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EXHIBIT 1.1
$500,000,000
EL PASO CORPORATION
7.0% SENIOR NOTES DUE MAY 15, 2011
UNDERWRITING AGREEMENT
May 9, 2001
XXXXXXX XXXXX XXXXXX INC.
As Representative of the Several Underwriters,
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
1. Introductory. El Paso Corporation, a Delaware corporation
("COMPANY"), proposes to issue and sell $500,000,000 principal amount
("SECURITIES") of its 7.0% Senior Notes Due May 15, 2011 to be issued under an
indenture (the "INDENTURE") dated as of May 10, 1999 (as supplemented by the
First Supplemental Indenture dated as of May 10, 1999, the Second Supplemental
Indenture dated as of July 12, 1999, the Third Supplemental Indenture dated as
of July 12, 1999, the Fourth Supplemental Indenture dated as of May 31, 2000,
the Fifth Supplemental Indenture dated as of February 28, 2001 and the Sixth
Supplemental Indenture to be dated as of May 14, 2001, between the Company and
The Chase Manhattan Bank, as trustee (the "TRUSTEE"). The Securities are
sometimes herein called the "OFFERED SECURITIES." The Company hereby agrees with
the several Underwriters named in Schedule A hereto ("UNDERWRITERS") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-59704), including a
prospectus, relating to the Offered Securities has been filed with the
Securities and Exchange Commission ("COMMISSION") and has been declared
effective by the Commission. Such registration statement, as amended
through the date of this Agreement, including all documents
incorporated or deemed to be incorporated by reference therein, as from
time to time amended or supplemented pursuant to the Securities
Exchange Act of 1934 ("EXCHANGE Act"), and the rules and regulations of
the Commission thereunder, or otherwise, are hereinafter referred to as
the "REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented to reflect the terms of the
Offered Securities and the terms of offering thereof, as first filed
with the Commission on May 4, 2001 pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Securities Act of 1933 ("ACT"),
including all material incorporated by reference therein, is
hereinafter referred to as the "PROSPECTUS." No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all material respects to the
requirements of the Act, the Trust Indenture Act of 1939 ("TRUST
INDENTURE ACT") and the rules and regulations of the Commission ("RULES
AND REGULATIONS") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; the
Registration Statement, as of the date of this Agreement, conforms and,
as amended or supplemented, if applicable, will conform in all material
respects to the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and does not include and, as amended or
supplemented, if applicable, will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; the
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Prospectus, as of the date of its filing, conforms, and as amended or
supplemented, if applicable, will conform in all material respects to
the requirements of the Act, the Trust Indenture Act, and the Rules and
Regulations and does not include, and as amended or supplemented, if
applicable, will not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; except that the provisions
in the foregoing paragraph do not apply to statements in or omissions
from any of such documents based upon written information furnished to
the Company by any Underwriter through the Representative, if any,
specifically for use therein.
(c) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they
became effective or at the time they were or hereafter are filed with
the Commission, complied and will comply in all material respects with
the requirements of the Act, the Exchange Act or the Rules and
Regulations, as applicable, and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective, at the time the Prospectus was issued and on the
Closing Date (as defined below), did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, and
with respect to the Prospectus, in light of the circumstances under
which they were made, not misleading.
(d) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions 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, individually or in the aggregate,
would not have a material adverse effect on the financial condition,
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(e) Each subsidiary set forth on Schedule B hereto (each a
"SUBSIDIARY") of the Company has been duly incorporated or formed, as
the case may be, and is an existing corporation, limited liability
company or limited partnership in good standing under the laws of the
jurisdiction of its incorporation or formation, as the case may be,
with power and authority (corporate or other) to own its properties and
conduct its business as described in the Prospectus; and each such
Significant Subsidiary is duly qualified to do business as a foreign
corporation, limited liability company or limited partnership in good
standing in all other jurisdictions 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, individually or in the
aggregate, would not have a Material Adverse Effect; all of the issued
and outstanding equity interests of each Significant Subsidiary have
been duly authorized and validly issued and are fully paid and
nonassessable; and the equity interests of each Significant Subsidiary
owned by the Company, directly or through subsidiaries, are owned free
from liens, claims, or adverse interests of any nature.
