the Company to the effect that:
(i) the representations and warranties of the Company contained in this
Agreement are true and correct, as if made at and as of the Closing Date, and
the Company has complied with all the agreements and satisfied all the
conditions on its part to be complied with or satisfied at or prior to the
Closing Date; (ii) no stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that purpose has
been initiated or, to the best of their knowledge, threatened; (iii) all filings
required by Rule 424(b) and Rule 430A of the Rules and Regulations have been
made; (iv) the signers of said certificate have carefully examined the
Registration Statement and the Prospectus, and any amendments or supplements
thereto (including any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus), and such documents contain all
statements and information required to be included therein, and do not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading; (v) since the Effective Date there has occurred no event required to
be set forth in an amendment or supplement to the Registration Statement or the
Prospectus which has not been so set forth and there has been no document
required to be filed under the Exchange Act and the Rules and Regulations that
upon such filing would be deemed to be incorporated by reference into the
Prospectus that has not been so filed and (v) no event contemplated by
subsection (g) of this Section 5 shall have occurred.
-13-
(g) Since the dates as of which information is given in the
Registration Statement (exclusive of any amendment thereto) and in the
Prospectus (exclusive of any supplement thereto), neither the Company nor any of
its Subsidiaries shall have sustained any loss by fire, flood, accident or other
calamity, or shall have become a party to or the subject of any litigation,
which is materially adverse to the Company and its Subsidiaries taken as a
whole, nor shall there have been a material adverse change in the general
affairs, operations, business, prospects, key personnel, capitalization,
financial condition or net worth of the Company and its Subsidiaries taken as a
whole, regardless of whether arising in the ordinary course of business, which
loss, litigation or change, in your judgement, shall render it impractical or
inadvisable to proceed with the payment for and delivery of the Debentures.
(h) On the date hereof and the Closing Date you shall have received
letters from Xxxxxx Xxxxxxxx LLP, dated respectively the date hereof and the
Closing Date and addressed to you, confirming that they are independent
certified public accountants within the meaning of the Securities Act and the
applicable published Rules and Regulations, and stating, as of the date of such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given or
incorporated in the Prospectus as of a date not more than five days prior to the
date of such letter, provided that such date shall be after the date of the
Prospectus), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its letter delivered to you
concurrently with the execution of this Agreement, and, with respect to the
letter delivered on the Closing Date, confirming the conclusions and findings
set forth in such prior letter.
(i) You shall have been furnished by the Company such additional
documents and certificates as you or counsel for the Underwriters may reasonably
request.
(j) At the time of the Closing, the Debentures shall have a rating of
at least Baa2 by Xxxxx'x Investors Service and BBB+ by Standard & Poor's
Corporation, and the Company shall have delivered to the Underwriters a letter,
dated the Closing Date, from each such rating agency or other evidence
satisfactory to the Underwriters, confirming such ratings. Since the date
hereof, there shall not have occurred any downgrading with respect to any debt
securities of the Company or any of its Subsidiaries 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 or any public
announcement that any such organization has under surveillance or review its
rating of any such debt securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading of such rating).
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and to counsel for the Underwriters. The Company shall furnish
to you conformed copies of such opinions, certificates, letters and other
documents in such number as you shall reasonably request. If any of the
conditions specified in this Section 5 shall not have been fulfilled when and as
required by this Agreement, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time prior to, the Closing
Date, by you. Any such cancellation shall be without liability of the
Underwriters to the Company. Notice of such cancellation shall be given to the
Company in writing, or by telegraph or telephone and confirmed in writing.
6. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Underwriter from and against any loss, claim,
damage or liability (or any action
-14-
in respect thereof), joint or several, to which such Underwriter may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage or liability (or action in respect thereof) arises out of or is based
upon (i) any untrue statement or alleged untrue statement made by the Company in
Section 1 hereof, (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus or the Registration Statement or Prospectus as
amended or supplemented, or (iii) the omission or alleged omission to state in
the Registration Statement, any Preliminary Prospectus, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and shall reimburse each Underwriter promptly after receipt of
invoices from such Underwriter for any legal or other expenses as reasonably
incurred by such Underwriter in connection with investigating, preparing to
defend or defending against or appearing as a third-party witness in connection
with any such loss, claim, damage, liability or action, notwithstanding the
possibility that payments for such expenses might later be held to be improper,
in which case such payments shall be promptly refunded; provided, however, that
the Company shall not be liable under this paragraph 6(a) in any such case to
the extent, but only to the extent, that any such loss, claim, damage, liability
or action arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
expressly for use in the preparation of the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Registration Statement or
Prospectus as amended or supplemented; provided, further that with respect to
any untrue statement or omission or alleged untrue statement or omission made in
any Preliminary Prospectus, which untrue statement or omission or alleged untrue
statement or omission in such Preliminary Prospectus was corrected in the
Prospectus, the indemnity agreement contained in this paragraph 6(a) shall not
inure to the benefit of any Underwriter (or any person controlling such
Underwriter) to the extent that any such loss, claim, damage or liability
results from the fact that a copy of the Prospectus was not sent or given to the
person asserting any such losses, claims, damages or liabilities at or prior to
the written confirmation of the sale of the Debentures concerned to such person
by such Underwriter (provided that the Company shall have complied with the
provisions of Section 4(a) and (c) hereof and such Underwriter shall have been
provided with the number of copies of such Prospectus requested by such
Underwriter in a timely manner) and it is judicially determined that such
delivery was required under the Securities Act and was not so made.
(b) Each Underwriter severally, but not jointly, shall indemnify and
hold harmless the Company against any loss, claim, damage or liability (or any
action in respect thereof) to which the Company may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage or liability
(or action in respect thereof) arises out of or is based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or the
Registration Statement or Prospectus as amended or supplemented, or (ii) the
omission or alleged omission to state in the Registration Statement, any
Preliminary Prospectus, the Prospectus or the Registration Statement or
Prospectus as amended or supplemented a material fact required to be stated
therein or necessary to make the statements therein not misleading and shall
reimburse the Company promptly after receipt of invoices from the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating, preparing to defend or defending against or appearing as a
third-party witness in connection with any such loss, claim, damage, liability
or action notwithstanding the possibility that payments for such expenses might
later be held to be improper, in which case such payments shall be promptly
refunded; provided, however, that such indemnification or reimbursement shall be
available in each such case to the extent, but only to the extent, that such
untrue statement or alleged
-15-
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter expressly for use therein.
(c) Promptly after receipt by any indemnified party under subsection
(a) or (b) above of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to so notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been prejudiced in any material respect by such failure or from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against any indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under subsection (a) or (b) above for any legal or
other expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation; except that
the Underwriters shall have the right to employ counsel to represent the
Underwriters who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company under
such subsection if (i) the employment thereof has been specifically authorized
by the Company in writing, (ii) the Underwriters shall have been advised by
counsel that there may be one or more legal defenses available to the
Underwriters which are different from or additional to those available to the
Company and in the reasonable judgment of such counsel it is advisable for the
Underwriters to employ separate counsel or (iii) the Company has failed to
assume the defense of such action and employ counsel reasonably satisfactory to
the Underwriters, in which event the fees and expenses of such separate counsel
shall be paid by the Company. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of the losses, claims, damages or liabilities
referred to in subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Debentures
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters
-16-
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, or actions in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Debentures (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. Relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contributions pursuant to this subsection (d)
were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to in the
first sentence of this subsection (d). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating, preparing to defend or
defending against any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Debentures underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint. Each party entitled to contribution
agrees that upon the service of a summons or other initial legal process upon it
in any action instituted against it in respect to which contribution may be
sought, it shall promptly give written notice of such service to the party or
parties from whom contribution may be sought, but the omission so to notify such
party or parties of any such service shall not relieve the party from whom
contribution may be sought for any obligation it may have hereunder or otherwise
(except as specifically provided in subsection (c) above).
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have, and shall extend,
upon the same terms and conditions set forth in this Section 6, to the
respective officers and directors of the Underwriters and each person, if any,
who controls any Underwriter within the meaning of the Securities Act; and the
obligations of the Underwriters under this Section 6 shall be in addition to any
liability that the respective Underwriters may otherwise have, and shall extend,
upon the same terms and conditions, to each director of the Company (including
any person who, with his or her consent, is named in the Registration Statement
as about to become a director of the Company), to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Securities Act.
