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_______________________________________________________________________________
UNITED STATES
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 (Date of earliest event reported) July 31, 1996
SOUTHWEST GAS CORPORATION
(Exact name of registrant as specified in its charter)
California 1-7850 88-0085720
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
5241 Spring Mountain Road
Post Office Box 98510
Las Vegas, Nevada 89193-8510
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (702) 876-7237
_______________________________________________________________________________<PAGE>
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ITEM 5. OTHER EVENTS
Debentures Offering
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On July 31, 1996, Southwest Gas Corporation (the Company) finalized the terms
for an offering of $150,000,000 of Debentures with respect to Registration
Statement No. 33-62143. In connection therewith, the Company executed an
underwriting agreement, executed the First Supplemental Indenture, and
obtained an opinion of legal counsel on the securities. These documents are
contained herein as exhibits.
ITEM 7. EXHIBITS
1.01 Underwriting Agreement.
4.11 First Supplemental Indenture to Senior Debt Securities Indenture
5.03 Opinion of Robert M. Johnson, Esq., the Company's Associate General
Counsel, as to the validity of the securities.
23.05 Consent of Robert M. Johnson, Esq. (included in Exhibit 5.03).
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.
SOUTHWEST GAS CORPORATION
Date: August 2, 1996 /s/ George C. Biehl
---------------------------------------------
George C. Biehl
Senior Vice President/Chief Financial Officer<PAGE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
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1.01 Underwriting Agreement.
4.11 First Supplemental Indenture to Senior Debt Securities Indenture
5.03 Opinion of Robert M. Johnson, Esq., the Company's Associate General
Counsel, as to the validity of the securities.
23.05 Consent of Robert M. Johnson, Esq. (included in Exhibit 5.03).<PAGE>
<PAGE>
EXHIBIT 1.01
$150,000,000
Southwest Gas Corporation
$75,000,000 7-1/2% Debentures Due 2006
$75,000,000 8% Debentures Due 2026
UNDERWRITING AGREEMENT
July 31, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
PAINEWEBBER INCORPORATED
c/o MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
World Financial Center, North Tower
New York, New York 10281-1201
Ladies and Gentlemen:
Southwest Gas Corporation, a California corporation (the "Company"),
proposes to issue and sell severally to Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and PaineWebber
Incorporated (collectively, the "Underwriters," which term shall also include
any underwriter substituted as hereinafter provided in Section 10 hereof) an
aggregate of $75,000,000 principal amount of the Company's 7-1/2% Debentures Due
2006 (the "2006 Debentures") and an aggregate of $75,000,000 principal amount
of the Company's 8% Debentures Due 2026 (the "2026 Debentures" and, together
with the 2006 Debentures, the "Securities") to be issued pursuant to an
Indenture dated as of July 15, 1996 (the "Original Indenture") between the
Company and Harris Trust and Savings Bank, as Trustee (the "Trustee"), as
supplemented and amended by the First Supplemental Indenture dated as of
August 1, 1996 (the "First Supplement" and, together with the Original
Indenture, the "Indenture").<PAGE>
<PAGE>
The Company wishes to confirm as follows its agreement with you, in
connection with the several purchases of the Securities by the Underwriters:
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has filed with
the Securities and Exchange Commission (the "Commission") in accordance with
the provisions of the Securities Act of 1933, as amended (the "1933 Act"), a
registration statement on Form S-3 (File No. 33-55621) (the "1994 Registration
Statement") for the offering from time to time of its debt securities,
preferred stock and/or common stock having an aggregate offering price of
$300,000,000 and the 1994 Registration Statement has become effective. While
an aggregate offering price of $270,112,800 of such securities remained unsold
under the 1994 Registration Statement, the Company and Southwest Gas Capital
I, a statutory business trust organized under the Business Trust Act of the
State of Delaware (the "Trust"), filed with the Commission a registration
statement on Form S-3 (No. 33-62143) under the 1933 Act for the offering from
time to time of the Company's debt securities, preferred stock and/or common
stock, including the Securities, and the Trust's preferred securities and
related guarantee of preferred securities by the Company, having an aggregate
offering price of $270,400,000 (of which an aggregate of $210,400,000 of such
securities remain unsold) and such registration statement has become
effective. The registration statement on Form S-3 (No. 33-62143) (as amended,
if applicable) and the combined prospectus constituting a part thereof
(including, in each case, all documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
1933 Act), as supplemented by a Prospectus Supplement, dated July 31, 1996,
relating to the Securities (the "Prospectus Supplement"), and as from time to
time further amended or supplemented pursuant to the 1933 Act, the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
the Securities Exchange Act of 1934, as amended (the "1934 Act"), the rules
and regulations of the Commission under the 1934 Act (the "1934 Act
Regulations"), or otherwise are hereinafter referred to as the "1995
Registration Statement" and the "Prospectus," respectively, except that if any
revised prospectus shall be provided to the Underwriters by the Company for
use in connection with the offering of the Securities that differs from the
Prospectus on file at the Commission at the time the 1995 Registration
Statement became effective (whether or not such revised prospectus is required
to be filed by the Company pursuant to Rule 424(b) of the 1933 Act
Regulations), including any preliminary prospectus relating to the Securities,
the term "Prospectus" shall refer to such revised prospectus from and after
the time it is first provided to the Underwriters for such use. All
references in this Agreement to financial statements and schedules and other
information that is "contained," "included" or "stated" in the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus (and
all other references of like import) shall be deemed to mean and include all
such financial statements and schedules and other information that are or are
deemed to be incorporated by reference in the 1994 Registration Statement, the
1995 Registration Statement or the Prospectus, as the case may be; and all
references in this Agreement to amendments or supplements to the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus
shall be deemed to mean and include the filing of any document under the 1934
Act or the 1934 Act Regulations that is or is deemed to be incorporated by
reference in the 1994 Registration Statement, the 1995 Registration Statement
or the Prospectus, as the case may be, after the time of execution of this
Agreement; provided, however, that any supplement to the Prospectus filed with
the Commission pursuant to Rule 424(b) of the 1933 Act Regulations with
respect to an offering of securities of the Company, other than the
Securities, or the Trust shall not be deemed to be a supplement to, or a part
of, the Prospectus. As used herein, the term "Incorporated Documents" means
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the documents which at any time are incorporated by reference in the 1994
Registration Statement, the 1995 Registration Statement, each preliminary
prospectus (including in the form of a preliminary prospectus supplement)
relating to the Securities, the Prospectus, or any amendment or supplement
thereto. As used herein, the term "Effective Date" means the later of (i) the
date that the most recent post-effective amendment to the 1994 Registration
Statement or the 1995 Registration Statement, if any, was or is declared
effective by the Commission and (ii) the date that the Company's most recent
Annual Report on Form 10-K was filed with the Commission under the 1934 Act.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees,
subject to all the terms and conditions set forth herein, to issue and sell to
each Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each Underwriter agrees, severally and not
jointly, to purchase from the Company, at a purchase price of, in the case of
the 2006 Debentures, 98.526% of the principal amount thereof, and, in the case
of the 2026 Debentures, 98.807% of the principal amount thereof, the principal
amount of such Securities set forth opposite the name of such Underwriter in
Schedule I attached hereto, in each case, plus accrued interest from August 1,
1996 to the Closing Date (as defined herein).
3. PUBLIC OFFERING. The Company has been advised by the Underwriters
that they propose to make a public offering of their respective portions of
the Securities as soon after the execution of this Agreement as in the
judgment of the Underwriters is advisable and initially to offer the
Securities upon the terms set forth in the Prospectus Supplement.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery of the
Securities and payment therefor by wire transfer of immediately available
funds shall be made at the office of O'Melveny & Myers, Los Angeles,
California, at 10:00 A.M., New York time, on August 5, 1996 (the "Closing
Date"). The place of closing for the Securities and the Closing Date may be
varied by agreement between Merrill Lynch and the Company.
The Securities shall be delivered to the Underwriters in book-entry
form through the facilities of The Depository Trust Company in New York, New
York. The certificates for the Securities shall be in the form of one or more
typewritten bonds for each series in fully registered form, in the aggregate
principal amount of the Securities, and registered in the name of Cede & Co.,
as nominee of The Depository Trust Company. The Company agrees to make the
Securities available to the Underwriters for checking not later than
2:30 P.M., New York time, on the last business day preceding the Closing Date
at such place as may be agreed upon between Merrill Lynch and the Company, or
at such other time and/or date as may be agreed upon among the Underwriters
and the Company. It is understood that PaineWebber Incorporated has
authorized Merrill Lynch, for its account, to accept delivery of, receipt for,
and make payment of the purchase price for, the Securities which it has agreed
to purchase. Merrill Lynch may (but shall not be obligated to) make payment
of the purchase price for the Securities to be purchased by PaineWebber
Incorporated if its check has not been received by the Closing Date, but such
payment shall not relieve PaineWebber Incorporated from its obligations
hereunder.
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5. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) The Company will advise the Underwriters promptly and, if
requested by the Underwriters, will confirm such advice in writing: (i) of
any request by the Commission for amendment of, or a supplement to, the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus or
for additional information with respect thereto; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the 1994
Registration Statement or the 1995 Registration Statement or of the suspension
of qualification of the Securities for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iii) within the period
of time referred to in the first sentence of subsection (d) below, of any
change in the Company's condition (financial or other), business, prospects,
properties, net worth or results of operations, or of the happening of any
event, which makes any statement of a material fact made in the 1994
Registration Statement, the 1995 Registration Statement or the Prospectus (as
then amended or supplemented) untrue or which requires the making of any
additions to or changes in the 1994 Registration Statement, the 1995
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the 1933 Act or the 1933 Act
Regulations to be stated therein or necessary in order to make the statements
therein not misleading, or of the necessity to amend or supplement the
Prospectus (as then amended or supplemented) to comply with the 1933 Act, the
1933 Act Regulations or any other law. If at any time the Commission shall
issue any stop order suspending the effectiveness of the 1994 Registration
Statement or the 1995 Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal of such order at the earliest
possible time.
