Exhibit 1.1
$1,200,000,000
EL PASO PRODUCTION HOLDING COMPANY
7.75% SENIOR NOTES DUE 2013
PURCHASE AGREEMENT
May 20, 2003
Credit Suisse First Boston LLC
Citigroup Global Markets Inc.
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. El Paso Production Holding Company, a Delaware
corporation (the "COMPANY"), a wholly owned subsidiary of El Paso Corporation, a
Delaware corporation ("EPC"), proposes, subject to the terms and conditions
stated herein, to issue and sell to the several initial purchasers named in
Schedule A hereto (the "PURCHASERS") U.S.$1,200,000,000 principal amount of its
7.75% Senior Notes due 2013 ("OFFERED SECURITIES") to be issued under an
indenture, dated as of May 23, 2003 (the "INDENTURE"), between the Company, the
Guarantors (as defined below) and Wilmington Trust Company, as Trustee. The
Offered Securities will be unconditionally guaranteed (a "GUARANTEE") by each of
the entities listed in Schedule B herein (the "GUARANTORS"). The United States
Securities Act of 1933 is herein referred to as the "SECURITIES ACT."
Holders (including subsequent transferees) of the Offered Securities will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date (as hereinafter
defined), in substantially the form of Exhibit I hereto, for so long as such
Offered Securities constitute "REGISTRABLE SECURITIES" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (i) a registration statement under the Securities Act (the "EXCHANGE
OFFER REGISTRATION STATEMENT") relating to the Company's 7.75% Senior Notes due
2013 in a like aggregate principal amount as the Company issued under the
Indenture, identical in all material respects to the Offered Securities and
registered under the Securities Act (the "EXCHANGE SECURITIES"), with Guaranties
endorsed thereon by the Guarantors, to be offered in exchange for the Offered
Securities (such offer to exchange being referred to as the "EXCHANGE OFFER")
and the Guaranties thereof or (ii) a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "SHELF REGISTRATION STATEMENT" and,
together with the Exchange Offer Registration Statement, the "REGISTRATION
STATEMENTS") relating to the resale by certain holders of the Offered Securities
and to use its commercially reasonable best efforts to cause such Registration
Statements to be declared effective and cause such Registration Statements to
remain effective and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer. The Offered Securities, the
Guaranties to be endorsed thereon, the Exchange Securities and the Guaranties to
be endorsed thereon are referred to collectively as the "SECURITIES".
The Company and the Guarantors hereby agree with the several Purchasers as
follows:
2. Representations and Warranties of the Company and the Guarantors. The
Company and each Guarantor, jointly and severally represent and warrant to, and
agree with, the several Purchasers that:
(a) A preliminary offering memorandum dated May 14, 2003 (as
supplemented by Supplement No. 1 thereto dated May 19, 2003) and a final
offering memorandum dated May 20, 2003 relating to
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the Offered Securities to be offered by the Purchasers have been prepared
by the Company. Such preliminary offering memorandum as so supplemented
(the "PRELIMINARY OFFERING MEMORANDUM") and such final offering memorandum
(the "OFFERING MEMORANDUM"), as supplemented as of the date of this
Agreement, together with any other document approved by the Company for
use in connection with the contemplated resale of the Offered Securities
are hereinafter collectively referred to as the "OFFERING DOCUMENT". On
the date of this Agreement, the Offering Document does 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. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston LLC ("CSFB") specifically for
use therein, it being understood and agreed that the only such information
is that described as such in Section 7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification.
