Exhibit 4.6
$180,000,000
Southern Star Central Corp.
8.50% Senior Secured Notes due 2010
PURCHASE AGREEMENT
August 1, 2003
XXXXXX BROTHERS INC.
000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Southern Star Central Corp., a Delaware corporation (the "Company"),
proposes, upon the terms and conditions set forth herein, to issue and sell to
Xxxxxx Brothers Inc. (the "Initial Purchaser"), $180,000,000 in aggregate
principal amount of its 8.50% Senior Secured Notes due 2010 (the "Notes"). The
Notes will have terms and provisions which are summarized in the Offering
Memorandum (as defined below) and will be secured by a pledge by the Company of
all of the capital stock of Southern Star Central Gas Pipeline, Inc. and certain
of the Company's future direct domestic subsidiaries and 65% of the capital
stock of certain of the Company's future direct foreign subsidiaries. The Notes
are to be issued pursuant to an Indenture (the "Indenture") to be dated as of
August 8, 2003 (the "Closing Date"), among the Company and Deutsche Bank Trust
Company Americas, as trustee (the "Trustee").
This Agreement, the Indenture, the Notes, the Exchange Notes (as
defined below), the Pledge Agreement, dated as of August 8, 2003, by and among
the Company, the Trustee and Deutsche Bank Trust Company Americas (the
"Collateral Agent") (the "Pledge Agreement") and the Registration Rights
Agreement (as defined below) are referred to in this Agreement collectively as
the "Transaction Documents". Unless otherwise noted, all references herein to
the Company's Subsidiaries (as defined below) will include all direct and
indirect subsidiaries of the Company.
This is to confirm the agreement concerning the purchase of the Notes
from the Company by the Initial Purchaser.
1. Preliminary Offering Memorandum and Offering Memorandum. The Notes
will be offered and sold to the Initial Purchaser without registration under the
U.S. Securities Act of 1933, as amended (the "Act"), in reliance on an exemption
pursuant to Section 4(2) under the Act. The Company has prepared a preliminary
offering memorandum, dated July 22, 2003 (the "Preliminary Offering
Memorandum"), and an offering memorandum, dated August 1, 2003
(the "Offering Memorandum"), setting forth information regarding the Company,
the Notes and the Exchange Notes. The Company hereby confirms that it has
authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Notes by the
Initial Purchaser.
It is understood and acknowledged that upon original issuance thereof,
and until such time as the same is no longer required under the applicable
requirements of the Act, the Notes (and all securities issued in exchange
therefor or in substitution thereof) will bear the following legend (along with
such other legends as required by the Indenture):
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE RE-OFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED
THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING ITS NOTE IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (2) AGREES
THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER
THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS NOTE) OR THE LAST DAY ON WHICH THE COMPANY
OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR
ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
NOTE EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A INSIDE THE
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UNITED STATES, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES
THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND; PROVIDED THAT THE COMPANY, THE TRUSTEE AND THE
REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (II) IN EACH OF
THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THE NOTE
IS COMPLETED AND DELIVERED BY THIS TRANSFEROR TO THE TRUSTEE.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN,
THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT."
You have advised the Company that you will make offers (the "Exempt
Resales") of the Notes purchased by you hereunder on the terms set forth in the
Offering Memorandum, as amended or supplemented, solely to (i) persons whom you
reasonably believe to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs") and (ii) certain persons outside the United States
in offshore transactions in reliance on Regulation S under the Act. Those
persons specified in clauses (i) and (ii) are referred to herein as the
"Eligible Purchasers"). You will offer the Notes to Eligible Purchasers
initially at a price equal to 100.00% of the principal amount thereof. Such
price may be changed at any time without notice.
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement in the form
of Exhibit B hereto (the "Registration Rights Agreement"), between the Company
and the Initial Purchaser, to be dated the Closing Date, for so long as such
Notes constitute Transfer Restricted Securities (as defined in the Registration
Rights Agreement). Pursuant to the Registration Rights Agreement, the Company
agrees to file with the U.S. Securities and Exchange Commission (the
"Commission") under the circumstances set forth therein (i) a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to the Company's 8.50% Senior Secured Notes due 2010 (the "Exchange Notes") to
be offered in exchange for the Notes (such offer to exchange being referred to
as the "Exchange Offer") and (ii) a shelf registration statement pursuant to
Rule 415 under the Act (the "Shelf Registration Statement"; together with the
Exchange Offer Registration Statement, the "Registration Statements") relating
to the resale by certain holders of the Notes and to use its commercially
reasonable efforts to cause such Registration Statements to be declared
effective.
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2. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) The Preliminary Offering Memorandum and Offering Memorandum have
been prepared by the Company for use by the Initial Purchaser in connection with
the Exempt Resales. No order or decree preventing the use of the Preliminary
Offering Memorandum or the Offering Memorandum, or any order asserting that the
transactions contemplated by this Agreement are subject to the registration
requirements of the Act, has been issued and no proceeding for that purpose has
commenced or is pending or, to the knowledge of the Company, is contemplated.
(b) The Preliminary Offering Memorandum, as of its date, the
Offering Memorandum, as of its date and the Closing Date, and any amendment or
supplement thereto as of their respective dates, did not or will not as of such
dates contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that this representation and warranty does not apply to
statements in or omissions from the Preliminary Offering Memorandum or Offering
Memorandum or any such amendment or supplement made in reliance upon and in
conformity with information relating to the Initial Purchaser furnished to the
Company through Xxxxxx Brothers Inc. in writing by or on behalf of the Initial
Purchaser expressly for use therein.
(c) The industry-related, market-related and customer-related data
and estimates included under the captions "Summary" and "Business" in the
Preliminary Offering Memorandum and the Offering Memorandum are based on or
derived from sources which the Company believes to be reliable and accurate or
represent the Company's good faith estimates that are made on the basis of data
derived from such sources.
(d) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, and has all
corporate power and authority necessary to hold its properties and to conduct
the business in which it is engaged except where the failure to be so qualified
or in good standing would not individually or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, stockholder's equity,
results of operations or business of the Company and its Subsidiaries, taken as
a whole, or the authority or the ability of the Company to perform its
obligations under the Transaction Documents (a "Material Adverse Effect").
(e) The entities listed on Schedule II hereto are all of the direct
and indirect subsidiaries of the Company (the "Subsidiaries"); each Subsidiary
of the Company is duly incorporated or organized and validly existing as a
corporation or other applicable legal entity, as the case may be, in good
standing (to the extent such qualification exists) under the laws of the
jurisdiction of its incorporation or organization, with corporate or other
requisite power and authority to own its properties and conduct its business as
described in the Preliminary Offering Memorandum and the Offering Memorandum,
and each Subsidiary is in good standing as a foreign corporation or other
applicable legal entity (to the extent such qualification exists), as
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the case may be, in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified or in good standing would not, individually
or in the aggregate, have a Material Adverse Effect.
