EXHIBIT 12(d)(4)
EL PASO CORPORATION
, dated as of June 26, 2002 (the "Agreement")
between El Paso Corporation, a Delaware corporation (the "Company"), and Credit
Suisse First Boston Corporation (the "Remarketing Agent"), and confirmed and
accepted by JPMorgan Chase Bank, not individually but solely as Purchase
Contract Agent (the "Purchase Contract Agent") and as attorney-in-fact of the
Holders of Purchase Contracts (as defined in the Purchase Contract Agreement (as
defined herein)).
RECITALS
WHEREAS, the Company issued 10,000,000 (up to 11,500,000 if the
over-allotment option of the Underwriters (as such term is defined in the
Underwriting Agreement) is exercised pursuant to the Underwriting Agreement)
Equity Security Units (the "Equity Security Units") under the Purchase Contract
Agreement, dated as of June 26, 2002, between the Purchase Contract Agent and
the Company (the "Purchase Contract Agreement");
WHEREAS, the $500,000,000 (up to $575,000,000 if the Underwriters
over-allotment option is exercised) aggregate principal amount of Senior Notes
Due August 16, 2007 of the Company (the "Notes") initially forming a part of the
Equity Security Units have been issued under the Indenture, dated as of May 10,
1999, between the Company and JPMorgan Chase Bank, as Trustee (the "Trustee"),
as supplemented by the Eighth Supplemental Indenture, dated as of June 26, 2002,
between the Company and the Trustee, and pledged pursuant to the Pledge
Agreement (the "Pledge Agreement"), dated as of June 26, 2002, among the
Company, The Bank of New York, as collateral agent (the "Collateral Agent"),
custodial agent and securities intermediary and the Purchase Contract Agent, as
Purchase Contract Agent and attorney-in-fact of the Holders from time to time of
the Equity Security Units and Stripped Units to secure the obligations of
Holders of Equity Security Units under the related Purchase Contracts;
WHEREAS, the Remarketing Agent will attempt on the Initial Remarketing
Date to remarket all of (i) the Notes of Holders of Equity Security Units and
(ii) the Separate Notes of Holders who elect to participate in the remarketing,
pursuant to the procedures set forth in Section 5.4(b) of the Purchase Contract
Agreement, Section 4.5(d) of the Pledge Agreement and Section 2.06 of the
Supplemental Indenture (each of which Sections is incorporated herein by
reference);
WHEREAS, in the event the remarketing on the Initial Remarketing Date is
unsuccessful, the Remarketing Agent will remarket the Notes to be included in
the remarketing on each of the two Business Days next succeeding the Initial
Remarketing Date, and, if necessary, will attempt to remarket such Notes on each
of the three Business Days immediately preceding July 1, 2005 and, if necessary,
will further attempt to remarket such Notes on the seventh, sixth and fifth
Business Days immediately preceding the Stock Purchase Date;
WHEREAS, in the event of a successful remarketing on the Initial
Remarketing Date or any Subsequent Remarketing Date, as the case may be, the
applicable interest rate on the Notes
will be reset on the settlement date of such Initial Remarketing Date or
Subsequent Remarketing Date to the Reset Rate (as defined in clause (i) of the
definition of such term) determined in the remarketing;
WHEREAS, the Company has requested Credit Suisse First Boston
Corporation to act as the Remarketing Agent, and as such to perform the services
described herein; and
WHEREAS, Credit Suisse First Boston Corporation is willing to act as the
Remarketing Agent and as such to perform such duties on the terms and conditions
expressly set forth herein.
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
Section 1. Definitions.
Capitalized terms used and not defined in this Agreement, in the
recitals hereto or in the paragraph preceding such recitals shall have the
meanings assigned to them in the Purchase Contract Agreement or, if not therein
defined, the Pledge Agreement or the Eighth Supplemental Indenture.
Section 2. Appointment and Obligations of Remarketing Agent.