(b) The Company will furnish to you, without charge (i) two copies of
the 1994 Registration Statement and the 1995 Registration Statement certified
by an officer of the Company to be in the form originally filed with the
Commission and of each amendment thereto, including financial statements and
all exhibits to the 1994 Registration Statement and the 1995 Registration
Statement, (ii) such number of conformed copies of the 1994 Registration
Statement and the 1995 Registration Statement as originally filed and of each
amendment thereto, but without exhibits, as the Underwriters may reasonably
request, (iii) such number of copies of the Incorporated Documents, without
exhibits, as the Underwriters may reasonably request, and (iv) one copy of the
exhibits to the Incorporated Documents.
(c) During such period as a prospectus is required by law to be
delivered in connection with sales by either Underwriter or any dealer, the
Company will give the Underwriters notice of their intention to file or
prepare (i) any amendment to the 1994 Registration Statement or the 1995
Registration Statement (including any post-effective amendment thereto), (ii)
any amendment or supplement to the Prospectus (including any revised
prospectus that the Company proposes for use by the Underwriters in connection
with the offering of the Securities that differs from the prospectus on file
at the Commission at the time the 1995 Registration Statement became
effective, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), or (iii) any document
that would as a result thereof be an Incorporated Document, will furnish the
Underwriters with copies of any such amendment, supplement or other document a
reasonable amount of time prior to such proposed filing or use, as the case
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may be, and will not file any such amendment, supplement or other document or
use any such prospectus to which the Underwriters or counsel for the
Underwriters shall reasonably object.
(d) As soon after the execution and delivery of this Agreement as
possible and thereafter from time to time for such period as a prospectus is
required by law to be delivered in connection with sales by either Underwriter
or any dealer, the Company will expeditiously deliver to each Underwriter and
each dealer, without charge, as many copies of the Prospectus (and of any
amendment or supplement thereto) as the Underwriters may request. The Company
consents to the use of the Prospectus (and of any amendment or supplement
thereto) in accordance with the provisions of the 1933 Act, the 1933 Act
Regulations and with the securities or blue sky laws of the jurisdictions in
which the Securities are offered by the several Underwriters and by all
dealers to whom Securities may be sold, both in connection with the offering
and sale of the Securities and for such period of time thereafter as the
Prospectus is required by law to be delivered in connection with sales by
either Underwriter or any dealer. If during such period of time any event
shall occur that is required to be set forth in the Prospectus (as then
amended or supplemented) or should be set forth therein in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary to supplement or amend the
Prospectus (or to file under the 1934 Act or the 1934 Act Regulations any
document which, upon filing, becomes an Incorporated Document) in order to
comply with the 1933 Act, the 1933 Act Regulations or any other law, the
Company will forthwith prepare and, subject to the provisions of paragraph (c)
above, file with the Commission an appropriate supplement, amendment or
Incorporated Document, as the case may be, and will expeditiously furnish to
the Underwriters and dealers a reasonable number of copies thereof. In the
event that the Company and the Underwriters agree that the Prospectus should
be amended or supplemented, the Company, if requested by Merrill Lynch, will
promptly issue a press release announcing or disclosing the matters to be
covered by the proposed amendment or supplement.
(e) The Company will cooperate with the Underwriters and with counsel
for the Underwriters in connection with the registration or qualification of
the Securities for offering and sale by the Underwriters and by dealers under
the securities or blue sky laws of such jurisdictions as the Underwriters may
designate and will file such consents to service of process or other documents
necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(f) The Company will make generally available to its security holders
as soon as practicable but not later than 45 days (unless such period
corresponds to the Company's fiscal year, in which case 90 days) after the
close of the period covered thereby, an earning statement of the Company (in
form complying with the provisions of Section 11(a) of the 1933 Act and Rule
158 of the 1933 Act Regulations) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following the
"effective date" (as defined in said Rule 158) of the 1995 Registration
Statement.
(g) If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 hereof) or if this Agreement shall be
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terminated by the Underwriters because of any failure or refusal on the part
of the Company to comply with the terms or fulfill any of the conditions of
this Agreement, the Company agrees to reimburse the Underwriters for all
out-of-pocket expenses (including fees and expenses of counsel for the
Underwriters) incurred by the Underwriters in connection herewith.
(h) The Company will apply the net proceeds from the sale of the
Securities substantially in accordance with the description set forth in the
Prospectus Supplement under the caption "Use of Proceeds."
(i) During the period from the date hereof until the Closing Date, the
Company will not, without the Underwriters' prior written consent, directly or
indirectly, sell, offer to sell or grant any option for the sale of any debt
securities of the Company other than the Securities.
(j) Except as stated in the Prospectus Supplement, the Company has not
taken, nor will it take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
maintenance of the price of the Securities.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
(a) The Company meets the requirements for the use of Form S-3 and
Rule 415 of the 1933 Act Regulations and has filed with the Commission any
preliminary prospectus relating to the Securities required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations. No stop order suspending
the effectiveness of the 1994 Registration Statement or the 1995 Registration
Statement has been issued by the Commission, and no proceedings for the
issuance of such a stop order have been instituted or, to the knowledge of the
Company, threatened by the Commission.
(b) The 1994 Registration Statement and the 1995 Registration
Statement, at the Effective Date, fully complied, and the Prospectus, when
filed with, or transmitted for filing to, the Commission pursuant to Rule
424(b) of the 1933 Act Regulations and at the Closing Date, as it may then be
amended or supplemented, and the Indenture, at the Closing Date, will fully
comply in all material respects with the applicable provisions of the 1933
Act, the 1933 Act Regulations, the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), and the rules and regulations of the Commission
thereunder (the "Trust Indenture Act Regulations"), or pursuant to said rules
and regulations did or will be deemed to comply therewith. On the Effective
Date, the 1994 Registration Statement and the 1995 Registration Statement did
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, when filed with, or transmitted for filing
to, the Commission pursuant to Rule 424(b) of the 1933 Act Regulations and at
the Closing Date, will not contain any 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. The foregoing representations and warranties in this paragraph
(b) shall not apply to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by or on behalf
of either Underwriter specifically for use in connection with the preparation
of the 1994 Registration Statement, the 1995 Registration Statement or the
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Prospectus, as they may be amended or supplemented, or to any statements in or
omissions from the statement of eligibility, as it may be amended, under the
Trust Indenture Act, of the Trustee under the Indenture (the "Statement of
Eligibility").
(c) The Incorporated Documents heretofore filed, when they were filed
(or, if any amendment with respect to any such document was filed, when such
amendment was filed), conformed in all material respects with the requirements
of the 1934 Act and the 1934 Act Regulations, and any further Incorporated
Documents so filed will, when they are filed, conform in all material respects
with the requirements of the 1934 Act and the 1934 Act Regulations; no such
Incorporated Document when it was filed (or, if an amendment with respect to
any such document was filed, when such amendment was filed) contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and such further
Incorporated Documents, when filed, will not contain any 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.
(d) The Indenture has been duly and validly authorized by all
necessary corporate action on the part of the Company, has been duly and
validly executed and delivered by the Company, is a legal, valid and binding
instrument of the Company enforceable against the Company in accordance with
its terms, except as limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance or other similar laws affecting creditors' rights and
general equitable principles (whether considered in a proceeding in equity or
at law), and has been duly qualified under the Trust Indenture Act and no
proceedings to suspend such qualification have been instituted or, to the
knowledge of the Company, threatened by the Commission.
(e) The Securities have been duly authorized by all necessary
corporate action on the part of the Company, and, when authenticated and
delivered in accordance with the Indenture against payment therefor, will
constitute the legally, valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as
limited by bankruptcy, insolvency, reorganization, fraudulent conveyance or
other similar laws affecting creditors' rights and general equitable
principles (whether considered in a proceeding in equity or at law), and will
be entitled to the benefits of the Indenture.
(f) The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of California with full corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the 1994 Registration Statement, the 1995
Registration Statement and the Prospectus, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
or place where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify does not have a material adverse effect on the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Company and the Subsidiaries (as hereinafter defined) taken
as a whole (a "Material Adverse Effect").
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(g) All of the Company's subsidiaries are listed in an exhibit to the
Company's Annual Report on Form 10-K for the year ended December 31, 1995 (the
"1995 Form 10-K"), which is incorporated by reference into the Prospectus.
(h) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened, against Northern Pipeline Construction
Co. or Paiute Pipeline Company (collectively, the "Subsidiaries") or the
Company, or to which the Company or either of the Subsidiaries is subject, or
to which any of their respective properties is subject, that are required to
be described in the 1994 Registration Statement, the 1995 Registration
Statement or the Prospectus but are not described as required, and there are
no agreements, contracts, indentures, leases or other instruments that are
required to be described in the 1994 Registration Statement, the 1995
Registration Statement or the Prospectus or to be filed as an exhibit to the
1994 Registration Statement, the 1995 Registration Statement or any
Incorporated Document that are not described or filed as required by the 1933
Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.