(f) The Company has an authorized capitalization, as of March 31,
2003, as set forth in the Offering Memorandum, and all of the issued shares of
common stock of the Company have been duly authorized and validly issued and are
fully paid and non-assessable and are owned, directly or indirectly, by AIG
Highstar Capital, L.P.; and all of the issued shares of capital stock or
ownership interests as the case may be of each Subsidiary have been duly
authorized and validly issued and, in the case of capital stock, are fully paid
and non-assessable and (except for pledges in favor of Deutsche Bank Trust
Company Americas, as collateral agent, under the Pledge Agreement) will be as of
the Closing Date owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities, claims or adverse interests.
(g) The Company has all requisite corporate power and authority to
enter into the Indenture and perform its obligations thereunder. The Indenture
has been duly and validly authorized by the Company. Assuming due authorization,
execution and delivery by the Trustee, the Indenture, upon its execution and
delivery, will constitute the valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally, by general equitable principles (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and by an implied covenant of good faith and fair dealing. No qualification of
the Indenture under the U.S. Trust Indenture Act of 1939, as amended (the "1939
Act"), is required in connection with the offer and sale of the Notes
contemplated hereby or in connection with the Exempt Resales. On the Closing
Date, the Indenture will conform in all material respects to the requirements of
the 1939 Act and the rules and regulations of the Commission applicable to an
indenture that is qualified thereunder.
(h) The Company has all requisite corporate power and authority to
sell and issue the Notes and perform its obligations thereunder. The Notes have
been duly and validly authorized by the Company for issuance and sale pursuant
to this Agreement and the Indenture and, when duly executed by the Company in
accordance with the terms of the Indenture and, assuming due authentication of
the Notes by the Trustee, upon delivery to the Initial Purchaser against payment
therefor in accordance with the terms hereof, will be in the form contemplated
by the Indenture and will have been validly issued and delivered, and will
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as such enforceability may be
limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium or other laws relating to or affecting creditors' rights generally,
by general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) and by an implied covenant of
good faith and fair dealing.
(i) The Company has all requisite corporate power and authority to
issue the Exchange Notes and perform its obligations thereunder. The Exchange
Notes have been duly and validly authorized by the Company. If and when duly
issued and authenticated in accordance with the terms of the Indenture and
delivered in accordance with the Exchange
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Offer, the Exchange Notes will be in the form contemplated by the Indenture and
will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in accordance with
their terms, except as such enforceability may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or other laws
relating to or affecting creditors' rights generally, by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and by an implied covenant of good faith and
fair dealing.
(j) The Company has all requisite corporate power and authority to
enter into the Registration Rights Agreement and perform its obligations
thereunder. The Registration Rights Agreement has been duly authorized by the
Company. Assuming due authorization, execution and delivery by the Initial
Purchaser, the Registration Rights Agreement, upon its execution and delivery,
will constitute a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium or other similar laws relating to or affecting creditors' rights
generally, by general equitable principles (regardless of whether such
enforceability is considered in a proceeding in equity or at law), by an implied
covenant of good faith and fair dealing and, as to rights of indemnification and
contribution, by federal and state securities laws and principles of public
policy.
(k) The Company has all requisite corporate power and authority to
enter into this Agreement and perform its obligations hereunder. This Agreement
has been duly authorized, executed and delivered by the Company.
(l) The Company has all requisite corporate power and authority to
enter into the Pledge Agreement and perform its obligations thereunder. The
Pledge Agreement has been duly authorized, and on the Closing Date, will be
validly executed and delivered, by the Company. Assuming due authorization,
execution and delivery by the Collateral Agent and the Trustee, the Pledge
Agreement, upon its execution and delivery, will constitute a valid and legally
binding obligation of the Company, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy, fraudulent
conveyance, insolvency, reorganization, moratorium or other laws relating to or
affecting creditors' rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in
equity or at law), by an implied covenant of good faith and fair dealing and, as
to rights of indemnification and contribution, by federal and state securities
laws and principles of public policy. Upon delivery to the Collateral Agent of
the stock certificates evidencing the pledged stock under the Pledge Agreement,
together with an undated stock power for each such certificate executed in blank
by a duly authorized officer of the Company, the security interests granted
pursuant to the Pledge Agreement will constitute perfected security interests on
such pledged stock, free of adverse claims.
(m) The issuance and sale of the Notes on the Closing Date, the
compliance by the Company with all of the provisions of the Notes and the
Exchange Notes, the execution, delivery and performance of this Agreement, the
Registration Rights Agreement and the Indenture by the Company, the execution,
delivery and performance of the Pledge Agreement by the Company and the
consummation of the transactions contemplated hereby and by each of
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the foregoing documents (i) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which the Company or any of its Subsidiaries is a
party or by which the Company or any of its Subsidiaries is bound or to which
any of the material property or assets of the Company or any of its Subsidiaries
is subject, (ii) will not result in any violation of the provisions of the
charter, by-laws or other constituent documents of the Company or any of its
Subsidiaries, (iii) will not violate any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its Subsidiaries or any of their properties or assets
except for such violations that would not individually or in the aggregate have
a Material Adverse Effect, (iv) except as provided in the Pledge Agreement, will
not result in the imposition or creation of (or the obligation to create or
impose) a material lien, encumbrance, equity, claim or adverse interest under
any agreement or instrument to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the Subsidiaries or their respective
properties or assets is bound, or (v) will not result in the suspension,
termination or revocation of any Material Authorization (as defined below) of
the Company or any of the Subsidiaries or any other impairment of the rights of
the holder of any such Material Authorization. No consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the issue and sale of the Notes or
the execution, delivery and performance of this Agreement, the Registration
Rights Agreement or the Indenture by the Company, the execution, delivery and
performance of the Pledge Agreement by the Company and the consummation of the
transactions contemplated hereby and by each of the foregoing documents, except
for the filing of one or more registration statements by the Company with the
Commission pursuant to the Act as required by the Registration Rights Agreement
and the order by the Commission in declaring such registration statements
effective, and such consents, approvals, authorizations, orders, filings,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Notes by
the Initial Purchaser in the manner contemplated hereby and by the Offering
Memorandum.
(n) Except with respect to the Shareholder's Agreement dated January
21, 2003 among the Company, AIG Highstar Capital L.P. and the holder of 100% of
the Company's Series A Preferred Stock, there are no contracts, agreements or
understandings between the Company, on the one hand, and any person, on the
other hand, granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to include
such securities in the securities registered pursuant to the Registration
Statements or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(o) During the six-month period preceding the date of the Offering
Memorandum, none of the Company, any of its respective affiliates or any other
person acting on its behalf has offered or sold to any person any Notes or any
securities of the same or a similar class as the Notes, other than Notes offered
or sold to the Initial Purchaser hereunder. The Company will take all necessary
precautions designed to insure that any offer or sale, direct or indirect, in
the United States or to any U.S. person (as defined in Rule 902 under the Act)
of any Notes or any substantially similar security issued by the Company, within
six
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months subsequent to the date on which the distribution of the Notes has been
completed (as notified to the Company by the Initial Purchaser), is made under
restrictions and other circumstances reasonably designed not to affect the
status of the offer and sale of the Notes in the United States and to U.S.
persons contemplated by this Agreement as transactions exempt from the
registration provisions of the Act, including any sales pursuant to Rule 144A
under, or Regulation D or S of, the Act.
