El Paso Corporation $500,000,000 12.000% Senior Notes due 2013 Underwriting Agreement
EXHIBIT
1.A
El Paso
Corporation
$500,000,000
12.000% Senior Notes due 2013
December 9,
2008
Xxxxxx Xxxxxxx
& Co. Incorporated
Citigroup Global
Markets Inc.
Xxxxxxx, Sachs
& Co.
X.X. Xxxxxx Securities
Inc.
|
|
As
representatives (the “Representatives”)
of the
|
|
|
several
Underwriters named in Schedule I
hereto
|
c/o Morgan Xxxxxxx
& Co. Incorporated
0000
Xxxxxxxx
Xxx Xxxx, XX
00000
Ladies and
Gentlemen:
El Paso
Corporation, a Delaware corporation (the “Company”),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the “Underwriters”)
an aggregate of $500,000,000 principal amount of its 12.000% Senior Notes due
2013 (the “Notes”)
to be issued under an indenture, dated as of May 10, 1999 (the “Base
Indenture”), as supplemented and amended by the Fourteenth Supplemental
Indenture thereto to be dated as of the Closing Date (as defined herein) (the
“Supplemental
Indenture”) between the Company and HSBC Bank USA, National Association,
a national banking association, as successor-in-interest to JPMorgan Chase Bank
(formerly The Chase Manhattan Bank), as Trustee (the “Trustee”). The
Base Indenture, as amended and supplemented from time to time (including without
limitation pursuant to the Supplemental Indenture), is referred to herein as the
“Indenture.”
1. The
Company represents and warrants to, and agrees with, each of the Underwriters
that:
(a) An
“automatic shelf registration statement” as defined under Rule 405 under the
Securities Act of 1933, as amended (the “Act”)
on Form S-3 (File No. 333-134406) in respect of the Notes has been filed with
the Securities and Exchange Commission (the “Commission”)
not earlier than three years prior to the date hereof; such registration
statement, and any post-effective amendment thereto, became effective on filing;
and no stop order suspending the effectiveness of
such registration statement or any part thereof has been issued and no
proceeding for that purpose has been initiated or threatened by the Commission,
and no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act has been received by the Company; the base prospectus filed as
part of such registration statement, in the form in which it has most recently
been filed with the Commission on or prior to the date of this Agreement, is
hereinafter called the “Basic
Prospectus”; any preliminary prospectus (including the Basic Prospectus
as supplemented by any preliminary prospectus supplement) relating to the Notes
filed with the Commission pursuant to Rule 424(b) under the Act is hereinafter
called a “Preliminary
Prospectus”; the various parts of such registration statement, including
all exhibits thereto and any prospectus supplement relating to the Notes that is
filed with the Commission and deemed by virtue of Rule 430B under the Act to be
part of such registration statement, but excluding Form T-1, each as amended at
the time such part of the registration statement became effective, are
hereinafter collectively called the
“Registration
Statement”; the Basic Prospectus, as amended and supplemented immediately
prior to the Applicable Time (as defined in Section 1(c) hereof), is hereinafter
called the “Pricing
Prospectus”; the form of the final prospectus relating to the Notes filed
with the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof is hereinafter called the “Prospectus”;
any reference herein to the Basic Prospectus, the Pricing Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such prospectus; any reference to any amendment
or supplement to the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any post-effective amendment
to the Registration Statement, any prospectus supplement relating to the Notes
filed with the Commission pursuant to Rule 424(b) under the Act and any
documents filed under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), and incorporated therein, in each case after the date of the Basic
Prospectus, such Preliminary Prospectus or the Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement; and
any “issuer free writing prospectus” as defined in Rule 433 under the Act
relating to the Notes is hereinafter called an “Issuer
Free Writing Prospectus”);
(b) No order preventing
or suspending the use of the Registration Statement, any Preliminary Prospectus
or any Issuer Free Writing Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act and the Trust Indenture Act of
1939, as amended (the “Trust
Indenture Act”) and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through one or more of the Representatives expressly for use
therein;
(c) For the purposes of
this Agreement, the “Applicable
Time” is 4:30 p.m. (Eastern time) on the date of this Agreement (which
you have informed the Company is a time prior to the time of the first sale of
the Notes by any Underwriter); the Pricing Prospectus as supplemented by the
final term sheet prepared and filed pursuant to Section 5(a) hereof, taken
together (collectively, the “Pricing
Disclosure Package”), as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and each Issuer Free Writing Prospectus