(c) Each subsidiary of the Company has been duly incorporated or
formed and is an existing corporation or other entity in good standing
under the laws of the jurisdiction of its incorporation or formation, with
power and authority (corporate, limited liability company or other) to own
its properties and conduct its business as described in the Offering
Document; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation or other entity in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified, individually or in the aggregate, would not
have a material adverse effect on the condition (financial or otherwise),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT"); all of the
issued and outstanding capital stock or other equity interests of each
subsidiary of the Company has been duly authorized and validly issued and
is fully paid and nonassessable; and the capital stock or other equity
interests of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(d) The Indenture has been duly authorized by the Company and each
of the Guarantors; the Offered Securities have been duly authorized; and
when the Offered Securities are delivered and paid for pursuant to this
Agreement on the Closing Date (as defined below), the Indenture will have
been duly executed and delivered, such Offered Securities will have been
duly executed, authenticated, issued and delivered and will conform in all
material respects to the description thereof contained in the Offering
Document and the Indenture and such Offered Securities will constitute
valid and legally binding obligations of the Company enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(e) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by (i) this Agreement, (ii)
the Registration Rights Agreement in connection with the issuance and sale
of the Offered Securities by the Company, or (iii) for the issuance of the
Guaranties by the Guarantors, except for the order of the Commission
declaring the Exchange Offer Registration Statement or the Shelf
Registration Statement (each as defined in the Registration Rights
Agreement) effective.
(f) The execution, delivery and performance of the Indenture, this
Agreement, the Registration Rights Agreement, and the issuance and sale of
the Offered Securities and compliance with the terms and provisions
thereof by the Company and the Guarantors, as applicable, will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any
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agreement or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary is bound or to which
any of the properties of the Company or any such subsidiary is subject, or
the charter or by-laws of the Company or any such subsidiary, and the
Company has full power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement.
(g) This Agreement and the Registration Rights Agreement have been
duly authorized, executed and delivered by the Company and by the
Guarantors.
(h) Except as disclosed in the Offering Document, the Company and
its subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by
them; and except as disclosed in the Offering Document, the Company and
its subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them.
(i) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(j) No labor dispute with the employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(k) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(l) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use, disposal or release
of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect;
and, except as disclosed in the Offering Document, the Company is not
aware of any pending investigation which might lead to such a claim.
(m) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company or the
Guarantors to perform their obligations under the Indenture, this
Agreement, the Registration Rights Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are, to the Company's knowledge, threatened
or contemplated.
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(n) The financial statements included in the Offering Document
present fairly the 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 Offering Document, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis; and the assumptions used in
preparing the pro forma financial statements included in the Offering
Document provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts.
(o) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(p) None of the Company or any Guarantor is an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and none of
the Company or any Guarantor is and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Document, will not be an "investment
company" as defined in the Investment Company Act.
(q) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities or the
Guaranties are listed on any national securities exchange registered under
Section 6 of the Securities Exchange Act of 1934 (the "EXCHANGE ACT") or
quoted in a U.S. automated inter-dealer quotation system.
(r) Assuming the accuracy of the representations and warranties of
each Purchaser contained in Section 4, the offer and sale of the Offered
Securities and the Guaranties in the manner contemplated by this Agreement
will be exempt from the registration requirements of the Securities Act by
reason of Section 4(2) thereof and Regulation S under the Securities Act
"REGULATION S" thereunder; and it is not necessary to qualify an indenture
in respect of the Offered Securities under the United States Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
(s) None of the Company or any Guarantor, nor any of their
affiliates, nor any person acting on its or their behalf (i) has, within
the six-month period prior to the date hereof, offered or sold in the
United States or to any U.S. person (as such terms are defined in
Regulation S under the Securities Act ("REGULATION S")), the Offered
Securities or any security of the same class or series as the Offered
Securities or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act or (B) with respect to any such securities sold
in reliance on Rule 903 of Regulation S, by means of any directed selling
efforts within the meaning of Rule 902(c) of Regulation S. The Company,
the Guarantors, and their respective affiliates and any person acting on
its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. Except for this Agreement, the
Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities.
(t) The entities listed on Schedule C hereto are the only
subsidiaries, direct or indirect, of the Company.