(p) (i) The financial statements (including the related notes and
supporting schedules) included in the Offering Memorandum present fairly the
financial condition, results of operations, changes in financial position and
cash flows of the Company and its subsidiaries on the basis stated therein at
the respective dates or for the respective periods to which they apply, (ii)
such statements and related schedules and notes have been prepared on a basis
consistent with the accounting procedures and policies specified by the Federal
Energy Regulatory Commission (the "FERC") or in accordance with generally
accepted accounting principles in the United States, as applicable and as noted
thereon, and in each case consistently applied throughout the periods involved,
(iii) the supporting schedules, if any, included in the Offering Memorandum
present fairly the information required to be stated therein on a basis
consistent with the accounting procedures and policies specified by the FERC or
in accordance with generally accepted accounting principles in the United
States, as applicable and as noted thereon, and (iv) the other financial
information and data set forth in the Offering Memorandum are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements (including the related notes and supporting schedules) and
the books and records of the Company.
(q) Ernst & Young, LLP, who have certified certain financial
statements of the Company and who have delivered the initial letter referred to
in Section 7(d) hereof, are independent public accountants as required by the
Act and the rules and regulations promulgated thereunder (the "Rules and
Regulations") and were independent accountants as required by the Act and the
Rules and Regulations during the periods covered by the financial statements on
which they reported contained in the Offering Memorandum.
(r) Each of the Company and its Subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(s) Since the date as of which information is given in the
Preliminary Offering Memorandum through the date hereof, and except as may
otherwise be disclosed in the Offering Memorandum, neither the Company nor any
of its Subsidiaries has (i) issued or granted any securities, (ii) incurred any
material liability or obligation, direct or contingent, other than liabilities
and obligations which were incurred in the ordinary course of business, (iii)
entered into any material transaction not in the ordinary course of business or
(iv) declared or paid any dividend on its capital stock.
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(t) Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Offering Memorandum, any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, or otherwise
or that would, individually or in the aggregate, result in a Material Adverse
Effect other than as set forth or contemplated in the Offering Memorandum; and,
since such date, other than as described or contemplated in the Offering
Memorandum there has not been any change in the capital stock or material
increase in the long-term debt of the Company or any of its Subsidiaries or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, condition,
financial or otherwise, stockholder's equity, results of operations, business or
prospects of the Company or any of its Subsidiaries, other than as set forth or
contemplated in the Offering Memorandum.
(u) The Company and its Subsidiaries have good and marketable title
in fee simple to, or valid rights of way, easements, leaseholds, licenses and
consents to use, all real property and good and marketable title to all personal
property owned by them, in each case free and clear of all liens, encumbrances,
equities or claims except such as are described in the Offering Memorandum or
would not, individually or in the aggregate, have a Material Adverse Effect and
do not materially interfere with the use made or to be made of such property by
the Company and its Subsidiaries; and all real property and buildings held under
lease by the Company and its Subsidiaries are held by them under valid and
enforceable leases, with no exceptions that would materially interfere with the
use made or to be made of such property and buildings by the Company and its
Subsidiaries.
(v) Except as set forth in the Offering Memorandum, each of the
Company and the Subsidiaries has such permits, licenses, consents, exemptions,
franchises, authorizations, certificates, filed tariffs and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities (whether domestic or foreign) and all
courts and other tribunals, including, without limitation, under any applicable
environmental law, ordinance, rule, regulation, order, judgment, decree or
permit, as are necessary to, as relevant, own, lease, license or operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
individually or in the aggregate, have a Material Adverse Effect (each such
Authorization, a "Material Authorization"); each Material Authorization is valid
and in full force and effect and each of the Company and the Subsidiaries is in
compliance with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto except as would not have a Material Adverse Effect; and no event
has occurred (including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or termination of any such Material
Authorization or results or, after notice or lapse of time or both, would result
in any other impairment of the rights of the holder of any such Material
Authorization; and such Material Authorizations contain no restrictions that are
burdensome to the Company or any of its subsidiaries, except where such failure
to be valid and in full force and effect or to be in compliance, the occurrence
of any such event or the presence of any such restriction would not,
individually or in the aggregate, have a Material Adverse Effect.
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(w) The Company and its Subsidiaries carry or are covered by
insurance in such amounts and covering such risks as is adequate in all material
respects for the conduct of their respective businesses and the value of their
respective properties and as is customary for companies engaged in similar
businesses in similar industries. Neither the Company nor any of its
Subsidiaries (i) has received notice from any insurer or agent of such insurer
that substantial capital improvements or other material expenditures will have
to be made in order to continue such insurance or (ii) to its knowledge will not
be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers at a cost that would
not, individually or in the aggregate, have a Material Adverse Effect.
(x) The Company and its Subsidiaries own or possess adequate rights
to use all material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service xxxx registrations, copyrights,
inventions, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures) and
licenses necessary for the conduct of their respective businesses and have no
reason to believe that the conduct of their respective businesses will conflict
with, and have not received any notice of infringement of or conflict with
asserted rights of others with respect to, any of such intellectual property
that, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(y) Except as described in the Offering Memorandum, there are no
legal or governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property or assets of the Company or any
of its Subsidiaries is the subject that if determined adversely to the Company
and its Subsidiaries would, individually or in the aggregate, have a Material
Adverse Effect; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(z) No labor disturbance by the employees of the Company or any of
its Subsidiaries exists or, to the knowledge of the Company, is imminent that
would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(aa) Each "employee benefit plan" as defined in Section 3(3) of the
U.S. Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), as to which the
Company and/or any of its Subsidiaries has or could have any liability, is in
compliance in all material respects with all applicable provisions of ERISA and
the U.S. Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"), each such employee
benefit plan has been established and administered in accordance with its terms
and each of the Company and its Subsidiaries is in compliance in all material
respects with its obligations under ERISA and the Code with respect to each such
employee benefit plan; no "reportable event" (within the meaning of Section
4043(c) of ERISA) has occurred with respect to any "employee benefit plan" for
which the Company and/or any of its Subsidiaries could have any liability,
except as could not reasonably be expected to, individually or in the aggregate,
result in a Material Adverse Effect; each of the Company and its Subsidiaries
has not incurred and does not expect to incur liability under (i) Title IV of
ERISA with respect to termination of, or complete or partial withdrawal from,
any "employee benefit plan" or (ii)
10
Section 412, 4971 or 4975 of the Code; and each "employee benefit plan" for
which each of the Company and its Subsidiaries could have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in all
respects and nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification, except as could not reasonably be
expected to, individually or in the aggregate, result in a Material Adverse
Effect.
