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EXHIBIT 1.1
6,500,000 Trust Preferred Securities
EL PASO ENERGY CAPITAL TRUST I
4 3/4% Trust Convertible Preferred Securities
(Liquidation Amount $50 per Trust Preferred Security)
Guaranteed by, and Convertible into Common Stock of,
EL PASO NATURAL GAS COMPANY
UNDERWRITING AGREEMENT
March 11, 1998
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
As Underwriters
c/▇ ▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
El Paso Energy Capital Trust I, a statutory business trust formed under
the laws of the State of Delaware (the "Trust"), and El Paso Natural Gas
Company, a Delaware corporation (the "Company"), propose that the Trust issue
and sell to the several underwriters named in Schedule I hereto (the
"Underwriters") 6,500,000 of its 4 3/4% Trust Convertible Preferred Securities
(liquidation amount $50 per Trust Preferred Security) (the "Firm Securities"),
representing preferred undivided beneficial interests in the assets of the
Trust, guaranteed on a subordinated basis by the Company as to the payment of
distributions, and as to payments on liquidation and redemption, to the extent
set forth in a guarantee agreement (the "Preferred Guarantee") between the
Company and The Chase Manhattan Bank, as guarantee trustee (the "Guarantee
Trustee"), and convertible into common stock, par value $3.00 per share
("Common Stock"), of the Company. The Trust and the Company also propose that
the Trust issue and sell to the several Underwriters not more than an
additional 700,000 of its 4 3/4% Trust Convertible Preferred Securities (the
"Additional Securities") if requested by the
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Underwriters as provided in Section 2 hereof. The Firm Securities and the
Additional Securities are hereinafter referred to collectively as the
"Securities". The Trust will purchase, with the proceeds of the sale of the
Securities and 195,000 (or 216,000 assuming full exercise by the Underwriters
of the over-allotment option described herein) of its 4 3/4% Trust Convertible
Common Securities (liquidation amount $50 per Trust Common Security) (the
"Common Securities,") $325,000,000 aggregate principal amount (or $360,000,000
aggregate principal amount assuming full exercise by the Underwriters of the
overallotment option described herein) of 4 3/4% Subordinated Convertible
Debentures due 2028 (the "Debentures") of the Company, to be issued pursuant to
an Indenture to be dated as of March 1, 1998 (as supplemented by a First
Supplemental Indenture to be dated as of March 17, 1998, the "Indenture")
between the Company and The Chase Manhattan Bank, as trustee (the "Indenture
Trustee" ).
Immediately after the Closing Date (as defined herein), the Company will
be the holder of all of the Common Securities. The Common Securities will
represent subordinated undivided beneficial interests in the assets of the
Trust, guaranteed on a subordinated basis by the Company as to the payment of
distributions, and as to payments on liquidation and redemption, to the extent
set forth in a guarantee agreement (the "Common Guarantee," and together with
the Preferred Guarantee, the "Guarantees") executed by the Company. The Trust
will be subject to the provisions of an Amended and Restated Declaration of
Trust (the "Declaration") to be dated as of March 16, 1998 among the Company,
as sponsor of the Trust, The Chase Manhattan Bank, as property trustee (the
"Property Trustee"), Chase Manhattan Bank (Delaware), as Delaware trustee (the
"Delaware Trustee"), and three individual trustees who are officers of the
Company (the "Administrative Trustees"). The Property Trustee, the Delaware
Trustee and the Administrative Trustees are collectively referred to herein as
the "Trustees."
SECTION 1. Registration Statement and Prospectus. The Trust and the Company
have prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (Registration
No. 333-42713), in respect of the Securities and the Company's debt and equity
securities, which registration statement also constitutes a post-effective
amendment to registration statement No. 333-14617, and has filed such
amendments thereto as may have been required to the date of this Agreement.