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(u) On the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "TIA" or "TRUST INDENTURE ACT"), and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(v) On the Closing Date, the Exchange Securities will have been duly
authorized by the Company and the Guarantors; and when the Exchange
Securities are issued, executed and authenticated in accordance with the
terms of the Exchange Offer and the Indenture, the Exchange Securities
will be entitled to the benefits of the Indenture and will be the valid
and legally binding obligations of the Company and the Guarantors,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(w) The Guarantee by each Guarantor, and the endorsement of such
Guarantee, on the Exchange Securities has been duly authorized by such
Guarantor; and, when issued, will have been duly executed and delivered by
each such Guarantor and will, in all material respects, conform as to
legal matters to the description thereof contained in the Offering
Document. When the Exchange Securities have been issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Guarantee of each Guarantor endorsed thereon will
constitute valid and legally binding obligations of such Guarantor,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(x) When the Registration Rights Agreement has been duly executed
and delivered, the Registration Rights Agreement will be a valid and
binding agreement of the Company and each of the Guarantors, enforceable
against the Company and each Guarantor in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles. On the
Closing Date, the Registration Rights Agreement will, in all material
respects, conform as to legal matters to the description thereof in the
Offering Memorandum.
(y) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or 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 to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries or their respective
property is bound except where such violations or defaults would not have
a Material Adverse Effect.
(z) There are no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person the right to
require the Company or such Guarantor to file a registration statement
under the Securities Act with respect to any securities of the Company or
such Guarantor or to require the Company or such Guarantor to include such
securities with the Securities and Guarantees registered pursuant to any
Registration Statement.
(aa) Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale
of the Offered Securities to violate Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System. The
Company does not own, and none of the proceeds from the offering of the
Offered Securities will be used directly or indirectly to purchase or
carry any "margin stock" as defined in Regulation U.
(bb) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Securities
Act (i) has imposed (or has informed the Company or any Guarantor that it
is considering imposing) any condition (financial or otherwise) on the
Company's or any Guarantor's retaining any rating assigned to the Company
or any Guarantor, any securities of the Company or any Guarantor or (ii)
has indicated to the Company or any Guarantor that it is considering (a)
the downgrading, suspension, or withdrawal of, or any review for a
possible change that does not
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indicate the direction of the possible change in, any rating so assigned
or (b) any change in the outlook for any rating of the Company, any
Guarantor or any securities of the Company or any Guarantor.
(cc) No form of general solicitation or general advertising (as
defined in Regulation D under the Securities Act) was used by the Company,
the Guarantors or any of their respective representatives (other than the
Purchasers, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the Offered
Securities contemplated hereby, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising. No securities of the same class as the Offered
Securities have been issued and sold by the Company within the six-month
period immediately prior to the date hereof.
(dd) None of the Company, the Guarantors nor any of their respective
affiliates or any person acting on its or their behalf (other than the
Purchasers, as to whom the Company and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Securities Act with respect
to the Offered Securities or the Guarantees.
(ee) The Offered Securities offered and sold in reliance on
Regulation S have been and will be offered and sold only in offshore
transactions.
(ff) The sale of the Offered Securities pursuant to Regulation S is
not part of a plan or scheme to evade the registration provisions of the
Securities Act.