(bb) Each of the Company and its Subsidiaries has filed all federal,
state and local income and franchise tax returns required to be filed through
the date hereof (taking all valid extension requests into account) other than
such returns for which the failure to file would not, individually or in the
aggregate, result in a Material Adverse Effect and has paid all taxes shown as
due thereon, other than those taxes (i) currently payable without penalty or
interest or (ii) being contested in good faith and by appropriate proceedings
and for which, in the case of both (i) and (ii), adequate reserves have been
established on the books and records of the Company or its Subsidiaries in
accordance with generally accepted accounting principles. No tax deficiency has
been assessed against the Company or any of its Subsidiaries which has had (nor
does the Company have any knowledge of any proposed assessment of a tax
deficiency against the Company or any of its Subsidiaries which, if assessed
against the Company or any of its Subsidiaries would result in), individually or
in the aggregate, a Material Adverse Effect.
(cc) None of the Company or any of its Subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default, and, no event has
occurred which, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which it is a party or by which it is bound or to
which any of its properties or assets is subject or (iii) is in violation of any
law, ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any license, permit,
certificate, franchise or other governmental authorization or permit necessary
to the ownership of its property or to the conduct of its business, except, in
the case of clause (iii), as set forth in the Offering Memorandum in the section
entitled "Risk Factors--The Department of Justice is investigating Highstar and
Southern Star in connection with the acquisition of Central" and in the case of
clauses (ii) and (iii), which default or violation would not, individually or in
the aggregate, result in a Material Adverse Effect.
(dd) Except as set forth in the Offering Memorandum, there has been
no violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit relating to the protection of natural resources,
human health or the environment ("Environmental Law") or storage, disposal,
generation, manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes, hazardous substances or any
other material that is regulated under, or that could result in the imposition
of liability under, any Environmental Law, including ,without limitation,
asbestos, polychlorinated biphenyls, petroleum and petroleum products, natural
gas, liquefied natural gas, natural gas condensates, natural gas liquids, and
similar material ("Hazardous Substances") by the Company or any of its
Subsidiaries (or, to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned, leased
or operated by the Company or its Subsidiaries in violation of any Environmental
Law or which would require remedial action under any Environmental Law, except
for any violation, remedial action or liability which would not have,
individually or in the aggregate with all such violations, remedial actions and
liabilities, a Material
11
Adverse Effect; there has been no spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto or emanating from such property of
any Hazardous Substances due to or caused by the Company or any of its
Subsidiaries or with respect to which the Company has knowledge, except for any
such spill, discharge, leak, emission, injection, escape, dumping or release
which would not have, individually or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and releases, a
Material Adverse Effect.
(ee) The Company has established and maintains disclosure controls
and procedures (as such term is defined in Rule 13a-14 under the Exchange Act)
which (i) are designed to ensure that material information relating to the
Company, including its consolidated subsidiaries, is made known to the Company's
principal executive officer and its principal financial officer or persons
performing similar functions within those entities and (ii) are effective in all
material respects to perform the functions for which they were established.
(ff) Based on the evaluation of its disclosure controls and
procedures, the Company is not aware of (i) any significant deficiency in the
design or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize and report financial data or any
material weaknesses in internal controls or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company's internal controls.
(gg) Since the date of the most recent evaluation of such disclosure
controls and procedures, there have been no significant changes in internal
controls or in other factors that could significantly affect the Company's
internal controls, including any corrective actions with regard to significant
deficiencies and material weaknesses, except as have been implemented or planned
in compliance with applicable governmental requirements.
(hh) Except for this Agreement, the Company is not party to any
agreement which grants any Person the right to purchase any or all of the Notes.
(ii) Except as described in the Offering Memorandum, there are no
contractual, legal, regulatory or other restrictions on the ability of the
Company's Subsidiaries to (i) make any distributions or loans to the Company or
(ii) declare or pay dividends to the Company, except such restrictions as are
provided within the Natural Gas Act of 1938 with respect to certain dividend
payments from capital accounts and in Section 170(a) of the Delaware General
Corporation Law.
(jj) There are no contracts or other documents which would be
required to be described in the Offering Memorandum if the Offering Memorandum
were a prospectus included in a registration statement on Form S-1 that has not
been so described therein or in the documents incorporated therein by reference.
(kk) No relationship, direct or indirect, exists between or among
the Company and its Subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company and its Subsidiaries on the
other hand, which would be required to be described in the Offering Memorandum
if the Offering Memorandum were a prospectus
12
included in a registration statement on Form S-1 that has not been so described
therein or in the documents incorporated therein by reference.
(ll) None of the Company, nor to its knowledge, any of its
Subsidiaries has taken, directly or indirectly, any action designed to cause or
result in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company in connection with this transaction or prohibited by Regulation M
under the Securities Act.
(mm) Each certificate signed by any officer of the Company and
delivered to the Initial Purchaser or counsel to the Initial Purchaser pursuant
to this Agreement shall be deemed to be a representation and warranty by the
Company to the Initial Purchaser as to the matters covered thereby.
(nn) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the meaning of Rule
144A under the Act) as any securities that are listed on a national securities
exchange registered under Section 6 of the Exchange Act or that are quoted in a
United States automated inter-dealer quotation system.
(oo) The Company is not, and after giving effect to the offering and
sale of the Notes and the application of the proceeds of the Notes as described
under the caption "Use of Proceeds" in the Offering Memorandum will not be, an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the U.S. Investment Company Act of 1940, as amended (the "1940
Act").
(pp) Assuming (i) that the representations and warranties of the
Initial Purchaser in Section 3(b) hereof are true, accurate and complete, (ii)
the due performance by the Initial Purchaser of the covenants and agreements in
Sections 1 and 3(b) hereof and (iii) that each of the Eligible Purchasers is a
QIB or a person who acquires the Notes in an "offshore transaction" and is not a
"U.S. Person" (within the meaning of Regulation S under the Act), the purchase
and resale of the Notes pursuant hereto (including pursuant to the Exempt
Resales) is exempt from the registration requirements of the Act. No form of
general solicitation or general advertising (within the meaning of Rule 502(c)
under the Act) was used by the Company, any of its affiliates or any person
acting on its or their behalf (other than the Initial Purchaser, as to whom the
Company makes no representation) in connection with the offer and sale of the
Notes.
(qq) None of the Company, any of its affiliates or any person acting
on its or their behalf (other than the Initial Purchaser, as to whom the Company
makes no representation) has engaged or will engage in any directed selling
efforts within the meaning of Rule 902 under the Act with respect to the Notes,
and the Company, any of its affiliates or any person acting on its or their
behalf (other than the Initial Purchaser, as to whom the Company makes no
representation) has complied with and will implement the "offering restriction"
within the meaning of such Rule 902.
(rr) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Act.
13
3. Purchase of the Notes by the Initial Purchaser; Agreements to Sell,
Purchase and Resell.
(a) The Company hereby agrees, on the basis of the representations,
warranties and agreements of the Initial Purchaser contained herein and subject
to all the terms and conditions set forth herein, to issue and sell to the
Initial Purchaser 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, the Initial Purchaser agrees to purchase from the
Company, at a purchase price of 97.75% of the principal amount thereof, the
principal amount of the Notes set forth opposite the name of the Initial
Purchaser in Schedule I hereto. The Company will not be obligated to deliver any
of the securities to be delivered hereunder except upon payment for all of the
securities to be purchased as provided herein.