Such registration statement and such post-effective amendment, as amended, have
been declared effective by the Commission. Such registration statement and
such post-effective amendment, as amended through the date of this Agreement,
including all documents incorporated or deemed to be incorporated therein by
reference, as from time to time amended or supplemented pursuant to the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission thereunder (collectively, the "Exchange Act"), or otherwise,
are herein collectively referred to as the "Registration Statement." The
prospectus in the form first used to confirm sales of Securities (including the
information contained in any prospectus supplement relating to the Securities
and any documents or information incorporated or deemed to be incorporated by
reference into such prospectus) are hereinafter collectively referred to as the
"Prospectus". All references in
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this Agreement to financial statements and schedules and other information
which is "contained," "included," "described" or "stated" in the Registration
Statement or the Prospectus (and all references of like import) shall be deemed
to mean and include all such financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement or the Prospectus, as the case may be. The terms
"supplement," "supplemented," "amendment," "amend" and "amended" as used in
this Agreement with respect to the Registration Statement or the Prospectus
shall include all documents filed by the Trust or the Company with the
Commission pursuant to the Exchange Act that are incorporated or deemed to be
incorporated therein by reference.
SECTION 2. Agreements to Sell and Purchase and Lock-Up Agreements. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Trust and the Company agree that the
Trust shall issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at
a price per Trust Preferred Security of $50 (the "Purchase Price"), the number
of Firm Securities set forth opposite the name of such Underwriter in Schedule
I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Trust and the Company
agree that the Trust shall issue and sell the Additional Securities and the
Underwriters shall have the right to purchase, severally and not jointly, up to
700,000 Additional Securities from the Company at the Purchase Price.
Additional Securities may be purchased solely for the purpose of covering over-
allotments made in connection with the offering of the Firm Securities. The
Underwriters may exercise their right to purchase Additional Securities in
whole or in part at any time by giving written notice thereof to the Trust and
the Company within 30 days after the date of this Agreement. You shall give
any such notice and such notice shall specify the aggregate number of
Additional Securities to be purchased pursuant to such exercise and the date
for payment and delivery thereof, which date shall be a business day (i) no
earlier than two business days after such notice has been given (and, in any
event, no earlier than the Closing Date) and (ii) no later than ten business
days after such notice has been given. If any Additional Securities are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase from
the Trust the number of Additional Securities (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Securities to be purchased from
the Trust as the number of Firm Securities set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Securities.
As compensation to the Underwriters for their commitments hereunder, and
in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust to purchase the Debentures of the Company, the Company on the
Closing Date or any Option Closing Date (as hereinafter defined) shall pay to
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ"), for the respective
accounts of the several Underwriters, an amount equal to $50 per Trust
Preferred
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Security for the Securities delivered by the Trust pursuant hereto on the
Closing Date or any Option Closing Date.
The Company hereby agrees not to (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or
(ii) enter into any swap or other arrangement that transfers all or a portion
of the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (i) or (ii)
is to be settled by the delivery of Common Stock, or such other securities, in
cash or otherwise), except to the Underwriters pursuant to this Agreement, for
a period of 90 days after the date of the Prospectus without the prior written
consent of DLJ. Notwithstanding the foregoing, during such 90-day period (i)
the Company may grant stock options, rights or warranties pursuant to the
Company's director or employee benefit or compensation plans or arrangements;
(ii) the Company may issue shares of Common Stock upon the exercise of an
option, right or warrant or the conversion of a security pursuant to such plans
or arrangements; (iii) the Company may issue shares of Common Stock in
connection with any business combination or other acquisition by the Company or
any of its Subsidiaries; and (iv) the Company may transfer up to 1,474,076
shares of Common Stock to charitable organizations. The Company also agrees
not to file any registration statement (other than in connection with the
registration of securities pursuant to an employee stock option, stock
purchase, dividend reinvestment plan or similar plan or pursuant to a merger,
exchange offer or a transaction of the type specified in Rule 145(a) under the
Act) with respect to any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock for a period of 90 days
after the date of the Prospectus without the prior written consent of DLJ.