listed on Schedule II(a) hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and
taken together with the Pricing Disclosure Package as of the Applicable Time,
did not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through one or more of the Representatives
expressly for use therein;
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(d) The documents
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of such documents, at such
time of effectiveness or filing, as applicable, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Registration
Statement, the Pricing Disclosure Package and the Prospectus or any further
amendment or supplement thereto, when such documents become effective or are
filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not, at such
time of effectiveness or filing, as applicable, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through one or more of the Representatives
expressly for use therein; and no such documents were filed with the Commission
since the Commission’s close of business on the business day immediately prior
to the date of this Agreement and prior to the execution of this Agreement,
except as set forth on Schedule II(b) hereto;
(e) The Registration
Statement conforms, and the Prospectus and any further amendments or supplements
to the Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and do not and will not, as
of the applicable effective date as to each part of the Registration Statement
and as of the applicable filing date as to the Prospectus and any amendment or
supplement thereto, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through one or more of the Representatives expressly for use
therein;
(f) The Company has been
duly incorporated and is an existing corporation in good standing under the laws
of the State of Delaware, with the corporate power and authority to own its
properties and conduct its business as described in the Pricing Prospectus; each
of the subsidiaries of the Company set forth in Schedule III hereto (each, a
“Significant
Subsidiary” and collectively, the “Significant
Subsidiaries”), has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its incorporation with
the corporate power and authority to own its properties and conduct its business
as described in the Pricing Prospectus; and each of the Company and its
Significant Subsidiaries is duly qualified to transact business as a foreign
corporation in good standing in all other jurisdictions in which the conduct of
its business requires such qualification, except to the extent that the failure
to be so qualified 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 (a “Material
Adverse Effect”); the subsidiaries set forth in Schedule III hereto
include all of the significant subsidiaries of the Company within the meaning of
Rule 1.02 of Regulation S-X of the Commission;
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(g) Except
as disclosed in the Pricing Disclosure Package, the outstanding equity interests
of each of the Company’s Significant Subsidiaries have been duly authorized and
validly issued, are fully paid and non-assessable and are owned by the Company
or another subsidiary of the Company free and clear of all liens, claims, or
adverse interests of any nature;
(h) This
Agreement has been duly authorized, executed and delivered by the Company and
conforms to the description thereof contained in the Pricing Disclosure Package
and the Prospectus in all material respects;
(i) The
financial statements of the Company contained or incorporated by reference in
the Registration Statement, the Pricing Disclosure Package and the Prospectus
present fairly in all material respects 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 Pricing Disclosure Package, such consolidated
financial statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis;
(j) Each
of Ernst & Young LLP and PricewaterhouseCoopers LLP, who have certified
certain financial statements of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, were independent public accountants as required by
the Act and the applicable rules and regulations thereunder, in the case of
Ernst & Young LLP, as of the date hereof and, in the case of
PricewaterhouseCoopers LLP, during the periods covered by the respective
financial statements so certified;
(k) Except
as disclosed in the Pricing Disclosure Package, there are no pending legal or
governmental 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 Significant 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 this Agreement, or which are otherwise material in the context
of the sale of Notes; and no such actions, suits or proceedings are, to the
Company’s knowledge, threatened or contemplated;
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(l) Except
as disclosed in the Pricing Disclosure Package, the Company and its Significant
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 of such
properties, taken as a whole, or materially interfere with the use made or to be
made of such properties, taken as a whole, by the Company and/or its Significant