(a) The Company hereby appoints Credit Suisse First Boston Corporation,
and Credit Suisse First Boston Corporation hereby accepts such appointment, as
the Remarketing Agent to:
(i) determine, in consultation with the Company, in the manner
provided for herein, in the Purchase Contract Agreement and in the
Eighth Supplemental Indenture, the Reset Rate as defined in clause (i)
of the definition of such term, provided that the Remarketing Agent
shall have no obligation to determine whether there is any limitation
under applicable law on the Reset Rate or, if there is any such
limitation, the maximum permissible Reset Rate on the Notes and it shall
rely solely upon written notice from the Company (which the Company
agrees to provide prior to the eighth Business Day immediately preceding
the Initial Remarketing Date) as to whether or not there is any such
limitation and, if so, the maximum permissible Reset Rate;
(ii) remarket the Notes participating in the remarketing on the
Initial Remarketing Date or during any subsequent Remarketing Period, as
applicable, at a price equal to approximately, but not less than, 100.5%
of the Remarketing Value; and
(iii) in the event the Last Failed Remarketing shall have
occurred or in the event there were no Equity Security Units outstanding
on the Initial Remarketing Date or any Subsequent Remarketing Date and
none of the Holders of Separate Notes elected during any Remarketing
Period to have their Separate Notes participate in a remarketing, to
determine, in consultation with the Company, as applicable, the Reset
Rate as defined in clause (ii) of the definition of such term, provided
that the Remarketing Agent shall have no obligation to determine whether
there is any limitation under applicable law on the Reset Rate or, if
there is any such limitation, the maximum permissible Reset Rate on the
Notes and it shall rely solely upon written notice from the Company
(which the Company agrees to provide prior to the eighth Business Day
immediately preceding the
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Initial Remarketing Date) as to whether or not there is any such
limitation and, if so, the maximum permissible Reset Rate.
The Remarketing Agent shall have the right, on 15 Business Days' notice
to the Company, to appoint one or more additional remarketing agents so long as
any such additional remarketing agents shall be reasonably acceptable to the
Company. Upon any such appointment, the parties shall enter into an appropriate
amendment to this Agreement to reflect the addition of any such additional
remarketing agent.
(b) Subject to the terms and conditions set forth herein and in the
Purchase Contract Agreement, the Remarketing Agent shall use its commercially
reasonable best efforts to remarket on the Initial Remarketing Date the Notes
that the Collateral Agent and the Custodial Agent shall have notified the
Remarketing Agent, not later than 10:00 a.m., New York City time, on the third
Business Day immediately preceding the Initial Remarketing Date, are to be
remarketed by establishing the Reset Rate (as defined in clause (i) of the
definition of such term) and remarketing the Notes participating in the
remarketing at a price equal to approximately, but not less than, 100.5% of the
Remarketing Value. If, despite using its commercially reasonable best efforts,
the Remarketing Agent cannot, on the Initial Remarketing Date, establish the
Reset Rate (as defined in clause (i) of the definition of such term) and
remarket the Notes participating in the remarketing at a price equal to
approximately, but not less than, 100.5% of the Remarketing Value, it will again
attempt to remarket on each of the two Business Days next succeeding the Initial
Remarketing Date and, if necessary, on each of the three Business Days
immediately preceding July 1, 2005 and, if necessary, on each of the seventh,
sixth and fifth Business Days immediately preceding the Stock Purchase Date, the
Notes that the Collateral Agent and the Custodial Agent shall have notified the
Remarketing Agent, not later than 10:00 a.m., New York City time, on the third
Business Day immediately preceding the first day of any subsequent Remarketing
Period, are to be remarketed, in each case by establishing the Reset Rate (as
defined in clause (i) of the definition of such term) and remarketing the Notes
participating in the remarketing at a price equal to approximately, but not less
than, 100.5% of the Remarketing Value.