SECTION 3. Terms of Public Offering. The Trust and the Company are advised
by you that the Underwriters propose (i) to make a public offering of their
respective portions of the Securities as soon after the execution and delivery
of this Agreement as in your judgment is advisable and (ii) initially to offer
the Securities upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. The Securities shall be represented by one
or more definitive global Securities in book-entry form which will be deposited
by or on behalf of the Trust with The Depository Trust Company ("DTC") or its
designated custodian. The Trust shall deliver the Securities, with any
transfer taxes thereon duly paid by the Trust, to DLJ through the facilities of
DTC for the respective accounts of the several Underwriters, against payment to
the Trust of the Purchase Price therefor by wire transfer of Federal or other
funds immediately available in New York City. The global certificates
representing the Securities shall be made available for inspection not later
than 9:30 A.M., New York City time, on the business day prior to the Closing
Date (as defined below), at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of delivery and payment for the Firm
Securities shall be 9:00 A.M., New York City time, on March 17, 1998 or such
other time on the same or such other date as DLJ and the Company shall
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agree in writing. The time and date of delivery for the Firm Securities are
hereinafter referred to as the "Closing Date". The time and date of delivery
and payment for any Additional Securities to be purchased by the Underwriters
shall be 9:00 A.M., New York City time, on the date specified in the applicable
exercise notice given by you pursuant to Section 2 or such other time on the
same or such other date as DLJ and the Company shall agree in writing. The
time and date of delivery for the Additional Securities are hereinafter
referred to as an "Option Closing Date".
The documents to be delivered on the Closing Date or any Option
Closing Date on behalf of the parties hereto pursuant to Section 8 of this
Agreement, shall be delivered at the offices of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"), and the
Securities will be delivered at the Designated Office, all on the Closing Date
or such Option Closing Date, as the case may.
SECTION 5. Agreements of the Trust and the Company. The Trust and the
Company, jointly and severally, agree with you:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information, (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, (iii) when
any amendment to the Registration Statement becomes effective, and (iv) of the
happening of any event during the period referred to in Section 5(d) below
which makes any statement of a material fact made in the Registration Statement
or the Prospectus untrue or which requires any additions to or changes in the
Registration Statement in order to make the statements therein not misleading
or the Prospectus in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish to you one signed copy of the Registration Statement
as first filed with the Commission and of each amendment to it (including
exhibits thereto), and to furnish to you and each Underwriter designated by you
such number of conformed copies of the Registration Statement as so filed and
of each amendment to it (without exhibits thereto).
(c) To prepare the Prospectus, the form and substance of which shall
be satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised; and, during such period, to prepare and file with the Commission, any
amendment to the Registration Statement or amendment
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or supplement to the Prospectus which may be necessary or advisable in
connection with the distribution of the Securities by you, and to use its best
efforts to cause any such amendment to the Registration Statement to become
promptly effective.
(d) Prior to 10:00 A.M., New York City time, on the first business
day after the date of this Agreement and from time to time thereafter for 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, to furnish in New York City to each Underwriter and any dealer as many
copies of the Prospectus (and of any amendment or supplement to the Prospectus)
and any documents incorporated therein by reference as such Underwriter or
dealer may reasonably request.
(e) If during the period specified in Section 5(d), any event shall
occur or condition shall exist as a result of which, in the opinion of counsel
for the Underwriters or counsel for the Company, it becomes necessary to amend
or supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of either such counsel, it is necessary to
amend or supplement the Prospectus to comply with applicable law, forthwith to
prepare and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended or
supplemented, will not in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with applicable
law, and to furnish to each Underwriter and to any dealer as many copies
thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Securities, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Securities for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may reasonably request, to continue such registration or
qualification in effect so long as required for distribution of the Securities
and to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; 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
relating to the Prospectus, the Registration Statement, any preliminary
prospectus or the offering or sale of the Securities, in any jurisdiction in
which it is not now so subject.
(g) To mail and make generally available to its stockholders as soon
as practicable an earnings statement covering the twelve-month period ending
March 31, 1998 that shall satisfy the provisions of Section 11(a) of the Act
and Rule 158 of the Commission thereunder.