Subsidiaries; and, except as disclosed in the Pricing Disclosure Package
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 of such properties,
taken as a whole, by the Company and/or its Significant
Subsidiaries;
(m) Except
as disclosed in the Pricing Disclosure Package, since the date of the latest
audited financial statements incorporated by reference in the Pricing Disclosure
Package, there has been no material adverse change, or 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;
(n) Neither
the Company nor any of its Significant Subsidiaries is (i) in violation of its
charter, bylaws or similar organizational documents, (ii) in default (or with
the giving of notice or lapse of time or both will be in default) in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, mortgage, lease or other agreement or instrument that is material to
the Company and its subsidiaries, taken as a whole, or to which the Company or
any Significant Subsidiary or their respective properties are bound
(collectively, “Contracts”)
or, (iii) in default (or with the giving of notice or lapse of time or both will
be in default) in the performance of any obligation, agreement, covenant or
condition contained in the Third Amended and Restated Credit Agreement, dated as
of November 16, 2007, among the Company, certain subsidiaries of the Company
party thereto and the lenders party thereto, or the Credit Agreement, dated as
of July 19, 2006, between the Company and Deutsche Bank AG, New York Branch
(collectively, the “Credit
Agreements”), except in the case of the foregoing clause (ii) for any
such defaults as would not, individually or in the aggregate, have a Material
Adverse Effect or adversely affect the transactions contemplated by this
Agreement or the Indenture in any material respect;
(o) The
execution, delivery and performance by the Company of this Agreement and the
Indenture, the issuance and sale of the Notes by the Company and the
consummation of the transactions contemplated herein and therein, do not and
will not result in a breach or violation of any of the terms or provisions of,
or constitute a default under, (i) any statute, 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, (ii) any Contract, (iii) any Credit Agreement, or (iv) the charter,
bylaws or similar organizational documents of the Company or any such
Significant Subsidiary, except in the case of the foregoing clauses (i) and (ii)
for any such breaches or violations as would not, individually or in the
aggregate, have a Material Adverse Effect or adversely affect the transactions
contemplated by this Agreement or the Indenture in any material
respect;
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(p) The
Company and each of its Significant Subsidiaries hold all material licenses,
certificates and permits from governmental authorities which are necessary to
the conduct of their businesses, except as would not, individually or in the
aggregate, have a Material Adverse Effect;
(q) Except
for such actions as may be required to qualify the Notes under state securities
or “Blue Sky” laws, no consent, approval, authorization or order of, or filing
or registration or qualification of or with, any court or governmental agency or
body is required for the execution, delivery and performance by the Company of
this Agreement, the issuance and sale of the Notes by the Company pursuant to
this Agreement and the consummation of the transactions contemplated
hereby;
(r) The
Company is not, and after giving effect to the offering and sale of the Notes
and the application of the net proceeds thereof, will not be, an “investment
company” required to be registered under the Investment Company Act of 1940, as
amended (the “Investment
Company Act”);
(s) Except
as disclosed in the Pricing Disclosure Package, the Company is not aware of any
(i) failure on its part to maintain effective disclosure controls and procedures
and internal control over financial reporting, each as defined in Rule 13a-15
under the Exchange Act, (ii) material weakness (as described in Auditing
Standard No. 2 promulgated by the Public Company Accounting Oversight Board) in
the Company’s internal control over financial reporting (regardless of whether
remediated) or (iii) change in the Company’s internal control over financial
reporting that has materially adversely affected, or is reasonably likely to
materially adversely affect, the Company’s internal control over financial
reporting;
(t) Except
as disclosed in the Pricing Disclosure Package, neither the Company nor any of
its subsidiaries is in violation of any statute, 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, the
protection or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, “environmental
laws”), owns or operates or, to the knowledge of the Company, previously
owned or operated any real property contaminated with any substance that is
subject to any environmental laws, or is liable for any off-site disposal or
contamination pursuant to any environmental laws, except for any such
violations, contaminations, liabilities or claims as would not, individually or