Upon the occurrence of a successful remarketing, by approximately 4:30
p.m., New York City time, on the date of the successful remarketing, the
Remarketing Agent shall advise, by telephone (promptly confirmed in writing in
the case of clause (i)):
(i) the Company, the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent, the Securities Intermediary, DTC and the
Trustee of the Reset Rate determined in the remarketing in accordance
with clause (i) of the definition of Reset Rate;
(ii) each purchaser (or the Clearing Agency Participant thereof)
of Notes in the remarketing of the Reset Rate and the number of Notes
such purchaser is to purchase; and
(iii) each purchaser to give instructions to its Clearing Agency
Participant to pay the purchase price on the date of settlement for such
remarketing in same day funds against delivery of the remarketed Notes
purchased through the facilities of DTC.
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The Remarketing Agent also shall, in accordance with the Purchase Contract
Agreement and the use the proceeds from the successful
remarketing attributable to the Pledged Notes to purchase the Treasury
Consideration with the CUSIP numbers, if any, selected by the Remarketing Agent,
described in clauses (1) and (2) of the definition of Remarketing Value.
On the date of settlement of the successful remarketing, which shall be
the third Business Day following the Initial Remarketing Date or such Subsequent
Remarketing Date, as the case may be, the Remarketing Agent shall deliver such
Treasury Consideration to the Purchase Contract Agent, which shall thereupon
deliver such Treasury Consideration to the Collateral Agent. The Collateral
Agent, for the benefit of the Company, shall thereupon apply such Treasury
Consideration, in accordance with the Pledge Agreement, to secure such Holders'
obligations under the Purchase Contracts related to Equity Security Units. On
the third Business Day following such Initial Remarketing Date or Subsequent
Remarketing Date, as the case may be, the Remarketing Agent also shall:
(i) deduct and retain for itself the Remarketing Fee;
(ii) remit the remaining portion of the proceeds from the
successful remarketing attributable to the Separate Notes to the
Custodial Agent for payment to the holders of Separate Notes that were
remarketed; and
(iii) remit the remaining portion, if any, of the proceeds to
the Purchase Contract Agent for payment to the Holders of the Equity
Security Units.
Upon the occurrence of a Failed Remarketing, the Remarketing Agent
shall:
(i) notify by telephone the Company, the Purchase Contract
Agent, the Collateral Agent, the Custodial Agent and the Trustee that a
Failed Remarketing has occurred, whereupon the Company shall notify DTC,
by telephone, that a Failed Remarketing has occurred; and
(ii) within three Business Days following the last day of such
Remarketing Period, return the Pledged Notes that were to be remarketed
to the Collateral Agent and the Separate Notes that were to be
remarketed to the Custodial Agent for redelivery to such holders of such
Separate Notes.
Upon the occurrence of the Last Failed Remarketing, the Remarketing
Agent shall:
(i) notify by telephone the Company, the Purchase Contract
Agent, the Collateral Agent, the Custodial Agent and the Trustee that
the Last Failed Remarketing has occurred, whereupon the Company shall
notify DTC that the Last Failed Remarketing has occurred;
(ii) within three Business Days following the fifth Business Day
immediately preceding the Stock Purchase Date, return the Pledged Notes
to the Collateral Agent and the Separate Notes that were to be
remarketed to the Custodial Agent for redelivery to such holders of such
Separate Notes; and
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(iii) notify the Company, the Custodial Agent and the Trustee of
the Reset Rate as determined in accordance with clause (ii) of the
definition of Reset Rate and the Notes will begin bearing interest at
such Reset Rate.
The right of each Holder of Equity Security Units or Separate Notes to
have Notes participate in any remarketing shall be subject to the conditions
that:
(i) the Remarketing Agent conducts a remarketing on such date
pursuant to the terms of this Agreement;
(ii) the Notes participating in a remarketing have not been
called for redemption upon the occurrence of a Tax Event;
(iii) the Remarketing Agent is able to find a purchaser or
purchasers for all of the Notes participating in a remarketing at a
Reset Rate such that the then current aggregate market value of such
Notes is equal to approximately, but not less than, 100.5% of the
Remarketing Value; and
(iv) such purchaser or purchasers deliver the purchase price
therefor to the Remarketing Agent as and when required.