(i) Except as disclosed in the Prospectus, neither the Company nor
either of the Subsidiaries (i) is in violation of its charter or by-laws, or,
to the best knowledge of the Company after due inquiry, of any law, ordinance,
administrative or governmental rule or regulation applicable to the Company or
either of the Subsidiaries, the violation of which would reasonably be
expected to have a Material Adverse Effect, or of any decree of any court or
governmental agency or body having jurisdiction over the Company or either of
the Subsidiaries, or (ii) is in default in any material respect in the
performance of any obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in any material
agreement, indenture, lease or other instrument to which the Company or either
of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound.
(j) Neither the issuance and sale of the Securities, the execution,
delivery or performance of this Agreement and the Indenture by the Company nor
the consummation by the Company of the transactions contemplated hereby
requires any consent, approval, authorization or other order of or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency or official (except such as may be required
for the registration of the Securities under the 1933 Act or the 1933 Act
Regulations and compliance with the securities or blue sky laws of various
jurisdictions, the qualification of the Indenture under the Trust Indenture
Act and the authorization of the Public Utilities Commission of the State of
California issued December 7, 1994 (which authorization is, to the best
knowledge of the Company, not the subject of any pending or threatened
application for rehearing or petition for modification), all of which have
been or will be effected in accordance with this Agreement) or conflicts or
will conflict with or constitutes or will constitute a breach of, or a default
under, the charter or bylaws of the Company or either of the Subsidiaries or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any agreement, indenture, lease or other instrument to
which the Company or either of the Subsidiaries is a party or by which any of
them or any of their respective properties may be bound, or violates or will
violate any statute, law, regulation or filing or judgment, injunction, order
or decree applicable to the Company or either of the Subsidiaries or any of
their respective properties, or will result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
either of the Subsidiaries pursuant to the terms of any agreement or
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instrument to which any of them is a party or by which any of them may be
bound or to which any of the property or assets of any of them is subject.
(k) The independent certified public accountants, Arthur Andersen LLP,
who have audited the financial statements incorporated by reference in the
1994 Registration Statement, the 1995 Registration Statement and the
Prospectus (or any amendment or supplement thereto) are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(l) The financial statements, together with related schedules and
notes, included or incorporated by reference in the 1994 Registration
Statement, the 1995 Registration Statement and the Prospectus (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the
Company and its subsidiaries on the basis stated in the 1994 Registration
Statement, the 1995 Registration Statement and the Prospectus at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; and the other financial and
statistical information and data included or incorporated by reference in the
1994 Registration Statement, the 1995 Registration Statement and the
Prospectus (and any amendment or supplement thereto) are accurately presented
and prepared on a basis consistent with such financial statements and the
books and records of the Company and its subsidiaries. The pro forma
financial statements incorporated by reference in the 1994 Registration
Statement, the 1995 Registration Statement and the Prospectus comply in all
material respects with Article 11 of Regulation S-X under the Act.
(m) The execution and delivery of, and the performance by the Company
of its obligations under, this Agreement have been duly and validly authorized
by the Company, and this Agreement has been duly executed and delivered by the
Company and constitutes the valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
as rights to indemnity and contribution hereunder may be limited by applicable
law and as limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance or other similar laws affecting creditors rights and general
equitable principles (whether considered in equity or law).
(n) Except as disclosed in the 1994 Registration Statement, the 1995
Registration Statement and the Prospectus (or any amendment or supplement
thereto), subsequent to the respective dates as of which such information is
given in the 1994 Registration Statement, 1995 Registration Statement and the
Prospectus (or any amendment or supplement thereto), (i) neither the Company
nor either of the Subsidiaries has incurred any liability or obligation,
direct or contingent, or entered into any transaction, not in the ordinary
course of business, that is material to the Company and its subsidiaries taken
as a whole, and (ii) there has not been any change or development involving
the Company which may reasonably be expected to have a Material Adverse
Effect.
(o) The Company has not distributed and, prior to the later to occur
of (i) the Closing Date and (ii) completion of the distribution of the
Securities, will not distribute, any offering material in connection with the
offering and sale of the Securities other than the 1994 Registration
Statement, the 1995 Registration Statement, the Prospectus or other materials,
if any, permitted by the 1933 Act and the 1933 Act Regulations.
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(p) Each of the Company and the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities (the "permits") as are necessary to own its respective properties
and to conduct its business in the manner described in the Prospectus, except
where the failure to fulfill or perform any such obligation would not
reasonably be expected to have a Material Adverse Effect; to the best
knowledge of the Company after due inquiry, each of the Company and the
Subsidiaries has fulfilled and performed all its material obligations with
respect to such permits, except where the failure to fulfill or perform any
such obligation would not reasonably be expected to have a Material Adverse
Effect; and no event has occurred that allows, or after notice or lapse of
time would allow, revocation or termination of any material permits or results
or would result in any other material impairment of the rights of the holder
of any such material permits, subject in each case to such qualifications as
may be set forth in the Prospectus.
(q) No holder of any security of the Company has any right to require
registration of any security of the Company because of the filing of the 1994
Registration Statement or the 1995 Registration Statement or consummation of
the transactions contemplated by this Agreement.
(r) Neither the Company nor any of its subsidiaries is currently
subject to regulation under the Public Utility Holding Company Act of 1935, as
amended.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person, if any, who controls each
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act from and against any and all losses, claims, liabilities,
expenses and damages (including any and all investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they, or any of them, may become subject under the 1933 Act, the 1934 Act or
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on any untrue statement or alleged untrue statement
of a material fact contained in the 1994 Registration Statement, the 1995
Registration Statement, any preliminary prospectus relating to the Securities
or the Prospectus or any amendment or supplement to the 1994 Registration
Statement, 1995 Registration Statement or the Prospectus or in any
Incorporated Documents (when read together with the Prospectus), or the
omission or alleged omission to state in such document a material fact
required to be stated in it or necessary to make the statements in it not
misleading, provided that the Company will not be liable to the extent that
such loss, claim, liability, expense or damage arises from the sale of the
Securities in the public offering to any person by such Underwriter and is
based on an untrue statement or omission or alleged untrue statement or
omission made in reliance on and in conformity with information relating to
such Underwriter furnished in writing to the Company by such Underwriter
expressly for inclusion in the 1994 Registration Statement, the 1995
Registration Statement, any preliminary prospectus relating to the Securities
or the Prospectus, or based upon statements in or omissions from the Statement
of Eligibility; provided further that the Company will not be liable to any
Underwriter (or any person controlling such Underwriter) from whom the person
asserting any such loss, claim, liability, expense or damage purchased the
Securities that are the subject thereof if such person did not receive from
such Underwriter a copy of the Prospectus (or the Prospectus as amended or
supplemented), if the Company shall have previously furnished copies thereof
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to such Underwriter, at or prior to the confirmation of the sale of such
Securities to such person in any case where such delivery is required by the
1933 Act or the 1933 Act Regulations and the untrue statement or omission of a
material fact contained in any preliminary prospectus relating to the
Securities (or the Prospectus) was corrected in the Prospectus (or the
Prospectus as amended or supplemented). This indemnity agreement will be in
addition to any liability that the Company might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the Company,
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, each director of the Company
and each officer of the Company who signed the 1994 Registration Statement or
the 1995 Registration Statement to the same extent as the foregoing indemnity
from the Company to each Underwriter, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to such Underwriter furnished
in writing to the Company by such Underwriter expressly for inclusion in the
1994 Registration Statement, the 1995 Registration Statement, any preliminary
prospectus relating to the Securities or the Prospectus. This indemnity will
be in addition to any liability that each Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 7, notify each
such indemnifying party of the commencement of such action, enclosing a copy
of all papers served, but the omission so to notify such indemnifying party
will not relieve it from any liability that it may have to any indemnified
party under the foregoing provisions of this Section 7 unless, and only to the
extent that, such omission results in the forfeiture of or substantial
prejudice to substantive rights or defense by the indemnifying party. If any
such action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of the
commencement of the action from the indemnified party, jointly with any other
indemnifying party similarly notified, to assume the defense of the action,
with counsel satisfactory to the indemnified party, and after notice from the
indemnifying party to the indemnified party of its election to assume the
defense, the indemnifying party will not be liable to the indemnified party
for any legal or other expenses except as provided below and except for the
reasonable costs of investigation subsequently incurred by the indemnified
party in connection with the defense. The indemnified party will have the
right to employ its own counsel in any such action, but the fees, expenses and
other charges of such counsel will be at the expense of such indemnified party
unless (i) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (ii) the indemnified party
has reasonably concluded (based on advice of counsel) that there may be legal
defenses available to it or other indemnified parties that are different from
or in addition to those available to the indemnifying party, (iii) a conflict
or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (iv) the indemnifying party has
not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
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counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. All such fees, disbursements and other
charges will be reimbursed by the indemnifying party promptly as they are
incurred. An indemnifying party will not be liable for any settlement of any
action or claim effected without its written consent (which consent will not
be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 7 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or the Underwriters,
the Company and the Underwriters will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and
other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, officers of the
Company who signed the 1994 Registration Statement and 1995 Registration
Statement and directors of the Company, who also may be liable for
contribution) to which the Company and any one or more of the Underwriters may
be subject in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other. The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page
of the Prospectus Supplement. If, but only if, the allocation provided by the
foregoing sentence is not permitted by applicable law, the allocation of
contribution shall be made in such proportion as is appropriate to reflect not
only the relative benefits referred to in the foregoing sentence but also the
relative fault of the Company, on the one hand, and the Underwriters, on the
other, with respect to the statements or omissions that resulted in such loss,
claim, liability, expense or damage, or action in respect thereof, as well as
any other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to whether the 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 the
Underwriters, the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein. The
amount paid or payable by an indemnified party as a result of the loss, claim,
liability, expense or damage, or action in respect thereof, referred to above
in this Section 7(d) shall be deemed to include, for purposes of this Section
7(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Underwriter shall be
required to contribute any amount in excess of the underwriting discounts and
commissions received by it, and no person found guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) will
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be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 7(d) are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section 7(d),
any person who controls a party to this Agreement within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act Regulations will have
the same rights to contribution as that party, and each officer of the Company
who signed the 1994 Registration Statement and the 1995 Registration Statement
will have the same rights to contribution as the Company, subject in each case
to the provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against such party in respect
of which a claim for contribution may be made under this Section 7(d), will
notify any such party or parties from whom contribution may be sought, but the
omission so to notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have under
this Section 7(d). No party will be liable for contribution with respect to
any action or claim settled without its written consent (which consent will
not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless
of (i) any investigation made by or on behalf of the Underwriters, (ii)
acceptance of any of the Securities and payment therefor or (iii) any
termination of this Agreement.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations
of the Underwriters to purchase the Securities hereunder are subject to the
following conditions:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for a post-effective amendment to the 1994 Registration Statement or
the 1995 Registration Statement to be declared effective before the offering
of the Securities may commence, such post-effective amendment shall have
become effective not later than 5:30 P.M., New York City time, on the date
hereof, or at such later date and time as shall be consented to in writing by
the Underwriters; filing of the Prospectus pursuant to Rule 424(b) of the 1933
Act Regulations shall have been made within the time period required by such
Rule; and no stop order suspending the effectiveness of the 1994 Registration
Statement or the 1995 Registration Statement shall have been issued and no
proceeding for that purpose shall have been instituted or, to the knowledge of
the Company or either Underwriter, threatened by the Commission.
