EXHIBIT 1.1
$300 MILLION PRINCIPAL AMOUNT
ANR PIPELINE COMPANY
8.875% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
February 28, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
CREDIT SUISSE FIRST BOSTON LLC
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
1. Introductory. ANR Pipeline Company, a Delaware corporation (the
"COMPANY") and a direct wholly-owned subsidiary of American Natural Resources
Company, a Delaware corporation ("ANR CO.") and an indirect wholly-owned
subsidiary of each of El Paso CNG Company LLC, a Delaware limited liability
company, ("EL PASO LLC"), El Paso CGP Company, a Delaware corporation ("EL PASO
COMPANY"), and El Paso Corporation, a Delaware corporation ("EL PASO
CORPORATION" and, together with ANR CO., EL PASO LLC and EL PASO COMPANY, the
"PARENTS"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several parties named in Schedule A hereto (the initial
"PURCHASERS") U.S.$300,000,000 aggregate principal amount of its 8.875% Senior
Notes due 2010 ("OFFERED SECURITIES") to be issued under an indenture, dated as
of the Closing Date (as defined herein) (the "INDENTURE"), between the Company
and The Bank of New York, as Trustee. The Securities Act of 1933, as amended, is
herein referred to as the "SECURITIES ACT."
On or prior to the Closing Date all of the capital stock of El Paso
Great Lakes, Inc., a Delaware corporation ("GREAT LAKES"), will be contributed
to the Company as an equity contribution as described in the Final Offering
Document (as defined herein) under the caption "Summary--The Transaction" (the
"GREAT LAKES CONTRIBUTION"). The holders of the Offered Securities will be
entitled to the benefits of a Registration Rights Agreement, dated as of the
Closing Date, between the Company and the Purchasers (the "REGISTRATION RIGHTS
AGREEMENT"), pursuant to which the Company will agree to file an exchange offer
registration statement, or, under certain circumstances, a shelf registration
statement with the Securities and Exchange Commission (the "COMMISSION")
registering the resale of the Offered Securities under the Securities Act.
The Company hereby agrees with each Purchaser as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each Purchaser that:
(a) The Company has prepared a preliminary offering circular
dated February 24, 2003 (the "PRELIMINARY OFFERING DOCUMENT") and a
final offering circular dated February 28, 2003 (the "FINAL OFFERING
DOCUMENT" the Preliminary Offering Document and the Final Offering
Document each being referred to as a "OFFERING DOCUMENT") relating to
the Offered Securities to be offered by the Purchasers. Neither the
Preliminary Offering Document, as of its date, nor the Final Offering
Document, as of the date of this Agreement, 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 any Offering
Document based upon written information furnished to the Company by
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Credit Suisse First Boston LLC
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 full corporate power and authority to own its properties and
conduct its business as described in the Final 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, 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, after giving effect to the Great Lakes Contribution ("MATERIAL
ADVERSE EFFECT").
(c) Each subsidiary (as such term is defined in the Final
Offering Document) of the Company is set forth on Schedule B hereto (a
"SUBSIDIARY") and has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation with power and authority (corporate or other) to own its
properties and conduct its business as described in the Final Offering
Document; and each such Subsidiary is duly qualified to do business as
a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified, individually or in the aggregate, would not have a Material
Adverse Effect; all of the issued and outstanding equity interests of
each Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable; and the equity interests of each
Subsidiary are owned by the Company, directly or through subsidiaries,
are owned free from liens, claims or adverse interests of any nature.
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(d) The Offered Securities and the Indenture have been duly
authorized; and when the Offered Securities are delivered and paid for
pursuant to this Agreement on the Closing Date, the Indenture will have
been duly executed and delivered, and 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 Final 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 this Agreement
(including, without limitation, the Great Lakes Contribution) and the
Registration Rights Agreement in connection with the issuance and sale
of the Offered Securities by the Company, except such as may be
required under state securities laws and for filings with the
Commission as are required pursuant to the Registration Rights
Agreement.