(c) It is understood and agreed that the Remarketing Agent shall not
have any obligation whatsoever to purchase any Notes, whether in a remarketing
held on the Initial Remarketing Date or on any Subsequent Remarketing Date or
otherwise, and shall in no way be obligated to provide funds to make payment
upon tender of Notes for remarketing or to otherwise expend or risk its own
funds or incur or be exposed to financial liability in the performance of its
duties under this Agreement. The Company shall not be obligated in any case to
provide funds to make payment upon delivery of Notes for remarketing.
Section 3. Fees.
In the event of a successful remarketing, the Remarketing Agent shall
retain as a remarketing fee (the "Remarketing Fee") an amount not exceeding 25
basis points (0.25%) of the total proceeds received in connection with the
remarketing in accordance with Section 5.4(d) of the Purchase Contract Agreement
and Sections 2.05 and 2.06 of the Supplemental Indenture.
Section 4. Replacement and Resignation of Remarketing Agent.
(a) The Company may in its absolute discretion replace Credit Suisse
First Boston Corporation as the Remarketing Agent by giving notice prior to 3:00
p.m., New York City time, on:
(i) the eleventh Business Day immediately preceding the Initial
Remarketing Date in the case of a remarketing to occur on the Initial
Remarketing Date or either of the two Business Days next succeeding the
Initial Remarketing Date;
(ii) the seventh Business Day immediately preceding July 1, 2005
in the case of a remarketing to occur on a Subsequent Remarketing Date
immediately following a
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Failed Remarketing on any of the two Business Days next succeeding the
Initial Remarketing Date; or
(iii) the fourteenth Business Day immediately preceding the Stock
Purchase Date in the case of a remarketing to occur on any of the
seventh, sixth or fifth Business Days immediately preceding the Stock
Purchase Date.
Any such replacement shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed hereunder by
the Remarketing Agent. Upon providing such notice, the Company shall use all
reasonable efforts to appoint such a successor and to enter into a with such successor as soon as reasonably practicable.
(b) Credit Suisse First Boston Corporation may resign at any time and be
discharged from its duties and obligations hereunder as the Remarketing Agent by
giving notice prior to 3:00 p.m., New York City time, on:
(i) the eleventh Business Day immediately preceding the Initial
Remarketing Date in the case of a remarketing to occur on the Initial
Remarketing Date or either of the two Business Days next succeeding the
Initial Remarketing Date;
(ii) the seventh Business Day immediately preceding July 1, 2005
in the case of a remarketing to occur on a Subsequent Remarketing Date
immediately following a Failed Remarketing on any of the two Business
Days next succeeding the Initial Remarketing Date; or
(iii) the fourteenth Business Day immediately preceding the Stock
Purchase Date in the case of a remarketing to occur on any of the
seventh, sixth or fifth Business Days immediately preceding the Stock
Purchase Date.
Any such resignation shall become effective upon the Company's appointment of a
successor to perform the services that would otherwise be performed hereunder by
the Remarketing Agent. Upon receiving notice from the Remarketing Agent that it
wishes to resign hereunder, the Company shall use all reasonable efforts to
appoint such a successor and enter into a with it as soon
as reasonably practicable.
(c) The Company shall give the Purchase Contract Agent, the Collateral
Agent, the Custodial Agent and the Trustee prompt written notice of any
replacement of the Remarketing Agent pursuant to this section.
Section 5. Dealing in the Securities.