(b) Since the respective dates as of which information is given in the
1994 Registration Statement, the 1995 Registration Statement and the
Prospectus, (i) there shall not have been a material adverse change in the
condition (financial or other), business, prospects, properties, net worth or
results of operations of the Company and either of the Subsidiaries taken as a
whole whether or not arising from transactions in the ordinary course of
business, in each case other than as set forth in or contemplated by the
Prospectus and (ii) neither the Company nor the Subsidiaries shall have
sustained any loss or interference with its business or properties from fire,
explosion, flood or other casualty, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental
action, order or decree, which is not set forth in the 1994 Registration
Statement, the 1995 Registration Statement and the Prospectus and that is
material to the Company and the Subsidiaries taken as a whole, if in the
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judgment of the Underwriters any such development makes it impracticable or
inadvisable to consummate the sale and delivery of the Securities by the
Underwriters at the initial public offering price.
(c) Since the respective dates as of which information is given in the
1994 Registration Statement, the 1995 Registration Statement and the
Prospectus, there shall have been no litigation or other proceeding instituted
against the Company or either of the Subsidiaries or any of their respective
officers or directors in their capacities as such, before or by any federal,
state or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or
proceeding an unfavorable ruling, decision or finding would reasonably be
expected to have a Material Adverse Effect.
(d) The Underwriters shall have received on the Closing Date, an
opinion of O'Melveny & Myers, counsel for the Company, dated the Closing Date
and addressed to the Underwriters to the effect that:
(i) The Company has been duly incorporated and is validly
existing in good standing under the laws of the State of California, with
corporate power to own and lease its properties, to carry on its business as
described in the Prospectus and to enter into this Agreement and to issue
and deliver the Securities to the Underwriters as provided therein.
(ii) The statements in the Prospectus under the captions
"Description of Debentures" and "Description of Debt Securities," insofar as
such statements constitute matters of California, New York or federal law
applicable to the Company or summaries of the Indenture, fairly present the
information required to be included therein by the 1933 Act, the 1933 Act
Regulations, the Trust Indenture Act and the Trust Indenture Act
Regulations.
(iii) The Securities have been duly authorized by all
necessary corporate action on the part of the Company, and, upon payment for and
delivery of the Securities in accordance with this Agreement, constitute the
legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by general principles of equity including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a proceeding in equity
or at law.
(iv) The 1994 Registration Statement and the 1995
Registration Statement have been declared effective under the 1933 Act and, to
the knowledge of such counsel, no stop order suspending the effectiveness of the
1994 Registration Statement or the 1995 Registration Statement has been
issued or threatened by the Commission.
(v) The execution, delivery and performance of this
Agreement have been duly and validly authorized by all necessary corporate
action on the part of the Company, and this Agreement has been duly executed
and delivered by the Company.
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(vi) No consent, approval, authorization or order of, or
filing with, any federal, California or New York governmental authority is
required on the part of the Company for the issuance and sale of the Securities
as contemplated by this Agreement, except (i) such as may have been obtained
under the 1933 Act, the 1933 Act Regulations, the Trust Indenture Act or the
Trust Indenture Act Regulations, (ii) the authorization of the Public
Utilities Commission of the State of California referred to in Section 6(j)
of this Agreement which has been obtained, remains in full force and effect
and is, to the knowledge of such counsel, not the subject of any pending or
threatened application for rehearing or petition for modification, and (iii)
such as may be required under foreign or state securities or blue sky laws
or the by-laws and rules of the National Association of Securities Dealers,
Inc. in connection with the purchase and distribution of the Securities by
the Underwriters.
(vii) The Indenture has been duly authorized by all necessary
corporate action on the part of the Company, executed and delivered by the
Company and qualified under the Trust Indenture Act and constitutes the
legally, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or affecting creditors' rights generally (including, without limitation,
fraudulent conveyance laws) and by general principles of equity including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing and the possible unavailability of specific performance or
injunctive relief, regardless of whether considered in a proceeding in
equity or at law.
(viii) The Company's execution, delivery and performance of this
Agreement, the Indenture and the Securities do not violate the Company's
Articles of Incorporation, Bylaws or any applicable California law,
ordinance, administrative or governmental rule or regulation.
(ix) The 1994 Registration Statement and the 1995
Registration Statement, at the Effective Date, and the Prospectus, at the date
it was filed with, or transmitted for filing to, the Commission pursuant to Rule
424(b) of the 1933 Act Regulations, appeared on their face to comply in all
material respects with the requirements as to form under the 1933 Act and
the 1933 Act Regulations in effect at the date of filing, except that such
counsel need express no opinion concerning the financial statements and
other financial information contained or incorporated by reference therein.
The Incorporated Documents, on the respective dates they were filed,
appeared on their face to comply in all material respects with the
requirements as to form for reports on Form 10-K, Form 10-Q and Form 8-K, as
the case may be, under the 1934 Act and the 1934 Act Regulations in effect
at the respective dates of their filing, except that such counsel need
express no opinion concerning the financial statements and other financial
information contained or incorporated by reference therein.
In connection with such counsel's participation in the preparation of
the 1994 Registration Statement, the 1995 Registration Statement and the
Prospectus (excluding the summary financial information attached to the Form
8-Ks dated February 14, 1996 and May 2, 1996 incorporated by reference
therein), such counsel need not independently verify the accuracy,
completeness or fairness of the statements contained or incorporated therein,
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and the limitations inherent in the examination made by such counsel and the
knowledge available to it are such that such counsel need not assume any
responsibility for such accuracy, completeness or fairness (except as
otherwise specifically stated in paragraph (ii) above). However, on the basis
of such counsel's review of the 1994 Registration Statement, the 1995
Registration Statement, the Prospectus and the Incorporated Documents and such
counsel's participation in conferences in connection with the preparation of
the 1994 Registration Statement, the 1995 Registration Statement and the
Prospectus (excluding the summary financial statement attached to the Form 8-Ks
dated February 14, 1996 and May 2, 1996 incorporated by reference therein),
and relying as to materiality to a large extent upon opinions of officers of
the Company and the Subsidiaries, such counsel does not believe that the 1994
Registration Statement, the 1995 Registration Statement and the documents
incorporated therein by reference, as of the Effective Date, considered as a
whole as of such date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and such counsel does not believe
that the Prospectus and the Incorporated Documents, considered as a whole at
the time the Prospectus was filed with, or transmitted for filing to, the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations and on the date
of such opinion (in each case including the documents then incorporated by
reference and considered as a whole as of such dates), contained or contains
any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. However,
such counsel need not express any opinion or belief as to (x) any document
filed by the Company under the 1934 Act or the 1934 Act Regulations, whether
before or after the date of the filing of the 1995 Form 10-K or the effective
date of the 1995 Registration Statement, except to the extent that any such
document is a document incorporated by reference in the 1994 Registration
Statement on the date of the filing of the 1995 Form 10-K or the 1995
Registration Statement at its effective date, read together with the 1994
Registration Statement or the 1995 Registration Statement, as the case may be,
and considered as a whole or is a document incorporated by reference and read
together with the Prospectus at the time the Prospectus was filed with, or
transmitted for filing to, the Commission pursuant to Rule 424(b) of the 1933
Act Regulations and considered as a whole, (y) the financial statements and
other financial or statistical data included or incorporated by reference in
the 1994 Registration Statement, the 1995 Registration Statement or the
Prospectus or (z) the Statement of Eligibility.
(e) The Underwriters shall have received on the Closing Date, an
opinion of Robert M. Johnson, Associate General Counsel for the Company, dated
the Closing Date and addressed to the Underwriters to the effect that:
(i) The Subsidiaries have been duly incorporated and are
validly existing in good standing under the laws of the State of Nevada,
with corporate power to own and lease their respective properties and to
carry on their respective businesses as described in the Prospectus.