(f) The execution, delivery and performance of the Indenture,
this Agreement, the Registration Rights Agreement, the issuance and
sale of the Offered Securities and compliance with the terms and
provisions thereof and the consummation of the Great Lakes Contribution
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute or any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over any Parent, the
Company or any Subsidiary or any of their properties, (ii) any
agreement or instrument to which any Parent, the Company or any such
Subsidiary is a party or by which any Parent, the Company or any such
Subsidiary is bound or to which any of the their respective properties
is subject, or (iii) the charter or by-laws of any Parent, 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 has been duly authorized, executed and
delivered by the Company; the Registration Rights Agreement has been
duly authorized and, as of the Closing Date, will have been duly
executed and delivered by the Company. The Registration Rights
Agreement (assuming the due authorization, execution and delivery
thereof by the Purchasers) constitutes the legal, valid and binding
obligation of the Company, enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and remedies generally, and
subject, as to enforceability, to general principles of equity; and the
Registration Rights Agreement conforms to the description thereof in
the Final Offering Document.
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(h) None of the Parents, the Company or any Subsidiary is (i)
in violation of its respective charter, by-laws or other organizational
documents 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 the
Company or any Subsidiary is a party to or by which the Company or any
Subsidiary or their respective property is bound, except with respect
to clause (ii) above such violations or defaults as could not
reasonably be expected to have a Material Adverse Effect.
(i) Except as disclosed in the Final Offering Document, the
Company and its subsidiaries have good and indefeasible title to all
real properties and all other properties and assets owned by them, in
each case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with the
use made or to be made thereof by them; and except as disclosed in the
Final 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.
(j) Except as disclosed in the Final Offering Document, none
of the Parents, the Company or any Subsidiary is in violation of any
statute or 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 Final Offering Document, the Company is not aware of any pending
investigation which might lead to such a claim.
(k) Except as disclosed in the Final Offering Document, there
are no pending actions, suits or proceedings against or affecting any
Parent, the Company, or any Subsidiary or any of their respective
properties that, if determined adversely to any of them, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under the Indenture, this Agreement or the
Registration Rights Agreement, or which are otherwise material in the
context of the sale of the Offered Securities or the consummation of
the Great Lakes Contribution; and no such actions, suits or proceedings
are, to the Company's knowledge, threatened or contemplated.
(l) The financial statements and other financial information
included in the Final Offering Document present fairly the consolidated
financial position of the Company and its consolidated subsidiaries and
of Great Lakes Gas Transmission Limited Partnership ("GREAT LAKES LP")
or its consolidated subsidiary as of the dates shown and
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their respective results of operations and cash flows for the periods
shown, and, except as otherwise disclosed in the Final Offering
Document, such consolidated financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis.
(m) Except as disclosed in the Final Offering Document
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), since the date of the latest audited financial
statements of the Company included in the Final Offering Document there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the financial
condition, business, properties or results of operations of the Company
and its subsidiaries taken as a whole (after giving effect to the Great
Lakes Contribution), and, except as disclosed in or contemplated by the
Final 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.
(n) Except as disclosed in the Final Offering Document, no
"nationally recognized statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the Securities 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.
(o) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Final Offering Document, will not
be (i) an "investment company" as defined in the Investment Company Act
of 1940, as amended (the "INVESTMENT COMPANY ACT"), 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.
(p) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act of 1934, as amended (the "EXCHANGE ACT") or quoted
in a U.S. automated inter-dealer quotation system.
(q) Assuming the accuracy of the representations and
warranties of each Purchaser contained in Section 4, the offer and sale
of the Offered Securities 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, Regulation D thereunder and
Regulation S thereunder; and it is not necessary to qualify an
indenture in respect of the Offered Securities under the Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
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(r) Neither the Company, nor any of its 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) 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
("REGULATION S") under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(c) of Regulation S. The
Company, its affiliates and any person acting on its or their behalf
have complied and will comply with the offering restrictions
requirement of Regulation S. The Company has not entered and will not
enter into any contractual arrangement with respect to the distribution
of the Offered Securities except for this Agreement.
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 each
Purchaser, and each Purchaser agrees, severally and not jointly, to purchase
from the Company, at a purchase price of 96.218% of the principal amount
thereof, the principal amount of the Offered Securities set forth opposite the
name of such Purchaser 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
"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 Euroclear Bank S.A./N.V., 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 the Purchasers hereunder and to be offered
and sold by the Purchasers 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 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 Final Offering Document.