(h) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of its obligations under this Agreement,
including: (i) the fees, disbursements and expenses of counsel to the Company
and the Trust and the Company's and the Trust's accountants in connection with
the
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registration and delivery of the Securities under the Act and all other fees
and expenses in connection with the preparation, printing, filing and
distribution of the Registration Statement (including financial statements and
exhibits), any preliminary prospectus, the Prospectus and all amendments and
supplements to any of the foregoing, including the mailing and delivering of
copies thereof to the Underwriters and dealers in the quantities specified
herein, (ii) all costs and expenses related to the transfer and delivery of the
Securities to the Underwriters, including any transfer or other taxes payable
thereon, (iii) all costs of printing or producing this Agreement and any other
agreements or documents in connection with the offering, purchase, sale or
delivery of the Securities, excluding any internal sales memoranda or other
documents prepared by any of you, (iv) all expenses in connection with the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states and all costs of printing or
producing any Preliminary and Supplemental Blue Sky Memoranda in connection
therewith (including the filing fees and fees and disbursements of counsel for
the Underwriters in connection with such registration or qualification and
memoranda relating thereto), (v) the filing fees and disbursements of counsel
for the Underwriters in connection with the review and clearance of the
offering of the Securities by the National Association of Securities Dealers,
Inc., (vi) all fees and expenses in connection with the preparation and filing
of the registration statement on Form 8-A relating to the Securities and all
costs and expenses incident to the listing of the Securities on the New York
Stock Exchange, Inc. ("NYSE"), (vii) the cost of printing certificates
representing the Securities, (viii) the costs and charges of any transfer
agent, registrar and/or depositary (including DTC), (ix) any fees charged by
rating agencies for the rating of the Securities, (x) the fees and expenses of
the Trustees, the Guarantee Trustee and the Indenture Trustee and their counsel
in connection with the Declaration, the Guarantee, the Indenture and the
Securities and (xi) all other costs and expenses incident to the performance of
the obligations of the Company hereunder for which provision is not otherwise
made in this Section, but excluding fees, disbursements and expenses of counsel
to the Underwriters and road show expenses of the Underwriters.
(i) To use their commercially reasonable efforts to list, subject to
notice of issuance, the Securities, the Debentures, and the Common Stock
issuable upon conversion of the Securities or the Debentures on the NYSE and to
maintain the listing of the Securities, the Debentures and such Common Stock on
the NYSE so long as the Securities are outstanding.
(j) Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of the Securities.
(k) To use their best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the Trust or the
Company prior to the Closing Date or any Option Closing Date, as the case may
be, and to satisfy all conditions precedent to the delivery of the Securities.
SECTION 6. Representations and Warranties of the Trust and the
Company. The Trust and the Company, jointly and severally, represent and
warrant to each Underwriter that:
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(a) The Registration Statement has become effective under the Act and
no stop order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act, (ii) each
part of the Registration Statement, when such part became effective, did not
contain, and each such part as amended or supplemented, if applicable, will not
contain any 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, (iii) the Registration Statement and the Prospectus comply and,
as amended or supplemented, if applicable, will comply in all material respects
with the Act, (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through you expressly for use
therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, 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, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in any preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(d) The Trust has been duly created and is validly existing as a
statutory business trust in good standing under the Business Trust Act of the
State of Delaware (the "Delaware Business Trust Act") with the trust power and
authority to own property and conduct its business as described in the
Prospectus, and has conducted and will conduct no business other than the
transactions contemplated by this Agreement and described in the Prospectus;
the Trust is not a party to or bound by any agreement or instrument other than
this Agreement, the Declaration and the agreements and instruments contemplated
by the Declaration and described in the Prospectus; based on expected
operations and current law, the Trust will be classified for United States
federal income tax purposes as a grantor trust and will not be taxable as a
corporation; and the Trust is not a party to or subject to any action, suit or
proceeding of any nature.
(e) Each of the Company and its significant subsidiaries within the
meaning of Regulation S-X (each hereinafter referred to as a "Subsidiary") has
been duly incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
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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 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.
(f) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable and
not subject to any preemptive or similar rights; the shares of Common Stock
issuable upon the conversion of the Securities or the Debentures have been duly
authorized and reserved for issuance and when issued and delivered in
accordance with the provisions of the Declaration and the Securities or the
Indenture, will be validly issued and fully paid and non-assessable; the
capital stock of the Company, including the Common Stock, conform in all
material respects to the description thereof in the Prospectus; and the
issuance of the Common Stock upon the conversion of the Securities or the
Debentures will not be subject to preemptive or other similar rights.