The Remarketing Agent, when acting hereunder or when acting in its
individual or any other capacity, may, to the extent permitted by law, buy,
sell, hold or deal in any of the Notes, Equity Security Units, Stripped Units or
any other securities of the Company; provided, however, that in buying, selling,
holding, or dealing in any of the Notes, Equity Security Units, Stripped Units
or any other securities of the Company, the Remarketing Agent may not violate
any of its duties under this Agreement. With respect to any Notes, Equity
Security Units, Stripped Units or any other securities of the Company owned by
it, the Remarketing Agent may
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exercise any vote or join in any action with like effect as if it did not act in
any capacity hereunder. The Remarketing Agent, in its individual capacity,
either as principal or agent, may also engage in or have an interest in any
financial or other transaction with the Company as freely as if it did not act
in any capacity hereunder.
The Company or its affiliates may, to the extent permitted by law,
purchase any Notes that are remarketed by the Remarketing Agent.
Section 6. Registration Statement and Prospectus.
(a) In connection with any remarketing to occur on the Initial
Remarketing Date or any Subsequent Remarketing Date, if and to the extent
required, in the view of counsel (which need not be an opinion) for each of the
Remarketing Agent and the Company, by applicable law, regulations or
interpretations in effect at the time of the Initial Remarketing Date or
Subsequent Remarketing Date, as the case may be, the Company:
(i) shall use its reasonable efforts (A) to have a registration
statement relating to the Notes effective under the Securities Act of
1933, as amended (the "Securities Act") and (B) to furnish a current
preliminary prospectus or, if applicable, a current preliminary
prospectus supplement (in such quantities as the Remarketing Agent may
reasonably request), to be used by the Remarketing Agent in a
remarketing hereunder, in each case by a date that is no later than (x)
seven Business Days immediately preceding the Initial Remarketing Date
in the case of a remarketing to occur on the Initial Remarketing Date or
on any of the two Business Days next succeeding the Initial Remarketing
Date, (y) ten Business Days immediately preceding July 1, 2005 in the
case of a remarketing to occur on any of the three Business Days
immediately preceding July 1, 2005 or (z) fourteen Business Days
immediately preceding the Stock Purchase Date in the case of a
remarketing to occur on any of the seventh, sixth or fifth Business Days
immediately preceding the Stock Purchase Date (or in each such case, at
such earlier date as the Remarketing Agent may reasonably request); and
(ii) if requested by the Remarketing Agent, shall furnish a
current final prospectus or, if applicable, a final prospectus
supplement, to be used by the Remarketing Agent in the remarketing
hereunder, by a date that is no later than (x) five Business Days
immediately preceding the Initial Remarketing Date in the case of a
remarketing to occur on the Initial Remarketing Date or on any of the
two Business Days next succeeding the Initial Remarketing Date, (y)
eight Business Days immediately preceding July 1, 2005 in the case of a
remarketing to occur on any of the three Business Days immediately
preceding July 1, 2005 or (z) twelve Business Days immediately preceding
the Stock Purchase Date in the case of a remarketing to occur on any of
the seventh, sixth or fifth Business Days immediately preceding the
Stock Purchase Date (or in each such case, at such earlier date as the
Remarketing Agent may reasonably request).
The Company shall pay all expenses relating thereto.