Until the termination of the restricted period (as defined in Regulation S) with
respect to the offering of the Offered Securities, interests in the 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 Final
Offering Document.
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Payment for the Regulation S Securities and the 144A Securities shall
be made by the Purchasers in Federal (same day) funds by wire transfer to an
account at a bank acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. and Credit Suisse
First Boston LLC and designated in writing by the Company, not less than 48
hours prior to the Closing Date, at 9:00 A.M., (New York time), on March 5,
2003, or at such other time not later than seven full business days thereafter
as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Credit Suisse First Boston LLC and the Company
determine, such time being herein referred to as the "CLOSING DATE," against
delivery to the Trustee as custodian for DTC of the Global Securities
representing all of the Offered Securities. The Restricted Global Securities
will be made available for checking at the office of ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. in
Houston, Texas at least 24 hours prior to the Closing Date.
4. Representations by Each Purchaser; Resale by Each Purchaser.
(a) Each Purchaser represents and warrants to the Company that
it is an "accredited investor" within the meaning of Regulation D under
the Securities Act.
(b) Each Purchaser 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 except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser represents and agrees that it has
offered and sold the Offered Securities, and will offer and sell the
Offered Securities, (i) as part of their distribution at any time and
(ii) otherwise until 40 days after the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 903 or Rule
144A under the Securities Act ("RULE 144A"). Accordingly, neither a
Purchaser nor its affiliates, nor any persons acting on its or their
respective behalves, have engaged or will engage in any directed
selling efforts with respect to the Offered Securities, and each
Purchaser, its affiliates and all persons acting on its or their
respective behalves have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser 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."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
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(c) Each Purchaser 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 with
the prior written consent of the Company.
(d) Each Purchaser 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 agrees, with respect to resales
made in reliance on Rule 144A of any of the Offered Securities, to
deliver either with the confirmation of such resale or otherwise prior
to settlement of such resale a notice to the effect 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 Purchaser 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 only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the Financial Services and Markets Act 2000) received by
it in connection with the issue or sale of any Offered Securities in
circumstances in which Section 21(1) of the Financial Services and
Markets Act 2000 does not apply to the Company; and (iii) it has
complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 with respect to anything done
by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom; and (iv) 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 Act 1986 (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
Purchasers that:
(a) The Company will advise the Purchasers promptly of any
proposal to amend or supplement the Final Offering Document and will
not effect such amendment or supplement without the Purchasers'
consent. 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
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which the Final 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 Purchasers of such event and
promptly will prepare, at its own expense, an amendment or supplement
which will correct such statement or omission. Neither the Purchasers'
consent to, nor their 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 or make generally available to
the Purchasers copies of the Preliminary Offering Document and Final
Offering Document, and upon request of any Purchaser amendments and
supplements to such documents, in each case as soon as available and in
such quantities as such Purchaser reasonably requests. The Company will
pay the expenses of printing and distributing to the Purchasers all
such documents.
(c) The Company will cooperate with the Purchasers in
connection with the qualification of the Offered Securities for sale
and the determination of their eligibility for investment under the
laws of such jurisdictions as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. or Credit
Suisse First Boston LLC designates and will continue such
qualifications in effect so long as required for resale of the Offered
Securities; provided, however, that the Company shall not be required
in connection therewith to qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action
that would subject it to general consent to service of process or
taxation other than as to matters and transactions taken by the Company
as contemplated herein that relate to the Final Offering Document, or
the offering of the Offered Securities in any jurisdiction in which it
is not now so qualified.
(d) During the period of two years hereafter, the Company will
furnish or make generally available to the Purchasers, as soon as
practicable after the end of each fiscal year, a copy of its annual
report to stockholders, if any, for such year, and a copy of the
restrictions on transfer applicable to the Offered Securities; and the
Company will furnish to the Purchasers, as soon as available, a copy of
each report and any definitive proxy statement, if any, of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders.
(e) The Company will pay all expenses incident to the
performance of its obligations under this Agreement and the
Registration Rights Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities for sale under the laws of
such jurisdictions as ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. or Credit Suisse First
Boston LLC designates and the printing of memoranda relating thereto,
for any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities and for
expenses in-
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curred in distributing any Offering Document (including any amendments
and supplements thereto) to the Purchasers.