in the aggregate, have a Material Adverse Effect;
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(u) The
Company and each of its Significant Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective properties and
as is customary for companies engaged in similar businesses, except as would
not, individually or in the aggregate, have a Material Adverse
Effect;
(v) There
are no business relationships or related-party transactions involving the
Company or any of its subsidiaries or any other person required to be described
by the Company in its Annual Report on Form 10-K for the year ended December 31,
2007 or its proxy statement on Schedule 14A for its 2008 Annual Meeting of
Shareholders pursuant to Item 404 of Regulation S-K under the Act which have not
been described as required;
(w) The
Company is in compliance with Section 402 of the Xxxxxxxx-Xxxxx Act of 2002 (the
“Xxxxxxxx-Xxxxx
Act”), as it relates to loans, in all material respects and has made all
certifications required to be made pursuant to Section 302 and Section 906 of
the Xxxxxxxx-Xxxxx Act;
(x) No
holder of securities of the Company is entitled to have such securities
registered under the Registration Statement;
(y) The
statements set forth in the Pricing Prospectus and the Prospectus under the
captions “Description of Notes,” “Description of the Debt Securities”, “Plan of
Distribution” and “Underwriting,” insofar as such statements purport to
summarize certain provisions of the documents referred to therein, fairly
summarize such provisions in all material respects;
(z) The
Company has all requisite corporate power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. The Company has duly
taken all necessary corporate action to authorize the execution, delivery and
performance of this Agreement;
(aa) Neither
the Company nor, to the Company’s knowledge, any of its affiliates, has taken or
may take, directly or indirectly, any action intended to cause or result in the
stabilization or manipulation of the price of the Notes or the Company’s other
securities;
(bb) The
Notes have been duly authorized and, when executed by the Company and
authenticated by the Trustee in accordance with the Indenture and delivered and
paid for by the Underwriters pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits provided by
the Indenture; the Indenture has been duly authorized and duly qualified under
the Trust Indenture Act and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms; provided, however, that the
enforceability of the Notes and the Indenture are subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating to
or affecting creditors’ rights and to general equity principles;
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(cc) As
of September 30, 2008, the Company had an authorized capitalization as set forth
in the Pricing Disclosure Package; since September 30, 2008, the authorized
capitalization of the Company has not changed in any material respect; and all
of the Notes conform to the description thereof contained in the Pricing
Disclosure Package in all material respects;
(dd) Except
as disclosed in the Pricing Disclosure Package, there are no outstanding
securities of the Company convertible into, exchangeable for or evidencing the
right to purchase or subscribe for any shares of capital stock of the Company
and there are no outstanding or authorized options, warrants or rights of any
character obligating the Company to issue any shares of its capital stock or any
securities convertible or exchangeable into or evidencing the right to purchase
or subscribe for any shares of such stock;
(ee) (A)
(i) At the time of filing the Registration Statement, (ii) at the time of the
most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), and (iii) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c) under the
Act) made any offer relating to the Notes in reliance on the exemption of Rule
163 under the Act, the Company was a “well-known seasoned issuer” as defined in
Rule 405 under the Act, and the Company was not an “ineligible issuer” as
defined in Rule 405 under the Act, and (B) each Issuer Free Writing Prospectus
contains only a description of the terms of the Notes or the offering;
and
(ff) The
Company (x) has been subject to the requirements of Section 12 or 15(d) of the
Exchange Act and has filed all the material required to be filed pursuant to
Sections 13, 14 or 15(d) of the Exchange Act for a period of at least thirty-six
calendar months immediately preceding the date of this Agreement and (y) has
filed in a timely manner all reports required to be filed during the twelve
calendar months and any portion of a month immediately preceding the date of
this Agreement.
2. Subject
to the terms and conditions herein set forth, the Company agrees to issue and
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company, the principal amount of Notes set
forth opposite the name of such Underwriter in Schedule I hereto, at a purchase
price of 87.659% of the principal amount thereof, plus accrued interest, if any,
from December 12, 2008 to the Time of Delivery (as defined below).