(b) If in connection with any remarketing, it shall not be possible, in
the view of counsel (which need not be an opinion) for each of the Remarketing
Agent and the Company, under applicable law, regulations or interpretations in
effect as of the Initial Remarketing Date or
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subsequent Remarketing Period, as the case may be, to register the offer and
sale by the Remarketing Agent of the Notes under the Securities Act as otherwise
contemplated by this Section 6, the Company:
(i) shall use its reasonable efforts to take, or cause to be
taken, all action and to do, or cause to be done, all things necessary,
proper and advisable to permit and effectuate the offer and sale of the
Notes in connection with any remarketing hereunder without registration
under the Securities Act pursuant to an exemption therefrom, if
available, including the exemption afforded by Rule 144A promulgated
under the Securities Act by the Securities and Exchange Commission, and
(ii) if requested by the Remarketing Agent, shall furnish a
current preliminary remarketing memorandum and a current final
remarketing memorandum (in such quantities as the Remarketing Agent may
reasonably request) to be used by the Remarketing Agent in any
remarketing hereunder, in each case by a date that is not later than (A)
seven Business Days immediately preceding the Initial Remarketing Date
in the case of a remarketing to occur on the Initial Remarketing Date or
on any of the two Business Days next succeeding the Initial Remarketing
Date, and (B) ten Business Days immediately preceding July 1, 2005 in
the case of a remarketing to occur on any of the three Business Days
immediately preceding July 1, 2005 or (C) fourteen Business Days
immediately preceding the Stock Purchase Date in the case of a
remarketing to occur on any of the seventh, sixth or fifth Business Days
immediately preceding the Stock Purchase Date (or in either case such
earlier date as the Remarketing Agent may reasonably request). The
Company shall pay all expenses relating thereto.
(c) The Company shall also take all reasonable actions as may (upon
advice of counsel to the Company or the Remarketing Agent) be necessary or
desirable under state securities or blue sky laws in connection with any
remarketing.
Section 7. Conditions to the Remarketing Agent's Obligations.
(a) The obligations of the Remarketing Agent under this Agreement shall
be subject to the terms and conditions hereof, including, without limitation,
the following conditions:
(i) the Notes to be included in any remarketing have not been
called for redemption upon the occurrence of a Tax Event;
(ii) the Remarketing Agent is able to find a purchaser or
purchasers for all of the Notes participating in any remarketing at a
price equal to approximately, but not less than, 100.5% of the
Remarketing Value;
(iii) the Purchase Contract Agent, the Collateral Agent, the
Custodial Agent, the Securities Intermediary, the Company and the
Trustee shall have performed their respective obligations in connection
with any remarketing hereunder and pursuant to the Purchase Contract
Agreement, the Pledge Agreement, the Supplemental Indenture and this
Agreement (including, without limitation, the Collateral Agent's and the
Custodial Agent's giving the Remarketing Agent notice of the aggregate
number of Notes to be remarketed, not later than 10:00 a.m., New York
City time, on the third Business Day
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immediately preceding the Initial Remarketing Date or the first
Business Day of any subsequent Remarketing Period, as applicable, and
concurrently delivering the Notes to be remarketed to the Remarketing
Agent);
(iv) no Event of Default (as defined in the Indenture) shall
have occurred and be continuing;
(v) the performance by the Company of its covenants and other
obligations included herein; and
(vi) the satisfaction of the other conditions set forth in this
Agreement.
(b) If at any time during the term of this Agreement, any Event of
Default (as defined in the Indenture) or default that with the passage of time
or the giving of notice or both would become an Event of Default has occurred
and is continuing under the Indenture, then the obligations and duties of the
Remarketing Agent under this Agreement shall be suspended until such default or
Event of Default has been cured. The Company will promptly give the Remarketing
Agent notice of all such defaults and Events of Default of which the Company is
aware.
Section 8. Termination of .
This Agreement shall terminate as to any Remarketing Agent which is
replaced on the effective date of its replacement pursuant to Sections 4(a) or
4(b) hereof. Notwithstanding the foregoing, the obligations set forth in Section
3 hereof shall survive and remain in full force and effect until all amounts
payable under Section 3 shall have been paid in full; provided, however, that if
any Remarketing Agent resigns, then, with respect to such Remarketing Agent, the
obligations set forth in Section 3 hereof shall not survive the termination of
this Agreement and no fee shall be payable to such Remarketing Agent in such
capacity. In addition, each current and former Remarketing Agent shall be
entitled to the rights and benefits under Sections 9, 10 and 12(b) of this
Agreement notwithstanding the replacement or resignation of such Remarketing
Agent or termination of this Agreement.