(g) The Securities have been duly and validly authorized by the
Trust, and, when issued and delivered to the Underwriters against payment
therefor as provided herein, will be duly and validly issued and fully paid and
non-assessable undivided preferred beneficial interests in the assets of the
Trust and will conform in all material respects to the description thereof
contained in the Prospectus; the issuance of the Securities is not subject to
preemptive or other similar rights; the Securities will have the rights set
forth in the Declaration, and the terms of the Securities are valid and binding
on the Trust; the holders of the Securities will be entitled to the same
limitation of personal liability extended to the stockholders of private
corporations for profit organized under the General Corporation Law of the
State of Delaware.
(h) The Common Securities have been duly and validly authorized by
the Trust and upon delivery by the Trust to the Company against payment
therefor as described in the Prospectus, will be duly and validly issued
undivided subordinated beneficial interests in the assets of the Trust and will
conform in all material respects to the description thereof contained in the
Prospectus; the issuance of the Common Securities is not subject to preemptive
or other similar rights; and at each Closing Date or Option Closing Date, as
the case may be, all of the issued and outstanding Common Securities of the
Trust will be directly owned by the Company free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature (each, a
"Lien"), other than rights of the Company arising under the Declaration to
redeem Common Securities; and the Common Securities and the Securities are the
only interests authorized to be issued by the Trust.
(i) Each of the Guarantee, the Declaration and the Indenture
(collectively, the "Guarantor Agreements") has been duly authorized and when
validly executed and delivered by the Company and, in the case of the
Guarantee, by the Guarantee Trustee and in the case of the Debentures, when
validly authenticated and delivered by the Debenture Trustee and, and in the
case of the Guarantee,
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upon due execution, authentication and delivery of the Debentures and upon
payment therefor, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their respective terms, except as (A)
the enforcement thereof may be limited by bankruptcy, insolvency, or similar
laws 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 each of the Preferred Guarantee, the Declaration
and the Indenture has been duly qualified under the Trust Indenture Act of
1939, as amended.
(j) The Debentures have been duly authorized and, on the Closing Date
or the Option Closing Date, will have been validly executed and delivered by
the Company. When the Debentures have been executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for
by the Trust in accordance with the terms of this Agreement and as described in
the Prospectus, the Debentures will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(k) The Debentures conform in all material respects as to legal
matters to the description thereof contained in the Prospectus.
(l) Neither the Company nor any Subsidiary is (i) in violation of the
Declaration, or 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 Subsidiary is a party or by which the Company or any
Subsidiary or their respective property is bound.
(m) The execution, delivery and performance of this Agreement by the
Trust, the compliance by the Trust with all of the provisions of this
Agreement, and the consummation of the transactions contemplated by this
Agreement and by the Declaration, including the issuance and sale of the
Securities and the Common Securities by the Trust, the purchase of the
Debentures by the Trust, and the distribution of the Debentures by the Trust in
the circumstances contemplated by the Declaration, will not (i) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) constitute a breach of
any of the terms or provisions of, or a default under, the charter or by-laws
of the Company or any Subsidiary or 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 Subsidiary is a
party or by which the Company or any Subsidiary or their respective property is
bound, (iii) violate any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any Subsidiary or their respective property,
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(iv) result in the imposition or creation of (or the obligation to create or
impose) a Lien under any agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary or their
respective property is bound or (v) result in the suspension, termination or
revocation of any Authorization (as defined below) of the Company or any
Subsidiary or any other impairment of the rights of the holder of any such
Authorization.