(ii) The Company is duly qualified to do business as a
foreign corporation and is in good standing under the laws of the States of
Nevada and Arizona and neither the Company nor Paiute Pipeline Company own or
lease material properties or conduct material business in any other
jurisdiction which would require such qualification. All the outstanding shares
of capital stock of the Subsidiaries have been duly authorized and validly
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issued, are fully paid and nonassessable, and are owned of record directly
by the Company free and clear of any perfected security interest, or, to the
best knowledge of such counsel after reasonable inquiry, any other security
interest, lien, adverse claim, equity or other encumbrance.
(iii) To the best knowledge of such counsel after due inquiry,
neither the Company nor either of the Subsidiaries is in violation of or is
in default in the performance of any obligation contained in any bond,
debenture, note or any other evidence of indebtedness or in any material
agreement, indenture, lease or other instrument to which the Company or
either of the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound which violation or default could
reasonably be expected to have a Material Adverse Effect.
(iv) To the best knowledge of such counsel, after reasonable
inquiry, there are no rights that entitle or will entitle any person to
acquire any security of the Company upon the issuance of the Securities by
the Company; to the best knowledge of such counsel after due inquiry, there
is no holder of any security of the Company or any other person who has the
right contractual or otherwise to cause the Company to sell or otherwise
issue to them, or to permit them to underwrite the sale of, any securities
of the Company as a result of the issuance of the Securities by the Company.
(v) The Company's execution, delivery and performance of
this Agreement, the Indenture and the Securities do not (i) violate, breach, or
result in a default under, any existing obligation of the Company under any
agreement, indenture, lease or other instrument to which the Company is a
party or by which it or any of its properties is bound that is an exhibit to
the 1994 Registration Statement, 1995 Registration Statement or to any
Incorporated Document or any other material agreement, indenture, lease or
other instrument known to such counsel after due inquiry, (ii) breach or
otherwise violate any existing obligation of the Company under any order,
judgment or decree of any Arizona, California or Nevada or federal court or
governmental authority binding on the Company, or (iii) violate any
applicable Arizona or Nevada law, ordinance, administrative or governmental
rule or regulation.
(vi) No consent, approval, authorization or order of, or
filing with, any federal, California, Arizona or Nevada governmental authority
is required on the part of the Company for the issuance and sale of the
Securities as contemplated by this Agreement, except (i) such as have been
obtained under the 1933 Act, the 1933 Act Regulations, the Trust Indenture
Act or the Trust Indenture Act Regulations, (ii) the authorization of the
Public Utilities Commission of the State of California referred to in
Section 6(j) of this Agreement which has been obtained, remains in full
force and effect and is, to the knowledge of such counsel, not the subject
of any pending or threatened application for rehearing or petition for
modification, and (iii) such as may be required under foreign or state
securities or blue sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. in connection with the purchase and
distribution of the Securities by the Underwriters.
(vii) To the best knowledge of such counsel after reasonable
inquiry, other than as described or contemplated in the Prospectus, there
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are no legal or governmental proceedings pending or threatened against the
Company or either of the Subsidiaries, or to which the Company or either of
the Subsidiaries, or any of their property, is subject, which are required
to be described in the 1994 Registration Statement, 1995 Registration
Statement or Prospectus and are not so described.
In addition, such counsel shall include in his opinion a statement
substantially to the effect set forth in the last paragraph of subsection (d)
above.
In rendering their opinions as aforesaid, counsel may rely upon an
opinion or opinions, each dated the Closing Date, of other counsel retained by
them or the Company as to laws of any jurisdiction other than the United
States or (x) in the case of O'Melveny & Myers, the States of California and
New York and (y) in the case of Robert M. Johnson, Esq., the States of Arizona
and Nevada, provided that (1) such reliance is expressly authorized by each
opinion so relied upon, (2) a signed copy of each such opinion is delivered to
the Underwriters which states that the Underwriters may rely thereon and is
otherwise in form and substance satisfactory to them and their counsel, and
(3) counsel shall state in their opinion that they believe that they and the
Underwriters are justified in relying thereon.
(f) The Underwriters shall have received on the Closing Date from
Winthrop, Stimson, Putnam & Roberts, counsel for the Underwriters, an opinion,
dated the Closing Date and addressed to the Underwriters, with respect to the
issuance and sale of the Securities, the 1994 Registration Statement, 1995
Registration Statement and the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have furnished to
such counsel such documents as they request for the purposes of enabling them
to pass upon such matters.
(g) The Underwriters shall have received a letter addressed to the
Underwriters and dated the date hereof from Arthur Andersen LLP, independent
certified public accountants, substantially in the form heretofore approved by
the Underwriters, confirming that they are independent certified public
accountants with respect to the Company as required by the 1933 Act and the
1933 Act Regulations and with respect to the financial and other statistical
and numerical information contained in the 1994 Registration Statement, the
1995 Registration Statement and the Prospectus or incorporated by reference
therein. At the Closing Date, Arthur Andersen LLP shall have furnished to the
Underwriters a letter, dated the Closing Date, which shall confirm, on the
basis of a review in accordance with the procedures set forth in the letter
referred to in the prior sentence, that nothing has come to their attention
during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than five days prior to
the Closing Date that would require any change in their letter dated the date
hereof if it were required to be dated and delivered at the Closing Date.
(h) The representations and warranties of the Company contained in
this Agreement shall be true and correct on and as of the Closing Date as if
made on and as of the Closing Date, and the Underwriters shall have received a
certificate, dated the Closing Date and signed by the chief executive officer
and the chief financial officer of the Company (or such other officers as are
acceptable to you), to the effect set forth in this Section 8(h) and in
Sections 8(a) and 8(i) hereof.
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(i) The Company shall have performed or complied with its agreements
herein contained that are required to be performed or complied with by it
hereunder at or prior to the Closing Date.
(j) The Company shall have furnished or caused to be furnished to the
Underwriters such further certificates and documents as the Underwriters shall
have reasonably requested.
(k) The Underwriters shall have received conformed counterparts of the
Indenture.
(l) At the Closing Date, there shall not have occurred any decrease in
the ratings of any of the debt securities of the Company by Standard & Poor's
("S&P"), which shall be BBB-, or Moody's Investors Service, Inc. ("Moody's"),
which shall be Baa2, and S&P or Moody's shall not have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the debt securities of the Company.
Any certificate or document signed by any officer of the Company and
delivered to the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the statements made therein.
9. EXPENSES. The Company agrees to pay the following costs and
expenses and all other costs and expenses incident to the performance by it of
its obligations hereunder whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated: (i) the
preparation, printing or reproduction and filing with the Commission of the
1994 Registration Statement and the 1995 Registration Statement (including
financial statements and exhibits thereto), each preliminary prospectus
relating to the Securities, the Prospectus, and each amendment or supplement
to any of them; (ii) the printing (or reproduction) and delivery to the
Underwriters (including postage, air freight charges and charges for counting
and packaging) of such copies of the 1994 Registration Statement and the 1995
Registration Statement, each preliminary prospectus relating to the
Securities, if any, the Prospectus, the Incorporated Documents, and all
amendments or supplements to any of them, as may be reasonably requested by
the Underwriters for use in connection with the offering and sale of the
Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities to the Underwriters; (iv) the
printing (or reproduction) and delivery to the Underwriters of the blue sky
memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the
registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states as provided in Section 5(e)
hereof (including the reasonable fees, expenses and disbursements of counsel
for the Underwriters relating to such registration and qualification and the
preparation of the blue sky memorandum; and (vi) the preparation, execution
and printing of the Indenture.
10. EFFECTIVE DATE OF AGREEMENT; DEFAULTING UNDERWRITER. This
Agreement shall become effective: (i) upon the execution and delivery hereof
by the parties hereto or (ii) if, at the time this Agreement is executed and
delivered, it is necessary for a post-effective amendment to the 1994
Registration Statement or the 1995 Registration Statement to be declared
effective before the offering of the Securities may commence, when
notification of the effectiveness of such post-effective amendment has been
-19-<PAGE>
<PAGE>
released by the Commission. Until such time as this Agreement shall have
become effective, it may be terminated by the Company, by notifying Merrill
Lynch, or by the several Underwriters, by notifying the Company.
If one of the Underwriters fails or refuses to purchase Securities
which it is obligated to purchase hereunder on the Closing Date, and the
aggregate principal amount of Securities which such defaulting Underwriter is
obligated but fails or refuses to purchase is not more than one-tenth of the
aggregate principal amount of Securities which the Underwriters are obligated
to purchase on the Closing Date, the non-defaulting Underwriter shall be
obligated, severally, in the proportion which the aggregate principal amount
of Securities set forth opposite its name in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the name of the
non-defaulting Underwriter to purchase the Securities which such defaulting
Underwriter is obligated, but fails or refuses, to purchase. If one of the
Underwriters fails or refuses to purchase Securities which it is obligated to
purchase on the Closing Date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities which the Underwriters are obligated
to purchase on the Closing Date and arrangements satisfactory to the
Underwriters and the Company for the purchase of such Securities by the non-
defaulting Underwriter or other party or parties approved by the Underwriters
and the Company are not made within 48 hours after such default, this
Agreement will terminate without liability on the part of the non-defaulting
Underwriter or the Company. In any such case that does not result in
termination of this Agreement, the non-defaulting Underwriter or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than ten days, in order that the required changes, if any, in the 1994
Registration Statement, the 1995 Registration Statement and the Prospectus or
any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve the defaulting Underwriter from liability in
respect of any such default of such Underwriter under this Agreement. The
term "Underwriter" as used in this Agreement includes, for all purposes of
this Agreement, any party not listed in Schedule I hereto who, with the
approval of the Company and the Underwriters, purchases Securities which the
defaulting Underwriter is obligated, but fails or refuses, to purchase.
Any notice under this Section 10 may be given by telegram, telecopy
or telephone but shall be subsequently confirmed by letter.