Section 9. Remarketing Agent's Performance; Duty of Care.
The duties and obligations of the Remarketing Agent shall be determined
solely by the express provisions hereof. No implied covenants or obligations of
or against the Remarketing Agent shall be read into this Agreement. In the
absence of a final judicial determination of willful misconduct, bad faith or
gross negligence on the part of the Remarketing Agent, the Remarketing Agent may
conclusively rely upon any document furnished to it which purports to conform to
the requirements hereunder as to the truth of the statements expressed therein.
The Remarketing Agent shall be protected in acting upon any document or
communication reasonably believed by it to be signed, presented or made by the
proper party or parties. The Remarketing Agent shall not have any obligation to
determine whether there is any limitation under applicable law on the Reset Rate
on the Notes or, if there is any such limitation, the maximum permissible Reset
Rate on the Notes, and it shall rely solely upon timely written notice from the
Company pursuant to Section 2(a) hereof as to whether there is any such
limitation and, if so, the maximum permissible Reset Rate. The Remarketing Agent
shall not incur any liability
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under this Agreement to any beneficial owner or holder of Notes, or other
securities, either in its individual capacity or as Remarketing Agent, as the
case may be, for any action or failure to act in connection with the remarketing
of the Notes or otherwise in connection with the transactions contemplated by
this Agreement, except to the extent that such liability has, by final judicial
determination, resulted from the willful misconduct, bad faith or gross
negligence of the Remarketing Agent or from its failure to fulfill its express
obligations hereunder. The provisions of this Section 9 shall survive any
termination of this Agreement and shall also continue to apply to every
Remarketing Agent notwithstanding its resignation or removal. The Remarketing
Agent will act as the agent of the Holders.
Section 10. Indemnification.
The Company agrees to indemnify the Remarketing Agent and its directors,
officers, employees, agents, affiliates and each person, if any, who controls
the Remarketing Agent within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act for, and to hold it harmless from and
against, any and all losses, claims, damages, liabilities or reasonable
out-of-pocket expenses incurred without gross negligence, willful misconduct or
bad faith on its part, arising out of or in connection with the acceptance or
administration of its powers and duties under this Agreement, including the
reasonable out-of-pocket costs and expenses (including reasonable fees and
expenses of counsel) of defending itself against any claim or liability in
connection with the exercise or performance of such powers and duties or
collecting such amounts. The Remarketing Agent shall promptly notify the Company
of any third party claim which may give rise to the indemnity hereunder and give
the Company the opportunity to participate in the defense of such claim with
counsel reasonably satisfactory to the indemnified party, and no such claim
shall be settled without the written consent of the Company, which consent shall
not be unreasonably withheld.
Section 11. Governing Law.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
Section 12. Term of Agreement.
(a) Unless otherwise terminated in accordance with the provisions hereof
and except as otherwise provided herein, this Agreement shall remain in full
force and effect from the date hereof until the third Business Day immediately
following the earlier of (i) a successful remarketing and (ii) the Stock
Purchase Date. Anything contained herein to the contrary notwithstanding, the
provisions of the second and third sentences of Section 8 hereof and the
provisions of Sections 3, 9, 10 and 12(b) hereof shall survive any termination
of this Agreement and remain in full force and effect; provided, however, that
if any Remarketing Agent resigns, then the obligations set forth in Section 3
hereof shall not survive the termination of this Agreement and no fee shall be
payable to such remarketing agent in such capacity.
(b) All representations and warranties included in this Agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Remarketing
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Agent or any of its controlling persons, or by or on behalf of the Company or
the Purchase Contract Agent, and shall survive the termination of this
Agreement.
Section 13. Successors and Assigns.
The rights and obligations of the Company and the Purchase Contract
Agent (both in its capacity as Purchase Contract Agent and as attorney-in-fact
for the Holders) hereunder may not be assigned or delegated to any other person
(except pursuant to Sections 7.9, 7.10 and 7.11 and Article IX of the Purchase
Contract Agreement) without the prior written consent of the Remarketing Agent,
which consent shall not be unreasonably withheld.
