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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report: May 18, 2000
Enron Corp.
(Exact name of registrant as specified in its charter)
Oregon
(State or other jurisdiction of incorporation)
1-13159 47-0255140
(Commission File Number) (IRS Employer Identification No.)
Enron Building
1400 Smith Street
Houston, Texas 77002
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 713-853-6161
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Item 7. Exhibits.
The registrant is filing herewith the following in connection with the
offering of medium term notes pursuant to its registration statement on Form S-3
(No. 333-70465) filed with the Securities and Exchange Commission under the
Securities Act of 1933, as described in the Prospectus and Prospectus Supplement
dated May 18, 2000 filed with the Securities and Exchange Commission pursuant to
Rule 424(b) under the Securities Act of 1933:
1.1 Form of Distribution Agreement between the registrant and any
entity that serves as agent
1.2 Form of Administrative Procedures
8.1 Opinion and consent of Vinson & Elkins L.L.P. with respect to
certain federal income tax matters.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ENRON CORP.
By: /s/ REX R. ROGERS
--------------------------------
Rex R. Rogers
Vice President and
Associate General Counsel
Dated: May 18, 2000
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INDEX TO EXHIBITS
Exhibit
Number
- -------
1.1 Form of Distribution Agreement between the registrant and any entity
that serves as agent
1.2 Form of Administrative Procedures
8.1 Opinion and consent of Vinson & Elkins L.L.P. with respect to certain
federal income tax matters.
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EXHIBIT 1.1
ENRON CORP.
MEDIUM-TERM NOTES
DUE NINE MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
[Date]
[Name and Address of Agent]
Dear Sirs:
Enron Corp., an Oregon corporation (the "Company"), confirms its
agreement with the agent set forth above and on the signature page hereto (the
"Agent") with respect to the issue and sale by the Company of its Medium-Term
Notes Due Nine Months or More From Date of Issue (the "Notes"). The Notes are
to be issued pursuant to an Indenture, dated as of November 1, 1985, as amended
or modified from time to time (the "Indenture"), between the Company and The
Bank of New York (as successor to Harris Trust and Savings Bank), as trustee
(the "Trustee"). As of the date hereof, the Company has authorized the issuance
and sale of up to U.S. $500,000,000 aggregate initial offering price of Notes
(or its equivalent, based upon the exchange rate on the applicable trade date
in such foreign currencies as the Company shall designate at the time of
issuance) to or through the Agent pursuant to the terms of this Agreement. It
is understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold to or
through the Agent pursuant to the terms of this Agreement, all as though the
issuance of such Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to
the Agent as principal for resale to investors and other purchasers and for the
sale of Notes by the Company directly to investors (as may from time to time be
agreed to by the Company and the Agent), in which case the Agent will act as an
agent of the Company in soliciting offers for the purchase of Notes.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-70465) for the
registration of its common stock, preferred stock, depositary shares and debt
securities, including the Notes, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance with
Rule 415 of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"). Such registration statement has been declared
effective by the Commission and the Indenture has been duly qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"), and the Company has
filed such post-effective amendments thereto as may be required prior to its
acceptance of any offer for the purchase of Notes and each such post-effective
amendment has been declared effective by the Commission. Such registration
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statement, in the form in which it or any post-effective amendment thereto
became effective, is referred to herein as the "Registration Statement"; and
the final prospectus and all applicable amendments or supplements thereto
(including the final prospectus supplement and pricing supplement relating to
the offering of Notes), in the form first furnished to the Agent for use in
confirming sales of Notes, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Securities Exchange Act of
1934, as amended (the "1934 Act"), prior to the effectiveness of the
Registration Statement or any acceptance by the Company of an offer for the
purchase of Notes, respectively; provided, further, that if the Company files a
registration statement with the Commission pursuant to Rule 462(b) of the 1933
Act Regulations (the "Rule 462(b) Registration Statement"), then, after such
filing, all references to the "Registration Statement" shall also be deemed to
include the Rule 462(b) Registration Statement. A "preliminary prospectus"
shall be deemed to refer to any prospectus used before the Registration
Statement became effective and any prospectus furnished by the Company after
the registration statement became effective and before any acceptance by the
Company of an offer for the purchase of Notes which omitted information to be
included upon pricing in a form of prospectus filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations. All references in this
Agreement to amendments or supplements to the Registration Statement,
Prospectus or preliminary prospectus shall be deemed to include the filing of
any document under the 1934 Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be. For purposes of this Agreement, all references to the Registration
Statement, Prospectus or preliminary prospectus or to any amendment or
supplement thereto shall be deemed to include any copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR").
SECTION 1. Appointment as Agent.
(a) Appointment. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly
on its own behalf, the Company hereby agrees that Notes will be sold to or
through the Agent on a non-exclusive basis.
(b) Sale of Notes. The Company shall not sell or approve the
solicitation of offers for the purchase of Notes in excess of the amount which
shall be authorized by the Company from time to time or in excess of the
aggregate initial offering price of Notes registered pursuant to the
Registration Statement. The Agent shall not have any responsibility for
maintaining records with respect to the aggregate initial offering price of
Notes sold, or of otherwise monitoring the availability of Notes for sale,
under the Registration Statement.
(c) Purchases as Principal. The Agent shall not have any obligation to
purchase Notes from the Company as principal. However, absent an agreement
between the Agent and the Company that the Agent shall be acting solely as an
agent for the Company, the Agent shall be deemed to be acting as principal in
connection with any offering of Notes hereunder. Accordingly, the Agent may
agree from time to time to purchase Notes from the Company as principal for
resale to investors and other purchasers determined by the Agent. Any purchase
of Notes from the Company by the Agent as principal shall be made in accordance
with Section 3(a) hereof.
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(d) Solicitations as Agent. If agreed upon between the Agent and the
Company, the Agent, acting solely as an agent for the Company and not as
principal, will solicit offers for the purchase of Notes. The Agent will
communicate to the Company, orally, each offer for the purchase of Notes
solicited by it on an agency basis other than those offers rejected by the
Agent. The Agent shall have the right, in its discretion reasonably exercised,
to reject any offer for the purchase of Notes, in whole or in part, and any
such rejection shall not be deemed a breach of its agreement contained herein.
The Company may accept or reject any offer for the purchase of Notes, in whole
or in part. The Agent shall make reasonable efforts to assist the Company in
obtaining performance by each purchaser whose offer for the purchase of Notes
has been solicited by it on an agency basis and accepted by the Company. The
Agent shall not have any liability to the Company in the event that any such
purchase is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer has been solicited by
the Agent on an agency basis and accepted by the Company, the Company shall (i)
hold the Agent harmless against any loss, claim or damage arising from or as a
result of such default by the Company and (ii) pay to the Agent any commission
to which it would otherwise be entitled absent such default.
(e) Reliance. The Company and the Agent agree that any Notes purchased
from the Company by the Agent as principal shall be purchased, and any Notes
the placement of which the Agent arranges as an agent of the Company shall be
placed by the Agent, in reliance on the representations, warranties, covenants
and agreements of the Company contained herein and on the terms and conditions
and in the manner provided herein.
SECTION 2. Representations and Warranties.
(a) The Company represents and warrants to the Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to the Agent as principal or through the Agent as
agent), as of the date of each delivery of Notes (whether to the Agent as
principal or through the Agent as agent) (the date of each such delivery to the
Agent as principal is referred to herein as a "Settlement Date"), and as of any
time that the Registration Statement or the Prospectus shall be amended or
supplemented (each of the times referenced above is referred to herein as a
"Representation Date"), as follows:
(i) Due Incorporation, Good Standing and Due Qualification of
the Company. The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the state
of its incorporation with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and to enter into this Agreement and consummate the
transactions contemplated in the Prospectus; and the Company is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in
good standing would not result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise (a "Material Adverse Effect").
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(ii) Due Incorporation, Good Standing and Due Qualification
of Material Subsidiaries. Each Material Subsidiary (as defined below)
has been duly organized and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Prospectus and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure to so qualify or be
in good standing would not result in a Material Adverse Effect; except
as stated in the Prospectus, all of the issued and outstanding shares
of capital stock of each Material Subsidiary has been duly authorized
and is validly issued, fully paid and non-assessable and is owned by
the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or
equity; and none of the outstanding shares of capital stock of any
Material Subsidiary was issued in violation of preemptive or other
similar rights of any securityholder of such Material Subsidiary. The
following subsidiaries of the Company shall be "Material
Subsidiaries": Citrus Corp., Enron North America Corp., Florida Gas
Transmission Company, Houston Pipe Line Company, Northern Natural Gas
Company, Portland General Electric Company, Transwestern Pipeline
Company and Enron Broadband Services, Inc. and each other subsidiary
deemed material by the Company prior to any acceptance of an offer to
purchase Notes.
(iii) Registration Statement and Prospectus. The Company
meets the requirements for use of Form S-3 under the 1933 Act; the
Registration Statement (or any Rule 462(b) Registration Statement) has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement (or any Rule 462(b)
Registration Statement) has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional
information has been complied with; the Indenture has been duly
qualified under the 1939 Act; at the respective times that the
Registration Statement (including any Rule 462(b) Registration
Statement) and any post-effective amendment thereto (including the
filing of the Company's most recent Annual Report on Form 10-K with
the Commission (the "Annual Report on Form 10-K")) became effective
and at each Representation Date, the Registration Statement (including
any Rule 462(b) Registration Statement) and any amendments thereto
complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations") and did not and will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; each preliminary prospectus and prospectus
filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with the
1933 Act Regulations; each preliminary prospectus and the Prospectus
delivered to the Agent for use in connection with the offering of Notes
are identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T; and at the date hereof, at the date of the
Prospectus and each amendment or supplement thereto and at
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each Representation Date, neither the Prospectus nor any amendment or
supplement thereto included or will include an untrue statement of a
material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or the Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by the Agent
expressly for use in the Registration Statement or the Prospectus.
(iv) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Prospectus, at the time
they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission under the 1934 Act
(the "1934 Act Regulations") and, when read together with the other
information in the Prospectus, at the date hereof, at the date of the
Prospectus and at each Representation Date, did not and will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(v) Independent Accountants. The accountants who certified
the financial statements and any supporting schedules thereto included
in the Registration Statement and the Prospectus are independent
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(vi) Financial Statements. The consolidated financial
statements of the Company included in the Registration Statement and
the Prospectus, together with the related schedules and notes, as well
as those financial statements, schedules and notes of any other entity
included in the Registration Statement and the Prospectus, present
fairly the consolidated financial position of the Company and its
subsidiaries, or such other entity, as the case may be, at the dates
indicated and the consolidated statement of operations, stockholders'
equity and cash flows of the Company and its subsidiaries, or such
other entity, as the case may be, for the periods specified; such
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved; the supporting schedules, if any,
included in the Registration Statement and the Prospectus present
fairly in accordance with GAAP the information required to be stated
therein; the selected financial data and the summary financial
information included in the Registration Statement and the Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements
included in the Registration Statement and the Prospectus; and any pro
forma consolidated financial statements of the Company and its
subsidiaries and the related notes thereto included in the
Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
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(vii) No Material Changes. Since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, there has been no
event or occurrence that would result in a Material Adverse Effect.