(f) The Indenture has been duly authorized and qualified under the
Trust Indenture Act with respect to the Offered Securities registered
thereby; the Offered Securities have been duly authorized; and when the
Offered Securities are delivered and paid for pursuant to this
Agreement on May 14, 2001 ("CLOSING DATE"), the Indenture will have
been duly executed and delivered, such Offered Securities will have
been duly executed, authenticated, issued and delivered and will
conform in all material respects to the description thereof contained
in the Prospectus and the Indenture, and such Offered Securities will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles.
(g) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
the Trust Indenture Act and such as may be required under state
securities laws.
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(h) The execution, delivery and performance of the Indenture and
this Agreement, and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any Significant Subsidiary or
any of their properties, or any agreement or instrument to which the
Company or any such Significant Subsidiary is a party or by which the
Company or any such Significant Subsidiary is bound or to which any of
the properties of the Company or any Significant Subsidiary is subject,
or the charter or by-laws of the Company or any such Significant
Subsidiary, and the Company has full power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement.
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(j) Neither the Company nor any Significant Subsidiary is (i) in
violation of its respective charter or by-laws or (ii) in default in
the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Company and its
subsidiaries, taken as a whole, to which the Company or any Significant
Subsidiary is a party or by which the Company or any Significant
Subsidiary or their respective property is bound.
(k) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and indefeasible title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the Company
and its Significant Subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that
would materially interfere with the use made or to be made thereof by
them.
(l) Except as disclosed in the Prospectus, neither the Company nor
any of its Significant Subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would, individually or in the
aggregate, have a Material Adverse Effect; and, except as disclosed in
the Prospectus, the Company is not aware of any pending investigation
which might lead to such a claim.
(m) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture or this Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
Company's knowledge, threatened or contemplated.
(n) The financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the
periods shown, and, except as otherwise disclosed in the Prospectus,
such consolidated financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States
applied on a consistent basis; and the schedules included in the
Registration Statement present fairly the information required to be
stated therein; and the assumptions used in preparing the pro forma
financial statements incorporated by reference in the Registration
Statement and the Prospectus provide a reasonable basis for presenting
the significant effects directly attributable to the transactions or
events described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
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(o) Except as disclosed in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) since the date of the latest audited financial statements
included in the Prospectus there has been no material adverse change,
nor any development or event involving a prospective material adverse
change, in the financial condition, business, properties or results of
operations of the Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Prospectus, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(p) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act has
indicated to the Company that it is considering (i) the downgrading,
suspension or withdrawal of, or any review for a possible change that
does not indicate the direction of the possible change in, any rating
assigned to the Company or any securities of the Company or (ii) any
change in the outlook for any rating of the Company or any securities
of the Company.
(q) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be (i) an "investment
company" as defined in the Investment Company Act of 1940, as amended,
or (ii) a "holding company" within the meaning of, or subject to
regulation under, the Public Utility Holding Company Act of 1935, as
amended, and the rules and regulations promulgated by the Commission
thereunder.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of 99.172% of the principal amount
thereof, the respective principal amounts of the Offered Securities set forth
opposite the names of the Underwriters in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Prospectus. Payment for the Offered Securities
shall be made by the Underwriters in Federal (same day) funds by wire transfer
to an account at a bank acceptable to Xxxxxxx Xxxxx Xxxxxx, Inc. ("SSB") and
designated in writing by the Company, not less than 48 hours prior to the
Closing Date, at 9:00 A.M., (New York time), on May 14, 2001, or at such other
time not later than seven full business days thereafter as SSB and the Company
determine, such time being herein referred to as the "CLOSING DATE", against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities. The Global Securities will be made
available for checking at the office of Xxxxx Liddell & Xxxx LLP at least 24
hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that it will furnish or otherwise make available to counsel
for the Underwriters, one conformed copy of the registration statement relating
to the Registered Securities, including all exhibits, in the form it became
effective and of all amendments thereto and that, in connection with each
offering of Offered Securities:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by SSB, subparagraph (5)) not later than the second
business day following the execution and delivery of this Agreement.