(n) The execution, delivery and performance of this Agreement, the
Debentures and the Guarantor Agreements 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 including the issuance and sale of
the Securities and the Common Securities by the Trust, the sale of the
Debentures by the Company to the Trust, the distribution of the Debentures by
the Trust in the circumstances contemplated by the Declaration, the issuance by
the Company of the Guarantee, and the issuance by the Company of the Common
Stock upon the conversion of the Securities or the Debentures will not (i)
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as
have been made or received and except such as may be required under the
securities or Blue Sky laws of the various states), (ii) constitute a breach of
any of the terms or provisions of, or a default under, the charter or by-laws
of the Company or any Subsidiary or 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 Subsidiary is a
party or by which the Company or any Subsidiary or their respective property is
bound, (iii) violate any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over the Company, any Subsidiary or their respective property,
(iv) result in the imposition or creation of (or the obligation to create or
impose) a Lien (excluding any right of redemption of the Company arising under
the Declaration, the Indenture or the Debentures) under any agreement or
instrument to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary or their respective property is bound or (v) result
in the suspension, termination or revocation of any permit, license, consent,
exemption, franchise, authorization or other approval (each, an
"Authorization") of the Company or any Subsidiary or any other impairment of
the rights of the holder of any such Authorization.
(o) There are no legal or governmental proceedings pending or, to the
Company's knowledge, threatened to which the Company or any Subsidiary is or
could be a party or to which any of their respective property is or could be
subject that would restrict the issuance and sale of the securities as
contemplated by the Prospectus or that are required to be described in the
Registration Statement or the Prospectus and are not so described; nor are
there any statutes, regulations, contracts or other documents that are required
to be described in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not so described or filed as
required.
(p) This Agreement has been duly authorized, executed and delivered
by the Trust and the Company.
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(q) Coopers & ▇▇▇▇▇▇▇ L.L.P. are independent public accountants with
respect to the Company and its subsidiaries as required by the Act.
(r) The consolidated financial statements included or incorporated by
reference in the Registration Statement and the Prospectus (and any amendment
or supplement thereto), together with related schedules and notes, present
fairly in accordance with generally accepted accounting principles consistently
applied the consolidated financial position, results of operations and cash
flows of the Company and its Subsidiaries on the basis stated therein at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; the supporting schedules, if
any, included in the Registration Statement present fairly in accordance with
generally accepted accounting principles the information required to be stated
therein; and the other financial and statistical information and data set forth
or incorporated by reference in the Registration Statement and the Prospectus
(and any amendment or supplement thereto) are, in all material respects,
accurately presented and prepared on a basis consistent with such financial
statements and the books and records of the Company.
(s) The Company is not and, after giving effect to the offering and
sale of the 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.
(t) 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.
(u) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there has not occurred any material adverse change or any development
involving a prospective material adverse change in the financial condition or
the earnings, business, management or operations of the Company and its
Subsidiaries, taken as a whole, (ii) there has not been any material adverse
change or any development involving a prospective material adverse change in
the capital stock or in the long-term debt of the Company or any Subsidiary and
(iii) neither the Company nor any Subsidiary has incurred any material
liability or obligation, direct or contingent.
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(v) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
SECTION 7. Indemnification. (a) The Trust and the Company
jointly and severally agree to indemnify and hold harmless each Underwriter,
its directors, its officers and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including
any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter who failed to deliver a
Prospectus (as then amended or supplemented, provided by the Company to the
several Underwriters in the requisite quantity and on a timely basis to permit
proper delivery on or prior to the Closing Date) to the person asserting any
losses, claims, damages and liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or preliminary prospectus supplement, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in such Prospectus and such Prospectus was required by law
to be delivered at or prior to the written confirmation of sale to such person.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Trust, the Trustees, the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Trust or the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to such Underwriter but only with reference to
information relating to such Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use in the Registration Statement
(or any amendment thereto), the Prospectus (or any amendment or supplement
thereto) or any preliminary prospectus or preliminary prospectus supplement.