(viii) Authorization, etc. of this Agreement, the Indenture
and the Notes. This Agreement has been duly authorized, executed and
delivered by the Company; the Indenture has been duly authorized,
executed and delivered by the Company and will be a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
or by general equitable principles (regardless of whether enforcement
is considered in a proceeding in equity or at law), and except further
as enforcement thereof may be limited by requirements that a claim
with respect to any debt securities issued under the Indenture that
are payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States; the Notes have been duly authorized by the Company for offer,
sale, issuance and delivery pursuant to this Agreement and, when
issued, authenticated and delivered in the manner provided for in the
Indenture and delivered against payment of the consideration therefor,
will constitute valid and legally 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 affecting the
enforcement of creditors' rights generally or by general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except further as enforcement
thereof may be limited by requirements that a claim with respect to
any Notes payable in a foreign or composite currency (or a foreign or
composite currency judgment in respect of such claim) be converted
into U.S. dollars at a rate or exchange prevailing on a date
determined pursuant to applicable law or by governmental authority to
limit, delay or prohibit the making of payments outside the United
States; the Notes will be substantially in a form previously certified
to the Agent and contemplated by the Indenture; and each holder of
Notes will be entitled to the benefits of the Indenture.
(ix) Descriptions of the Indenture and the Notes. The
Indenture and the Notes conform and will conform in all material
respects to the statements relating thereto contained in the
Prospectus and are substantially in the form filed or incorporated by
reference, as the case may be, as an exhibit to the Registration
Statement.
(x) Absence of Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of the provisions of its
charter or by-laws or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of
them may be bound or to which any of the property or
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assets of the Company or any of its subsidiaries is subject
(collectively, "Agreements and Instruments"), except for such defaults
that would not result in a Material Adverse Effect; and the execution,
delivery and performance of this Agreement, the Indenture, the Notes
and any other agreement or instrument entered into or issued or to be
entered into or issued by the Company in connection with the
transactions contemplated by the Prospectus, the consummation of the
transactions contemplated in the Prospectus (including the issuance
and sale of the Notes and the use of proceeds therefrom as described
in the Prospectus) and the compliance by the Company with its
obligations hereunder and under the Indenture, the Notes and such
other agreements or instruments have been duly authorized by all
necessary corporate action and do not and will not, whether with or
without the giving of notice or the passage of time or both, conflict
with or constitute a breach of, or default or event or condition which
gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a portion
of such indebtedness by the Company or any of its subsidiaries (a
"Repayment Event") under, or result in the creation or imposition of
any lien, charge or encumbrance upon any assets, properties or
operations of the Company or any of its subsidiaries pursuant to, any
Agreements and Instruments, except for such liens, charges,
encumbrances or violations that would not result in a Material Adverse
Effect, nor will such action result in any violation of the provisions
of the charter or by-laws of the Company or any of its subsidiaries or
any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any of
its subsidiaries or any of their assets, properties or operations.
(xi) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or to
the knowledge of the Company threatened, against or affecting the
Company or any of its subsidiaries which is required to be disclosed
in the Registration Statement and the Prospectus (other than as stated
therein), or which may reasonably be expected to result in a Material
Adverse Effect, or which may reasonably be expected to materially and
adversely affect the assets, properties or operations thereof, the
performance by the Company of its obligations under this Agreement,
the Indenture and the Notes or the consummation of the transactions
contemplated in the Prospectus.
(xii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind, except (A) as otherwise stated in the Registration Statement and
the Prospectus or (B) those that do not adversely affect the value of
such property or interfere with the use made and proposed to be made
of such property by the Company or any of its subsidiaries, in either
case in a manner that would result in a Material Adverse Effect; and
all of the leases and subleases material to the business of the
Company and its subsidiaries considered as one enterprise, and under
which the Company or any of its subsidiaries holds properties
described in the Prospectus, are in full force and effect, and neither
the Company nor any of its subsidiaries has received any notice of any
material claim of any sort that has been
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asserted by anyone adverse to the rights of the Company or any of its
subsidiaries under any of such leases or subleases, or affecting or
questioning the rights of the Company or such subsidiary of the
continued possession of the leased or subleased premises under any
such lease or sublease, except for those that would not have a
Material Adverse Effect.
(xiii) Environmental Laws. Except as otherwise stated in the
Registration Statement and the Prospectus and except as would not,
singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor any of its subsidiaries is in violation of any
federal, state, local or foreign statute, law, rule, regulation,
ordinance, code, policy or rule of common law or any judicial or
administrative interpretation thereof including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements,
(C) there are no pending or threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that may
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xiv) No Filings, Regulatory Approvals, etc. No filing with,
or approval, authorization, consent, license, registration,
qualification, order or decree of, any court or governmental authority
or agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company of this
Agreement, the Indenture and the Notes or for the performance by the
Company of the transactions contemplated in this Agreement, the
Indenture or the Prospectus, except such as have been previously made,
obtained or rendered, as applicable.
(xv) Investment Company Act. The Company is not, and upon the
issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectus will not be, an "investment company" within the meaning of
the Investment Company Act of 1940, as amended (the "1940 Act").
(xvi) Commodity Exchange Act. The Notes, upon issuance, will
be excluded or exempted under, or beyond the purview of, the Commodity
Exchange Act, as amended (the "Commodity Exchange Act"), and the rules
and regulations of the Commodity
<PAGE> 9
Futures Trading Commission under the Commodity Exchange Act (the
"Commodity Exchange Act Regulations").
(b) Additional Certifications. Any certificate signed by any officer
of the Company or any of its subsidiaries and delivered to the Agent or to
counsel for the Agent in connection with an offering of Notes to the Agent as
principal or through the Agent as agent shall be deemed a representation and
warranty by the Company to the Agent as to the matters covered thereby on the
date of such certificate and, unless subsequently amended or supplemented, at
each Representation Date subsequent thereto.
SECTION 3. Purchases as Principal; Solicitations as Agent.
(a) Purchases as Principal. Notes purchased from the Company by the
Agent, as principal shall be made in accordance with terms agreed upon between
the Agent and the Company (which terms shall, to the extent deemed appropriate,
include those terms specified in Exhibit A hereto). The Agent's commitment to
purchase Notes as principal shall be deemed to have been made on the basis of
the representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Unless the context
otherwise requires, references herein to "this Agreement" shall include the
applicable agreement of the Agent to purchase Notes from the Company as
principal. The Agent may engage the services of any broker or dealer in
connection with the resale of the Notes purchased by them as principal and may
allow all or any portion of the discount received from the Company in
connection with such purchases to such brokers or dealers. At the time of each
purchase of Notes from the Company by the Agent as principal, the Agent shall
specify the requirements for the officers' certificate, opinion of counsel and
comfort letter pursuant to Sections 7(b), 7(c) and 7(d) hereof.
(b) Solicitations as Agent. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and the Agent, the Agent, as an agent of the
Company, will use its reasonable efforts to solicit offers for the purchase of
Notes upon the terms set forth herein and in the Prospectus. The Agent is not
authorized to appoint sub-Agents with respect to Notes sold through it as
agent. All Notes sold through the Agent as agent will be sold at 100% of their
principal amount unless otherwise agreed upon between the Company and the
Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers for the purchase of Notes through the Agent, as an agent
of the Company, commencing at any time for any period of time or permanently.
As soon as practicable after receipt of instructions from the Company, the
Agent will suspend solicitation of offers for the purchase of Notes from the
Company until such time as the Company has advised the Agent that such
solicitation may be resumed.
The Company agrees to pay the Agent a commission, in the form of a
discount, equal to the applicable percentage of the principal amount of each
Note sold by the Company as a result of a solicitation made by the Agent, as an
agent of the Company, as set forth in Schedule A hereto.
<PAGE> 10
(c) Administrative Procedures. The purchase price, interest rate or
formula, maturity date and other terms of the Notes specified in Exhibit A
hereto (as applicable) shall be agreed upon between the Company and the Agent
and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared by the Company in connection with each sale of
Notes. Except as otherwise specified in the applicable Pricing Supplement, the
Notes will be issued in denominations of U.S. $1,000 or any larger amount that
is an integral multiple of U.S. $1,000. Administrative procedures with respect
to the issuance and sale of the Notes (the "Procedures") shall be agreed upon
from time to time among the Company, the Agent and the Trustee. The Agent and
the Company agree to perform, and the Company agrees to cause the Trustee to
agree to perform, their respective duties and obligations specifically provided
to be performed by them in the Procedures.
SECTION 4. Covenants of the Company.
The Company covenants and agrees with the Agent as follows:
(a) Notice of Certain Events. The Company will notify the Agent
immediately, and confirm such notice in writing, of (i) the effectiveness of
any post-effective amendment to the Registration Statement or the filing of any
amendment or supplement to the Prospectus (other than any amendment or
supplement thereto providing solely for the determination of the variable terms
of the Notes or relating solely to the offering of securities other than the
Notes), (ii) the receipt of any comments from the Commission, (iii) any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (iv)
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement, or of any order preventing or suspending the use
of any preliminary prospectus, or of the initiation of any proceedings for that
purpose or (v) any change in the rating assigned by any nationally recognized
statistical rating organization to the Program or any debt securities
(including the Notes) of the Company, or the public announcement by any
nationally recognized statistical rating organization that it has under
surveillance or review, with possible negative implications, its rating of the
Program or any such debt securities, or the withdrawal by any nationally
recognized statistical rating organization of its rating of the Program or any
such debt securities. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing or Use of Amendments. Except as otherwise provided in
subsection (m) of this Section 4, the Company will give the Agent advance
notice of its intention to file or prepare any additional registration
statement with respect to the registration of additional Notes, any amendment
to the Registration Statement (including any filing under Rule 462(b) of the
1933 Act Regulations) or any amendment or supplement to the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus (other than an amendment or supplement thereto providing solely for
the determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), whether pursuant to the 1933 Act,
the 1934 Act or otherwise, will furnish to the Agent copies of any such
document a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file any such document to which the Agent or
counsel for the Agent shall reasonably object.
<PAGE> 11
(c) Delivery of the Registration Statement. The Company has furnished
to the Agent and to counsel for the Agent, without charge, conformed copies of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated or deemed to be incorporated by reference therein) and
conformed copies of all consents and certificates of experts. The Registration
Statement and each amendment thereto furnished to the Agent will be identical
to any electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of the Prospectus. The Company will deliver to the Agent,
without charge, as many copies of each preliminary prospectus as the Agent may
reasonably request, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to the Agent,
without charge, such number of copies of the Prospectus (as amended or
supplemented) as the Agent may reasonably request. The Prospectus and any
amendments or supplements thereto furnished to the Agent will be identical to
any electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e) Preparation of Pricing Supplements. The Company will prepare, with
respect to any Notes to be sold to or through the Agent pursuant to this
Agreement, a Pricing Supplement with respect to such Notes in a form previously
approved by the Agent. The Company will deliver such Pricing Supplement no
later than 11:00 a.m., New York City time, on the business day following the
date of the Company's acceptance of the offer for the purchase of such Notes
and will file such Pricing Supplement pursuant to Rule 424(b)(3) under the 1933
Act not later than the close of business of the Commission on the fifth
business day after the date on which such Pricing Supplement is first used.