3. Upon
the authorization by you of the release of the Notes,
the several Underwriters propose to offer the Notes for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The
Notes to be purchased by each Underwriter hereunder will each be represented by
one or more definitive global Notes in book-entry form which will be delivered
by or on behalf of the Company, to the Representatives through the facilities of
The Depository Trust Company (“DTC”)
or a custodian designated by DTC for the account of such Underwriter or its
designated custodian, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the
account specified by the Company to the Representatives at least forty-eight
hours in advance. The time and date of such delivery and payment
shall be 9:30 a.m., New York City time, on December 12, 2008 or such other time
and date as the Representatives and the Company may agree upon in writing. Such
time and date for delivery of the Notes is herein called the “Time
of Delivery”.
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(b) The
documents to be delivered at the Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Notes
and any additional documents requested by the Underwriters, will be delivered at
the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX
00000 (the “Closing Location”), and the Notes will be delivered at the office of
DTC or its designated custodian, all at the Time of Delivery. A
meeting will be held at the Closing Location at 3:00 p.m., New York City time,
on the New York Business Day next preceding the Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, “New
York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to
close.
5. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form approved by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of
business on the second business day following the execution and delivery of this
Agreement; to make no further amendment or any supplement to the Registration
Statement, the Basic Prospectus or the Prospectus prior to the Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof; to
advise you, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any amendment or supplement to the Prospectus has been filed and to furnish you
with copies thereof; to prepare a final term sheet, containing solely a
description of the Notes, in a form approved by you and to file such term sheet
pursuant to Rule 433(d) under the Act within the time required by such Rule; to
file promptly all other material required to be filed by the Company with the
Commission pursuant to Rule 433(d) under the Act; to file promptly all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required in connection with the offering or sale of the
Notes; to advise you, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or other prospectus in respect of the Notes,
of any notice of objection of the Commission to the use of the Registration
Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2)
under the Act, of the suspension of the qualification of the Notes for offering
or sale in any jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other
prospectus or suspending any such qualification, to promptly use its best
efforts to obtain the withdrawal of such order; and in the event of any such
issuance of a notice of objection, promptly to take such steps including,
without limitation, amending the Registration Statement or filing a new
registration statement, at its own expense, as may be necessary to permit offers
and sales of the Notes by the Underwriters (references herein to the
Registration Statement shall include any such amendment or new registration
statement);
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(b) If
required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b)
under the Act not later than may be required by Rule 424(b) under the Act; and
to make no further amendment or supplement to such form of prospectus which
shall be disapproved by you promptly after reasonable notice
thereof;
(c) Promptly
from time to time to take such action as you may reasonably request to qualify
the Notes for offering and sale under the securities laws of such jurisdictions
as you may reasonably request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of the Notes, provided that in
connection therewith the Company shall not be required to (i) qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a consent
or (ii) subject itself to taxation in respect of doing business in any
jurisdiction where it is not currently subject to taxation;
(d) Prior
to 4:00 p.m., New York City time, on the New York Business Day next succeeding
the date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the Notes and
if at such time any event shall have occurred 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 in order to make
the statements therein, in the light of the circumstances under which they were
made when such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act or the Exchange Act,
to notify you and upon your request to file such document and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many written and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) in connection with sales of any of the
Notes at any time nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to prepare and deliver
to such Underwriter as many written and electronic copies as you may request of
an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
10
(e) To
make generally available to its security holders as soon as practicable, but in
any event not later than sixteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(f) During
the period beginning from the date hereof and continuing to and including the
later of the Time of Delivery and such earlier time as you may notify the
Company, not to offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose, except as provided
hereunder, of any securities of the Company that are substantially similar to
the Notes;
(g) To
pay the required Commission filing fees relating to the Notes within the time
required by Rule 456(b)(1) under the Act in accordance with
Rule 457(r) under the Act; and
(h) To
use the net proceeds received by it from the sale of the Notes in the manner
specified in the Pricing Disclosure Package under the caption “Use of
Proceeds”.