(f) The Company will not offer, sell, contract to sell, pledge
or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Securities Act relating
to debt securities issued or guaranteed by the Company and having a
maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. or Credit Suisse First Boston LLC for a period
beginning at the date of this Agreement and ending at the later of the
Closing Date and the lifting of trading restrictions by the Purchasers.
(g) 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.
(h) 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.
(i) In connection with the offering, until ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. or Credit Suisse First Boston LLC shall have notified the
Company 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.
6. Conditions of the Obligations of the Purchasers. The several
obligations of the 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 herein on the date hereof and the Closing Date, to the
accuracy of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions precedent:
(a) On the date of this Agreement, the Purchasers shall have
received a letter, dated the date of delivery thereof, of each of
PricewaterhouseCoopers LLP, Deloitte & Touche LLP and KPMG LLP
confirming that they are independent public accountants within the
meaning of the Securities Act and the applicable published rules and
regulations thereunder and stating to the effect that (and, with
respect to KPMG LLP and Deloitte & Touche LLP, to the extent
applicable):
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Final Offering
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Document comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and
the related rules and regulations published thereunder;
(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. 71, Interim Financial
Information, on any unaudited financial statements included in
the Final Offering Document;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company or Great Lakes LP, as the
case may be, inquiries of officials of the Company or Great
Lakes LP, as the case may be, 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, if
any, and any summary of earnings included in the
Final Offering Document do not comply as to form in
all material respects with the applicable accounting
requirements of the Securities Act and the related
rules and regulations or any material modifications
should be made to such unaudited financial statements
and summary of earnings for them to be in conformity
with generally accepted accounting principles;
(B) if any unaudited "capsule" information
is contained in the Final Offering Document, the
unaudited consolidated operating revenues, operating
income, net income and net income per share amounts
or other amounts constituting such "capsule"
information and described in such letter (i) do not
agree with the corresponding amounts set forth in the
unaudited consolidated financial statements; or (ii)
were not determined on a basis substantially
consistent with that of the corresponding amounts in
the audited statements of income;
(C) 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 such letter, there
was any change in the capital stock or any increase
in short-term indebtedness or long-term debt of the
Company or Great Lakes LP, as the case may be, and
its respective consolidated subsidiaries or, at the
date of the latest available balance sheet read by
such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Final Offering Document; or
-11-
(D) for the period from the closing date of
the latest income statement included in the Final
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 operating revenues, operating income or
in net income;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Final Offering
Document discloses have occurred or may occur or 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 Final 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 the Company or Great Lakes
LP, as the case may be, and its respective subsidiaries
subject to the internal controls of the Company's or Great
Lakes LP's, as the case may be, 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 otherwise), business, properties or results of operations
of the Company and its subsidiaries (after giving effect to the Great
Lakes Contribution) taken as one enterprise which, in the judgment of
the Purchasers, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the sale of and payment for
the Offered Securities; (ii) any downgrading in the rating of any debt
securities of any Parent 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 any Parent or the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would in
the judgment of the Purchasers, 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 any Parent
or the Company on any exchange or in the over-the-counter market; (v)
any bank-
-12-
ing 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 or emergency if, in the judgment of the Purchasers, 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 the sale of and payment for the Offered
Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, to
the effect that:
(i) The Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and
legally binding obligation of the Company enforceable in
accordance with its terms, except as (A) may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or transfer or similar laws affecting creditors'
rights generally and (B) may be limited by general principles
of equity (regardless of whether considered in a proceeding in
equity or law);
(ii) The Offered Securities have been duly authorized
and executed by the Company and, when executed, authenticated
and issued in the manner provided for in the Indenture and
delivered and paid for by the Purchasers in accordance with
the terms of this Agreement, will constitute valid and legally
binding obligations of the Company enforceable in accordance
with their terms, except as(A) may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or transfer or similar laws affecting creditors' rights
generally and (B) may be limited by general principles of
equity (regardless of whether considered in a proceeding in
equity or law); and the Offered Securities conform in all
material respects to the description thereof contained in the
Final Offering Document;
(iii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court of the United States or the State of New York is
required for the consummation of the transactions contemplated
by this Agreement and the Registration Rights Agreement in
connection with the issuance or sale of the Offered Securities
by the Company, except such as may be required under state
securities laws, as to which such counsel need not opine, and,
for filings with the Commission as are required pursuant to
the Registration Rights Agreement;
(iv) The execution and delivery by the Company of,
and the performance by the Company of its obligations under,
the Indenture, this Agreement and the Registration Rights
Agreement, and the issuance and sale by the Company of
-13-
the Offered Securities and compliance with the terms and
provisions thereof will not violate any provision of
applicable United States federal law, New York law or Delaware
General Corporation Law, or the charter or by-laws of the
Company or the charter or by-laws of any Subsidiary, and the
Company has full power and authority to authorize, issue and
sell the Offered Securities as contemplated by this Agreement;
(v) In the course of the preparation by the Company
of the Preliminary Offering Document and Final Offering
Document, such counsel has participated in conferences with
certain of the officers and representatives of the Company,
the Company's independent accountants, the Purchasers and
counsel for the Purchasers at which the Preliminary Offering
Document and Final Offering Document were discussed; no facts
have come to counsel's attention in the course of such
proceedings that have caused such counsel to believe that the
Final Offering Document, as of the date of this Agreement or
as of the Closing Date, or any amendment thereto, as of its
date or as of the Closing Date, contained any untrue statement
of a material fact or omitted 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 descriptions in the Final Offering Document of
statutes, contracts and other documents are accurate in all
material respects and fairly present in all material respects
the information required to be shown; and such counsel do not
know of any legal or governmental proceedings required to be
described in the Final Offering Document which are not
described as required or of any contracts or documents of a
character required to be described in the Final Offering
Document which are not described as required, it being
understood that such counsel need express no opinion as to the
financial statements and schedules or other financial data
contained in the Final Offering Document;
(vi) This Agreement and the Registration Rights
Agreement have been duly authorized, executed and delivered by
the Company;
(vii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Final
Offering Document, will not be (i) an "investment company" as
such term is defined in the Investment Company Act 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;
(viii) It is not necessary in connection with (i) the
offer, sale and delivery of the Offered Securities by the
Company to the Purchasers pursuant to this Agreement or (ii)
the resales of the Offered Securities by the Purchasers in the
manner contemplated by this Agreement, to register the Offered
Securities or to qualify an indenture in respect thereof under
the Trust Indenture Act; and
-14-
(ix) In a case properly argued and presented, a Texas
court or a Federal court sitting in Texas and applying Texas
conflict of law principles, as set out in Section 35.51 of the
Texas Business and Commerce Code, would give effect to the
provisions of the Offered Securities, the Indenture and the
Registration Rights Agreement selecting the substantive law of
New York as the governing law of the Offering Securities and
the Indenture, upon appropriate evidence as to such laws being
adduced.