(b) During such period as, in the opinion of counsel for the
Underwriters, a prospectus is required by law to be delivered in
connection with sales by an Underwriter or a dealer, the Company will
advise SSB promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus (except in the case of Annual
Reports filed on Form 10-K or Quarterly Reports filed on Form 10-Q) and
will afford SSB a
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reasonable opportunity to comment on any such proposed amendment or
supplement (except in the case of reports to be filed by the Company in
the ordinary course pursuant to the Exchange Act); and, during such
period as, in the opinion of counsel for the Underwriters, a prospectus
is required by law to be delivered in connection with sales by an
Underwriter or a dealer, the Company will also advise SSB promptly of
the filing of any such amendment or supplement (except in the case of
reports to be filed by the Company in the ordinary course pursuant to
the Exchange Act) and of the institution by the Commission of any stop
order proceedings in respect of the Registration Statement or of any
part thereof and will use its best efforts to prevent the issuance of
any such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify SSB of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither SSB's consent to,
nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6 hereof.
(d) As soon as practicable, but not later than 16 months, after the
date of this Agreement, the Company will make generally available to
its security holders an earnings statement covering a period of at
least 12 months beginning after the later of (i) the effective date of
the most recent post-effective amendment to the Registration Statement
to become effective prior to the date of this Agreement and (ii) the
date of the Company's most recent Annual Report on Form 10-K filed with
the Commission prior to the date of this Agreement, which will satisfy
the provisions of Section 11(a) of the Act.
(e) The Company will furnish or make generally available to the
Representative copies of the Registration Statement, including all
exhibits, any related preliminary prospectus, and any related
preliminary prospectus supplement, upon request of the Representative,
and the Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as
SSB reasonably requests. The Company will pay the expenses of printing
and distributing to the Underwriters all such documents.
(f) The Company will cooperate with the Representative in
connection with the qualification of the Offered Securities for sale
and the determination of their eligibility for investment under the
laws of such jurisdictions as SSB designates and will continue such
qualifications in effect so long as required for the distribution of
the Offered Securities; provided, however, that the Company shall not
be required in connection therewith to qualify as a foreign corporation
in any jurisdiction in which it is not now so qualified or to take any
action that would subject it to general consent to service of process
or taxation other than as to matters and transactions taken by Company
as contemplated herein that relates to the Prospectus, the Registration
Statement, or the offering of the Offered Securities in any
jurisdiction in which it is not now so qualified.
(g) During the period of two years hereafter, the Company will
furnish or make generally available to the Representative and, upon
request, to each of the other Underwriters, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders, if any, for such year; and the Company will furnish to
the Representative as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the Securities Exchange Act of 1934 or mailed to stockholders.
(h) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, for any filing fees and other
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under
the laws of such jurisdictions as SSB designates and the printing of
memoranda relating thereto, for any travel expenses of the Company's
officers and employees and any other expenses of the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities and for expenses incurred in
distributing
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preliminary prospectuses, if any, and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of SSB for a period beginning at the
date of this Agreement and ending at the later of the Closing Date and
the lifting of trading restrictions by the Representatives.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Offered Securities on
the Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) On or prior to the date of this Agreement, the Representative
shall have received a letter, dated the date of delivery thereof and
substantially in the form of Exhibit A hereto, of
PricewaterhouseCoopers LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and containing the information and
statements of the type ordinarily included in accountants' "comfort
letters" with respect to the financial statements and certain financial
information contained in or incorporated by reference in the
Registration Statement and Final Prospectus.
(b) On or prior to the date of this Agreement, the Representative
shall have received a letter, dated the date of delivery thereof and
substantially in the form of Exhibit B hereto, of Deloitte & Touche LLP
confirming that they are independent public accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and containing the information and statements of the type
ordinarily included in accountants' "comfort letters" with respect to
the financial statements and certain financial information contained in
or incorporated by reference in the Registration Statement and Final
Prospectus.