7. Substitution of Underwriters. If any Underwriter defaults in its
obligation to purchase the principal amount of the Debentures which it has
agreed to purchase under this Agreement, the non-defaulting Underwriters shall
be obligated to purchase (in the respective
-17-
proportions which the principal amount of the Debentures set forth opposite the
name of each non-defaulting Underwriter in Schedule I hereto bears to the total
principal amount of the Debentures less the principal amount of the Debentures
the defaulting Underwriter agreed to purchase set forth in Schedule I hereto)
the principal amount of the Debentures which the defaulting Underwriter agreed
but failed to purchase; except that the non-defaulting Underwriters shall not be
obligated to purchase any of the Debentures if the total principal amount of the
Debentures which the defaulting Underwriter or Underwriters agreed but failed to
purchase exceed 9.09% of the total principal amount of the Debentures, and any
non-defaulting Underwriters shall not be obligated to purchase more than 110% of
the principal amount of the Debentures set forth opposite its name in Schedule I
hereto. If the foregoing maximums are exceeded, the non-defaulting Underwriters,
and any other underwriters satisfactory to you who so agree, shall have the
right, but shall not be obligated, to purchase (in such proportions as may be
agreed upon among them) all of the Debentures. If the non-defaulting
Underwriters or the other underwriters satisfactory to the Underwriters do not
elect to purchase the Debentures that the defaulting Underwriter or Underwriters
agreed but failed to purchase within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company, except for the indemnity and contribution agreements of the
Company and the Underwriters contained in Section 6 hereof. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter pursuant to this Section 7.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have for damages caused by its default. If the non-defaulting
Underwriters or the other underwriters satisfactory to you are obligated or
agree to purchase the Debentures of a defaulting Underwriter, either you or the
Company may postpone the Closing Date for up to seven full Business Days in
order to effect any changes that may be necessary in the Registration Statement
or the Prospectus or in any other document or agreement, and to file promptly
any amendments or any supplements to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary.
8. Effective Date and Termination. (a) This Agreement shall become
effective (i) if the Effective Date is on or before the date of this Agreement,
at 11:00 A.M., New York City time, on the next Business Day following the date
hereof, (ii) if the Effective Date is after the date of this Agreement, at 11:00
A.M., New York City time, on the first full Business Day following the Effective
Date or (iii) at such earlier time after the Registration Statement becomes
effective as you shall first release the Debentures for sale to the public. You
shall notify the Company immediately after you have taken any action which
causes this Agreement to become effective. Until this Agreement is effective,
it may be terminated by the Company by giving notice as hereinafter provided to
you, or by you by giving notice as hereinafter provided to the Company except
that the provisions of Section 4(f) and Section 6 hereof shall at all times be
effective. For purposes of this Agreement, the release of the initial public
offering of the Debentures for sale to the public shall be deemed to have been
made when you release, by telegram or otherwise, firm offers of the Debentures
to securities dealers or release for publication a newspaper advertisement
relating to the Debentures, whichever occurs first.
(b) Until the Closing Date, this Agreement may be terminated by you by
giving notice as hereinafter provided to the Company if (i) the Company shall
have failed, refused or been unable, at or prior to the Closing Date, to perform
any agreement on its part to be performed hereunder, (ii) any other condition of
the Underwriters' obligation hereunder is not fulfilled, (iii) trading in the
Company's Common Stock shall have been suspended by the Commission or the
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NYSE or trading in securities generally on the NYSE shall have been suspended or
minimum prices shall have been established on such exchange by the Commission or
such exchange or other regulatory body or governmental authority having
jurisdiction, (iv) a banking moratorium is declared by either federal or New
York state authorities, (v) the United States becomes engaged in hostilities or
there is an escalation of hostilities involving the United States or there is a
declaration of a national emergency or war by the United States or (vi) there
shall have been such a material adverse change in general economic, political or
financial conditions, or the effect of international conditions on the financial
markets in the United States shall be such, as to, in the judgment of a majority
in interest of the several Underwriters, make it inadvisable or impracticable to
proceed with the offering or delivery of the Debentures. Any termination of this
Agreement pursuant to this Section 8 shall be without liability on the part of
the Company or any Underwriter, except as otherwise provided in Sections 4(f)
and 6 hereof.