(d) The Purchasers shall have received from ▇▇▇▇▇ ▇▇▇▇▇▇▇, as
Special Counsel for the Company, an opinion, dated the Closing Date, to
the effect that:
(i) Each of the Company and its Subsidiaries has been
duly incorporated or formed, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation or formation, as the case may
be, and has the corporate or other power and authority to own,
lease and operate its properties and to conduct its business
as described in the Final Offering Document, and each is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires
such qualification, except where the failure to be so
qualified or to be in good standing, individually or in the
aggregate, would not have a Material Adverse Effect;
(ii) The execution, delivery and performance of this
Agreement, the Registration Rights Agreement, the Indenture
and the Offered Securities by the Company, the compliance by
the Company with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and
thereby (including the Great Lakes Contribution) will not, to
such counsel's knowledge, (A) violate any indenture, loan
agreement, mortgage, lease or other agreement or instrument to
which any Parent, the Company or any Subsidiary is a party or
by which any Parent, the Company or any Subsidiary or their
respective property is bound or (B) violate or conflict with
any judgment, order or decree of any court or any governmental
body or agency having jurisdiction over any Parent, the
Company or any Subsidiary or their respective property, except
in each case, for such violations as would not have a Material
Adverse Effect;
(iii) To such counsel's knowledge after due inquiry,
there are no legal or governmental proceedings required to be
described in the Final Offering Document which are not
described as required or of any contracts or documents of a
character required to be described in the Final Offering
Document which are not described as required, and in each case
insofar as such descriptions constitute summaries of the legal
matters, documents or proceedings referred to in the Final
Offering Document, fairly present as of the date of this
Agreement the information disclosed in the Final Offering
Document in all material respects, it being un-
-15-
derstood that such counsel need express no opinion as to the
financial statements or schedules or other financial data
contained in the Final Offering Document;
(iv) (A) The execution and delivery by the Company
of, and the performance by the Company of its obligations
under, this Agreement and the Registration Rights Agreement
and the consummation of the Great Lakes Contribution will not
violate any provisions of any applicable laws and regulations
specifically governing the generation, transportation,
distribution or delivery of natural gas, oil, electricity or
other related commodities or services, including pipelines,
transmission lines, storage facilities and related facilities
and equipment, or the import or export of such commodities or
services (collectively, the "ENERGY INDUSTRY") and (B) no
consent, approval, authorization or order of or qualification
with any United States federal body or agency specifically
regulating the Energy Industry is required for the performance
by the Company of its obligations under this Agreement, the
Registration Rights Agreement and the consummation of the
Great Lakes Contribution, except in each of the foregoing
cases for such violations or failures to obtain such consent,
approval, authorization, order or qualification as would not
have a Material Adverse Effect.
(e) (i) The Purchasers shall have received from each of
▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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 delivered on the Closing Date, the Final Offering
Document and other related matters as the Purchasers 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 (ii)
the Purchasers will have received an opinion from ▇▇▇▇▇, Day, ▇▇▇▇▇▇ &
▇▇▇▇▇ to the effect that the execution, delivery and performance of
this Agreement, the Registration Rights Agreement, the Indenture and
the Offered Securities by the Company, the compliance by the Company
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby (including the Great Lakes
Contribution) will not violate or conflict with El Paso Corporation's
$3.0 billion 364-Day Revolving Credit and Competitive Advance Facility
Agreement dated May 15, 2002 or its Amended and Restated $1.0 billion
3-year Revolving Credit and Competitive Advance Facility Agreement
dated June 27, 2002.
(f) 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
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Company in this Agreement are true and correct, that the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the date of the most recent financial
statements of the Company included in the Final Offering Document,
there has been no material adverse change, nor any development or event
involving a prospective material adverse
-16-
change, in the condition (financial or otherwise), business, properties
or results of operations of the Company and its subsidiaries, taken as
a whole (after giving effect to the Great Lakes Contribution), except
as set forth in or contemplated by the Final Offering Document or as
described in such certificate.
(g) The Purchasers shall have received a letter, dated the
Closing Date, of each of PricewaterhouseCoopers LLP, Deloitte & Touche
LLP and KPMG LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection
will be a date not more than three days prior to such Closing Date for
the purposes of this subsection.
(h) The Company and the Purchasers shall have entered into the
Registration Rights Agreement.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. may in its 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 will indemnify and
hold harmless each Purchaser, affiliates, its partners, directors and officers
and each person, if any, who controls a 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 otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Offering Document, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse such 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 the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by such Purchaser
specifically for use therein, it being understood and agreed that the only such
information furnished by such Purchaser consists of the information described as
such in subsection (b) below; and provided, further, that with respect to any
untrue statement or omission of material fact made in any Preliminary Offering
Document, 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 purchased the Offered Securities concerned, to
the extent that 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 nonappealable judgment that (i) the Company
had previously furnished copies of the Final Offering Document on a timely basis
to the Purchasers, (ii) delivery of
-17-
a offering circular was required by the Securities Act to be made to such person
and (iii) the untrue statement or omission of a material fact contained in the
Preliminary Offering Document was corrected in the Final Offering Document and
(iv) there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Final Offering Document.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in any Offering Document or any amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Purchaser 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 the Purchasers consists
of the following information in any Offering Document furnished on behalf of the
Purchasers: the first sentence of the third paragraph and the tenth paragraph
under the heading "Plan of Distribution" in the Final Offering Document.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses; and
(ii) will not, in any event, relieve it from any liability which it may have to
any 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 unless (x)
the actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be
-18-
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party; or
(y) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. 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 (i) includes
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 a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and each Purchaser 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 on the one hand and each Purchaser on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and a Purchaser 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 such Purchaser.