(c) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
(d) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the financial condition,
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a
majority in interest of the Underwriters including the Representative,
is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and
payment for the Offered Securities; (ii) any downgrading in the rating
of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such
organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States
is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representative, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
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(e) The Representative shall have received an opinion, dated the
Closing Date, of Xxxxxxx & Xxxxx LLP, counsel for the Company, to the
effect that:
(i) The Indenture has been duly authorized, executed
and delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Offered Securities have been duly
authorized; the Offered Securities have been duly executed,
authenticated, issued and delivered; the Indenture and the
Offered Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture, will
constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, except as
(a) the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization,
moratorium or similar laws relating to or affecting creditors'
rights generally and (b) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability; and the Offered
Securities conform, as to legal matters, in all material
respects to the description thereof contained in the
Prospectus;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and the Trust
Indenture Act and such as may be required under state
securities laws, as to which such counsel need not opine;
(iii) The execution and delivery by the Company of,
and the performance by the Company of its obligations under,
the Indenture and this Agreement, and the issuance and sale by
the Company of the Offered Securities and compliance with the
terms and provisions thereof will not violate any provision of
applicable United States federal law, New York law or Delaware
General Corporation Law, or the Certificate of Incorporation
or Bylaws of the Company, and the Company has full power and
authority to authorize, issue and sell the Offered Securities
as contemplated by this Agreement;
(iv) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations, and to
such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act, and the Registration Statement, as of its effective date,
and the Prospectus, as of the date of this Agreement, and any
amendment or supplement thereto, as of its date, complied as
to form in all material respects with the requirements of the
Act, the Trust Indenture Act and the Rules and Regulations;
the descriptions in the Registration Statement and Prospectus
of statutes, legal and governmental proceedings and contracts
and other documents are accurate in all material respects and
fairly present in all material respects the information
required to be shown; and such counsel does not know of any
legal or governmental proceedings required to be described in
the Prospectus which are not described as required or of any
contracts or documents of a character required to be described
in the Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
and filed as required, it being understood that such counsel
need not express an opinion as to the financial statements and
schedules or other financial data contained in the
Registration Statement or the Prospectus;
(v) Each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and schedules and other
financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such
counsel need not express an opinion) appeared on its face to
be appropriately responsive in all material respects with the
Exchange Act; and the Registration Statement and Prospectus
(except for financial statements and schedules and other
financial data included or incorporated by reference therein
or omitted therefrom, as to which such counsel need not
express an opinion)
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appeared on their face to be appropriately responsive in all
material respects with the requirements of the Act;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company; and
(vii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be, (i) an "investment company" as such
term is defined in the Investment Company Act of 1940, as
amended, or (ii) a "holding company" within the meaning of, or
subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended, and the rules and regulations
promulgated by the Commission thereunder.
In addition, such counsel shall state that in the course of the
preparation by the Company of the Registration Statement and the Prospectus
(including the documents incorporated by reference therein), such counsel has
participated in conferences with certain of the officers and representatives of
the Company, the Company's independent accountants, the Underwriters and counsel
for the Underwriters at which the Registration Statement and the Prospectus were
discussed. Between the date of effectiveness of the Registration Statement and
the Closing Date, such counsel participated in additional conferences with
certain officers and representatives of the Company, the Company's independent
accountants, the Underwriters and counsel for the Underwriters at which portions
of the Registration Statement and the Prospectus were discussed. Such counsel
need not pass upon and or assume any responsibility for the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Registration Statement or the Prospectus nor make an
independent check or verification thereof, except as specifically described in
the opinion in paragraphs (iv) and (v) above. Such counsel shall further state
that, subject to the foregoing, no facts have come to such counsel's attention
that have caused them to believe that the Registration Statement, at the time it
became effective, contained or incorporated by reference any untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading, or
that Prospectus, as of its date, contained or incorporated by reference any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Also, subject to the foregoing, such
counsel shall state that no facts have come to such counsel's attention in the
course of the proceedings described in the first and second sentences of this
paragraph that caused them to believe that the Prospectus as of the Closing Date
contains or incorporates by reference any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Such counsel need express no belief, however, with respect to
financial statements, schedules or notes thereto or other financial data
included or incorporated by reference in or omitted from the Registration
Statement or Prospectus, or the Form T-1 of the Trustee.