(f) Revisions of Prospectus -- Material Changes. Except as otherwise
provided in subsection (m) of this Section 4, if at any time during the term of
this Agreement any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Agent or counsel for
the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or to amend or supplement the Prospectus in
order that the Prospectus will not include an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time
the Prospectus is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company shall give immediate notice,
confirmed in writing, to the Agent to cease the solicitation of offers for the
purchase of Notes in its capacity as agent and to cease sales of any Notes it
may then own as principal, and the Company will promptly prepare and file with
the Commission, subject to Section 4(b) hereof, such amendment or supplement as
may be necessary to correct such statement or omission or to make the
Registration Statement and Prospectus comply with such requirements, and the
Company will furnish to the Agent, without charge, such number of copies of
such amendment or supplement as the Agent may reasonably request. In addition,
the
<PAGE> 12
Company will comply with the 1933 Act, the 1933 Act Regulations, the 1934 Act
and the 1934 Act Regulations so as to permit the completion of the distribution
of each offering of Notes.
(g) Prospectus Revisions -- Periodic Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public interim financial
statement information related to the Company with respect to each of the first
three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to the Agent, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include financial information with respect
thereto and corresponding information for the comparable period of the
preceding fiscal year, as well as such other information and explanations as
shall be necessary for an understanding thereof or as shall be required by the
1933 Act or the 1933 Act Regulations.
(h) Prospectus Revisions -- Audited Financial Information. Except as
otherwise provided in subsection (m) of this Section 4, on or prior to the date
on which there shall be released to the general public financial information
included in or derived from the audited consolidated financial statements of
the Company for the preceding fiscal year, the Company shall furnish such
information to the Agent, confirmed in writing, and shall cause the Prospectus
to be amended or supplemented to include such audited consolidated financial
statements and the report or reports, and consent or consents to such
inclusion, of the independent accountants with respect thereto, as well as such
other information and explanations as shall be necessary for an understanding
of such consolidated financial statements or as shall be required by the 1933
Act or the 1933 Act Regulations.
(i) Earnings Statements. The Company will timely file such reports
pursuant to the 1934 Act as are necessary in order to make generally available
to its securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act
Regulations.
(k) Restriction on Offers and Sales of Securities. Unless otherwise
agreed upon between the Agent acting as principal and the Company, between the
date of the agreement by the Agent to purchase the related Notes from the
Company and the Settlement Date with respect thereto, the Company will not,
without the prior written consent of the Agent, issue, sell, offer or contract
to sell, grant any option for the sale of, or otherwise dispose of, any debt
securities of the Company (other than the Notes that are to be sold pursuant to
such agreement or commercial paper in the ordinary course of business). For
such purposes, debt securities of the Company shall not include guarantees of
the trading obligations of subsidiaries in the ordinary course of business and
consistent with past practices.
(l) Use of Proceeds. The Company will use the net proceeds received by
it from the issuance and sale of the Notes in the manner specified in the
Prospectus.
<PAGE> 13
(m) Suspension of Certain Obligations. The Company shall not be
required to comply with the provisions of subsections (b), (f), (g) or (h) of
this Section 4 during any period from the time (i) the Agent shall have
suspended solicitation of offers for the purchase of Notes in its capacity as
agent pursuant to a request from the Company and (ii) the Agent shall not then
hold any Notes purchased from the Company as principal, as the case may be,
until the time the Company shall determine that solicitation of offers for the
purchase of Notes should be resumed or the Agent shall subsequently purchase
Notes from the Company as principal.
(n) Ratings. The Company will obtain a rating for the Notes from
Moody's Investors Service, Inc. and Standard & Poor's Ratings Services prior to
the issuance of such Notes.
SECTION 5. Conditions of Agent's Obligations.
The obligations of the Agent to purchase Notes from the Company as
principal and to solicit offers for the purchase of Notes as an agent of the
Company, and the obligations of any purchasers of Notes sold through the Agent
as an agent of the Company, will be subject to the accuracy of the
representations and warranties on the part of the Company herein contained or
contained in any certificate of an officer of the Company or any of its
subsidiaries delivered pursuant to the provisions hereof, to the performance
and observance by the Company of its covenants and other obligations hereunder,
and to the following additional conditions precedent:
(a) Effectiveness of Registration Statement. The Registration
Statement (including any Rule 462(b) Registration Statement) has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Agent.
(b) Legal Opinions. On the date hereof, the Agent shall have received
the following legal pinions, dated as of the date hereof and in form and
substance satisfactory to the Agent:
(1) Opinion of Counsel for the Company. The favorable
opinion of General Counsel of the Company substantially in
the form attached hereto as Exhibit B.
(2) Opinions of Counsel for the Agent. The favorable
opinion of Bracewell & Patterson, L.L.P., counsel for the
Agent, substantially in the form attached hereto as Exhibit C.
(c) Officer's Certificate. On the date hereof, there shall not have
been, since the respective dates as of which information is given in the
Prospectus, any Material Adverse Effect, whether or not arising in the ordinary
course of business, and the Agent shall have received a certificate of the
President or any Vice President of the Company and any one of the Chief
Financial Officer, the Chief Accounting Officer or the Treasurer of the
Company, dated as of the date hereof, to the effect that (i) there has been no
such Material Adverse Effect, (ii) the representations and warranties of the
Company herein contained are true and correct with the same force and effect as
though expressly made at and as of the date of such certificate, (iii) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the date of such certificate,
and (iv) no stop order suspending
<PAGE> 14
the effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been instituted, are pending or, to the best
of such officer's knowledge, are threatened by the Commission.
(d) Comfort Letter of Arthur Andersen LLP. On the date hereof, the
Agent shall have received a letter from Arthur Andersen LLP, dated as of the
date hereof and in form and substance satisfactory to the Agent.
(e) Additional Documents. On the date hereof, counsel to the Agent
shall have been furnished with such documents and opinions as such counsel may
reasonably require for the purpose of enabling such counsel to pass upon the
issuance and sale of Notes as herein contemplated and related proceedings, or
in order to evidence the accuracy of any of the representations and warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be satisfactory in form and substance to the
Agent and to counsel to the Agent.
(f) Ratings. The Notes shall be rated at a rating satisfactory to the
Agent.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Agent by notice to the Company at any time and any such
termination shall be without liability of any party to any other party except
as provided in Section 10 hereof and except that Sections 8, 9, 11, 14 and 15
hereof shall survive any such termination and remain in full force and effect.
SECTION 6. Delivery of and Payment for Notes Sold through an Agent as Agent.
Delivery of Notes sold through the Agent as an agent of the Company
shall be made by the Company to the Agent for the account of any purchaser only
against payment therefor in immediately available funds. In the event that a
purchaser shall fail either to accept delivery of or to make payment for a Note
on the date fixed for settlement, the Agent shall promptly notify the Company
and deliver such Note to the Company and, if the Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to the
Agent. If such failure has occurred for any reason other than default by the
Agent in the performance of its obligations hereunder, the Company will
reimburse the Agent on an equitable basis for its loss of the use of the funds
for the period such funds were credited to the Company's account.
SECTION 7. Additional Covenants of the Company.
The Company further covenants and agrees with the Agent as follows:
(a) Reaffirmation of Representations and Warranties. Each acceptance
by the Company of an offer for the purchase of Notes (whether to the Agent as
principal or through the Agent as agent), and each delivery of Notes (whether
to the Agent as principal or through the Agent as agent), shall be deemed to be
an affirmation that the representations and warranties of the Company herein
contained and contained in any certificate theretofore delivered to the Agent
pursuant hereto are true and correct at the time of such acceptance, and an
undertaking that such representations and warranties will be true and correct
at the time of delivery to the Agent or to
<PAGE> 15
the purchaser or its agent, as the case may be, of the Notes relating to such
acceptance as though made at and as of each such time (it being understood that
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to each such time).
(b) Subsequent Delivery of Certificates. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for the
determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), (ii) (if required in connection
with the purchase of Notes from the Company by the Agent as principal) the
Company sells Notes to the Agent as principal or (iii) the Company sells Notes
in a form not previously certified to the Agent by the Company, the Company
shall furnish or cause to be furnished to the Agent, forthwith a certificate
dated the date of filing with the Commission or the date of effectiveness of
such amendment or supplement, as applicable, or the date of such sale, as the
case may be, in form satisfactory to the Agent, to the effect that the
statements contained in the certificate referred to in Section 5(c) hereof
which were last furnished to the Agent are true and correct at the time of the
filing or effectiveness of such amendment or supplement, as applicable, or the
time of such sale, as the case may be, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate of the same tenor as the certificate
referred to in Section 5(c) hereof, modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate (it being understood that, in the case of
clause (ii) above, any such certificate shall also include a certification that
there has been no Material Adverse Effect, whether or not arising in the
ordinary course of business, since the date of the agreement by the Agent to
purchase Notes from the Company as principal).
(c) Subsequent Delivery of Legal Opinions. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented
(other than by an amendment or supplement providing solely for the
determination of the variable terms of the Notes or relating solely to the
offering of securities other than the Notes), (ii) (if required in connection
with the purchase of Notes from the Company by the Agent as principal) the
Company sells Notes to the Agent as principal or (iii) the Company sells Notes
in a form not previously certified to the Agent by the Company, the Company
shall furnish or cause to be furnished forthwith to the Agent and to counsel to
the Agent the written opinion of General Counsel of the Company, or other
counsel satisfactory to the Agent, and, at least once annually, counsel for the
Agent, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, or the date of
such sale, as the case may be, in form and substance satisfactory to the Agent,
of the same tenor as the opinion referred to in Section 5(b) hereof, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such opinion
or, in lieu of such opinion, counsel last furnishing such opinion to the Agent
shall furnish the Agent with a letter substantially to the effect that the
Agent may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in such
last opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such letter
authorizing reliance).
<PAGE> 16
(d) Subsequent Delivery of Comfort Letters. Each time that (i) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information (other than by an amendment or
supplement relating solely to the issuance and/or offering of securities other
than the Notes) or (ii) (if required in connection with the purchase of Notes
from the Company by the Agent as principal) the Company sells Notes to the
Agent as principal, the Company shall cause Arthur Andersen LLP forthwith to
furnish to the Agent a letter, dated the date of filing with the Commission or
the date of effectiveness of such amendment or supplement, as applicable, or
the date of such sale, as the case may be, in form satisfactory to the Agent,
of the same tenor as the letter referred to in Section 5(d) hereof but modified
to relate to the Registration Statement and Prospectus as amended and
supplemented to the date of such letter.
SECTION 8. Indemnification.