11. TERMINATION OF AGREEMENT. The Underwriters may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Date, if (i) there has been since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition
(financial or other), business, prospects, properties, net worth or results of
operations of the Company and the subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) there has
occurred any material adverse change in the financial markets in the United
States or, or any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Securities or to enforce contracts
for the sale of the Securities, (iii) trading in any securities of the Company
has been suspended or limited by the Commission, the New York Stock Exchange
or the Pacific Stock Exchange, or if trading generally on the New York Stock
Exchange or the American Stock Exchange or in the over-the-counter market has
-20-<PAGE>
<PAGE>
been suspended or 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 National
Association of Securities Dealers, Inc. or any other governmental authority or
(iv) a banking moratorium has been declared by either Federal or New York
authorities.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set
forth in the last paragraph on the cover page, the stabilization legend on the
inside front cover, and the statements in the second and third paragraphs
under the caption "Underwriting" in the Prospectus Supplement and in any
preliminary prospectus relating to the Securities, constitute the only
information furnished by the Underwriters as such information is referred to
in Sections 6(b) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5, 10
and 11 hereof, notice given pursuant to any provision of this Agreement shall
be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication and shall be delivered (i) if to the Company, at the
office of the Company at 5241 Spring Mountain Road, Las Vegas, Nevada,
Attention: Chief Financial Officer or (ii) if to the several Underwriters,
care of Merrill Lynch, World Financial Center, North Tower, New York, New York
10281-1201.
This Agreement has been and is made solely for the benefit of the
several Underwriters, the Company, its directors and officers, and the other
controlling persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person
shall acquire or have any right under or by virtue of this Agreement. Neither
the term "successor" nor the term "successors and assigns" as used in this
Agreement shall include a purchaser from either Underwriter of any of the
Securities in his status as such purchaser.
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
-21-<PAGE>
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
Southwest Gas Corporation
By /s/ Jeffrey W. Shaw
----------------------------------
Title: Vice President/Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
PAINEWEBBER INCORPORATED
By: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By /s/ Robert N. Hoglund
--------------------------------
Authorized Signatory
-22-<PAGE>
<PAGE>
SCHEDULE I
Principal Amount Principal Amount
of 7-1/2% Debentures of 8% Debentures
Due 2006 to be Due 2026 to be
Underwriter Purchased Purchased
----------- ----------------- ----------------
Merrill Lynch, Pierce, Fenner
& Smith Incorporated . . . . . $37,500,000 $37,500,000
PaineWebber Incorporated . . . $37,500,000 $37,500,000
_____________ _____________
Total. . . . . . . . . . . . . $75,000,000 $75,000,000
=========== ===========
<PAGE>
EXHIBIT 4.11
SOUTHWEST GAS CORPORATION
TO
HARRIS TRUST AND SAVINGS BANK, as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 1, 1996
__________________________________
Supplementing and Amending the
Indenture dated as of July 15, 1996
_________________________________
7 1/2% Debentures Due 2006
8% Debentures Due 2026<PAGE>
<PAGE>
TABLE OF CONTENTS
Page
----
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS WITH RESPECT TO DEBENTURES . . . . . . . . 1
SECTION 1.1. Original Indenture Terms . . . . . . . . . . . . . . . . . . 1
SECTION 1.2. Additional Terms . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.3. Modification of Terms. . . . . . . . . . . . . . . . . . . . 3
ARTICLE TWO
FORM OF 1996 DEBENTURES . . . . . . . . . . . . 3
SECTION 2.1. Form of Face of 7 1/2% Debenture. . . . . . . . . . . . . . 3
SECTION 2.2. Form of Face of 8% Debenture.. . . . . . . . . . . . . . . . 6
SECTION 2.3. Form of Reverse of 1996 Debentures.. . . . . . . . . . . . . 8
SECTION 2.4. Form of Trustee's Certificate of Authentication for
1996 Debentures . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE THREE
MODIFICATION OF CERTAIN PROVISIONS
OF THE ORIGINAL INDENTURE. . . . . . . . . . . . 12
SECTION 3.1. Restrictions on Liens. . . . . . . . . . . . . . . . . . . . 12
SECTION 3.2. Rstrictions on Sale and Lease-back Transactions. . . . . . . 14
ARTICLE FOUR
CONTINUED APPLICABILITY OF REMAINING PROVISIONS
OF THE ORIGINAL INDENTURE. . . . . . . . . . . . 15
SECTION 4.1. Continued Applicability . . . . . . . . . . . . . . . . 15
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . S-1<PAGE>
<PAGE>
FIRST SUPPLEMENTAL INDENTURE, dated as of August 1, 1996, between
SOUTHWEST GAS CORPORATION, a corporation duly organized and existing under the
laws of the State of California (the "Company"), having its principal office
at 5241 Spring Mountain Road, P. O. Box 98510, Las Vegas, Nevada 89193-8510,
and HARRIS TRUST AND SAVINGS BANK, an Illinois banking corporation, as Trustee
(the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture dated as of July 15, 1996 (the "Original Indenture") providing for
the issuance from time to time by the Company of its unsecured debentures,
notes or other evidences of indebtedness (the "Debentures") to be issued in
one or more series as provided in the Original Indenture; and
WHEREAS, the Company has duly authorized the execution and delivery of
this First Supplemental Indenture to provide for the issuance of two series of
debentures to be known as 7 1/2% Debentures, Due 2006 (the "7 1/2%
Debentures") and 8% Debentures, Due 2026 (the "8% Debentures"; the 7 1/2%
Debentures and the 8% Debentures are collectively referred to herein as the
"1996 Debentures"), respectively; and
WHEREAS, all things necessary to make this First Supplemental Indenture a
valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the 1996
Debentures by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the 1996 Debentures, as
follows:
ARTICLE ONE
DEFINITIONS WITH RESPECT TO DEBENTURES
SECTION 1.1. Original Indenture Terms. Except as otherwise provided in
this First Supplemental Indenture, all terms used in this First Supplemental
Indenture which are defined in the Original Indenture shall have the meanings
assigned to them in the Original Indenture.
SECTION 1.2. Additional Terms. Additional terms used in this First
Supplemental Indenture with respect to the 1996 Debentures shall have the
meanings set forth below:<PAGE>
<PAGE>
"Capitalized Lease" means any lease of any property of the Company
(whether real, personal or mixed) by the Company as lessee that would, in
conformity with generally accepted accounting principles, be required to
be accounted for as a capital lease on the balance sheet of the Company.
"Debt" has the meaning specified in Section 1008(a) of the Original
Indenture.
"First Supplemental Indenture" means this first supplemental
indenture dated as of August 1, 1996 as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
pursuant to the provisions of the Original Indenture and shall include
the terms of the 1996 Debentures established pursuant to Article Two
thereof.
"Funded Debt" means all Indebtedness of the Company that by its
terms or by the terms of any instrument or agreement relating thereto
matures more than one year from, or is directly or indirectly renewable
or extendable at the option of the Company to a date more than one year
from the date of creation thereof (including an option of the Company
under a revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of one year or more), but
excluding any payments due under the terms thereof within 12 months of
any date of determination (including any deposit or payment required to
be made under any prepayment provision, sinking fund, purchase fund or
similar provision).
"Indebtedness" means, as applied to any Person, Capitalized Leases,
bonds, notes, debentures and other securities representing obligations
for borrowed money created or assumed by such Person. All indebtedness
guaranteed as to payment of principal in any manner by such Person or in
effect guaranteed by such Person through a contingent agreement to
purchase such indebtedness, and all indebtedness secured by a Lien upon
property owned by such Person and upon which such person customarily pays
interest, even though such Person has not assumed or become liable for
the payment of such indebtedness, shall for all purposes hereof be deemed
to be "Indebtedness" of such Person.
"Lien" means any lien, mortgage, pledge, security interest, charge
or other encumbrance of any kind.
"1996 Debentures" means collectively the 7 1/2% Debentures and 8%
Debentures authenticated and delivered under the Indenture.
"Original Indenture" means the Indenture dated as of July 15, 1996
as originally executed by the Company and the Trustee.
2<PAGE>
<PAGE>
"7 1/2% Debentures" means the 7 1/2% Debentures Due 2006
authenticated and delivered under the Indenture.
"8% Debentures" means the 8% Debentures Due 2026 authenticated and
delivered under the Indenture.
"Sale and Lease-back Transaction" has the meaning specified in
Section 1009.
"Total Capitalization" means, as at any time, the aggregate of (i)
all amounts outstanding on such date classified as shareholder's equity
of the Company on such date, (ii) all amounts outstanding on such date
classified as preferred or preference stock of the Company on such date,
and (iii) all amounts of Funded Debt of the Company outstanding on such
date determined on an unconsolidated basis.
"Value" has the meaning specified in Section 1008(c).
SECTION 1.3. Modification of Terms. The following defined terms used in
the Original Indenture shall have the following meanings when used with
respect to the 1996 Debentures:
(a) "Interest Payment Date," when used with respect to a 1996
Debentures, means February 1and August 1 of each year commencing with
February 1, 1997 until the principal thereof is paid or made available
for payment.
(b) "Regular Record Date," when used with respect to an Interest
Payment Date applicable to a 1996 Debenture, means the January 1 or July
1, as the case may be, next preceding an Interest Payment Date.
(c) "Stated Maturity," when used with respect to (i) the payment of
principal, means (A) August 1, 2006 with respect to a 7 1/2% Debenture
and (B) August 1, 2026 with respect to a 8% Debenture, and (ii) the
payment of an installment of interest, means an Interest Payment Date
specified in Section 1.3(a) of the First Supplemental Indenture.