6. (a)
The Company represents and agrees that, other than the final term sheet prepared
and filed pursuant to Section 5(a) hereof, without the prior consent of the
Representatives, it has not made and will not make any offer relating to the
Notes that would constitute a “free writing prospectus” as defined in Rule 405
under the Act; each Underwriter represents and agrees that, without the prior
consent of the Company and the Representatives, other than one or more term
sheets relating to the Notes containing customary information and conveyed to
purchasers of Notes, it has not made and will not make any offer relating to the
Notes that would constitute a free writing prospectus; any such free writing
prospectus the use of which has been consented to by the Company and the
Representatives (including the final term sheet prepared and filed pursuant to
Section 5(a) hereof) is listed on Schedule II(a) hereto;
(b) The
Company has complied and will comply with the requirements of Rule 433 under the
Act applicable to any Issuer Free Writing Prospectus, including timely filing
with the Commission or retention where required and legending;
and
(c) The
Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free
Writing Prospectus would conflict with the information in the Registration
Statement, the Pricing Disclosure Package or the Prospectus or would include an
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to the
Representatives and, if requested by the Representatives, will prepare and
furnish without charge to each Underwriter an Issuer Free Writing Prospectus or
other document which will correct such conflict, statement or omission;
provided, however, that this representation and warranty shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through one or more of the Representatives expressly for use
therein.
11
7. The
Company covenants and agrees with the several Underwriters that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses
of the Company’s counsel and accountants in connection with the registration of
the Notes under the Act and all other expenses in connection with the
preparation, printing, reproduction and filing of the Registration Statement,
the Basic Prospectus, any Preliminary Prospectus, any Issuer Free Writing
Prospectus and the Prospectus and amendments and supplements thereto and the
mailing and delivering of copies thereof to the Underwriters and dealers; (ii)
the cost of printing or producing any Agreement among Underwriters, this
Agreement, the Indenture, any Blue Sky Memorandum, closing documents (including
any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Notes; (iii) all expenses in
connection with the qualification of the Notes for offering and sale under state
securities laws as provided in Section 5(c) hereof, including the fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky survey(s); (iv) any filing
fees incident to, and the fees and disbursements of counsel for the Underwriters
in connection with, any required review by the Financial Industry Regulatory
Authority of the terms of the sale of the Notes; (v) the cost of preparing
certificates for the Notes; (vi) any fees charged by securities rating services
for rating the Notes; (vii) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes; and (viii) all other
costs and expenses incident to the performance of its obligations hereunder
which are not otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this Section, and Sections 9
and 12 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Notes by them, and any advertising expenses connected with any offers they may
make.
8. The
obligations of the Underwriters hereunder, as to the Notes to be delivered at
the Time of Delivery, shall be subject, in their discretion, to the condition
that all representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery, true and correct, the condition
that the Company shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; the final term sheet contemplated by Section 5(a) hereof, and any other
material required to be filed by the Company pursuant to Rule 433(d) under the
Act, shall have been filed with the Commission within the applicable time
periods prescribed for such filings by Rule 433; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission and no notice of objection of the Commission to the
use of the Registration Statement or any post-effective amendment thereto
pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order
suspending or preventing the use of the Prospectus or any Issuer Free Writing
Prospectus shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Xxxxx
Xxxx & Xxxxxxxx, counsel for the Underwriters, shall have furnished to you
such written opinion or opinions, dated the Time of Delivery, with respect to
such matters as the Representatives may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
12
(c) (i)
Xxxxxxxxx & Xxxxxxxx LLP, special counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, substantially in the form of Annex I hereto; and
(ii) Xxxxxx X. Xxxxx, Esq., Executive Vice President and General Counsel of the
Company, shall have furnished to you his written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, substantially in the form
of Annex II hereto;
(d) On
the date of the Pricing Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at the Time of Delivery, each of Ernst &
Young LLP and PricewaterhouseCoopers LLP shall
have furnished to you customary comfort letters addressed to you, dated the Time
of Delivery, in form and substance satisfactory to you and your counsel with
respect to financial statements and certain financial information contained or
incorporated by reference in the Pricing Prospectus and the
Prospectus;
(e) (i) Neither
the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included or incorporated by reference in
the Pricing Disclosure Package any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Pricing Disclosure Package,
and (ii) since the respective dates as of which information is given in the
Pricing Disclosure Package there shall not have been any change, or any
development involving a prospective change, in or affecting the general affairs,
management, financial position, stockholders’ equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or contemplated in
the Pricing Disclosure Package, the effect of which, in any such case described
in clause (i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Notes on the terms and in the manner contemplated in the Registration