(a) Indemnification of the Agent. The Company agrees to indemnify and
hold harmless the Agent and each person, if any, who controls the Agent within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, provided that (subject to Section 8(d) hereof) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the Agent),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to (i) any untrue
statement or alleged untrue statement contained in or omission or alleged
omission from a preliminary prospectus delivered to the person asserting the
loss, liability, claim, damage or expense if the Company shall sustain the
burden of proving that such person was not sent or given a copy of the
<PAGE> 17
Prospectus (or any amendment or supplement thereto) at or prior to the written
confirmation of the sale of the related Notes to such person and the untrue
statement contained in or omission from such preliminary prospectus was
corrected in the Prospectus (or any amendment or supplement thereto) and the
Company furnished copies thereof to the Agent a reasonable amount of time in
advance of the delivery of the written confirmation and (ii) any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by the
Agent expressly for use in the Registration Statement (or any amendment
thereto) or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Company, Directors and Officers. The
Agent agrees to indemnify and hold harmless the Company, its directors, each of
its officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in Section 8(a) hereof, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by the Agent expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 8(a) hereof, counsel to the indemnified parties shall be
selected by the Agent and, in the case of parties indemnified pursuant to
Section 8(b) hereof, counsel to the indemnified parties shall be selected by
the Company; provided that if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action, unless such indemnified parties reasonably object to
such assumption on the ground that there may be legal defenses available to
them that are different from or in addition to those available to such
indemnifying party. If an indemnifying party assumes the defense of such action
in accordance with the preceding sentence, the indemnifying parties shall not
be liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or
<PAGE> 18
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or 9 hereof (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from
all liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 8(a)(ii) effected without its consent if such
indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it considers such request to be reasonable and (ii)
provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each prior to the date of such settlement.
SECTION 9. Contribution.
If the indemnification provided for in Section 8 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company, on the one hand, and the
Agent, on the other hand, from the offering of the Notes that were the subject
of the claim for indemnification or (ii) if the allocation provided by clause
(i) is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company, on the one hand, and the Agent, on the other
hand, in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company, on the one hand, and
the Agent, on the other hand, in connection with the offering of the Notes that
were the subject of the claim for
<PAGE> 19
indemnification shall be deemed to be in the same respective proportions as the
total net proceeds from the offering of such Notes (before deducting expenses)
received by the Company and the total discount or commission received by the
Agent bears to the aggregate initial offering price of such Notes.
The relative fault of the Company, on the one hand, and the Agent, on
the other hand, shall be determined by reference to, among other things,
whether any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
the Company or by the Agent and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company and the Agent agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 9 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any
applicable untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, (i) the Agent shall
not be required to contribute any amount in excess of the amount by which the
total discount or commission received by it in connection with the offering of
the Notes that were the subject of the claim for indemnification exceeds the
amount of any damages which the Agent has otherwise been required to pay by
reason of any applicable untrue or alleged untrue statement or omission or
alleged omission and (ii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 9, each person, if any, who controls the
Agent within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Agent, and each
director of the Company, each officer of the Company and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company.
SECTION 10. Payment of Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(a) The preparation, filing, printing and delivery of the Registration
Statement as originally filed and all amendments thereto and any preliminary
prospectus, the Prospectus and any amendments or supplements thereto;
(b) The preparation, printing and delivery of this Agreement and the
Indenture;
<PAGE> 20
(c) The preparation, issuance and delivery of the Notes, including any
fees and expenses relating to the eligibility and issuance of Notes in
book-entry form and the cost of obtaining CUSIP or other identification numbers
for the Notes;
(d) The fees and disbursements of the Company's accountants, counsel
and other advisors or Agent (including any calculation agent or exchange rate
agent) and of the Trustee and its counsel;
(e) The reasonable fees and disbursements of counsel to the Agent
incurred in connection with the establishment of the Program and incurred from
time to time in connection with the transactions contemplated hereby;
(f) The fees charged by nationally recognized statistical rating
organizations for the rating of the Program and the Notes;
(g) The fees and expenses incurred in connection with any listing of
Notes on a securities exchange;
(h) The filing fees incident to, and the reasonable fees and
disbursements of counsel to the Agent in connection with, the review, if any,
by the National Association of Securities Dealers, Inc. (the "NASD"); and
(i) Any advertising and other out-of-pocket expenses of the Agent
incurred with the approval of the Company.
SECTION 11. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of its
subsidiaries submitted pursuant hereto or thereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
the Agent or any controlling person of the Agent, or by or on behalf of the
Company, and shall survive each delivery of and payment for the Notes.
SECTION 12. Termination.
(a) Termination of this Agreement. This Agreement (excluding any
agreement by the Agent to purchase Notes from the Company as principal) may be
terminated for any reason, at any time by either the Company or the Agent upon
the giving of 30 days' prior written notice of such termination to the other
party hereto.
(b) Termination of Agreement to Purchase Notes as Principal. The Agent
may terminate any agreement by it to purchase Notes from the Company as
principal, immediately upon notice to the Company, at any time prior to the
Settlement Date relating thereto, if (i) there has been, since the date of such
agreement or since the respective dates as of which information is given in the
Prospectus, any Material Adverse Effect, whether or not arising in the ordinary
course of business, or (ii) there has occurred any material adverse change in
the financial markets in the United States or, if such Notes are denominated
and/or payable in, or indexed to, one or more foreign currencies, in the
international financial markets, or any outbreak of hostilities or
<PAGE> 21
escalation thereof or other calamity or crisis or any change or development or
event involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as
to make it, in the judgment of the Agent, impracticable to market such Notes or
enforce contracts for the sale of such Notes, or (iii) trading in any
securities of the Company has been suspended or materially limited by the
Commission or a national securities exchange, or if trading generally on the
New York Stock Exchange or the American Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by either of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) a banking
moratorium has been declared by either Federal or New York authorities or by
the relevant authorities in the country or countries of origin of any foreign
currency in which such Notes are denominated and/or payable, or (v) the rating
assigned by any nationally recognized statistical rating organization to the
Program or any debt securities (including the Notes) of the Company as of the
date of such agreement has been lowered or withdrawn since that date or if any
such rating organization has publicly announced that it has under surveillance
or review its rating of the Program or any such debt securities, or (vi) there
has come to the attention of the Agent any facts that would cause the Agent to
believe that the Prospectus, at the time it was required to be delivered to a
purchaser of such Notes, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time of such
delivery, not misleading.
(c) General. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) the Agent shall
be entitled to any commissions earned on Notes actually sold in accordance with
the third paragraph of Section 3(b) hereof, (ii) if at the time of termination
(a) the Agent shall own any Notes purchased by it from the Company as principal
or (b) an offer to purchase any of the Notes has been accepted by the Company
but the time of delivery to the purchaser or his agent of such Notes relating
thereto has not occurred, the covenants set forth in Sections 4 and 7 hereof
shall remain in effect until such Notes are so resold or delivered, as the case
may be, and (iii) the covenant set forth in Section 4(i) hereof, the provisions
of Section 10 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11, 14 and 15 hereof
shall remain in effect.
SECTION 13. Notices.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Enron Corp.
1400 South Street
Houston, Texas 77002
Attention: Treasurer
Telecopy No.: (713) 646-3422
<PAGE> 22
If to the Agent:
[Agent Name and Address]
Attention:
Telecopy No.:
or at such other address as such party may designate from time to time by
notice duly given in accordance with the terms of this Section 13.
SECTION 14. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Agent and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons, officers and directors referred to in
Sections 8 and 9 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties
hereto and their respective successors, and said controlling persons, officers
and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes shall be deemed to
be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
SECTION 16. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 17. Counterparts.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
<PAGE> 23
If the foregoing is in accordance with the Agent's understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this Distribution Agreement, along with all counterparts, will become
a binding agreement between the Agent and the Company in accordance with its
terms.
Very truly yours,
ENRON CORP.
By:
----------------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
By the Agent named below as of the date first above written:
[NAME OF AGENT]
By:
----------------------------
Name:
Title:
<PAGE> 24
SCHEDULE A
As compensation for the services of the Agent hereunder, the Company
shall pay the Agent, on a discount basis, a commission for the sale of each
Note equal to the principal amount of such Note multiplied by the appropriate
percentage set forth below:
PERCENT OF
PRINCIPAL AMOUNT
[To be agreed upon with Agent]
<PAGE> 25
EXHIBIT A
PRICING TERMS
Principal Amount: $_______
(or principal amount of foreign or composite currency)
Interest Rate or Formula:
If Fixed Rate Note,
Interest Rate:
Interest Payment Dates:
If Floating Rate Note,
Interest Rate Basis(es):
If LIBOR,
LIBOR Reuters Page:
LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
Weekly Average
Monthly Average
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from __________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
Also, in connection with the purchase of Notes from the Company by the Agent as
principal, agreement as to whether the following will be required:
<PAGE> 26
Officers' Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
<PAGE> 1
EXHIBIT 1.2
ENRON CORP.
ADMINISTRATIVE PROCEDURES
FOR FIXED RATE AND FLOATING RATE MEDIUM-TERM NOTES
(Dated as of _____, ____)
Medium-Term Notes Due Nine Months or More From Date of Issue (the
"Notes") are to be offered on a continuous basis by Enron Corp., an Oregon
corporation (the "Company"), to or through __________ ( the "Agent") pursuant
to a Distribution Agreement, dated ________, ____ (the "Distribution
Agreement"), by and among the Company and the Agent. The Distribution Agreement
provides both for the sale of Notes by the Company to the Agent as principal
for resale to investors and other purchasers and for the sale of Notes by the
Company directly to investors (as may from time to time be agreed to by the
Company and the Agent), in which case the Agent will act as an agent of the
Company in soliciting purchases of Notes.
Unless otherwise agreed by the Agent and the Company, Notes will be
purchased by the related Agent as principal. Such purchases will be made in
accordance with terms agreed upon by the related Agent and the Company (which
terms shall be agreed upon orally, with written confirmation prepared by the
related Agent and mailed to the Company). If agreed upon by any Agent and the
Company, the Agent, acting solely as agent for the Company and not as
principal, will use reasonable efforts to solicit offers to purchase the Notes.
Only those provisions in these Administrative Procedures that are applicable to
the particular role to be performed by the related Agent shall apply to the
offer and sale of the relevant Notes.
The Notes will be issued as a series of debt securities under an
Indenture, dated as of November 1, 1985, as amended, supplemented or modified
from time to time (the "Indenture"), between the Company and Bank of New York,
as trustee (together with any successor in such capacity, the "Trustee"). The
Company has filed a Registration Statement with the Securities and Exchange
Commission (the "Commission") registering, among other securities, debt
securities (which includes the Notes) (the "Registration Statement", which term
shall include any additional registration statements filed in connection with
the Notes). The most recent base prospectus deemed part of the Registration
Statement, as supplemented with respect to the Notes, is herein referred to as
the "Prospectus". The most recent supplement to the Prospectus setting forth
the purchase price, interest rate or formula, maturity date and other terms of
the Notes (as applicable) is herein referred to as the "Pricing Supplement".
The Notes will either be issued (a) in book-entry form and represented
by one or more fully registered Notes without coupons (each, a "Global Note")
delivered to the Trustee, as agent for The Depository Company ("DTC"), and
recorded in the book-entry system maintained by DTC, or (b) in certificated
form (each, a "Certificated Note") delivered to the investor or other purchaser
thereof or a person designated by such investor or other purchaser.
<PAGE> 2
General procedures relating to the issuance of all Notes are set forth
in Part I hereof. Additionally, Notes issued in book-entry form will be issued
in accordance with the procedures set forth in Part II hereof and Certificated
Notes will be issued in accordance with the procedures set forth in Part III
hereof. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed thereto in the Indenture or the Notes, as the case may be.