(b) The Initial Purchaser hereby represents and warrants to the
Company that it will offer the Notes for sale upon the terms and conditions set
forth in this Agreement and in the Offering Memorandum. The Initial Purchaser
hereby represents and warrants to, and agrees with, the Company that such
Initial Purchaser (i) is a QIB with such knowledge and experience in financial
and business matters as are necessary in order to evaluate the merits and risks
of an investment in the Notes; (ii) in connection with the Exempt Resales, will
solicit offers to buy the Notes only from, and will offer to sell the Notes only
to, the Eligible Purchasers in accordance with this Agreement and on the terms
contemplated by the Offering Memorandum; and (iii) will not offer or sell the
Notes, nor has it offered or sold the Notes by, or otherwise engaged in, any
form of general solicitation or general advertising (within the meaning of
Regulation D, including, but not limited to, advertisements, articles, notices
or other communications published in any newspaper, magazine or similar medium
or broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising) in
connection with the offering of the Notes. The Initial Purchaser has advised the
Company that it will offer the Notes to Eligible Purchasers at a price initially
equal to 100.00% of the principal amount thereof, plus accrued interest, if any,
from the date of issuance of the Notes. Such price may be changed by the Initial
Purchaser at any time thereafter without notice.
(c) The Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Sections 7(a) and (b) hereof, counsel to the Company and counsel to the Initial
Purchaser, will rely upon the accuracy and truth of the foregoing
representations, warranties and agreements and the Initial Purchaser hereby
consents to such reliance.
4. Delivery of the Notes and Payment Therefor. Delivery to the Initial
Purchaser of and payment for the Notes will be made at the office of Xxxxxxx
XxXxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at 9:00 A.M., New York City
time, on the Closing Date. The place of closing for the Notes and the Closing
Date may be varied by agreement between the Initial Purchaser and the Company.
The Notes will be delivered to the Initial Purchaser or the Trustee as
custodian for The Depository Trust Company ("DTC") against payment by or on
behalf of the Initial Purchaser of the purchase price therefore, by wire
transfer in immediately available funds to such account or accounts as the
Company shall specify to the Initial Purchaser prior to the Closing Date, by
causing DTC to credit the Notes to the account of the Initial Purchaser at DTC.
The Notes will
14
be evidenced by one or more global securities in definitive form (the "Global
Notes") and/or by additional definitive securities, and will be registered, in
the case of the Global Notes, in the name of Cede & Co. as nominee of DTC, and
in the other cases, in such names and in such denominations as the Initial
Purchaser shall request prior to 9:30 A. M., New York City time, on the second
business day preceding the Closing Date. The Notes to be delivered to the
Initial Purchaser will be made available to the Initial Purchaser in New York
City for inspection and packaging not later than 9:30 A.M., New York City time,
on the business day next preceding the Closing Date or as otherwise agreed upon
between the Company and the Initial Purchaser.
5. Agreements of the Company. The Company agrees with the Initial
Purchaser as follows:
(a) The Company will furnish to the Initial Purchaser, without
charge, such number of copies of the Offering Memorandum and any amendments or
supplements thereto as they may reasonably request.
(b) The Company will not make any amendment or supplement to the
Preliminary Offering Memorandum or to the Offering Memorandum without the prior
consent of the Initial Purchaser, which consent will not be unreasonably
withheld or delayed.
(c) Prior to the execution and delivery of this Agreement, the
Company will have delivered or will deliver to the Initial Purchaser, without
charge, in such quantities as the Initial Purchaser has requested or may
hereafter reasonably request, copies of the Preliminary Offering Memorandum. The
Company consents to the use, in accordance with the securities or Blue Sky laws
of the jurisdictions in which the Notes are offered by the Initial Purchaser and
by dealers, prior to the date of the Offering Memorandum, of each Preliminary
Offering Memorandum so furnished by the Company. The Company consents to the use
of the Offering Memorandum in accordance with the securities or Blue Sky laws of
the jurisdictions in which the Notes are offered by the Initial Purchaser and by
all dealers to whom Notes may be sold, in connection with the offering and sale
of the Notes.
(d) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchaser to Eligible Purchasers, any event occurs that in
the reasonable judgment of the Company or in the reasonable opinion of counsel
for the Initial Purchaser should be set forth in the Offering Memorandum so that
the Offering Memorandum does not include any untrue statement of 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, or if it is necessary to supplement or amend the Offering Memorandum
in order to comply with any law, the Company will prepare an appropriate
supplement or amendment thereto, and will expeditiously furnish to the Initial
Purchaser and dealers identified by the Initial Purchaser a reasonable number of
copies thereof.
(e) The Company will cooperate with the Initial Purchaser and with
its counsel in connection with the qualification of the Notes for offering and
sale by the Initial Purchaser and by dealers under the securities or Blue Sky
laws of such jurisdictions as the Initial Purchaser may designate and will file
such consents to service of process or other documents necessary or appropriate
in order to effect such qualification; provided, that (i) the
15
Company will not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state and (ii) the Company
will not be required to subject itself to taxation (other than any nominal
amount) in any such jurisdiction if not otherwise so subject.
(f) For a period of 90 days from the date of the Offering
Memorandum, each of the Company or any of its Subsidiaries agrees not to,
directly or indirectly, sell, contract to sell, grant any option to purchase,
issue any instrument convertible into or exchangeable for, or otherwise transfer
or dispose of, any debt securities issued or guaranteed by any of the Company or
its Subsidiaries, except (i) the Exchange Notes in connection with the Exchange
Offer or (ii) with the prior consent of Xxxxxx Brothers Inc.
(g) So long as any of the Notes are outstanding, the Company will
furnish to the Initial Purchaser (i) as soon as available, a copy of each report
of the Company mailed to stockholders generally or filed with any stock exchange
or regulatory body, if applicable and (ii) from time to time such other
non-confidential information concerning the Company as the Initial Purchaser may
reasonably request.
(h) The Company will apply the net proceeds from the sale of the
Notes substantially in accordance with the description set forth in the Offering
Memorandum under the caption "Use of Proceeds".
(i) Except as stated in this Agreement and in the Preliminary
Offering Memorandum and Offering Memorandum, none of the Company or any of its
Subsidiaries has taken, nor will any of them take, directly or indirectly, any
action designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Notes to facilitate the sale
or resale of the Notes. Except as permitted by the Act, each of the Company or
any of its Subsidiaries will not distribute any offering material in connection
with the Exempt Resales.
(j) The Company will use its commercially reasonable efforts to
permit the Notes to be designated Portal Market'sm' ("PORTAL") securities in
accordance with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. relating to trading in PORTAL and to permit the Notes
to be eligible for clearance and settlement through DTC.