(c) In case any action shall be commenced involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
and the indemnifying party shall assume the defense of such action,
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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), the 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 action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed, after notice thereof by the indemnified
party, to assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any such
action (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
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties and all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by DLJ, in the case of parties indemnified pursuant to
Section 7(a), and by the Company, in the case of parties indemnified pursuant
to Section 7(b). 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 its written consent or (ii) effected without its 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 reasonable 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) To the extent the indemnification provided for in this Section 7
is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party,
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shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Trust and the Company on the one hand and the Underwriters on the other hand
from the offering of the Securities or (ii) if the allocation provided by
clause 7(d)(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
7(d)(i) above but also the relative fault of the Trust and the Company on the
one hand and the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Trust and the Company on
the one hand and the Underwriters on the other hand shall be deemed to be in
the same proportion as the total net proceeds from the offering (after
deducting underwriting discounts and commissions, but before deducting
expenses) received by the Trust and the Company, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Securities, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Trust and the Company
on the one hand and the Underwriters on the other hand 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 Trust or the Company or
the Underwriters 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 Section 7(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 in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, 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 to contribute
pursuant to this Section 7(d) are several in proportion to the respective number
of Securities purchased by each of the Underwriters hereunder and not joint.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
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SECTION 8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Securities under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct in all material respects on the
Closing Date with the same force and effect as if made on and as of the Closing
Date.
(b) On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any securities of the Company (including, without limitation,
the placing of any of the foregoing ratings on credit watch with negative or
developing implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is defined
for purposed of Rule 436(g)(2) under the Act, (ii) there shall not have
occurred any change, nor shall any notice have been given of any potential or
intended change, in the outlook for any rating of the Company or any securities
of the Company by any such rating organization and (iii) no such rating
organization shall have given notice that it has assigned (or is considering
assigning) a lower rating to the Securities than that on which the Securities
were marketed.
(c) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by an executive officer of the Company in such
capacity confirming the matters set forth in Sections 6(u), 8(a) and 8(b) and
that the Company has complied with all of the agreements and satisfied all of
the conditions herein contained and required to be complied with or satisfied
by the Company on or prior to the Closing Date.
(d) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement),
(i) there shall not have occurred any change or any development involving a
prospective change in the financial condition or the earnings, business,
management or operations of the Company and its subsidiaries, taken as a whole,
(ii) there shall not have been any change or any development involving a
prospective change in the capital stock or in the long-term debt of the Company
or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 8(d)(i),
8(d)(ii) or this 8(d)(iii), in your judgment, is material and adverse and, in
your judgment, makes it impracticable to market the Securities on the terms and
in the manner contemplated in the Prospectus.
(e) You shall have received on the Closing Date (i) an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel for the Company, addressing the matters set
forth on Exhibit A attached hereto, (ii) an opinion (satisfactory
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to you and counsel for the Underwriters), dated the Closing Date, of the
general counsel of the Company, addressing the matters set forth on Exhibit B
attached hereto, and (iii) an opinion (satisfactory to you and counsel for the
Underwriters), dated the Closing Date, of Potter ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP,
special Delaware counsel for the Trust, addressing the matters set forth on
Exhibit C attached hereto.
(f) You shall have received on the Closing Date an opinion, dated the
Closing Date, of Liddell, Sapp, Zivley, Hill & ▇▇▇▇▇▇, L.L.P., counsel for the
Underwriters, with respect to all such matters as you may reasonably request.
(g) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to you, from Coopers & ▇▇▇▇▇▇▇
L.L.P., independent public accountants, containing the information and
statements of the type ordinarily included in accountants' "comfort letters" to
Underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Registration
Statement and the Prospectus.
(h) The Securities shall have been approved for listing, subject to
notice of issuance, on the NYSE.
(i) The shares of Common Stock issuable upon conversion of the
Securities shall have been approved for listing, subject to notice of issuance,
on the NYSE.
(j) The Underwriters shall have received a counterpart, conformed as
executed, of each of the Guarantor Documents which shall have been entered into
by the Company and the other parties thereto.
(k) The Company shall not have failed on or prior to the Closing Date
to perform or comply with any of the agreements herein contained and required
to be performed or complied with by the Company on or prior to the Closing
Date.
The several obligations of the Underwriters to purchase any
Additional Securities hereunder are subject to the delivery to you on the
Option Closing Date of such documents as you may reasonably request with
respect to the good standing of the Company, the due authorization and issuance
of such Additional Securities and other matters related to the issuance of such
Additional Securities.