(gg) No registration under the Securities Act of the Offered
Securities or the Guarantees is required for the sale of the Offered
Securities and the Guarantees to the Purchasers as contemplated hereby or
for the offers and sales (collectively, "EXEMPT RESALES") by the
Purchasers of the Offered Securities purchased hereunder on the terms set
forth in the Offering Document, as amended or supplemented, solely to (i)
persons whom the Purchasers reasonably believe to be "qualified
institutional buyers" as defined in Rule 144A under the Securities Act
("QIBs"), and (ii) persons permitted to purchase Offered Securities in
offshore transactions in reliance upon Regulation S under the Securities
Act ("Regulation S Purchasers"), assuming the accuracy of the
representations of each of the Purchasers set forth in Section 4 hereof.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 97.50% of the principal amount thereof
plus accrued interest, if any, from May 23, 2003 to the Closing Date (as
hereinafter defined), the respective principal amounts of Offered Securities set
forth opposite the names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities to be offered and sold by the Purchasers in reliance on Regulation S
(the "REGULATION S SECURITIES") in the form of one or more permanent global
Securities in registered form without interest coupons (the "OFFERED REGULATION
S GLOBAL SECURITIES") which will be deposited with the Trustee as custodian for
The Depository Trust Company ("DTC") for the respective accounts of the DTC
participants for ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("EUROCLEAR"), and Clearstream Banking, societe
anonyme ("CLEARSTREAM, LUXEMBOURG") and registered in the name of Cede & Co., as
nominee for DTC. The Company will deliver against payment of the purchase price
the Offered Securities to be purchased by each Purchaser hereunder and to be
offered and sold by Purchaser in reliance on Rule 144A under the Securities Act
(the "144A SECURITIES") in the form of one permanent global security in
definitive form without interest coupons (the "RESTRICTED GLOBAL SECURITIES")
deposited with the Trustee as custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC. The Offered Regulation S Global Securities and
the Restricted Global Securities shall be assigned separate CUSIP numbers. The
Restricted Global Securities shall include the legend regarding restrictions on
transfer set forth under "Transfer Restrictions" in the Offering Document. Until
the termination of the restricted
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period (as defined in Regulation S) with respect to the offering of the Offered
Securities, interests in the Offered Regulation S Global Securities may only be
held by the DTC participants for Euroclear and Clearstream, Luxembourg.
Interests in any permanent global Securities will be held only in book-entry
form through Euroclear, Clearstream, Luxembourg or DTC, as the case may be,
except in the limited circumstances described in the Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall be
made by the Purchasers in Federal (same day) funds by official check or checks
or wire transfer to an account at a bank acceptable to CSFB drawn to the order
of the Company at the office of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇
at 9:00 a.m., (Houston time), on May 23, 2003, or at such other time not later
than seven full business days thereafter as CSFB and the Company determine, such
time being herein referred to as the "CLOSING DATE", against delivery to the
Trustee as custodian for DTC of (i) the Offered Regulation S Global Securities
representing all of the Regulation S Securities for the respective accounts of
the DTC participants for Euroclear and Clearstream, Luxembourg and (ii) the
Restricted Global Securities representing all of the Offered 144A Securities.
The Offered Regulation S Global Securities and the Restricted Global Securities
will be made available for checking at the above office of Cravath, Swaine &
▇▇▇▇▇ LLP at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act, with such knowledge and experience in financial
and business matters as is necessary in order to evaluate the merits and
risks of an investment in the Offered Securities.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may not
be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (as defined in Rule 902 under the Securities Act)
except in accordance with Regulation S or pursuant to an exemption from
the registration requirements of the Securities Act. Each Purchaser
severally represents and agrees that it has offered and sold the Offered
Securities, and will offer and sell the Offered Securities (i) as part of
its distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only
pursuant to Exempt Resales made in accordance with Rule 903 or Rule 144A
under the Securities Act ("RULE 144A"). Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or their
behalf, have engaged or will engage in any directed selling efforts with
respect to the Offered Securities, and such Purchaser, its affiliates and
all persons acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. Each Purchaser
severally agrees that, at or prior to confirmation of sale of the Offered
Securities, other than a sale pursuant to Rule 144A, such Purchaser will
have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases the Offered
Securities from it during the restricted period a confirmation or notice
to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account
or benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the date of
the commencement of the offering and the closing date, except in
either case in accordance with Regulation S (or Rule 144A if
available) under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or affiliates
of the other Purchasers, or with the prior written consent of the Company.