(f) The Representative shall have received from Xxxxxxx Xxxxx, Xx.,
Executive Vice President, Law, the General Counsel or the Associate General
Counsel for the Company, an opinion, dated the Closing Date, to the effect that:
(i) Each of the Company and its Significant
Subsidiaries has been duly incorporated, is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation and has the corporate power and
authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus, and each
is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except where the failure
to be so qualified or to be in good standing, individually or
in the aggregate, would not have a material adverse effect on
the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a
whole.
(ii) The execution, delivery and performance of this
Agreement, the Indenture and the Securities by the Company,
the compliance by the Company with all the provisions hereof
and thereof and the consummation of the transactions
contemplated hereby and thereby will not, to
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such counsel's knowledge, (A) violate any indenture, loan
agreement, mortgage, lease or other agreement or instrument to
which the Company or any Significant Subsidiary is a party or
by which the Company or any subsidiary or their respective
property is bound or (B) violate or conflict with any
judgment, order or decree of any court or any governmental
body or agency having jurisdiction over the Company, any
subsidiary or their respective property, except in each case,
for such violations as would not have a material adverse
effect on the business, prospects, financial condition or
results of operation of the Company and its subsidiaries,
taken as a whole.
(iii) To such counsel's knowledge after due inquiry,
there are no legal or governmental proceedings required to be
described in the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or schedules or other financial
data contained in the Registration Statement or the
Prospectus.
(iv) The statements under (A) the caption "Item 3 -
Legal Proceedings" of the Company's most recent annual report
on Form 10-K incorporated by reference into the Prospectus and
(B) the caption "Item 1 - Legal Proceedings" of Part II of the
Company's quarterly reports on Form 10-Q filed since such
annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present as of the date
of the applicable report the information disclosed therein in
all material respects.
(v) (A) The execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement will not violate any provisions of any
applicable laws and regulations specifically governing the
generation, transportation, distribution or delivery of
natural gas, oil, electricity or other related commodities or
services, including pipelines, transmission lines, storage
facilities and related facilities and equipment, or the import
or export of such commodities or services (collectively, the
"Energy Industry") and (B) no consent, approval, authorization
or order of or qualification with any United States federal
body or agency specifically regulating the Energy Industry is
required for the performance by the Company of its obligations
under this Agreement, except in each of the foregoing cases
for such violations or failures to obtain such consent,
approval, authorization, order or qualification as would not
have a material adverse effect on the business, prospects,
financial condition or results of operation of the Company and
its subsidiaries, taken as a whole.
(g) The Representative shall have received from Xxxxx Liddell
& Xxxx LLP, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to the incorporation of the
Company, the validity of the Offered Securities delivered on such
Closing Date, the Registration Statement, the Prospectus and other
related matters as the Representative may require, and the Company
shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(h) The Representative shall have received a certificate,
dated the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct; that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date; that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated
by the Commission; and that, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the financial condition, business,
properties or results of operations of the Company and its
subsidiaries, taken as a whole, except as set forth in or contemplated
by the Prospectus or as described in such certificate.