3<PAGE>
<PAGE>
ARTICLE TWO
FORM OF 1996 DEBENTURES
SECTION 2.1. Form of Face of 7 1/2% Debentures.
The face of the 7 1/2% Debentures shall be in substantially the
following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE
FOR DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR
ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND
NO TRANSFER OF THIS DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE
REGISTERED EXCEPT IN SUCH LIMITED CIRCUMSTANCES. EVERY DEBENTURE DELIVERED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS
GLOBAL SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS TO BE MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. ____________
$75,000,000
CUSIP No. 844895 AJ 1
4<PAGE>
<PAGE>
SOUTHWEST GAS CORPORATION
7 1/2% DEBENTURE DUE 2006
SOUTHWEST GAS CORPORATION, a California corporation (hereinafter called
the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to Cede & Co. or registered assigns, the principal sum of Seventy Five Million
Dollars ($75,000,000) on August 1, 2006 and to pay interest thereon from
August 1, 1996, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on February 1 and August 1 in
each year, commencing February 1, 1997, at the rate of 7 1/2% per annum, until
the principal hereof shall have become due and payable, and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue interest at the
same rate per annum compounded semi-annually. The amount of interest payable
on any Interest Payment Date shall be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of such
delay). The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 15 or July 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may, upon election by
the Company following notice to the Trustee, be paid to the Person in whose
name this Debenture (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, by giving notice to Holders of
Debentures of this series not less than ten (10) days prior to such Special
Record Date and not less than ten (10) days after the receipt by the Trustee
of the notice of the proposed payment.
Payment of the principal of and interest on this Debenture will be made
at the offices or agencies of the Company maintained for that purpose in New
York, New York in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Securities Register on the Regular Record Date,
except that in the event that this Debenture is registered in the name of the
nominee of a clearing agency, interest payments will be made in the form of
immediately available funds.
5<PAGE>
<PAGE>
Reference is hereby made to the further provisions of this Debenture set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof this Debenture shall not be entitled
to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
SOUTHWEST GAS CORPORATION
Dated:
[SEAL]
By
------------------------
SECTION 2.2. Form of Face of 8% Debentures.
The face of the 8% Debentures shall be in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR DEBENTURES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER
OF THIS DEBENTURE (OTHER THAN A TRANSFER OF THIS DEBENTURE AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT
IN SUCH LIMITED CIRCUMSTANCES. EVERY DEBENTURE DELIVERED UPON REGISTRATION OF
TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS GLOBAL SECURITY SHALL BE
A GLOBAL SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED ABOVE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS TO BE MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
6<PAGE>
<PAGE>
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. ____________
$75,000,000
CUSIP No. 844895 AL 6
SOUTHWEST GAS CORPORATION
8% DEBENTURE DUE 2026
SOUTHWEST GAS CORPORATION, a California corporation (hereinafter called
the "Company," which term includes any successor corporation under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to Cede & Co. or registered assigns, the principal sum of Seventy Five Million
Dollars ($75,000,000) on August 1, 2026 and to pay interest thereon from
August 1, 1996, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on February 1 and August 1 in
each year, commencing February 1, 1997, at the rate of 8% per annum, until the
principal hereof shall have become due and payable and on any overdue
principal and (without duplication and to the extent that payment of such
interest is enforceable under applicable law) on any overdue interest at the
same rate per annum compounded semi-annually. The amount of interest payable
on any Interest Payment Date shall be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in respect of such
delay). The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Debenture (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 15 or July 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the Holder on such Regular Record Date and may, upon election by
the Company following notice to the Trustee, be paid to the Person in whose
name this Debenture (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, by giving notice to Holders of
Debentures of this series not less than ten (10) days prior to such Special
7<PAGE>
<PAGE>
Record Date and not less than ten (10) days after receipt by the Trustee of
the notice of the proposed payment.
Payment of the principal of and interest on this Debenture will be made
at the offices or agencies of the Company maintained for that purpose in New
York, New York in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts;
provided, however, that at the option of the Company payment of interest may
be made by check mailed by first class mail to the address of the Person
entitled thereto as such address shall appear in the Securities Register on
the Regular Record Date except that in the event that this Debenture is
registered in the name of the nominee of a clearing agency, interest payments
will be made in the form of immediately available funds.
Reference is hereby made to the further provisions of this Debenture set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
SOUTHWEST GAS CORPORATION
Dated:
[SEAL]
By
------------------------
SECTION 2.3. Form of Reverse of 1996 Debentures.
The reverse side of the 1996 Debentures shall be in substantially following
form:
This Debenture is one of a duly authorized issue of obligations of the
Company (herein called the "Debentures") issued and to be issued in one or
more series under an Indenture dated as of July 15, 1996 (the "Indenture")
between the Company and Harris Trust and Savings Bank, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), as supplemented by the First Supplemental Indenture dated as of
August 1, 1996 between the Company and the Trustee and as hereafter amended
8<PAGE>
<PAGE>
and supplemented to which Indenture reference is hereby made for a statement
of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Debentures and
of the terms upon which the Debentures are, and are to be, authenticated and
delivered. This Debenture is one of the series designated on the face hereof
limited in aggregate principal amount to $75,000,000.
The Debentures of this series may not be redeemed prior to their Stated
Maturity.
In certain circumstances described in the Indenture, the Company's
obligations in respect of the Debentures of this series or in respect of
certain covenants made for the benefit of Debentures of this series may be
discharged prior to payment upon the deposit with the Trustee of cash and/or
U.S. Government Obligations in the required amount and upon compliance with
certain conditions and other provisions of the Indenture.
If an Event of Default with respect to Debentures of this series shall
occur and be continuing, the principal of the Debentures of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to execute supplemental indentures
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the
Debentures; PROVIDED, HOWEVER, that no such supplemental indenture shall (i)
extend the fixed maturity of any Debentures of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, without the consent of the Holder of each Debenture so
affected, or (ii) reduce the aforesaid percentage of Debentures, the Holders
of which are required to consent to any such supplemental indenture, without
the consent of the Holders of each Debenture then outstanding and affected
thereby. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Debentures of any series at the
time outstanding affected thereby, on behalf of all of the Holders of the
Debentures of such series, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture with respect to such series, and its consequences, except a default
in the payment of the principal of or interest on any of the Debentures of
such series. Any such consent or waiver by the registered Holder of this
Debenture (unless revoked as provided in the Indenture) shall be conclusive
and binding upon such Holder and upon all future Holders and owners of this
Debenture and of any Debenture issued in exchange herefor or in place hereof
(whether by registration of transfer or otherwise), irrespective of whether or
not any notation of such consent or waiver is made upon this Debenture.
9<PAGE>
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In certain limited circumstances, the Indenture also permits the
amendment thereof, and the modification of the rights and obligations of the
Company and the rights of the Holders, at any time by the Company and the
Trustee without notice to or the consent of the Holders.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Debenture at the times, places and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein, the transfer of this Debenture is registerable in the Securities
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company in any place where the principal of and
interest on this Debenture are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Securities Registrar duly executed by the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Debentures of this
series, of authorized denominations and like aggregate principal amount will
be issued to the designated transferee or transferees. The Debentures of this
series are issuable only in registered form without coupons in denominations
of $1,000 and any integral multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Debentures of this series
are exchangeable for other Debentures of this series of a different authorized
denomination and like principal amount, as requested by the Holder
surrendering the same. No service charge shall be made for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith to the extent provided in the Indenture.
Prior to due presentment of this Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Debenture is registered as the owner hereof for
all purposes, whether or not this Debenture is overdue, and neither the
Company, the Trustee nor any agent shall be affected by notice to the
contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon or on the Indenture,
against any incorporator, shareholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or successor
Corporation, under any rule of law, statute or constitution or by the
enforcement of any assessment or otherwise, all such liability being released
by the Holder by the acceptance of this Debenture and being likewise waived
and released by the terms of the Indenture.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
10<PAGE>
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[FORM OF ASSIGNMENT]
For value received, the undersigned hereby sells, assigns and transfers
unto [Please insert Tax Identification Number of Assignee]....
.............................
[Please print or type name of assignee]
the within Debenture of Southwest Gas Corporation and does hereby irrevocably
constitute and appoint .................... Attorney to transfer said Debenture
on the books of the within-named corporation, with full power of substitution in
the premises.
Dated:...............
SECTION 2.4. Form of Trustee's Certificate of Authentication for 1996
Debentures.
The Trustee's Certificate of Authentication for the 1996 Debentures
shall be in substantially the following form:
This is one of the Debentures of the series designated herein referred to
in the within-mentioned Indenture.
Dated:
--------------------
HARRIS TRUST AND SAVINGS BANK, as Trustee
By:
----------------------------
Authorized Officer
11<PAGE>
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ARTICLE THREE
MODIFICATION OF CERTAIN PROVISIONS
OF THE ORIGINAL INDENTURE
SECTION 3.1. Restrictions on Liens. Article Ten of the Original
Indenture is hereby amended by adding the following new Section 1008 after
Section 1007 thereof to read as follows with respect to the 1996 Debentures:
Section 1008. Restrictions on Liens.