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(d) Each Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act, including, but
not limited to (i) any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. Each Purchaser severally agrees, with respect to resales made
in reliance on Rule 144A of any of the Offered Securities, to take
reasonable steps to notify prospective investors that the resale of such
Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i)
it has not offered or sold and prior to the date six months after the date
of issue of the Offered Securities will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (ii) it has
complied and will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to the
Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the
issue of the Offered Securities to a person who is of a kind described in
Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
5. Certain Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise you, as the representatives (the
"REPRESENTATIVES") of the several Purchasers, promptly of any proposal to
amend or supplement the Offering Document and will not effect such
amendment or supplementation without the consent of the Representatives.
If, at any time prior to the completion of the resale of the Offered
Securities by the Purchasers, any event occurs as a result of which the
Offering Document 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, not misleading, the Company promptly will
notify the Representatives of such event and promptly will prepare, at its
own expense, an amendment or supplement which will correct such statement
or omission. Neither the Representatives' consent to, nor the Purchasers'
delivery to offerees or investors of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to the Representatives copies of any
preliminary offering memorandum, the Offering Document and all amendments
and supplements to such documents, in each case as soon as available and
in such quantities as the Representatives reasonably request, and the
Company will furnish to the Representatives on the date hereof three
copies of the Offering Document signed by a duly authorized officer of the
Company, one of which will include the independent accountants' reports
therein manually signed by such independent accountants. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will promptly furnish or cause to be furnished to the
Representatives and, upon request, to each of the other Purchasers) and,
upon request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the information
required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of printing and distributing
to the Purchasers all such documents.
(c) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions in the United
9
States and Canada as the Representatives designate and will continue such
qualifications in effect so long as required for the resale of the Offered
Securities by the Purchasers, provided that the Company will not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any such state.
(d) During the period of five years hereafter, the Company will
furnish or make generally available to the Representatives and, upon
request, to each of the other Purchasers, promptly upon their becoming
available, copies of (i) all reports or other publicly available
information that the Company shall mail or otherwise make available to its
public stockholders and (ii) all reports, financial statements and proxy
or information statements filed by the Company with the Commission or any
national securities exchange and such other publicly available information
concerning the Company and its subsidiaries including, without limitation,
press releases, as the Purchasers may reasonably request.
(e) During the period of two years after the Closing Date, the
Company will, upon request, furnish to the Representatives, each of the
other Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Offered
Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance
of its obligations under this Agreement, the Indenture and the
Registration Rights Agreement, including (i) the fees and expenses of the
Trustee and its professional advisers; (ii) all expenses in connection
with the execution, issue, authentication, packaging and initial delivery
of the Offered Securities and, as applicable, the Exchange Securities (as
defined in the Registration Rights Agreement), the preparation and
printing of this Agreement, the Registration Rights Agreement, the Offered
Securities, the Indenture, the Offering Document and amendments and
supplements thereto, and any other document relating to the issuance,
offer, sale and delivery of the Offered Securities and as applicable, the
Exchange Securities; (iii) the cost of qualifying the Offered Securities
for trading in The Portal(SM) Market ("PORTAL") and any expenses
incidental thereto; (iv) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities; (v) for
any expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions referred to in
paragraph (c) above, and the printing of memoranda relating thereto, (v)
for any fees charged by investment rating agencies for the rating of the
Securities or the Exchange Securities, and (vi) for expenses incurred in
distributing preliminary offering memorandums and the Offering Document
(including any amendments and supplements thereto) to the Purchasers. The
Company will also pay or reimburse the Purchasers (to the extent incurred
by them) for all travel expenses of the Purchasers and the Company's
officers and employees and any other expenses of the Purchasers and the
Company in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFB shall have notified
the Company and the other Purchasers of the completion of the resale of
the Offered Securities, neither the Company nor any of its affiliates has
or will, either alone or with one or more other persons, bid for or
purchase for any account in which it or any of its affiliates has a
beneficial interest any Offered Securities or attempt to induce any person
to purchase any Offered Securities; and neither it nor any of its
affiliates will make bids or purchases for the purpose of creating actual,
or apparent, active trading in, or of raising the price of, the Offered
Securities.