PART I: PROCEDURES OF GENERAL APPLICABILITY
Date of Issuance/Authentication: Each Note will be dated as of the
date of its authentication by the
Trustee. Each Note shall also bear
an original issue date (each, an
"Original Issue Date"). The
Original Issue Date shall remain
the same for all Notes subsequently
issued upon transfer, exchange or
substitution of an original Note
regardless of their dates of
authentication.
Maturities: Each Note will mature on a date
nine months or more from its
Original Issue Date (the "Stated
Maturity Date") selected by the
investor or other purchaser and
agreed to by the Company.
Registration: Unless otherwise provided in the
applicable Pricing Supplement,
Notes will be issued only in fully
registered form.
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, the
Notes will be issued in
denominations of U.S.$1,000 and
integral multiples of U.S.$1,000.
Interest Rate Bases applicable
to Floating Rate Notes: Unless otherwise provided in the
applicable Pricing Supplement,
Floating Rate Notes will bear
interest at a rate or rates
determined by reference to the CD
Rate, the CMT Rate, the Commercial
Paper Rate, the Eleventh District
Cost of Funds Rate, the Federal
Funds Rate, LIBOR, the Prime Rate,
the Treasury Rate, or such other
interest rate basis or formula as
may be set forth in applicable
Pricing Supplement, or by reference
to two or more such rates, as
adjusted by the Spread and/or
Spread Multiplier, if any,
applicable to such Floating Rate
Notes.
Redemption/Repayment: The Notes will be subject to
redemption by the Company in
accordance with the terms of the
Notes, which will be fixed at the
time of sale and set forth in the
applicable Pricing Supplement. If
no Initial Redemption Date is
indicated
<PAGE> 3
with respect to a Note, such Note
will not be redeemable prior to its
Stated Maturity Date.
The Notes will be subject to
repayment at the option of the
Holders thereof in accordance with
the terms of the Notes, which will
be fixed at the time of sale and
set forth in the applicable Pricing
Supplement. If no Optional
Repayment Date is indicated with
respect to a Note, such Note will
not be repayable at the option of
the Holder prior to its Stated
Maturity Date.
Calculation of Interest: In case of Fixed Rate Notes,
interest (including payments for
partial periods) will be calculated
and paid on the basis of a 360-day
year of twelve 30-day months.
The interest rate on each Floating
Rate Note will be calculated by
reference to the specified Interest
Rate Basis or Bases plus or minus
the applicable Spread, if any,
and/or multiplied by the applicable
Spread Multiplier, if any.
Unless otherwise provided in the
applicable Pricing Supplement,
interest on each Floating Rate Note
will be calculated by multiplying
its principal amount by an accrued
interest factor. Such accrued
interest factor is computed by
adding the interest factor
calculated for each day in the
period for which accrued interest
is being calculated. Unless
otherwise provided in the
applicable Pricing Supplement, the
interest factor for each such day
is computed by dividing the
interest rate applicable to such
day by 360 if the CD Rate,
Commercial Paper Rate, Eleventh
District Cost of Funds Rate,
Federal Funds Rate, LIBOR or Prime
Rate is an applicable Interest Rate
Basis, or by the actual number of
days in the year if the CMT Rate or
Treasury Rate is an applicable
Interest Rate Basis. As provided in
the applicable Pricing Supplement,
the interest factor for Notes for
which the interest rate is
calculated with reference to two or
more Interest Rate Bases will be
calculated in each period in the
same manner as if only one of the
applicable Interest Rate Bases
applied.
Interest: General. Each Note will bear
interest in accordance with its
terms. Unless otherwise provided in
the applicable Pricing Supplement,
interest on each Note will accrue
from and including the Original
Issue Date of such Note for the
<PAGE> 4
first interest period or from the
most recent Interest Payment FFFF
Date (as defined below) to which
interest has been paid or duly
provided for all subsequent interest
periods to but excluding applicable
Interest Payment Date or the Stated
Maturity Date or date of earlier
redemption or repayment , as the
case may be (the Stated Maturity
Date or date of earlier redemption
or repayment is referred to herein
as the "Maturity Date" with respect
to the principal repayable on such
date).
If an Interest Payment Date or the
Maturity Date with respect to any
Fixed Rate Note falls on a day that
is not a Business Day (as defined
below), the required payment of
principal, premium, if any, or
interest to be made on such day
need not be made on such day, but
may be made on the next succeeding
Business Day with the same force
and effect as if made on such day,
and no interest shall accrue on
such payment for the period from
and after such day to the next
succeeding Business Day. If an
Interest Payment Date other than
the Maturity Date with respect to
any Floating Rate Note would
otherwise fall on a day that is not
a Business Day, such Interest
Payment Date will be postponed to
the next succeeding Business Day,
except that in the case of a Note
for which LIBOR is an applicable
Interest Rate Basis, if such
Business Day falls in the next
succeeding calendar month, such
Interest Payment Date will be the
immediately preceding Business Day.
If the Maturity Date with respect
to any Floating Rate Note falls on
a day that is not a Business Day,
the required payment of principal,
premium, if any, or interest to be
made on such day need not be made
on such day, but may be made on the
next succeeding Business Day with
the same force and effect as if
made on such day, and no interest
shall accrue on such payment for
the period from and after the
Maturity Date to the next
succeeding Business Day. Unless
otherwise provided in the
applicable Pricing Supplement,
"Business Day" has the meaning
specified in the Prospectus.
Regular Record Dates. Unless
otherwise provided in the
applicable Pricing Supplement, the
"Regular Record Date" for a Note
shall be the date 15 calendar days
(whether or not a Business Day)
preceding the applicable Interest
Payment Date.
<PAGE> 5
Interest Payment Dates. Interest
payments will be made on each
Interest Payment Date commencing
with the first Interest Payment
Date following the Original Issue
Date; provided, however, the first
payment of interest on any Note
originally issued between a Regular
Record Date and an Interest Payment
Date will occur on the Interest
Payment Date immediately following
the next succeeding Regular Record
Date.
Unless otherwise provided in the
applicable Pricing Supplement,
interest payments on Fixed Rate
Notes will be made semiannually in
arrears on May 15 and November 15
of each year and on the Maturity
Date, while interest payments on
Floating Rate Notes will be made as
specified in the applicable Pricing
Supplement.
Acceptance and Rejection of Offers
from Solicitation as Agent: If agreed upon by the Agent and the
Company, then the Agent acting
solely as agent for the Company and
not as principal will solicit
purchases of the Notes. The Agent
will communicate to the Company,
orally or in writing, each
reasonable offer to purchase Notes
solicited by the Agent on an agency
basis, other than those offers
rejected by the Agent. The Agent
has the right, in its discretion
reasonably exercised, to reject any
proposed purchase of Notes, as a
whole or in part, and any such
rejection shall not be a breach of
the Agent's agreement contained in
the Distribution Agreement. The
Company has the sole right to
accept or reject any proposed
purchase of Notes, in whole or in
part, and any such rejection shall
not be a breach of the Company's
agreement contained in the
Distribution Agreement. The Agent
has agreed to make reasonable
efforts to assist the Company in
obtaining performance by each
purchaser whose offer to purchase
Notes has been solicited by the
Agent and accepted by the Company.
Preparation of Pricing Supplement: If any offer to purchase a Note is
accepted by the Company, the
Company will promptly prepare a
Pricing Supplement reflecting the
terms of such Note and file such
Pricing Supplement with the
Commission in accordance with the
Securities Act of 1933, as amended.
Information to be included in the
Pricing Supplement shall include:
<PAGE> 6
1. the name of the Company;
2. the title of the Notes
including series designation,
if any;
3. the date of the Pricing
Supplement and the date of
the Prospectus and Prospectus
Supplement to which the
Pricing Supplement relates:
4. the name of the Agent;
5. whether such Notes are being
sold to the Agent as
principal or to an investor
to other purchaser through
the Agent acting as agent
for the Company;
6. with respect to Notes sold
to the Agent as principal,
whether such Notes will be
resold by the Agent to
investors and other
purchasers at (i) a fixed
public offering price of a
specified percentage of
their principal amount or
(ii) at varying prices
related to prevailing market
prices at the time of resale
to be determined by the
Agent;
7. with respect to Notes sold
to an investor or other
purchaser through the Agent
acting as agent for the
Company, whether such Notes
will be sold at (i) 100% of
their principal amount or
(ii) a specified percentage
of their principal amount;
8. the Agent's discount or
commission;
9. Net proceeds to the Company;
10. the Principal Amount,
Specified Currency, Original
Issue Date, Stated Maturity
Date, Interest Payment
Date(s), Authorized
Denomination, Initial
Redemption Date, if any,
Initial Redemption
Percentage, if any, Annual
Redemption Percentage
Reduction, if any, Optional
Repayment Date(s), if any,
Exchange Rate Agent, if any,
and, in the case of Fixed
Rate Notes, the Interest
Rate, and whether such Fixed
Rate Note is an Original
Issue Discount Note (and, if
so, the Issue Price), and,
in the case of
<PAGE> 7
Floating Rate Notes, the
Interest Category, the
Interest Rate Basis or
Bases, the Day Count
Convention, Index Maturity
(if applicable), Initial
Interest Rate, if any,
Maximum Interest Rate, if
any, Minimum Interest Rate,
if any, Initial Interest
Reset Date, Interest Reset
Dates, Spread and/or Spread
Multiplier, if any, and
Calculation Agent; and
11. any other additional
provisions of the Notes
material to investors or
other purchasers of the
Notes not otherwise
specified in the Prospectus.
The Company shall use its
reasonable best efforts to send
such Pricing Supplement by telecopy
or overnight express (for delivery
by the close of business on the
applicable trade date, but in no
event later than 11:00 a.m. New
York City time, on the Business Day
following the applicable trade
date) to the Agent who made or
presented the offer to purchase the
applicable Note and the Trustee at
the following applicable address:
if to the Agent to the address set
forth in the notice provisions of
the Distribution Agreement or an
address otherwise designated by the
Agent; and if to the Trustee, to:
Bank of New York, 2 North LaSalle
Street, 10th Floor, Chicago,
Illinois 60602, Attention: Frank A.
Pierson, (312) 827-8525,
telecopier: (312) 827-8522. For
record keeping purposes, one copy
of such Pricing Supplement shall
also be mailed or telecopied to
Bracewell & Patterson, L.L.P.,
South Tower Pennzoil Place, Suite
2900, 711 Louisiana Street,
Houston, Texas 77002-2781,
Attention: Gary W. Orloff,
telecopier: (713) 221-2166.
In each instance that a Pricing
Supplement is prepared, the Agent
will provide a copy of such Pricing
Supplement to each investor or
purchaser of the relevant Notes or
the Agent. Pursuant to Rule 434
("Rule 434") of the Securities Act
of 1933, as amended, the Pricing
Supplement may be delivered
separately from the Prospectus.
Outdated Pricing Supplements (other
than those retained for files) will
be destroyed.
Settlement: The receipt of immediately available
funds by the Company in payment for
a Note and the authentication and
delivery of such Note shall, with
respect to such Note,
<PAGE> 8
constitute "settlement". Offers
accepted by the Company will be
settled in three Business Days, or
at such time as the purchaser, the
Agent and the Company shall agree,
pursuant to the timetable for
settlement set forth in Parts II
and III hereof under "Settlement
Procedure Timetable" with respect
to Global Notes and Certificated
Notes, respectively (each such date
fixed for settlement is hereinafter
referred to as a "Settlement
Date"). If procedures A and B of
the applicable Settlement
Procedures with respect to a
particular offer are not completed
on or before the time set forth
under the applicable "Settlement
Procedures Timetable", such offer
shall not be settled until the
Business Day following the
completion of settlement procedures
A and B or such later date as the
purchaser and the Company shall
agree.