Any notice referred to above may be given at the address specified in
Section 10 hereof in writing or by telegraph or telephone, and if by telegraph
or telephone, shall be immediately confirmed in writing.
9. Survival of Certain Provisions. The agreements contained in
Section 6 hereof and the representations, warranties and agreements of the
Company contained in Sections 1 and 4 hereof shall survive the delivery of the
Debentures to the Underwriters hereunder and shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
10. Notices. Except as otherwise provided in the Agreement, (a)
whenever notice is required by the provisions of this Agreement to be given to
the Company, such notice shall be in writing or by telegraph addressed to the
Company at 0000 Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, Attention: General
Counsel; (b) whenever notice is required by the provisions of this Agreement to
be given to the several Underwriters, such notice shall be in writing or by
telegraph addressed to you in care of Xxxxxxx Xxxxx Xxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel.
11. Information Furnished by Underwriters. The Underwriters
severally confirm that the statements set forth in the last paragraph on the
cover page in any Preliminary Prospectus and in the Prospectus and the
information appearing in the list of names of, and principal amount of
Debentures to be purchased by, each of the Underwriters, under the caption
"Underwriting" in any Preliminary Prospectus and in the Prospectus, and the
statements in the second, fourth and sixth paragraphs and the second and third
sentences of the third paragraph next following such list, constitute the
written information furnished by or on behalf of any Underwriter referred to in
paragraph (b) of Section 1 hereof and in paragraphs (a) and (b) of Section 6
hereof.
12. Parties. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall also
be deemed to be for the benefit of the person or persons, if any, who control
any Underwriter within the meaning of Section 15 of the Securities Act and (b)
the indemnity agreement of the Underwriters contained in Section 6 hereof shall
be deemed to be for the benefit of directors of the Company, officers of the
Company who signed the Registration Statement and any person controlling the
Company within the meaning of Section 15 of the Securities Act.
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Nothing in this Agreement shall be construed to give any person, other than the
persons referred to in this paragraph, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
13. Definition of "Business Day" and "Subsidiary." For purposes of
this Agreement, (a) "Business Day" means any day on which the New York Stock
Exchange, Inc. is open for trading, other than any day on which commercial banks
are authorized or required to be closed in New York City or Houston, Texas, and
(b) "Subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations and includes both partnerships and corporations.
14. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York without regard to the
conflicts of laws provisions thereof.
15. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
16. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
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Please confirm, by signing and returning to us two counterparts of
this Agreement, that you are acting on behalf of yourselves and the several
Underwriters and that the foregoing correctly sets forth the Agreement between
the Company and the several Underwriters.
Very truly yours,
NGC Corporation
By:
------------------------------
Name:
-------------------------
Title:
------------------------
Confirmed and accepted as of
the date first above mentioned
Salomon Brothers Inc
Chase Securities Inc.
Citicorp Securities, Inc.
Nationsbanc Xxxxxxxxxx Securities LLC
By: Salomon Brothers Inc
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
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SCHEDULE I
Underwriting Agreement dated May 15, 1998
Principal Amount
of Debentures to be
Underwriter Purchased
----------- ---------
Salomon Brothers Inc $ 43,750,000
Chase Securities Inc. 43,750,000
Citicorp Securities, Inc. 43,750,000
NationsBanc Xxxxxxxxxx Securities LLC 43,750,000
------------
Total $175,000,000
============
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EXHIBIT A
Underwriting Agreement dated May 15, 1998
As used in the Underwriting Agreement, the "Significant Subsidiaries" of the
Company are as follows:
Destec Energy, Inc.
NGC Global Energy, Inc.
NGC Holding Company, Inc.
Clearinghouse Holdings, Inc.
NGC GP Inc.
Xxxxxx NGL, Inc.
NGC Regulated Holdings, Inc.
A-1