10
(j) For a period of 90 days after the date of the initial offering
of the Offered Securities by the Purchasers, neither the Company nor the
Guarantors will offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any United States dollar-denominated debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue without the prior written
consent of the Representatives. Neither the Company nor any Guarantor will
at any time offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any securities under circumstances where such
offer, sale, pledge, contract or disposition would cause the exemption
afforded by Section 4(2) of the Securities Act or the safe harbor of
Regulation S thereunder to cease to be applicable to the offer and sale of
the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and each Guarantor herein, to the accuracy of the statements of officers
of the Company and each Guarantor made pursuant to the provisions hereof, to the
performance by the Company and each Guarantor of their obligations hereunder and
to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of PricewaterhouseCoopers LLC confirming that they are
independent public accountants within the meaning of the Securities Act
and the applicable published rules and regulations thereunder ("RULES AND
REGULATIONS") and to the effect that:
(i) in their opinion the financial statements examined by them
and included in the Offering Document comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 100, Interim Financial Information, on the unaudited
financial statements included in the Offering Document;
(iii) on the basis of the review referred to in clause (i)
above, a reading of the latest available interim financial
statements of the Company, inquiries of officials of the Company who
have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited financial statements included in the
Offering Document do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations
or any material modifications should be made to such unaudited
financial statements for them to be in conformity with
generally accepted accounting principles;
(B) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of the
Company and its consolidated subsidiaries or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in consolidated net assets, as compared
with amounts shown on the latest balance sheet included in the
Offering Document; or
(C) for the period from the closing date of the latest
income statement included in the Offering Document to the
closing date of the latest available income statement read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year in consolidated
net sales, net operating income, consolidated net income or in
the ratio of earnings to fixed charges;
11
except in all cases set forth in clauses (B and C) above for
changes, increases or decreases which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Document (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of EPC
and its subsidiaries subject to the internal controls of EPC's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Purchasers including the Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt securities of
EPC or the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of EPC, or the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating) or any announcement that EPC or the Company has been placed on
negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Purchasers including the Representatives, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of
dealings in the secondary market, (iv) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange, or any setting of minimum prices for trading on such exchange,
or any suspension of trading of any securities of EPC on any exchange or
in the over-the-counter market; (v) any banking moratorium declared by
U.S. Federal or New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States or
(vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity, emergency or crisis if,
in the judgment of a majority in interest of the Purchasers including the
Representatives, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the
Offered Securities.
(c) The Purchasers shall have received (i) an opinion, dated Closing
Date, of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Company, substantially in
the form set forth in Exhibit II and (ii) an opinion, dated the Closing
Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President and Associate General Counsel of
EPC, substantially in the form set forth in Exhibit III.
(d) The Purchasers shall have received from Cravath, Swaine & ▇▇▇▇▇
LLP; counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities, the Offering Memorandum, the exemption
from registration for the offer and sale of the Offered Securities and the
Guarantees by the Company and the Guarantors to the several Purchasers and
the resales by the several Purchasers as contemplated hereby and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters with reference to same
in the Offering Memorandum.
(e) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such
12
officers, to the best of their knowledge after reasonable investigation,
shall state that the representations and warranties of the Company and the
Guarantors in this Agreement are true and correct in all material
respects, that the Company and the Guarantors have complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, and that, subsequent
to the respective dates of the most recent financial statements in the
Offering Document there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of EPC and its subsidiaries taken as a whole except as set
forth in or contemplated by the Offering Document or as described in such
certificate.
(f) The Purchasers shall have received a letter, dated the Closing
Date, of PricewaterhouseCoopers LLC which meets the requirements of
subsection (a) of this Section, except that the specified date referred to
in such subsection will be a date not more than three days prior to the
Closing Date for the purposes of this subsection.