The foregoing settlement procedures
may be modified with respect to any
purchase of Notes by the Agent as
principal if so agreed by the
Company and the Agent.
Procedure for Changing Rates
or Other Variable Terms: When a decision has been reached to
change the interest rate or any
other variable term on any Notes
being sold by the Company, the
Company will promptly advise the
Agent and the Trustee by facsimile
transmission and the Agent will
forthwith suspend solicitation of
offers to purchase such Notes. The
Agent will telephone the Company
with recommendations as to the
changed interest rates or other
variable terms. At such time as the
Company notifies the Agent and the
Trustee of the new interest rates
or other variable terms, the Agent
may resume solicitation of offers
to purchase such Notes. Until such
time, only "indications of
interest" may be recorded.
Immediately after acceptance by the
Company of an offer to purchase
Notes at a new interest rate or new
variable term, the Company, the
Agent and the Trustee shall follow
the procedures set forth under the
applicable "Settlement Procedures".
<PAGE> 9
Suspension of Solicitation;
Amendment or Supplement: The Company may instruct the Agent
to suspend solicitation of offers
to purchase Notes at any time. Upon
receipt of such instructions, the
Agent will forthwith suspend
solicitation of offers to purchase
from the Company until such time as
the Company has advised the Agent
that solicitation of offers to
purchase may be resumed. If the
Company decides to amend or
supplement the Registration
Statement or the Prospectus (other
than to establish or change
interest rates or formulas,
maturities, prices or other similar
variable terms with respect to the
Notes), it will promptly advise the
Agent and will furnish the Agent
and its counsel with copies of the
proposed amendment or supplement.
Copies of such amendment or
supplement will be delivered or
mailed to the Agent, its counsel
and the Trustee in quantities which
such parties may reasonably request
at the address set forth in the
notice provisions of the
Distribution Agreement; the
Trustee, to: Bank of New York, 2
North LaSalle Street, 10th Floor,
Chicago, Illinois 60602, Attention:
Frank A. Pierson, (312) 827-8525,
telecopier: (312) 827-8522. For
record keeping purposes, one copy
of each such amendment or
supplement shall also be mailed or
telecopied to Bracewell &
Patterson, L.L.P., South Tower
Pennzoil Place, Suite 2900, 711
Louisiana Street, Houston, Texas
77002-2781, Attention: Gary W.
Orloff, (713) 221-1306, telecopier:
(713) 221-2166.
In the event that at the time the
solicitation of offers to purchase
from the Company is suspended
(other than to establish or change
interest rates or formulas,
maturities, prices or other similar
variable terms with respect to the
Notes) there shall be any offers to
purchase Notes that have been
accepted by the Company which have
not been settled, the Company will
promptly advise the Agent and the
Trustee whether such offers may be
settled and whether copies of the
Prospectus as theretofore amended
and/or supplemented as in effect at
the time of the suspension may be
delivered in connection with the
settlement of such offers. The
Company will have the sole
responsibility for such decision
and for any arrangements which may
be made in the event that the
Company determines that such offers
may not be settled or that copies
of such Prospectus may not be so
delivered.
<PAGE> 10
Delivery of Prospectus and
applicable Pricing Supplement: A copy of the most recent
Prospectus and the applicable
Pricing Supplement, which pursuant
to Rule 434 may be delivered
separately from the Prospectus,
must accompany or precede the
earlier of (a) the written
confirmation of a sale sent to an
investor or other purchaser or its
agent and (b) the delivery of Notes
to an investor or other purchaser
or its agent.
Authenticity of Signatures: The Agent will have no obligation
or liability to the Company or the
Trustee in respect of the
authenticity of the signature of
any officer, employee or agent of
the Company or the Trustee on any
Note.
Documents Incorporated by
Reference: The Company shall supply the Agent
with an adequate supply of all
documents incorporated by reference
in the Registration Statement and
the Prospectus.
PART II: PROCEDURES FOR NOTES ISSUED
IN BOOK-ENTRY FORM
In connection with the qualification of Notes issued in book-entry
form for eligibility in the book-entry system maintained by DTC, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter
of Representations from the Company and the Trustee to DTC, dated May 17, 2000,
and a Certificate Agreement, dated August 17, 1989, between the Trustee and
DTC, as amended (the "Certificate Agreement"), and its obligations as a
participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Fixed Rate Notes issued in
book-entry form having the same
Original Issue Date, Specified
Currency, Interest Rate, Default
Rate, redemption and/or repayment
terms, if any, and Stated Maturity
Date (collectively, the "Fixed Rate
Terms") will be represented
initially by a single Global Note;
and all Floating Rate Notes issued
in book-entry form having the same
Original Issue Date, Specified
Currency, Interest Rate Basis,
which may be the CD Rate, the CMT
Rate, the Commercial Paper Rate,
the Eleventh District Cost of Funds
Rate, the Federal Funds Rate,
LIBOR, the Prime Rate or the
Treasury Rate or any other interest
rate basis or formula, and Spread
and/or Spread Multiplier, if any),
Day Count Convention, Initial
<PAGE> 11
Interest Rate, Index Maturity (if
applicable), Minimum Interest Rate,
if any, Maximum Interest Rate, if
any, redemption and/or repayment
terms, if any, Interest Payment
Dates, Initial Interest Reset Date,
Interest Reset Dates and Stated
Maturity Date (collectively, the
"Floating Rate Terms") will be
represented initially by a single
Global Note.
For other variable terms with
respect to the Fixed Rate Notes and
Floating Rate Notes, see the
Prospectus and the applicable
Pricing Supplement.
Owners of beneficial interests in
Global Notes will be entitled to
physical delivery of Certificated
Notes equal in principal amount to
their respective beneficial
interests only upon certain limited
circumstances described in the
Prospectus.
Identification: The Company has arranged with the
CUSIP Service Bureau of Standard &
Poor's (the "CUSIP Service Bureau")
for the reservation of one series
of CUSIP numbers, which series
consists of approximately 900 CUSIP
numbers which have been reserved
for and relating to Global Notes
and the Company has delivered to
each of the Trustee and DTC such
list of such CUSIP numbers. The
Company will assign CUSIP numbers
to Global Notes as described below
under Settlement Procedure B. DTC
will notify the CUSIP Service
Bureau periodically of the CUSIP
numbers that the Company has
assigned to Global Notes. The
Trustee will notify the Company at
any time when fewer than 100 of the
reserved CUSIP numbers remain
unassigned to Global Notes, and, if
it deems necessary, the Company
will reserve and obtain additional
CUSIP numbers for assignment to
Global Notes. Upon obtaining such
additional CUSIP numbers, the
Company will deliver a list of such
additional numbers to the Trustee
and DTC. Notes issued in book-entry
form in excess of $400,000,000 (or
the equivalent thereof in one or
more foreign currencies) and
otherwise required to be
represented by the same Global
Certificate will instead be
represented by two or more Global
Certificates which shall all be
assigned the same CUSIP number.
<PAGE> 12
Registration: Unless otherwise specified by DTC,
each Global Note will be registered
in the name of Cede & Co., as
nominee for DTC, on the register
maintained by the Trustee under the
Indenture. The beneficial owner of
a Note issued in book-entry form
(i.e., an owner of a beneficial
interest in a Global Note) (or one
or more indirect participants in
DTC designated by such owner) will
designate one or more participants
in DTC (with respect to such Note
issued in book-entry form, the
"Participants") to act as agent for
such beneficial owner in connection
with the book-entry system
maintained by DTC, and DTC will
record in book-entry form, in
accordance with instructions
provided by such Participants, a
credit balance with respect to such
Note issued in book-entry form in
the account of such Participants.
The ownership interest of such
beneficial owner in such Note
issued in book-entry form will be
recorded through the records of
such Participants or through the
separate records of such
Participants and one or more
indirect participants in DTC.
Transfers: Transfers of beneficial ownership
interests in a Global Note will be
accomplished by book entries made
by DTC and, in turn, by
Participants (and in certain cases,
one or more indirect participants
in DTC) acting on behalf of
beneficial transferors and
transferees of such Global Note.
Exchanges: The Trustee may deliver to DTC and
the CUSIP Service Bureau at any
time a written notice specifying
(a) the CUSIP numbers of two or
more Global Notes outstanding on
such date that represent Global
Notes having the same Fixed Rate
Terms or Floating Rate Terms, as
the case may be (other than
Original Issue Dates),and for which
interest has been paid to the same
date; (b) a date, occurring at
least 30 days after such written
notice is delivered and at least 30
days before the next Interest
Payment Date for the related Notes
issued in book-entry form, on which
such Global Notes shall be
exchanged for a single replacement
Global Note; and (c) a new CUSIP
number, obtained from the Company,
to be assigned to such replacement
Global Note. Upon receipt of such a
notice, DTC will send to its
Participants (including the
Trustee) a written reorganization
notice to the effect that such
exchange will occur on such date.
Prior to the specified exchange
date, the Trustee will deliver to
the CUSIP Service Bureau written
notice setting
<PAGE> 13
forth such exchange date and the
new CUSIP number and stating that,
as of such exchange date, the CUSIP
numbers of the Global Notes to be
exchanged will no longer be valid.
On the specified exchange date, the
Trustee will exchange such Global
Notes for a single Global Note
bearing the new CUSIP number and
the CUSIP numbers of the exchanged
Notes will, in accordance with
CUSIP Service Bureau procedures, be
canceled and not immediately
reassigned. Notwithstanding the
foregoing, if the Global Notes to
be exchanged exceed $400,000,000
(or the equivalent thereof in one
or more foreign currencies) in
aggregate principal amount, one
replacement Note will be
authenticated and issued to
represent each $400,000,000 (or the
equivalent thereof in one or more
foreign currencies) in aggregate
principal amount of the exchanged
Notes and an additional Global Note
or Notes will be authenticated and
issued to represent any remaining
principal amount of such Global
Notes (See "Denominations" below).
Denominations: Unless otherwise provided in the
applicable Pricing Supplement,
Notes issued in book-entry form
will be issued in denominations of
U.S.$1,000 and integral multiples
of U.S.$1,000. Global Notes will
not be denominated in excess of
$400,000,000 (or the equivalent
thereof in one or more foreign
currencies). If one or more Notes
are issued in book-entry form
having an aggregate principal
amount of $400,000,000 (or the
equivalent thereof in one or more
foreign currencies) and would, but
for the preceding sentence, be
represented by a single Note, then
one Note will be issued to
represent each $400,000,000 (or the
equivalent thereof in one or more
foreign currencies) of principal
amount of such Notes issued in
book-entry form and an additional
Global Note or Notes will be issued
to represent any remaining
aggregate principal amount of such
Note or Notes issued in book-entry
form. In such a case, each of the
Global Notes representing Notes
issued in book-entry form shall be
assigned the same CUSIP number.