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(i) The Representative shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(j) The Representative shall have received a letter, dated
such Closing Date, of Deloitte & Touche LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
The Company will furnish the Representative with such conformed copies of such
opinions, certificates, letters and documents as the Representative reasonably
request. SSB may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers, and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any preliminary
prospectus or preliminary prospectus supplement related to the Offered
Securities, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representative specifically for
use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (b) below; and provided, further, that with respect to any untrue
statement or alleged untrue statement in or omission or alleged omission from
any preliminary prospectus or preliminary prospectus supplement related to the
Offered Securities, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Underwriter from whom the person asserting
such losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus (exclusive of material
incorporated by reference) if the Company had previously furnished copies
thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representative specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the following information
in the Prospectus furnished on behalf of each Underwriter: The last paragraph of
the cover page regarding delivery of the Offered Securities and, under the
heading "Underwriting," (i) the list of Underwriters and their respective
participation in the sale of the Offered Securities, (ii) the sentences related
to concessions and reallowances and (iii) the paragraph related to
stablilization, syndicate covering transactions and penalty bids.
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(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have any indemnified party otherwise than
under subsection (a) or (b) above except to the extent such failure materially
prejudices the indemnifying party's ability to defend such claim. Upon such
notification by any indemnified party, the indemnifying party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the indemnified party and the payment of all fees and expenses of such counsel,
as incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 7(a) and 7(b), an Underwriter shall not
be required to assume the defense of such action pursuant to this Section 7(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of such Underwriter). Any indemnified party shall have the right to
employ separate counsel in any such claim and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel and the payment
of such counsel's fees shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to assume the
defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties in any action in respect of any
such claim (including any impleaded parties) include both the indemnified party
and the indemnifying party, and the indemnified party shall have been advised by
such counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party
(in which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any such case,
the indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (and, if applicable, local
counsel) for all indemnified parties. Such firm shall be designated in writing
by the Underwriter, in the case of the parties indemnified under subsection (a)
above, and by the Company, in the case of the parties indemnified under
subsection (b) above. The indemnifying party shall indemnify and hold harmless
the indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with the indemnifying party's written consent or (ii) effected without the
indemnifying party's written consent if the settlement is entered into more than
twenty business days after the indemnifying party shall have received a request
from the indemnified party for reimbursement for the fees and expenses of
counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the indemnified
party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability on claims that
are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
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such untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each director of the Company, to each officer of the
Company who has signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on the Closing
Date and the aggregate principal amount of Offered Securities that such
defaulting Underwriter or Underwriters agreed but failed to purchase does not
exceed 10% of the total principal amount of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, SSB may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to SSB and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 9. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5(h) and the
respective obligations of the Company and the Underwriters pursuant to Section 7
shall remain in effect, and if any Offered Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Offered
Securities by the Underwriters is not consummated for any reason other than
solely because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v) of Section 6(d),
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or sent by facsimile and
confirmed to Xxxxxxx Xxxxx Xxxxxx Inc. General Counsel (fax no.: (000) 000-0000)
and confirmed to the General Counsel, Xxxxxxx Xxxxx Barney Inc., at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel, or, if
sent to the Company, will be mailed, delivered or sent by
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facsimile and confirmed to it at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000,
Attention: Legal Department, provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or sent by facsimile
and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representative will be binding upon all the
Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
EL PASO CORPORATION
By /s/ H. Xxxxx Xxxxxx
----------------------------------
Name H. Xxxxx Xxxxxx
-------------------------------
Title Executive Vice President and
Chief Executive Officer
-------------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
XXXXXXX XXXXX XXXXXX INC.
By /s/ Xxxx Xxxxxx
----------------------------------------------
Name Xxxx Xxxxxx
-------------------------------------------
Title Director
------------------------------------------
Acting on behalf of itself and as the Representative of the several
Underwriters.
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SCHEDULE A
PRINCIPAL
AMOUNT OF
UNDERWRITER SECURITIES
----------- ------------
Xxxxxxx Xxxxx Barney Inc.................................................... $320,000,000
BNP Paribas Securities Corp. 60,000,000
BNY Capital Markets, Inc. 60,000,000
TD Securities (USA) Inc. 60,000,000
------------
Total............................................ $500,000,000
============
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SCHEDULE B
El Paso Natural Gas Company
El Paso Tennessee Pipeline Co.
Southern Natural Gas Company
El Paso Field Services, LP
El Paso Production Holding Company
El Paso Merchant Energy Holding Company
El Paso CGP Company