(g) The Senior Secured Interim Term Credit and Security Agreement
dated March 13, 2003 among EPC, Citicorp North America, Inc., Credit
Suisse First Boston, (acting through its Cayman Islands Branch), and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (the "INTERIM CREDIT AGREEMENT") shall have been
or shall simultaneously with the purchase, sale and delivery of Offered
Securities on the Closing Date, be repaid in full, all agreements and
instruments evidencing or governing the indebtedness under the Interim
Credit Agreement and other obligations thereunder, and all lending or
other commitments thereunder, shall have been terminated and all liens
securing such indebtedness under the Interim Credit Agreement and other
obligations shall have been released, and the Representatives shall have
received such evidence as they shall have requested as to the satisfaction
of the foregoing.
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. the Representatives may in their sole discretion waive on behalf of the
Purchasers compliance with any conditions to the obligations of the Purchasers
hereunder.
7. Indemnification and Contribution.
(a) The Company and the Guarantors will jointly and severally
indemnify and hold harmless each Purchaser, its partners, directors and
officers and each person, if any, who controls such Purchaser within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such Purchaser may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or any related
preliminary offering memorandum, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, including any losses, claims,
damages or liabilities arising out of or based upon the Company's failure
to perform its obligations under Section 5(a) of this Agreement, and will
reimburse each Purchaser for any legal or other expenses reasonably
incurred by such Purchaser in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither the Company nor any Guarantor
will be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written information
furnished to the Company by any Purchaser through CSFB specifically for
use therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below;
provided further, however, that with respect to any untrue statement or
omission of material fact made in any Preliminary Offering Memorandum, the
indemnity agreement contained in this subsection (a) shall not inure to
the benefit of any Purchaser from whom such person asserting any such
loss, claim, damage or liability of such Purchaser occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and
13
nonappealable judgment that (i) the Company had previously furnished the
requisite quantities of copies of the Offering Memorandum on a timely
basis to the Purchasers, (ii) the untrue statement or omission of a
material fact contained in the Preliminary Offering was corrected in the
Offering Memorandum and (iii) such Purchasers shall have failed to use
reasonable efforts to send to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy
of the Offering Memorandum.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, each Guarantor, their directors and officers and
each person, if any, who controls the Company or any Guarantor within the
meaning of Section 15 of the Securities Act, against any losses, claims,
damages or liabilities to which the Company or any Guarantor may become
subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or any related
preliminary offering memorandum, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company by
such Purchaser through CSFB specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Purchaser consists of the following information in the Offering Document:
under the caption "Plan of Distribution" paragraphs three, six, nine, ten
and eleven; provided, however, that the Purchasers shall not be liable for
any losses, claims, damages or liabilities arising out of or based upon
the Company's failure to perform its obligations under Section 5(a) of
this Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the failure to notify
the indemnifying party shall not relieve it from any liability that it may
have under subsection (a) or (b) above except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights
or defenses) by such failure; and provided further that the failure to
notify the indemnifying party shall not relieve it from any liability that
it may have to an indemnified party otherwise than under subsection (a) or
(b) above . In case any such action is brought against any indemnified
party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may 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 will
not be liable to such indemnified party under this Section for any legal
or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes (i) an unconditional
release of such indemnified party from all liability on any claims that
are the subject matter of such action and (ii) does not include a
statement as to or an admission of fault, culpability or failure to act by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or
(b) above (i) in such proportion as is appropriate
14
to reflect the relative benefits received by the Company and the
Guarantors on the one hand and the Purchasers on the other from the
offering of the Offered Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company and the
Guarantors on the one hand and the Purchasers on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Guarantors on the one hand and the Purchasers on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
discounts and commissions received by the Purchasers from the Company
under this Agreement. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or the Guarantors on
the one hand or the Purchasers on the other and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any
action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Purchaser shall
be required to contribute any amount in excess of the amount by which the
total discounts, fees and commissions received by such Purchaser has
alleged otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion
to their respective purchase obligations and not joint.