Statement, the Pricing Disclosure Package and the
Prospectus;
(f) On
or after the Applicable Time (i) no downgrading shall have occurred in the
rating accorded the Company’s debt securities or preferred stock or the rating
of any of the Company’s subsidiaries or their securities by any “nationally
recognized statistical rating organization”, as that term is defined by the
Commission for purposes of Section 3(a)(62) of the Exchange Act, and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company’s debt securities or preferred stock or the rating of any of the
Company’s subsidiaries or their securities;
(g) On
or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on
the Exchange; (ii)
a suspension or material limitation in trading in the Company’s securities on
the Exchange; (iii) a general moratorium on commercial banking activities
declared by either Federal or New York or Texas state authorities or a material
disruption in commercial banking or securities settlement or clearance services
in the United States; (iv) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war or (v) the occurrence of any other calamity or crisis or any
change in financial, political or economic conditions in the United States or
elsewhere; if the effect of any such event specified in clause (iv) or (v) in
your judgment makes it impracticable or inadvisable to proceed with the public
offering or the delivery of the Notes being delivered at the Time of Delivery on
the terms and in the manner contemplated in the Prospectus;
13
(h) The
Company shall have complied with the provisions of Section 5(d) hereof with
respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement;
(i)
The Company shall have furnished or caused to be furnished to you at the Time of
Delivery certificates of the Chief Financial Officer and one additional
executive officer of the Company who is knowledgeable about the Company’s
financial matters as to the accuracy of the representations and warranties of
the Company herein in all material respects (except for those representations
and warranties as are qualified by materiality, which are true and correct in
all respects), at and as of the Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to the
Time of Delivery, as to the matters set forth in subsections (a) and (e) of this
Section, to the effect that the contracts filed as exhibits to the documents
incorporated by reference in the Registration Statement, the Pricing Prospectus
and the Prospectus pursuant to Item 601(b)(10) of Regulation S-K promulgated by
the Commission are the only material agreements or instruments that the Company
or any of its subsidiaries is a party to or bound by or to which any of their
properties or assets is subject, and as to such other matters as you may
reasonably request; and
(j)
Xxxxx Xxxxx Company, L.P., independent petroleum engineers for the Company,
shall have furnished to you a letter or letters, dated the Time of Delivery, in
form and substance reasonably satisfactory to you.
9. (a) The
Company will indemnify and hold harmless each Underwriter 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 an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment
or supplement thereto, any Issuer Free Writing Prospectus or any “issuer
information” filed or required to be filed pursuant to Rule 433(d) under the
Act, 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 action or claim as such expenses are
incurred; provided, however, that the Company shall 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 or omission or
alleged omission made in the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through one or more of the Representatives expressly
for use therein.
14
(b)
Each Underwriter will indemnify and hold harmless the Company 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 an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Disclosure Package or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, 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,
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 the
Registration Statement, the Basic Prospectus, any Preliminary Prospectus, the
Pricing Disclosure Package or the Prospectus, or any amendment or supplement
thereto, or any Issuer Free Writing Prospectus, in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through one or more of the Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c)
Promptly after receipt by an indemnified party under subsection (a) or (b) above
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include any
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(d) If
the indemnification provided for in this Section 9 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
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 Notes. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits 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 (or
actions in respect thereof), 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
15
deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. 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 on the one hand
or the Underwriters on the other and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in 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 such action or claim. 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 Notes 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 9 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 each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 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 officer and
director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
10. (a)
If any Underwriter shall default in its obligation to purchase the Notes
which it has agreed to purchase hereunder, you may in your discretion arrange
for you or another party or other parties to purchase such Notes on the terms
contained herein. If within thirty six hours after such default by
any Underwriter you do not arrange for the purchase of such Notes, then the
Company shall be entitled to a further period of thirty six hours within which
to procure another party or other parties satisfactory to you to purchase such
Notes on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Notes, or the Company notifies you that it has so arranged for
the purchase of such Notes, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term “Underwriter” as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such
Notes.