The rights and obligations of the Remarketing Agent hereunder may not be
assigned or delegated to any other person without the prior written consent of
the Company, except that the Remarketing Agent shall have the right to appoint
additional remarketing agents as provided herein. This Agreement shall inure to
the benefit of and be binding upon the Company, the Purchase Contract Agent and
the Remarketing Agent and their respective successors and permitted assigns. The
terms "successors" and "assigns" shall not include any purchaser of Notes merely
because of such purchase.
Section 14. Headings.
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and such section headings are not a part of this
Agreement and will not be used in the interpretation of any provision of this
Agreement.
Section 15. Severability.
If any provision of this Agreement is invalid, inoperative or
unenforceable as applied in any particular case in any or all jurisdictions
because it conflicts with any provisions of any constitution, statute, rule or
public policy or for any other reason, then, to the extent permitted by law,
such circumstances shall not have the effect of rendering the provision in
question invalid, inoperative or unenforceable in any other case, circumstances
or jurisdiction, or of rendering any other provision or provisions of this
Agreement, as the case may be, invalid, inoperative or unenforceable to any
extent whatsoever.
Section 16. Counterparts.
This Agreement may be executed in counterparts, each of which shall be
regarded as an original and all of which shall constitute one and the same
document.
Section 17. Amendments.
This Agreement may be amended only by an instrument in writing signed by
the parties hereto.
Section 18. Notices.
Unless otherwise specified, any notices, requests, consents or other
communications given or made hereunder shall be made in writing or transmitted
by any standard form of telecommunication, including telephone or telecopy, and
confirmed in writing. All written
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notices and confirmations of notices by telecommunication shall be deemed to
have been validly given or made when delivered or mailed, registered or
certified mail, return receipt requested and postage prepaid. All such notices,
requests, consents or other communications shall be addressed as follows:
(i) if to the Company, to El Paso Corporation, 0000 Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000; Attention: Legal Department (telefax:
713-420-4099);
(ii) if to the Remarketing Agent, to Credit Suisse First Boston
Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number
(000) 000-0000, Attention: Transactions Advisory Group; and
(iii) if to the Purchase Contract Agent, to JPMorgan Chase Bank,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, fax number: (212)
946-8159, Attention: Institutional Trust Services,
or to such other address as any of the above shall specify to the others in
writing.
Section 19. Information.
The Company agrees to furnish the Remarketing Agent with such
information and documents as the Remarketing Agent may reasonably request in
connection with the transactions contemplated by this , and
if the remarketing is effected pursuant to a registration statement in
accordance with Section 6 hereof, make reasonably available to the Remarketing
Agent and any accountant, attorney or other advisor retained by the Remarketing
Agent such information that parties would customarily require in connection with
a due diligence investigation conducted in accordance with applicable securities
laws and cause the Company's officers, directors, employees and accountants to
participate in such discussions and to supply all such information reasonably
requested by the Remarketing Agent and its advisors in connection with such
investigation.
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IN WITNESS WHEREOF, each of the Company, the Purchase Contract Agent and
the Remarketing Agent has caused this Agreement to be executed in its name and
on its behalf by one of its duly authorized signatories as of the date first
above written.
EL PASO CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President and Treasurer
CREDIT SUISSE FIRST BOSTON CORPORATION,
as Remarketing Agent
By: /s/ Xxxx X. Xxxxx
-----------------------------------
Name: Xxxx X. Xxxxx
Title: Director
CONFIRMED AND ACCEPTED:
JPMORGAN CHASE BANK
not individually but solely as Purchase Contract Agent
and as attorney-in-fact for the Holders of the Purchase Contracts
By: /s/ X. Xxxxxxxx
-------------------------------
Name: X. Xxxxxxxx
Title: Assistant Vice President
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