(a) The Company will not, at any time during which any 1996
Debentures are Outstanding, issue, assume or guarantee any debt for money
borrowed (hereinafter referred to as "Debt") secured by any Lien upon any
property or asset of the Company (whether such property or asset is now owned or
hereafter acquired), without in any such case effectively securing, prior to or
concurrently with the issuance, assumption or guarantee of any such Debt, the
1996 Debentures (together with, if the Company shall so determine, any other
indebtedness of or guarantee by the Company ranking equally with the 1996
Debentures and then existing or thereafter created) equally and ratably with
(or, at the Company's option, prior to) such Debt, provided, however, that the
foregoing restrictions shall not apply to nor prevent the creation of:
(1) Liens on any property acquired, constructed or improved by the
Company after August 1, 1996 that are created or assumed contemporaneously
with, or within 120 days after, such acquisition or completion of the
construction or improvement, or within six months thereafter pursuant to a
firm commitment for financing arranged with a lender or investor within
such 120-day period, to secure or provide for the payment of all or any
part of the purchase price of such property or the cost of such
construction or improvement incurred after August 1, 1996, or, in addition
to Liens contemplated by clauses (a)(2) and (a)(3) below, Liens on any
property existing at the time of acquisition thereof, provided that the
Liens shall not apply to any property theretofore owned by the Company
other than, in the case of any such construction or improvement, any
theretofore unimproved property on which the property so constructed or the
improvement is located;
(2) existing Liens on any property or indebtedness of a Corporation
that is merged with or into or consolidated with the Company; provided that
the Liens shall not apply to any property theretofore owned by the Company;
(3) Liens in favor of the United States of America, any state or any
foreign country or any department, agency or instrumentality or political
subdivision of any such jurisdiction to secure partial, progress, advance
or other payment pursuant to any contract or statute or to secure any
12<PAGE>
<PAGE>
indebtedness incurred for the purpose of financing all or any part of the
purchase price or cost of constructing or improving the property subject to
such Liens, including, without limitation, Liens to secure Debt of the
pollution control or industrial revenue bond type;
(4) Liens on current assets of the Company to secure loans to the
Company which mature within 12 months from the creation thereof and which
are made in the ordinary course of business;
(5) Liens on any property (including any natural gas, oil or other
mineral property) of the Company to secure all or part of the cost of
exploration or drilling for or development of oil or gas reserves or laying
a pipeline or to secure Debt incurred to provide funds for any such
purpose;
(6) any Lien existing on the date of the First Supplemental
Indenture;
(7) Liens on moneys or U.S. Government Obligations deposited with the
Trustee pursuant to Article Thirteen of the Original Indenture; and
(8) Liens for the sole purposes of extending, renewing or replacing,
in whole or in part, Liens securing Debt of the type referred to in the
foregoing clauses (a)(1) through (a)(7), inclusive, or this clause (a)(8);
provided, however, that the principal amount of Debt so secured at the time
of such extension, renewal or replacement shall not be increased, and that
such extension, renewal or replacement shall be limited to all or part of
the property or indebtedness which secured the Lien so extended, renewed or
replaced (plus improvements on such property).
(b) The provisions of Section 1008(a) shall not apply to the
issuance, assumption or guarantee by the Company of Debt secured by a Lien that
would otherwise be subject to the foregoing restrictions up to an aggregate
amount that, together with all other Indebtedness of the Company (other than
Liens permitted by Section 1008(a)) that would otherwise be subject to the
foregoing restrictions and the Value of all Sale and Lease-back Transactions in
existence at such time (other than any Sale and Lease-back Transaction that, if
such Sale and Lease-back Transaction had been a Lien, would have been permitted
by Section 1008(a)(1) and other than Sale and Lease-back Transactions as to
which application of amounts have been made in accordance with Section
1009(a)(2)) does not at the time exceed 10% of Total Capitalization.
(c) The term "Value" shall mean, with respect to a Sale and Lease-
back Transaction, as of any particular time, the amount equal to the greater of:
(1) the net proceeds from the sale or transfer of the property leased
pursuant to such Sale and Lease-back Transaction; and
13<PAGE>
<PAGE>
(2) the fair value, in the opinion of the Board of Directors of the
Company, of such property at the time of entering into such Sale and Lease-
back Transaction,
in either case divided first by the number of full years of the term of the
lease and then multiplied by the number of full years of such term remaining at
the time of determination, without regard to any renewal or extension options
contained in the lease.
(d) If at any time the Company shall issue, assume or guarantee any
Debt secured by any Lien and if Section 1008(a) requires that the 1996
Debentures be secured equally and ratably with such Debt, the Company will
promptly deliver to the Trustee:
(1) an Officer's Certificate stating that the covenant of the Company
contained in Section 1008(a) has been complied with; and
(2) an Opinion of Counsel to the effect that such covenant has been
complied with, and that any instrument executed by the Company in the
performance of such covenant complies with such covenant.
(e) In the event that the Company shall hereafter secure the 1996
Debentures equally and ratably with (or prior to) any other Debt or obligation
pursuant to the provisions of this Section 1008, the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce
effectively the rights of the holders so secured, equally and ratably with such
Debt and other obligations; PROVIDED, HOWEVER, that if such indenture or
agreement affects the Trustee's own rights, duties or immunities under this
First Supplemental Indenture or otherwise, the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture or
agreement.
SECTION 3.2. Restrictions on Sale and Lease-back Transactions. Article
Ten of the Original Indenture is hereby amended by adding the following new
Section 1009 after Section 1008 thereof to read as follows with respect to the
1996 Debentures:
Section 1009. Restrictions on Sale and Lease-back Transactions.
The Company will not, at any time during which any 1996 Debentures are
Outstanding, enter into any arrangement with any Person providing for the lease
to the Company of any property of the Company (except for temporary leases for
a term, including any renewal thereof, of not more than three years), which
property has been or is to be sold or transferred by the Company (a "Sale and
Lease-back Transaction") to such Person unless the proceeds of such sale are at
least equal to the fair value of such property and either:
14<PAGE>
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(1) the Company would be entitled, pursuant to the provisions of
Section 1008(a)(1) or Section 1008(b) to incur Debt secured by a Lien on
the property to be leased without equally and ratably securing the 1996
Debentures; or
(2) the Company shall, or in any such case the Company covenants that
it will, within 120 days of the effective date of any such arrangement (or
in the case of clause (A) below, within six months thereafter pursuant to
a firm purchase commitment entered into within such 120-day period), apply
an amount not less than the fair value of such property to any one or more
of
(A) the optional redemption of Securities issued under the
Original Indenture in accordance with the provisions thereof and the
terms of such Securities to be so redeemed or the purchase and
retirement of Securities as provided pursuant to Section 401 thereof,
or
(B) the payment or other retirement of Funded Debt incurred or
assumed by the Company which ranks senior to or pari passu with the
1996 Debentures (other than Funded Debt owned by the Company), or
(C) the purchase at not more than the fair value of property of
the Company (other than property of the Company involved in such
sale).
ARTICLE FOUR
CONTINUED APPLICABILITY OF REMAINING PROVISIONS
OF THE ORIGINAL INDENTURE
SECTION 4.1. Continued Applicability. Except as specifically amended,
supplemented or deleted by this First Supplemental Indenture, all provisions of
the Original Indenture shall be applicable for all purposes with respect to the
1996 Debentures, and the Original Indenture, as hereby supplemented and amended,
is hereby ratified, confirmed and approved. The Original Indenture as
supplemented and amended by this First Supplemental Indenture shall be construed
as one and the same instrument.
15<PAGE>
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the day and year first above written.
SOUTHWEST GAS CORPORATION
By Jeffrey W. Shaw
-----------------------
HARRIS TRUST AND SAVINGS BANK, as
Trustee
By J. Bartolini
-----------------------
Authorized Officer
S-1<PAGE>
<PAGE>
EXHIBIT 5.03
August 1, 1996
Southwest Gas Corporation
5241 Spring Mountain Road
P.O. Box 98510
Las Vegas, Nevada 89193-8510
Ladies and Gentlemen:
As Counsel for Southwest Gas Corporation (the "Company"), I have examined the
Registration Statement on Form S-3 (File No. 33-55621) and the Registration
Statement on Form S-3 (File No. 33-62143) and Amendment No. 1 thereto,
(collectively, the "Registration Statements") filed by the Company with the
Securities and Exchange Commission in connection with the registration under
the Securities Act of 1933, as amended, of up to $300,000,000 of securities
for an offering made on a delayed basis pursuant to the provisions of Rule
415. I have examined the form of Indenture (the "Indenture") dated July 15,
1996, between the Company and Harris Trust and Savings Bank, as Trustee, and
the First Supplemental Indenture thereto dated as of August 1, 1996, under
which the $75,000,000 -- 7 1/2% Debentures Due 2006 and the $75,000,000 -- 8%
Debentures Due 2026 (collectively, the "1996 Debentures") are to be issued. I
am familiar with the proceedings heretofore taken, and are familiar with the
additional proceedings proposed to be taken, by the Company in connections
with the authorization, registration, issuance and sale of the 1996
Debentures. I also am familiar with the application filed by the Company
with the Public Utilities Commission of the State of California for authority
to issue the 1996 Debentures, and the order issued by said Commission
authorizing the issuance thereof.
Based upon the foregoing and upon such other matters which I deem relevant in
the circumstances and subject to the proposed additional proceedings to be
taken as now contemplated prior to the issuance of the 1996 Debentures and the
terms of the 1996 Debentures being otherwise in compliance with then<PAGE>
<PAGE>
applicable law, it is my opinion that the Debentures will, upon the issuance
and sale thereof in the manner referred to in the Registration Statements, be
legally issued and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors'
rights generally and the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing, and the possible unavailability of specific performance of
injunctive relief, regardless of whether considered in a proceeding in equity
or at law.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statements, and I further consent to the use of my name under the
caption "Interest of Named Experts and Counsel" in the Registration Statements
and the Prospectus Supplement which forms a part thereof.
Respectfully submitted,
/s/ Robert M. Johnson<PAGE>