Payments of Principal
and Interest: Payments of Interest Only. Promptly
after each Regular Record Date, the
Trustee will deliver to the Company
and DTC a written notice specifying
by CUSIP number the amount of
interest to be paid on each Global
Note on the
<PAGE> 14
following Interest Payment Date
(other than an Interest Payment
Date coinciding with the Maturity
Date) and the total of such
amounts. DTC will confirm the
amount payable on each Global Note
on such Interest Payment Date by
reference to the daily bond reports
published by Standard & Poor's. On
such Interest Payment Date, the
Company will pay to the Trustee in
immediately available funds an
amount sufficient to pay the
interest then due and owing on the
Global Notes, and upon receipt of
such funds from the Company, the
Trustee in turn will pay to DTC
such total amount of interest due
on such Global Notes (other than on
the Maturity Date) which is payable
in U.S. dollars, at the times and
in the manner set forth below under
"Manner of Payment". The Trustee
shall make payment of that amount
of interest due and owing on any
Global Notes that Participants have
elected to receive in foreign
currency directly to such
Participants.
Notice of Interest Payments and
Regular Record Dates. Promptly
after each Interest Determination
Date for Floating Rate Notes issued
in book-entry form, the Trustee
will notify each of Moody's
Investors Service and Standard &
Poor's of the interest rates
determined as of such Interest
Determination Date.
Payments at Maturity. On or about
the first Business Day of each
month, the Trustee will deliver to
the Company and DTC a written list
of principal, premium, if any, and
interest to be paid on each Global
Note maturing or otherwise becoming
due in the following month. The
Trustee, the Company and DTC will
confirm the amounts of such
principal, premium, if any, and
interest payments with respect to
each such Global Note on or about
the fifth Business Day preceding
the Maturity Date of such Global
Note. On the Maturity Date, the
Company will pay to the Trustee in
immediately available funds an
amount sufficient to make the
required payments, and upon receipt
of such funds the Trustee in turn
will pay to DTC the principal
amount of Global Notes, together
with premium, if any, and interest
due on the Maturity Date, which are
payable in U.S. dollars, at the
times and in the manner set forth
below under "Manner of Payment".
The Trustee shall make payment of
the principal, premium, if any, and
interest to be paid on the Maturity
Date of each Global
<PAGE> 15
Note that Participants have elected
to receive in foreign or composite
currencies directly to such
Participants. Promptly after (i)
payment to DTC of the principal,
premium, if any, and interest due
on the Maturity Date of such Global
Note which are payable in U.S.
dollars and (ii) payment of the
principal, premium, if any, and
interest due on the Maturity Date
of such Global Note to those
Participants who have elected to
receive such payments in foreign or
composite currencies, the Trustee
will cancel such Global Note and
deliver it to the Company with an
appropriate debit advice. On the
first Business Day of each month,
the Trustee will deliver to the
Company a written statement
indicating the total principal
amount of outstanding Global Notes
as of the close of business on the
immediately preceding Business Day.
Manner of Payment. The total amount
of any principal, premium, if any,
and interest due on Global Notes on
any Interest Payment Date or the
Maturity Date, as the case may be,
which is payable in U.S. dollars
shall be paid by the Company to the
Trustee in funds available for use
by the Trustee no later than 10:00
a.m., New York City time, on such
date. The Company will make such
payment on such Global Notes to an
account specified by the Trustee.
Upon receipt of such funds, the
Trustee will pay by separate wire
transfer (using Fedwire message
entry instructions in a form
previously specified by DTC) to an
account at the Federal Reserve Bank
of New York previously specified by
DTC, in funds available for
immediate use by DTC, each payment
in U.S. dollars of principal,
premium, if any, and interest due
on Global Notes on such date.
Thereafter on such date, DTC will
pay, in accordance with its SDFS
operating procedures then in
effect, such amounts in funds
available for immediate use to the
respective Participants in whose
names the beneficial interests in
such Global Notes are recorded in
the book-entry system maintained by
DTC. Neither the Company nor the
Trustee shall have any
responsibility or liability for the
payment in U.S. dollars by DTC of
the principal of, or premium, if
any, or interest on, the Global
Notes. The Trustee shall make all
payments of principal, premium, if
any, and interest on each Global
Note that Participants have elected
to receive in foreign or composite
currencies directly to such
Participants.
<PAGE> 16
Withholding Taxes. The amount of
any taxes required under applicable
law to be withheld from any
interest payment on a Global Note
will be determined and withheld by
the Participant, indirect
participant in DTC or other Person
responsible for forwarding payments
and materials directly to the
beneficial owner of such Global
Note.
Settlement Procedures: Settlement Procedures with regard
to each Note in book-entry form
sold by the Agent, as agent of the
Company, or purchased by the Agent,
as principal, will be as follows:
<TABLE>
<S> <C>
A. The Agent will advise the Company by telephone, confirmed by
facsimile, of the following settlement information:
1. Principal amount, Authorized Denomination, and Specified
Currency.
2. Exchange Rate Agent, if any.
3. (a) Fixed Rate Notes:
(i) Interest Rate.
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Interest Rate Basis or Bases.
(ii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier, if any.
(v) Interest Reset Dates.
(vi) Interest Rate Reset Period.
(vii) Interest Payment Dates.
(viii) Interest Payment Period.
</TABLE>
<PAGE> 17
<TABLE>
<S> <C>
(ix) Record Dates.
(x) Index Maturity, if any.
(xi) Maximum and/or Minimum Interest Rates, if
any.
(xii) Day Count Convention.
(xiii) Calculation Agent.
4. Price to public, if
any, of such Note (or
whether such Note is
being offered at
varying prices
relating to
prevailing market
prices at time of
resale as determined
by the Agent).
5. Trade Date.
6. Settlement Date
(Original Issue Date).
7. Stated Maturity Date.
8. Redemption provisions,
if any, including:
Redemption Date,
Initial Redemption
Percentage and
Annual Redemption
Percentage Reduction.
9. Optional Repayment
Dates, if any.
10. Net proceeds to the
Company.
11. The Agent's discount
or commission.
12. Whether such Note is
being sold to the
Agent as principal or
to an investor or
other purchaser
through the Agent
acting as agent for
the Company.
13. Whether such Note is
being issued with
Original Issue
Discount and the terms
thereof.
14. Such other information
specified with respect
to such Note
(whether by Addendum
or otherwise).
</TABLE>
<PAGE> 18
B. The Company will assign a
CUSIP number to the Global
Note representing such Note
and then advise the Trustee
by facsimile transmission or
other electronic
transmission of the above
settlement information
received from the Agent,
such CUSIP number and the
name of the Agent. The
Company will also advise the
Agent of the CUSIP number
assigned to the Global Note.
C. The Trustee will communicate
to DTC and the Agent through
DTC's Participant Terminal
System a pending deposit
message specifying the
following settlement
information:
<TABLE>
<S> <C>
1. The information set forth in the Settlement Procedure A.
2. Identification numbers of the participant accounts
maintained by DTC on behalf of the Trustee and the Agent.
3. Identification of the Global Note as a Fixed Rate Global
Note or Floating Rate Global Note.
4. Initial Interest Payment Date for such Note, number of
days by which such date succeeds the related record date
for DTC purposes (or, in the case of Floating Rate Notes
which reset daily or weekly, the date five calendar days
preceding the Interest Payment Date) and, if then
calculable, the amount of interest payable on such
Interest Payment Date (which amount shall have been
confirmed by the Trustee).
5. CUSIP number of the Note representing such Note.
6. Whether such Global Note represents any other Notes
issued or to be issued in book-entry form.
DTC will arrange for each
pending deposit message
described above to be
transmitted to Standard &
Poor's Corporation, which
will use the information in
</TABLE>
<PAGE> 19
the message to include
certain terms of the related
Global Note in the
appropriate daily bond
report published by Standard
& Poor's Corporation.
D. The Trustee will complete
and authenticate the Global
Note representing such Note.
E. DTC will credit such Note to
the participant account of
the Trustee maintained by
DTC.
F. The Trustee will enter an
SDFS deliver order through
DTC's Participant Terminal
System instructing DTC (i)
to debit such Note to the
Trustee's participant
account and credit such Note
to the participant account
of the Agent maintained by
DTC and (ii) to debit the
settlement account of the
Agent and credit the
settlement account of the
Trustee maintained by DTC,
in an amount equal to the
price of such Note less such
Agent's discount or
underwriting commission, as
applicable. Any entry of
such a deliver order shall
be deemed to constitute a
representation and warranty
by the Trustee to DTC that
(i) the Global Note
representing such Note has
been issued and
authenticated and (ii) the
Trustee is holding such
Global Note pursuant to the
Certificate Agreement.
G. In the case of Notes in
book-entry form sold through
the Agent, as agent, the
Agent will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC (i) to debit
such Note to the Agent's
participant account and
credit such Note to the
participant account of the
Participants maintained by
DTC and (ii) to debit the
settlement accounts of such
Participants and credit the
settlement account of the
Agent maintained by DTC in
an amount equal to the
initial public offering
price of such Note.
H. Transfers of funds in
accordance with SDFS deliver
orders described in
Settlement Procedures F and
G will be settled in
accordance with SDFS
operating procedures in
effect on the Settlement
Date.
<PAGE> 20
I. Upon receipt, the Trustee
will pay the Company, by
wire transfer of immediately
available funds to an
account specified by the
Company to the Trustee from
time to time, the amount
transferred to the Trustee
in accordance with
Settlement Procedure F.
J. The Trustee will send a copy
of the Global Note by first
class mail to the Company
together with a statement
setting forth the principal
amount of Notes Outstanding
as of the related Settlement
Date after giving effect to
such transaction and all
other offers to purchase
Notes of which the Company
has advised the Trustee but
which have not yet been
settled.
K. If such Note was sold
through the Agent, as agent,
the Agent will confirm the
purchase of such Note to the
investor or other purchaser
either by transmitting to
the Participant with respect
to such Note a confirmation
order through DTC's
Participant Terminal System
or by mailing a written
confirmation to such
investor or other purchaser.
Settlement Procedures Timetable: For offers to purchase Notes
accepted by the Company, Settlement
Procedures A through K set forth
above shall be completed as soon as
possible following the trade but not
later than the respective times (New
York City time) set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
---------- ----
<S> <C>
A 11:00 a.m. on the trade date or within one
hour following the trade
B As soon as practicable following the trade,
but in no event later than 12:00 noon on the
Business Day following the trade date
C No later than the close of business on the
trade date
D 9:00 a.m. on Settlement Date
E 10:00 a.m. on Settlement Date
F-G No later than 2:00 p.m. on Settlement Date
H 4:00 p.m. on Settlement Date
I-K 5:00 p.m. on Settlement Date
</TABLE>
<PAGE> 21
Settlement Procedure H is subject
to extension in accordance with any
extension of Fedwire closing
deadlines and in the other events
specified in the SDFS operating
procedures in effect on the
Settlement Date.
If settlement of a Note issued in
book-entry form is rescheduled or
canceled, the Trustee will deliver
to DTC, through DTC's Participant
Terminal System, a cancellation
message to such effect by no later
than 5:00 p.m., New York City time,
on the Business Day immediately
preceding the scheduled Settlement
Date.