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 a Purchaser 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 price at which the Offered Securities purchased by such
Purchaser and resold were offered to subsequent purchasers exceeds the amount of
any damages which such Purchaser 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 Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Purchasers'
obligation to contribute pursuant to this subsection (d) shall be several in
proportion to their respective purchase obligations set forth on Schedule A
hereto and not joint.
-19-
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each partner, affiliate, director and
officer and each person, if any, who controls a Purchaser within the meaning of
the Securities Act; and the obligations of each Purchaser under this Section 7
shall be in addition to any liability which such Purchaser may otherwise have
and shall extend, upon the same terms and conditions, to each director of the
Company and to each person, if any, who controls the Company within the meaning
of the Securities Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the 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
the Purchasers, their affiliates the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If for any reason
the purchase of the Offered Securities by 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
Purchasers pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Purchasers is not consummated for
any reason other than solely because of the occurrence of any event specified in
clause (iii), (iv) (other than with respect to a suspension of trading of any
securities of any Parent) or (v) of Section 6(b), the Company will reimburse the
Purchasers for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by the Purchasers in connection with the offering
of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers, will be mailed, delivered or sent by facsimile and
confirmed to the Purchasers c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, or, if sent to the
Company, will be mailed, delivered or sent by facsimile and confirmed to it at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
11. 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.
12. 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.
-20-
13. Default by a Purchaser. If any one or more Purchasers shall fail to
purchase and pay for any of the Offered Securities agreed to be purchased by
such Purchaser hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Purchasers shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Offered Securities set forth opposite
their names in Schedule A hereto bears to the aggregate amount of Offered
Securities set forth opposite the names of all the remaining Purchasers) the
Offered Securities which the defaulting Purchaser or Purchasers agreed but
failed to purchase; provided, however, that in the event that the aggregate
amount of Offered Securities which the defaulting Purchaser or Purchasers agreed
but failed to purchase shall exceed 10% of the aggregate amount of Offered
Securities set forth in Schedule A hereto, the remaining Purchasers shall have
the right to purchase all, but shall not be under any obligation to purchase
any, of the Offered Securities, and if such nondefaulting Purchasers do not
purchase all the Offered Securities, this Agreement will terminate without
liability to any nondefaulting Purchasers or the Company. In the event of a
default by any Purchaser as set forth in this Section 13, the Closing Date shall
be postponed for such period, not exceeding five Business Days, as ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc. and Credit Suisse First Boston LLC shall determine in order that the
required changes in the Final Offering Document or in any other documents or
arrangements may be effected. Nothing contained in its Agreement shall relieve
any defaulting Purchaser of its liability, if any, to the Company or any
nondefaulting Purchaser for damages occasioned by its default hereunder.
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.
[Remainder of Page Intentionally Left Blank]
[Signature Page Immediately Follows]
-21-
Very truly yours,
ANR PIPELINE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
The foregoing Purchase Agreement is
hereby confirmed and accepted as of
the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
CREDIT SUISSE FIRST BOSTON LLC
ABN AMRO INCORPORATED
BANC OF AMERICA SECURITIES LLC
BNP PARIBAS SECURITIES CORP.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-22-
SCHEDULE A
PRINCIPAL AMOUNT OF
PURCHASER OFFERED SECURITIES
--------- -------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc............................................. $120,000,000
Credit Suisse First Boston LLC....................................... 120,000,000
ABN AMRO Incorporated................................................ 15,000,000
Banc of America Securities LLC....................................... 15,000,000
BNP Paribas Securities Corp. ........................................ 15,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc........................................... 15,000,000
----------
Total..................................... $300,000,000
============
SCHEDULE B
SUBSIDIARIES
ANR Alliance Pipeline Company Canada, Inc.
ANR Alliance Pipeline Company U.S., Inc.
ANR Capital Corporation
El Paso Typhoon, Inc.