(e) The obligations of the Company and the Guarantors under this
Section shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within the
meaning of the Securities Act or the Exchange Act; and the obligations of
the Purchasers under this Section shall be in addition to any liability
which the respective Purchasers may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls the
Company or a Guarantor within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in their
obligations to purchase Offered Securities hereunder and the aggregate principal
amount of Offered Securities that such defaulting Purchaser or Purchasers agreed
but failed to purchase does not exceed 10% of the total principal amount of
Offered Securities that the Purchasers are obligated to purchase on such Closing
Date, the Representatives may make arrangements satisfactory to the Company for
the purchase of such Offered Securities by other persons, including any of the
Purchasers, but if no such arrangements are made by the Closing Date, the
non-defaulting Purchasers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Purchasers agreed but failed to purchase. If any Purchaser or
Purchasers so default and the aggregate principal amount of Offered Securities
with respect to which such default or defaults occur exceeds 10% of the total
principal amount of Offered Securities and arrangements satisfactory to the
Representatives and the Company for the purchase of such Offered Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Purchaser or
the Company, except as provided in Section 9. As used in this Agreement, the
term "Purchaser" includes any person substituted for a Purchaser under this
Section. Nothing herein will relieve a defaulting Purchaser from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, each Guarantor or their respective officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Purchaser, the Company, a Guarantor
or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by
15
the Purchasers is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Guarantors on the one hand and the Purchasers
on the other pursuant to Section 7 shall remain in effect. If the purchase of
the Offered Securities by the Purchasers is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 6(b), the Company and the Guarantors, jointly and severally,
will reimburse the Purchasers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Purchasers will be mailed, delivered or telegraphed and confirmed to the
Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison Avenue,
New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or, if sent
to the Company or the Guarantors, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer; provided, however, that any notice to a Purchaser pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Purchaser.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
persons referred to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered Securities shall be
entitled to enforce the agreements for their benefit contained in the second and
third sentences of Section 5(b) hereof against the Company as if such holders
were parties thereto.
12. Representation of Purchasers. You will act for the several Purchasers
in connection with this purchase, and any action under this Agreement taken by
you jointly will be binding upon all the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
16
If the foregoing is in accordance with the Purchasers' understanding of our
agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
EL PASO PRODUCTION HOLDING COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Senior Vice President and
Chief Financial Officer
EL PASO PRODUCTION COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Senior Vice President and
Chief Financial Officer
EL PASO PRODUCTION GOM, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Senior Vice President and
Chief Financial Officer
EL PASO ENERGY RATON, L.L.C.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Senior Vice President and
Chief Financial Officer
VERMEJO MINERALS CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title Senior Vice President and
Chief Financial Officer
17
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
Acting on behalf of themselves and as the
Representatives of the several Purchasers
BY CREDIT SUISSE FIRST BOSTON LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Managing Director
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18
BY CITIGROUP GLOBAL MARKETS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
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Title: Vice President
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SCHEDULE A
INITIAL PURCHASERS
PRINCIPAL AMOUNT OF
INITIAL PURCHASER OFFERED SECURITIES
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Credit Suisse First Boston LLC ....................... $ 480,000,000
Citigroup Global Markets Inc. ........................ $ 480,000,000
Banc of America Securities LLC ....................... $ 60,000,000
Deutsche Bank Securities Inc. ........................ $ 60,000,000
▇▇▇▇▇▇ Brothers Inc. ................................. $ 60,000,000
Scotia Capital (USA) Inc. ............................ $ 60,000,000
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Total ..................... $1,200,000,000
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SCHEDULE B
SUBSIDIARY GUARANTORS
El Paso Production Company
El Paso Production GOM, Inc.
El Paso Energy Raton, L.L.C.
Vermejo Minerals Corporation
SCHEDULE C
SUBSIDIARIES
El Paso Production Company
El Paso Production GOM, Inc.
El Paso Energy Raton, L.L.C.
Vermejo Minerals Corporation
Black Warrior Methane Corp.
Black Warrior Transmission Corp.
Sabine River Investors VI, L.L.C.
Sabine River Investors IX, L.L.C.