Failure to Settle: If the Trustee fails to enter an
SDFS deliver order with respect to
a Note issued in book-entry form
pursuant to Settlement Procedure F,
the Trustee may deliver to DTC,
through DTC's Participant Terminal
System, as soon as practicable a
withdrawal message instructing DTC
to debit such Note to the
participant account of the Trustee
maintained at DTC. DTC will process
the withdrawal message, provided
that such participant account
contains a principal amount of the
Global Note representing such Note
that is at least equal to the
principal amount to be debited. If
withdrawal messages are processed
with respect to all the Notes
represented by a Global Note, the
Trustee will mark such Global Note
"canceled", make appropriate
entries in its records and send
certification of destruction of
such canceled Global Note to the
Company. The CUSIP number assigned
to such Global Note shall, in
accordance with CUSIP Service
Bureau procedures, be canceled and
not immediately reassigned. If
withdrawal messages are processed
with respect to a portion of the
Notes represented by a Global Note,
the Trustee will exchange such
Global Note for two Global Notes,
one of which shall represent the
Global Notes for which withdrawal
messages are processed and shall be
canceled immediately after issuance
and the other of which shall
represent the other Notes
previously represented by the
surrendered Global Note and shall
bear the CUSIP number of the
surrendered Global Note.
In the case of any Note in
book-entry form sold through the
Agent, as agent, if the purchase
price for any such Note is not
timely paid to the Participants
with respect thereto by the
beneficial investor or other
purchaser thereof (or a person,
including an indirect participant
in DTC, acting on
<PAGE> 22
behalf of such investor or other
purchaser), such Participants and,
in turn, the related Agent may
enter SDFS deliver orders through
DTC's Participant Terminal System
reversing the orders entered
pursuant to Settlement Procedures F
and G, respectively. Thereafter,
the Trustee will deliver the
withdrawal message and take the
related actions described in the
preceding paragraph. If such
failure shall have occurred for any
reason other than default by the
Agent to perform its obligations
hereunder or under the Distribution
Agreement, the Company will
reimburse the Agent on an equitable
basis for its reasonable loss of
the use of funds during the period
when the funds were credited to the
account of the Company.
Notwithstanding the foregoing, upon
any failure to settle with respect
to a Note in book-entry form, DTC
may take any actions in accordance
with its SDFS operating procedures
then in effect. In the event of a
failure to settle with respect to a
Note that was to have been
represented by a Global Note also
representing other Notes, the
Trustee will provide, in accordance
with Settlement Procedure D, for
the authentication and issuance of
a Global Note representing such
remaining Notes and will make
appropriate entries in its records.
PART III: PROCEDURES FOR CERTIFICATED NOTES
Denominations: Unless otherwise provided in the
applicable Pricing Supplement, the
Certificated Notes will be issued
in denominations of U.S.$1,000 and
integral multiples of U.S.$1,000.
Payments of Principal,
Premium, if any, and Interest: Upon presentment and delivery of
the Certificated Note, the Trustee
upon receipt of immediately
available funds from the Company
will pay the principal of, premium,
if any, and interest on, each
Certificated Note on the Maturity
Date in immediately available
funds. All interest payments on a
Certificated Note, other than
interest due on the Maturity Date,
will be made by check mailed to the
address of the person entitled
thereto as such address shall
appear in the Security Register;
provided, however, that Holders of
$10,000,000 or more in aggregate
principal amount of Certificated
Notes (whether having identical or
different terms and provisions)
shall be entitled to receive such
<PAGE> 23
interest payments by wire transfer
of immediately available funds if
appropriate wire transfer
instructions have been received in
writing by the Trustee not less
than 15 calendar days prior to the
applicable Interest Payment Date.
The Trustee will provide monthly to
the Company a list of the
principal, premium, if any, and
interest to be paid on Certificated
Notes maturing in the next
succeeding month. The Trustee will
be responsible for withholding
taxes on interest paid as required
by applicable law.
Certificated Notes presented to the
Trustee on the Maturity Date for
payment will be canceled by the
Trustee. All canceled Certificated
Notes held by the Trustee shall be
destroyed, and the Trustee shall
furnish to the Company a
certificate with respect to such
destruction.
Settlement Procedures: Settlement Procedures with regard
to each Certificated Note purchased
by the Agent, as principal, or
through the Agent, as agent, shall
be as follows:
<TABLE>
<S> <C>
A. The Agent will advise the Company by telephone of the
following Settlement information with regard to each
Certificated Note:
1. Exact name in which the Certificated Note(s) is to be
registered (the "Registered Owner").
2. Exact address or addresses of the Registered Owner for
delivery, notices and payments of principal, premium, if
any, and interest.
3. Taxpayer identification number of the Registered Owner.
4. Principal amount, Authorized Denomination and Specified
Currency.
5. Exchange Rate Agent, if any.
6. (a) Fixed Rate Notes:
(i) Interest Rate.
</TABLE>
<PAGE> 24
<TABLE>
<S> <C>
(ii) Interest Payment Dates.
(b) Floating Rate Notes:
(i) Interest Rate Basis or Bases.
(ii) Initial Interest Rate.
(iv) Spread and/or Spread Multiplier, if any.
(v) Interest Reset Dates.
(vi) Interest Rate Reset Period.
(vii) Interest Payment Dates.
(viii) Interest Payment Period.
(ix) Record Dates.
(x) Index Maturity, if any.
(xi) Maximum and/or Minimum Interest Rates, if
any.
(xii) Calculation Agent.
7. Price to public of
such Certificated
Note (or whether such
Note is being offered
at varying prices
relating to
prevailing market
prices at time of
resale as determined
by the Agent).
8. Trade Date.
9. Settlement Date
(Original Issue Date).
10. Stated Maturity Date.
11. Redemption provisions,
if any, including:
Initial Redemption
Date, Initial
Redemption Percentage
and Annual Redemption
Percentage Reduction.
</TABLE>
<PAGE> 25
12. Optional Repayment
provisions, if any.
13. Net proceeds to the
Company.
14. The Agent's discount
or commission.
15. Whether such Note is
being sold to the
Agent as principal or
to an investor or
other purchaser
through the Agent
acting as agent for
the Company.
16. Whether such Note is
being issued with
Original Issue
Discount and the terms
thereof.
17. Such other information
specified with respect
to such Note (whether
by Addendum or
otherwise).
B. After receiving such
settlement information from
the Agent, the Company will
advise the Trustee of the
above settlement information
by facsimile transmission
confirmed by telephone. The
Company will prepare a
Pricing Supplement to the
Prospectus and deliver
copies to the Agent and the
Trustee and will cause the
Trustee to issue,
authenticate and deliver the
Certificated Note.
C. The Trustee will complete
the Certificated Note in the
form approved by the Company
and the Agent, and will make
three copies thereof (herein
called "Stub 1", "Stub 2"
and "Stub 3"):
1. Certificated Note with
the Agent's
confirmation, if traded
on a principal basis, or
the Agent's customer
confirmation, if traded
on an agency basis.
2. Stub 1 for Trustee.
3. Stub 2 for Agent.
4. Stub 3 for the Company.
<PAGE> 26
D. With respect to each trade,
the Trustee will deliver the
Certificated Note and Stub 2
thereof to the Agent at the
address set forth in the
notice provisions of the
Distribution Agreement or to
an address otherwise
designated by the Agent to
the Trustee; and the Trustee
will keep Stub 1. The Agent
will acknowledge receipt of
the Certificated Note
through a broker's receipt
and will keep Stub 2.
Delivery of the Certificated
Note will be made only
against such acknowledgment
of receipt. Upon
determination that the
Certificated Note has been
authorized, delivered and
completed as aforementioned,
the Agent will wire the net
proceeds of the Certificated
Note after deduction of its
applicable commission to the
Company pursuant to standard
wire instructions given by
the Company.
E. In the case of a
Certificated Note sold
through the Agent, as agent,
the Agent will deliver such
Certificated Note as well as
a copy of the Prospectus and
any applicable Pricing
Supplement received from the
Company (with the
confirmation) to the
purchaser against payment in
immediately available funds.
F. The Trustee will send Stub 3
to the Company.
Settlement Procedures
Timetable: For offers to purchase Certificated
Notes accepted by the Company,
Settlement Procedures A through F
set forth above shall be completed
as soon as possible following the
trade but not later than the
respective times (New York City
time) set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
--------- ----
<S> <C>
A 11:00 a.m. on the trade date
B 3:00 p.m. on the trade date
C-D 2:15 p.m. on Settlement Date
E 3:00 p.m. on Settlement Date
F 5:00 p.m. on Settlement Date
</TABLE>
Failure to Settle: In the case of Certificated Notes
sold through the Agent, as agent,
if an investor or other purchaser
of a Certificated
<PAGE> 27
Note from the Company shall either
fail to accept delivery of or make
payment for such Certificated Note
on the date fixed for settlement,
the Agent will forthwith notify the
Trustee and the Company by
telephone, confirmed in writing,
and return such Certificated Note
to the Trustee.
The Trustee, upon receipt of such
Certificated Note from the Agent,
will immediately advise the Company
and the Company will promptly
arrange to credit the account of
the Agent in an amount of
immediately available funds equal
to the amount previously paid to
the Company by such Agent in
settlement for such Certificated
Note. Such credits will be made on
the Settlement Date if possible,
and in any event not later than the
Business Day following the
Settlement Date; provided that the
Company has received notice on the
same day. If such failure shall
have occurred for any reason other
than failure by such Agent to
perform its obligations hereunder
or under the Distribution
Agreement, the Company will
reimburse such Agent on an
equitable basis for its reasonable
loss of the use of funds during the
period when the funds were credited
to the account of the Company.
Immediately upon receipt of the
Certificated Note in respect of
which the failure occurred, the
Trustee will cancel and destroy
such Certificated Note, make
appropriate entries in its records
to reflect the fact that such
Certificated Note was never issued,
and accordingly notify in writing
the Company.
<PAGE> 1
EXHIBIT 8.1
May 18, 2000
Enron Corp.
1400 Smith Street
Houston, Texas 77002-7369
Ladies and Gentlemen:
We have acted as counsel to Enron in connection with its Medium Term
Note Program. In connection with the opinion expressed below, we have examined
the Registration Statement, the Prospectus, the documents incorporated by
reference therein and such other documents and records as we have deemed
necessary or advisable for purposes of the opinion expressed below.
Based on the foregoing and subject to the qualifications and
limitations set forth below and in the Prospectus, in our opinion, the
discussion and legal conclusions set forth in the Prospectus under the caption
"United States Federal Income Taxation" are accurate and complete in all
material respects.
Our opinion expressed above is based and conditioned upon the initial
and continuing accuracy of the facts and assumptions set forth in the
Prospectus and on the representations of management of Enron as to the
existence of certain facts. Our opinion is also based on existing provisions of
the Internal Revenue Code of 1986, regulations promulgated or proposed
thereunder and interpretations thereof by the Internal Revenue Service and the
courts, all of which are subject to change with prospective or retroactive
effect, and such opinion could be adversely affected or rendered obsolete by
any such change.
We hereby consent to the references to this firm under the captions
"United States Federal Income Taxation" in the Prospectus and to the filing of
this opinion as an Exhibit to the Registration Statement. By giving such
consent, we do not admit that we are within the category of person whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission issued thereunder
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