SECTION 9. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto. This Agreement may be terminated at any time
on or prior to the Closing Date by you by written notice to the Company if
after the execution of this Agreement any of the following has occurred: (i)
any outbreak or escalation of hostilities or other national or international
calamity or crisis or change in
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economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus, (ii) the suspension or material
limitation of trading in securities or other instruments on the New York Stock
Exchange, the American Stock Exchange, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq
National Market or limitation on prices for securities or other instruments on
any such exchange or the Nasdaq National Market, (iii) the suspension of
trading of any securities of the Company on any exchange or in the over-the-
counter market, (iv) the enactment, publication, decree or other promulgation
of any federal or state statute, regulation, rule or order of any court or
other governmental authority which in your opinion materially and adversely
affects, or will materially and adversely affect, the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action
by any federal, state or local government or agency in respect of its monetary
or fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on the Option Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to purchase
the Firm Securities or Additional Securities, as the case may be, which it has
or they have agreed to purchase hereunder on such date and the aggregate number
of Firm Securities or Additional Securities, as the case may be, which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the total number of Firm Securities or Additional
Securities, as the case may be, to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the number of Firm Securities set forth opposite its name
in Schedule I bears to the total number of Firm Securities which all the
non-defaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Securities or Additional
Securities, as the case may be, which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Firm Securities or Additional Securities,
as the case may be, which any Underwriter has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 9 by an amount in excess
of one-ninth of such number of Firm Securities or Additional Securities, as the
case may be, without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Firm Securities and the aggregate number of Firm Securities with respect to
which such default occurs is more than one-tenth of the aggregate number of
Firm Securities to be purchased by all Underwriters and arrangements
satisfactory to you and the Company for purchase of such Firm Securities are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter and the
Company, other than the obligation of the Underwriters to pay their own
expenses, including the fees and expenses of counsel for the Underwriters. In
any such case which does not result in termination of this Agreement, either
you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the
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required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. If, on the Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Securities and the aggregate number of Additional Securities with
respect to which such default occurs is more than one-tenth of the aggregate
number of Additional Securities to be purchased on such date, the non-
defaulting Underwriters shall have the option to (i) terminate their obligation
hereunder to purchase such Additional Securities or (ii) purchase not less than
the number of Additional Securities that such non-defaulting Underwriters would
have been obligated to purchase on such date in the absence of such default.
Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of any such Underwriter
under this Agreement.
SECTION 10. Miscellaneous Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to El Paso
Natural Gas Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention : ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇. and (ii) if to any Underwriter or to you, to you c/▇ ▇▇▇▇▇▇▇▇▇,
Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Syndicate Department, or in any case to such other address
as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company and the several
Underwriters set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and
payment for the Securities, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter, the
officers or directors of any Underwriter, any person controlling any
Underwriter, the Trust, the Trustees, the Company, the officers or directors of
the Company or any person controlling the Company, (ii) acceptance of the
Securities and payment for them hereunder and (iii) termination of this
Agreement.
If for any reason the Securities are not delivered by or on
behalf of the Trust as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 9), the Trust and the Company
agree to reimburse the several Underwriters for all out-of-pocket expenses
(including the fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement, the Trust and the Company
shall be liable for all expenses which they have agreed to pay pursuant to
Section 5(h) hereof. The Trust and the Company also agree to reimburse the
several Underwriters, their directors and officers and any persons controlling
any of the Underwriters for any and all fees and expenses (including, without
limitation, the reasonable fees disbursements of counsel) incurred by them in
connection with enforcing their rights hereunder (including, without
limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Trust, the Company, the
Underwriters, the Underwriters' directors and officers, any controlling persons
referred to herein, the Trustees, the Company's directors and the Company's
officers who sign the Registration Statement and their respective
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successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Securities from any of the several Underwriters merely because of
such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement between
the Company and the several Underwriters.
Very truly yours,
EL PASO NATURAL GAS COMPANY
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: H. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Executive Vice President & Chief
---------------------------------------
Financial Officer
---------------------------------------
EL PASO ENERGY CAPITAL TRUST I
By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Administrative Trustee
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: ▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Senior Vice President
-------------------------------
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SCHEDULE I
Underwriters Number of Firm
Securities
to be Purchased
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
Securities Corporation 2,166,668
▇▇▇▇▇▇▇, Sachs & Co. 2,166,666
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ 2,166,666
---------
Total 6,500,000
-1-