(k) From and after the Closing Date, so long as any of the Notes are
outstanding and are "restricted securities" within the meaning of Rule 144(a)(3)
under the Act or, if earlier, until two years after the Closing Date, and during
any period in which the Company is not subject to Section 13 or 15(d) of the
Exchange Act, the Company will furnish to holders of the Notes and prospective
purchasers of Notes designated by such holders, upon request of such holders or
such prospective purchasers, the information required to be delivered pursuant
to Rule 144A(d)(4) under the Act to permit compliance with Rule 144A in
connection with resale of the Notes.
(l) During the period of two years after the Closing Date or until
such earlier time when all the Notes are registered under the Act, the Company
will not, and will not
16
permit any of its "affiliates" (as defined in Rule 144 under the Act) to, resell
any of the Notes that constitute "restricted securities" under Rule 144 that
have been reacquired by any of them.
(m) The Company agrees not to and to cause its Subsidiaries not to
sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in the Act) that would be integrated with the sale
of the Notes in a manner that would require the registration under the Act of
the sale to the Initial Purchaser or the Eligible Purchasers of the Notes.
(n) In connection with the offering of the Notes, until the Initial
Purchaser shall have notified the Company of the completion of the resale of the
Notes, the Company agrees not to, and to use its best efforts to cause its
Subsidiaries not to, either alone or with one or more other persons, offer or
sell the Notes in the United States (i) by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Act or (ii) with respect to any such securities sold in reliance on Rule 903
under the Act, by means of any directed selling effort within the meaning of
Rule 902 or otherwise in violation of the offering restriction requirements of
Regulation S under the Act.
(o) The Company will do and perform all things required or necessary
to be done and performed under this Agreement by it prior to the Closing Date,
and to satisfy all conditions precedent to the Initial Purchaser's obligations
hereunder to purchase the Notes.
(p) The Company is not and has no intention of becoming an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the 1940 Act.
(q) On the Closing Date, the Company will deliver to the Initial
Purchaser secretary's certificates reasonably satisfactory to the Initial
Purchaser which will include the following documents with respect to the
Company: (i) charter, (ii) by-laws, (iii) other constituent documents, (iv)
resolutions and (v) certificates of good standing and/or qualification to do
business as a foreign corporation in such jurisdiction as the Initial Purchaser
may reasonably request.
(r) On the Closing Date, the Company will cause the Initial
Purchaser, to receive the Registration Rights Agreement executed and delivered
by duly authorized officers of the Company.
6. Expenses. The Company agrees to pay all costs, expenses, fees and
taxes incident to and in connection with: (i) the preparation, printing, filing
and distribution of the Preliminary Offering Memorandum and the Offering
Memorandum (including, without limitation, financial statements and exhibits)
and all amendments and supplements thereto (including the fees, disbursements
and expenses of the Company's accountants and counsel, but excluding legal fees
and expenses of the Initial Purchaser's counsel incurred in connection
therewith); (ii) the preparation, printing (including, without limitation, word
processing and duplication costs) and delivery of this Agreement, the Indenture,
the Registration Rights Agreement, the Pledge Agreement, all Blue Sky memoranda
and all other agreements, memoranda, correspondence and other documents printed
and delivered in connection
17
therewith and with the Exempt Resales (but excluding legal fees and expenses of
the Initial Purchaser's counsel incurred in connection with any of the foregoing
other than fees of such counsel plus reasonable disbursements incurred in
connection with the preparation, printing and delivery of such Blue Sky
memoranda); (iii) the issuance and delivery by the Company of the Notes and any
transfer or similar taxes payable in connection therewith; (iv) the
qualification of the Notes and the Exchange Notes for offer and sale under the
securities or Blue Sky laws of the several states (including, without
limitation, the reasonable fees and disbursements of the Initial Purchaser's
counsel relating to such registration or qualification); (v) the furnishing of
such copies of the Preliminary Offering Memorandum and the Offering Memorandum,
and all amendments and supplements thereto, as may be reasonably requested by
the Initial Purchaser for use in connection with the Exempt Resales; (vi) the
preparation of certificates for the Notes (including, without limitation,
printing thereof); (vii) the application for quotation of the Notes in PORTAL;
(viii) the approval of the Notes by DTC for "book-entry" transfer (including the
fees and expenses of the Company's counsel); (ix) the obligations of the
Trustee, any agent of the Trustee and counsel for the Trustee in connection with
the Indenture, the Notes and the Exchange Notes; (x) the obligations of the
Collateral Agent, any agent of the Collateral Agent and counsel for the
Collateral Agent in connection with the Pledge Agreement; (xi) the "road show"
or other investor presentations made in connection with the marketing of the
offering of the Notes, including, without limitation, expenses associated with
the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, any travel
and lodging expenses of the Initial Purchaser or representatives and officers of
the Company and any such consultants incurred in connection with any such road
shows, and the costs of any aircraft chartered in connection with such road
show; and (xii) the performance by the Company of its other obligations under
this Agreement.
7. Conditions to Initial Purchaser's Obligations. The obligations of
the Initial Purchaser hereunder are subject to the accuracy, when made and on
the Closing Date, of the representations and warranties of the Company contained
herein and in the Pledge Agreement, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms and
conditions:
(a) Xxxxxxx XxXxxxxxx LLP shall have furnished to the Initial
Purchaser its written opinion, as counsel to the Company, addressed to the
Initial Purchaser and dated the Closing Date, substantially in the form of
Exhibit A hereto.
(b) The Initial Purchaser shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx LLP, counsel for the Initial Purchaser, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Notes, the
Offering Memorandum and other related matters as the Initial Purchaser may
reasonably require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(c) At the time of execution of this Agreement, the Initial
Purchaser shall have received from Ernst & Young LLP a letter, in form and
substance satisfactory to the Initial Purchaser, addressed to the Initial
Purchaser and dated the date hereof (i) confirming that they are independent
public accountants within the meaning of the Act and are in compliance with the
applicable requirements relating to the qualification of accountants under Rule
2-01 of
18
Regulation S-X of the Commission and (ii) stating, as of the date hereof (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Offering
Memorandum, as of a date not more than three days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
initial purchasers in connection with registered public offerings.
(d) With respect to the letter of Ernst & Young LLP referred to in
the preceding paragraph and delivered to the Initial Purchaser concurrently with
the execution of this Agreement (the "Initial Letter"), the Company shall have
furnished to the Initial Purchaser a letter (the "Bring-Down Letter") of such
accountants, addressed to the Initial Purchaser and dated the Closing Date (i)
confirming that they are independent public accountants within the meaning of
the Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the Closing Date (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Offering Memorandum, as of a
date not more than three days prior to the date of the Bring-Down Letter), the
conclusions and findings of such firm with respect to the financial information
and other matters covered by the Initial Letter and (iii) confirming in all
material respects the conclusions and findings set forth in the Initial Letter.