16
(b) If,
after giving effect to any arrangements for the purchase of the Notes of a
defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate principal amount of such Notes, which
remains unpurchased does not exceed one-eleventh of the aggregate principal
amount of all the Notes, to be purchased at the Time of Delivery, then the
Company shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Notes, which such Underwriter agreed to
purchase hereunder at the Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Notes, which such Underwriter agreed to purchase hereunder)
of the Notes, of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If,
after giving effect to any arrangements for the purchase of the Notes of a
defaulting Underwriter or Underwriters by you and the Company as provided in
subsection (a) above, the aggregate principal amount of the Notes, which remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Notes, to be purchased at the Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase the Notes, of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 7 hereof and
the indemnity and contribution agreements in Section 9 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
11. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Notes.
12. If
this Agreement shall be terminated pursuant to Section 10 hereof, the Company
shall not then be under any liability to any Underwriter except as provided in
Sections 7 and 9 hereof; but, if for any other reason, any Notes are not
delivered by or on behalf of the Company as provided herein, the Company will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Notes not so delivered, but the Company shall then be under no
further liability to any Underwriter except as provided in Sections 7 and 9
hereof.
13. In
all dealings hereunder, you shall act on behalf of each of the Underwriters, and
the parties hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or given by you
as the Representative.
17
All statements,
requests, notices and agreements hereunder shall be in writing, and if to the
Underwriters shall be delivered or sent by mail, telex or facsimile transmission
to the Underwriters, c/o Morgan Xxxxxxx & Co. Incorporated, 0000 Xxxxxxxx,
Xxx Xxxx, XX 00000, Attention: Legal Department; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the Registration Statement, Attention: Executive Vice
President and General Counsel, provided, however, that any notice to an
Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters’ Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters, the Company and, to the extent provided in Sections 9 and 11
hereof, the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of
any of the Notes from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
15. Time
shall be of the essence of this Agreement. As used herein, the term
“business day” shall mean any day when the Commission’s office in Washington,
D.C. is open for business.
16. The
Company acknowledges and agrees that (i) the purchase and sale of the Notes
pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the several Underwriters, on the other, (ii) in
connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter
has advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this
Agreement and (iv) the Company has consulted its own legal and financial
advisors to the extent it deemed appropriate. The Company agrees that
it will not claim that the Underwriters, or any of them, has rendered advisory
services of any nature or respect, or owes a fiduciary or similar duty to the
Company, in connection with such transaction or the process leading
thereto.
18
17. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to
the subject matter hereof.
18. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
19. The
Company and each of the Underwriters hereby irrevocably waives, to the fullest
extent permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
20. Notwithstanding
anything herein to the contrary, the Company is authorized to disclose to any
persons U.S. federal and state tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax
analyses) provided to the Company relating to that treatment and structure,
without the Underwriters imposing any limitation of any kind. However, any
information relating to the tax treatment and tax structure shall remain
confidential (and the foregoing sentence shall not apply) to the extent
necessary to enable any person to comply with securities laws. For this purpose,
“tax structure” is limited to any facts that may be relevant to that
treatment.
21. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
19
If the foregoing is
in accordance with your understanding, please sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between each
of the Company and the several Underwriters in accordance with its
terms.
Very truly
yours,
El Paso
Corporation
By: /s/
Xxxx X. Xxxxxx
Name: Xxxx X.
Xxxxxx
Title: Vice
President and Treasurer
[Signature
page of Underwriting Agreement]
Accepted as of the
date hereof on behalf of themselves and the several Underwriters named in
Schedule I:
Xxxxxx Xxxxxxx
& Co. Incorporated
Citigroup Global
Markets Inc.
Xxxxxxx, Sachs
& Co.
X.X. Xxxxxx
Securities Inc.
By: Xxxxxx Xxxxxxx
& Co. Incorporated on behalf
of
the Representatives
By: /s/ Xxxxx
Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title: Vice
President
[Signature
page of Underwriting Agreement]