(e) The Company shall have furnished to the Initial Purchaser a
certificate, dated the Closing Date, of its Chairman of the Board, its
President, a Vice President or its chief financial officer stating that:
(i) The representations and warranties made by the Company with
respect to the Company and its Subsidiaries in Section 2 hereof and in the
Pledge Agreement are true and correct as of the Closing Date and that the
Company has complied with all its agreements contained herein and have fulfilled
all conditions on its part to be performed or satisfied hereunder at or prior to
the Closing Date; and
(ii) They have carefully examined the Offering Memorandum and,
in their opinion (A) as of its date, the Offering Memorandum did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading and (B) since
the date of the Offering Memorandum, no event has occurred which should have
been set forth in a supplement or amendment to the Offering Memorandum.
(f) Neither the Company nor any of its Subsidiaries has sustained,
since the date of the latest financial statements included in the Offering
Memorandum, any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, or otherwise or that
would, individually or in the aggregate, result in a Material Adverse Effect
other than as set forth or contemplated in the Offering Memorandum; and, since
such date, other than as described or contemplated in the Offering Memorandum
there has not been any change in the capital stock or material increase in the
long-term debt of the Company or
19
any of its Subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, condition, financial or otherwise, stockholder's equity,
results of operations or business of the Company or any of its Subsidiaries,
otherwise than as set forth or contemplated in the Offering Memorandum.
(g) Subsequent to the execution and delivery of this Agreement, (i)
no downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(h) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the Nasdaq National Market or the
American Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market, has
been suspended or minimum prices have been established for such securities on
any such exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction; (ii) a
material disruption in securities settlement, payment or clearance services in
the United States; (iii) a banking moratorium has been declared by Federal or
state authorities; (iv) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity, crisis or emergency if, in the
judgment of the Initial Purchaser, the effect of any such attack, outbreak,
escalation, act, declaration, calamity, crisis or emergency makes it impractical
or inadvisable to proceed with completion of the offering or sale of and payment
for the Notes; or (v) the occurrence of any other calamity, crisis (including
without limitation as a result of terrorist activities), or material adverse
change in general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States shall be
such) as to make it, in the judgment of the Initial Purchaser, impracticable or
inadvisable to proceed with the offering or delivery of the Notes being
delivered on the Closing Date or that, in the judgment of the Initial Purchaser,
would materially and adversely affect the financial markets or the markets for
the Notes and other debt securities.
(i) The Notes shall have been designated for trading in PORTAL.
(j) The Company shall have executed the Registration Rights
Agreement and the Initial Purchaser shall have received an original copy
thereof, duly executed by the Company.
(k) The Company and the Trustee shall have executed the Indenture
and the Initial Purchaser shall have received original copies thereof, duly
executed by the Company and the Trustee.
(l) The Company, the Trustee and the Collateral Agent shall have
executed the Pledge Agreement, substantially in the form of Exhibit C hereto and
the Initial Purchaser
20
shall have received copies thereof, duly executed by the Company, the Trustee
and the Collateral Agent.
(m) The Collateral Agent shall have received (with a copy for the
Initial Purchaser) at the Closing Date:
(i) the certificates representing the shares of capital stock
pledged pursuant to the Pledge Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of the
Company;
(ii) appropriately completed copies, which have been duly
authorized for filing by the appropriate person, of Uniform Commercial Code
financing statements naming the Company as a debtor and the Collateral Agent as
the secured party, or other similar instruments or documents to be filed under
the UCC of all jurisdictions as may be necessary or, in the reasonable opinion
of the Collateral Agent and its counsel, desirable to perfect the security
interests of the Collateral Agent pursuant to the Pledge Agreement;
(iii) appropriately completed copies, which have been duly
authorized for filing by the appropriate person, of Uniform Commercial Code Form
UCC-3 termination statements, if any, necessary to release all Liens (as defined
in the Indenture) of any person in any collateral described in the Pledge
Agreement previously granted by any person, other than Permitted Liens (as
defined in the Indenture); and
(iv) certified copies of Uniform Commercial Code Requests for
Information or Copies (Form UCC-11), or a similar search report certified by a
party acceptable to the Collateral Agent, dated a date reasonably near to the
Closing Date, listing all effective financing statements which name the Company
(under its present name and any previous names) as the debtor, together with
copies of such financing statements (none of which shall cover any collateral
described in the Pledge Agreement (other than such financing statements that
evidence Permitted Liens).
(n) The Company shall have received an executed consent from the
holder of the Company's Series A Preferred Stock permitting the issuance of the
Notes.
(o) There shall exist at and as of the Closing Date no condition
that would constitute a default (or an event that with notice or lapse of time,
or both, would constitute a default) under any Transaction Document as in effect
at the Closing Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof if they are in the form required by the Agreement or otherwise
in form and substance reasonably satisfactory to counsel for the Initial
Purchaser.
8. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless the Initial
Purchaser, its directors, officers and employees and each person, if any, who
controls the Initial Purchaser within the meaning of the Act, from and against
any loss, claim, damage or liability, or any
21
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Notes), to which
the Initial Purchaser, director, officer, employee or controlling person may
become subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Offering Memorandum or the Offering Memorandum or in any amendment or supplement
thereto, (B) in any Blue Sky application or other document prepared or executed
by the Company (or based upon any written information furnished by the Company)
specifically for the purpose of qualifying any or all of the Notes under the
securities laws of any state or other jurisdiction (any such application,
document or information being hereinafter called a "Blue Sky Application") or
(C) in any materials or information provided to investors by, or with the
express approval of, the Company in connection with the marketing of the
offering of the Notes ("Marketing Materials"), including any road show or
investor presentations made to investors by the Company (whether in person or
electronically) or (ii) the omission or alleged omission to state in the
Preliminary Offering Memorandum or the Offering Memorandum, or in any amendment
or supplement thereto, or in any Blue Sky Application, or in any Marketing
Materials, any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading or (iii) any act or failure to act or any alleged act
or failure to act by any Initial Purchaser in connection with, or relating in
any manner to, the Notes or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company will not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be taken
by the Initial Purchaser through its gross negligence or willful misconduct),
and will reimburse the Initial Purchaser and each such director, officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by the Initial Purchaser, director, officer,
employee or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in the Preliminary
Offering Memorandum or the Offering Memorandum, or in any such amendment or
supplement thereto, or in any Blue Sky Application, in reliance upon and in
conformity with written information concerning the Initial Purchaser furnished
to the Company through the Initial Purchaser specifically for inclusion therein,
which information consists solely of the information contained in paragraph (e)
hereof and (ii) with respect to any untrue statement or alleged untrue statement
in, or omission or alleged omission from, the Preliminary Offering Memorandum,
the foregoing indemnity agreement with respect to the Preliminary Offering
Memorandum shall not inure to the benefit of the Initial Purchaser (or its
directors, officers and employees and each person, if any, which controls such
Initial Purchaser within the meaning of the Act) from whom the person asserting
any such losses, claims, damages or liabilities purchased Notes in the initial
Exempt Resale of the Notes if (A) other than as a result of noncompliance by the
Company with Section 5(a) hereof, a copy of the Offering Memorandum was not sent
or given by or on behalf of such Initial Purchaser to such person at or prior to
the
22
written confirmation of the sale of the Notes to such person and (B) the
Offering Memorandum would have completely cured the defect giving rise to such
losses, claims, damages or liabilities. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to the Initial
Purchaser or to any director, officer, employee or controlling person of the
Initial Purchaser.
(b) The Initial Purchaser will indemnify and hold harmless the
Company, its directors, officers and employees and each person, if any, who
controls the Company within the meaning of the Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer, employee or controlling
person may become subject, under the Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained (A) in
any Preliminary Offering Memorandum or the Offering Memorandum, or in any
amendment or supplement thereto or (B) in any Blue Sky Application or (ii) the
omission or alleged omission to state in any Preliminary Offering Memorandum or
the Offering Memorandum, or in any amendment or supplement thereto, or in any
Blue Sky Application any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, but in each case only to the extent
that the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
concerning the Initial Purchaser furnished to the Company through the Initial
Purchaser specifically for inclusion therein, which information consists solely
of the information contained in paragraph (e) hereof, and will reimburse the
Company and any such director, officer, employee or controlling person for any
legal or other expenses reasonably incurred by the Company or any such director,
officer, employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which the Initial Purchaser may otherwise have to the
Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party will not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party will not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action is brought against an indemnified party, and it
notifies the indemnifying party thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party will not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Initial Purchaser will have the right to employ
23
counsel to represent the Initial Purchaser and its directors, officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Initial Purchaser
against the Company under this Section 8 if, in the reasonable judgment of
counsel for the Initial Purchaser, it is advisable for the Initial Purchaser and
those directors, officers, employees and controlling persons to be represented
by separate counsel, and in that event the fees and expenses of such separate
counsel will be paid by the Company, but in no event shall the Company be liable
for the fees and expenses of more than one separate counsel in any jurisdiction.
No indemnifying party will (i) without the prior written consent of the
indemnified parties (which consent will not be unreasonably withheld or
delayed), settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to such
claim or action), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action, suit or proceeding and does not include any findings of
fault or admission of fault or culpability as to the indemnified party, or (ii)
be liable for any settlement of any such action effected without its written
consent (which consent will not be unreasonably withheld or delayed), but if
settled with the consent of the indemnifying party or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 is for any
reason unavailable or insufficient to hold harmless an indemnified party under
Section 8(a) or 8(b) in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
will, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Initial Purchaser on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above, but also the relative fault
of the Company on the one hand and the Initial Purchaser on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Initial Purchaser on the other with respect to such offering
will be deemed to be in the same proportion as the total net proceeds from the
offering of the Notes purchased under this Agreement (before deducting expenses)
received by the Company, on the one hand, and the total discounts and
commissions received by the Initial Purchaser with respect to the Notes
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the Notes under this Agreement. The relative fault
will 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 Initial Purchaser,
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 Initial Purchaser agree that it would not be just and equitable if
contributions pursuant to this Section were to be determined by pro rata
allocation (even if the Initial Purchaser were treated as one
24
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, damage
or liability, or action in respect thereof, referred to above in this Section
will be deemed to include, for purposes of this Section 8(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 8(d), the Initial Purchaser will not be required to
contribute any amount in excess of the amount by which the total discounts and
commissions received by it exceeds the amount of any damages which the Initial
Purchaser has otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) The Initial Purchaser confirms and the Company acknowledges that
the statements with respect to the offering of the Notes by the Initial
Purchaser set forth on the last paragraph of the cover page, the fifth sentence
of the sixth paragraph of text in the section entitled "Plan of Distribution"
and the tenth, eleventh and twelfth paragraphs in the section entitled "Plan of
Distribution" in the Offering Memorandum are correct and constitute the only
information concerning such Initial Purchaser furnished in writing to the
Company by or on behalf of the Initial Purchaser specifically for inclusion in
the Offering Memorandum.
9. Termination. The obligations of the Initial Purchaser hereunder may
be terminated by the Initial Purchaser by notice given to and received by the
Company prior to delivery of and payment for the Notes if, prior to that time,
any of the events described in Sections 7(f), (g) or (h) has occurred or if the
Initial Purchaser declines to purchase the Notes for any reason permitted under
this Agreement.
10. Reimbursement of Initial Purchaser's Expenses. If the Company fails
to tender the Notes for delivery to the Initial Purchaser by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
obligations hereunder required to be fulfilled by the Company or any of its
Subsidiaries is not fulfilled, the Company will reimburse the Initial Purchaser
for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) incurred by the Initial Purchaser in connection with
this Agreement and the proposed purchase of the Notes, and upon demand the
Company will pay the full amount thereof to the Initial Purchaser.
11. Notices, etc. All statements, requests, notices and agreements
hereunder will be in writing, and:
(a) if to the Initial Purchaser, will be delivered or sent by hand
or overnight delivery, mail, telex or facsimile transmission to Xxxxxx Brothers
Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department (Fax: (000) 000-0000), with a copy to Xxxxxxx Xxxxxxx & Xxxxxxxx LLP,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Rise X. Xxxxxx (Fax:
(000) 000-0000), and with a copy, in the case of any notice pursuant to Section
8(c), to the Director of Litigation, Office of the General Counsel, Xxxxxx
Brothers Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000;
25
(b) if to the Company, will be delivered or sent by hand or
overnight delivery, mail or facsimile transmission to Southern Star Central
Corp., c/o AIG Highstar Capital, L.P., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000 Attention: Xxxxxxx Xxxxx (Fax: (000) 000-0000), with a copy to Xxxxxxx
XxXxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 Attention: Xxxx Xxxxxxx (Fax:
(000) 000-0000). Any such statements, requests, notices and agreements will take
effect at the time of receipt thereof.
12. Persons Entitled to Benefit of Agreement. This Agreement will inure
to the benefit of and be binding upon the Initial Purchaser, the Company and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (i) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement will also be deemed to be for the benefit of directors of the
Initial Purchaser, officers of the Initial Purchaser and the person or persons,
if any, who control the Initial Purchaser within the meaning of Section 15 of
the Act and (ii) the indemnity agreement of the Initial Purchaser contained in
Section 8(b) of this Agreement will be deemed to be for the benefit of directors
of the Company, officers of the Company and any person controlling the Company
within the meaning of Section 15 of the Act. Nothing in this Agreement is
intended or will be construed to give any person, other than the persons
referred to in this Section 13, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company and the Initial Purchaser contained in this
Agreement or made by or on behalf of any of them, respectively, pursuant to this
Agreement, will survive the delivery of and payment for the Notes and will
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
14. Definition of the Terms "Business Day" and "Person". For purposes
of this Agreement, (i) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (ii) "Person" means a natural person,
corporation, partnership, limited partnership, limited liability company, trust
or unincorporated organization or similar entity, or a governmental authority.
15. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts will each be deemed to be an original but all such counterparts
will together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[The remainder of this page is intentionally left blank.]
26
If the foregoing correctly sets forth the agreement between
the Company and the Initial Purchaser, please indicate your acceptance in the
space provided for that purpose below.
Very truly yours,
SOUTHERN STAR CENTRAL CORP.
By: ______________________________________
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
By: _________________________
Authorized Representative
