Exhibit 4.02


 


EQUITABLE
RESOURCES, INC.


 


$150,000,000


 


5% Notes due
2015


 


Purchase
Agreement


 


September 27, 2005


 


J.P. Morgan Securities Inc.

Banc of America Securities LLC


  As
Representatives of the
  several Initial Purchasers listed
  in Schedule 1 hereto


c/o J.P. Morgan Securities Inc.

270 Park Avenue

New York, New York  10017


 


Ladies and Gentlemen:


 


Equitable
Resources, Inc., a Pennsylvania corporation (the “Company”), proposes to
issue and sell to the several Initial Purchasers listed in Schedule 1 hereto
(the “Initial Purchasers”), for whom you are acting as representatives (the “Representatives”),
$150,000,000 principal amount of its 5% Notes due 2015 (the “Notes”).  The Notes will be issued pursuant to an
Indenture dated as of July 1, 1996 between the Company and The Bank of New
York, as successor trustee to the Bank of Montreal Trust Company (the “Trustee”).


 


The Notes will
be sold to the Initial Purchasers without being registered under the Securities
Act of 1933, as amended (the “Securities Act”), in reliance upon an exemption
therefrom.  The Company has prepared a
preliminary offering memorandum dated September 27, 2005 (the “Preliminary
Offering Memorandum”) and will prepare an offering memorandum dated the date
hereof (the “Offering Memorandum”) setting forth information concerning the
Company and the Notes.  Copies of the
Preliminary Offering Memorandum have been, and copies of the Offering
Memorandum will be, delivered by the Company to the Initial Purchasers pursuant
to the terms of this Agreement. 
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Memorandum. 
References herein to the Preliminary Offering Memorandum and the
Offering Memorandum shall be deemed to refer to and include any document
incorporated by reference therein.


 


Holders of the
Notes (including the Initial Purchasers and their direct and indirect
transferees) will be entitled to the benefits of a Registration Rights
Agreement, to be dated the Closing Date (as defined below) and substantially in
the form attached hereto as Exhibit A (the “Registration Rights Agreement”),
pursuant to which the Company will agree to file one or more registration
statements with the Securities and Exchange Commission (the “Commission”)


 





















 


providing for the registration under the Securities Act of the Notes or
the Exchange Notes referred to (and as defined) in the Registration Rights
Agreement.


 


The Company
hereby confirms its agreement with the several Initial Purchasers concerning
the purchase and resale of the Notes, as follows:


 


1.     Purchase and Resale of the Notes.  (a)  The Company agrees to issue and
sell the Notes to the several Initial Purchasers as provided in this Agreement,
and each Initial Purchaser, on the basis of the representations, warranties and
agreements set forth herein and subject to the conditions set forth herein,
agrees, severally and not jointly, to purchase from the Company the respective
principal amount of Notes set forth opposite such Initial Purchaser’s name in Schedule 1
hereto at a price equal to 99.023% of the principal amount.  The Company will not be obligated to deliver
any of the Notes except upon payment for all the Notes to be purchased as
provided herein.


 


(b)  The Company understands that
the Initial Purchasers intend to offer the Notes for resale on the terms set
forth in the Offering Memorandum.  Each
Initial Purchaser, severally and not jointly, represents, warrants and agrees
that:


 


(i)            it is a qualified institutional
buyer within the meaning of Rule 144A under the Securities Act (a “QIB”)
and an accredited investor within the meaning of Rule 501(a) under
the Securities Act;


 


(ii)           it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Notes by means of any form
of general solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D under the Securities Act (“Regulation D”) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act; and


 


(iii)          it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Notes as part of their
initial offering except:


 


(A) to persons within the United States
whom it reasonably believes to be QIBs in transactions pursuant to Rule 144A
under the Securities Act (“Rule 144A”) and in connection with each such
sale, it has taken or will take reasonable steps to ensure that the purchaser
of the Notes is aware that such sale is being made in reliance on Rule 144A;
or


 


(B) to persons outside the United States
in accordance with the restrictions set forth in Annex A hereto.


 


(c)  Each Initial Purchaser
acknowledges and agrees that the Company, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Sections 5(f) and 5(g),
counsel for the Company and counsel for the Initial Purchasers, respectively,
may rely upon the accuracy of the representations and warranties of the Initial
Purchasers, and compliance by the Initial Purchasers with their agreements,
contained in paragraph (b) above (including Annex A hereto), and each
Initial Purchaser hereby consents to such reliance.


 


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(d)  The Company acknowledges and
agrees that the Initial Purchasers may offer and sell Notes to or through any
affiliate of an Initial Purchaser and that any such affiliate may offer and
sell Notes purchased by it to or through any Initial Purchaser.


 


(e)  The Company acknowledges and
agrees that the Initial Purchasers are acting solely in the capacity of an arm’s
length contractual counterparty to the Company with respect to the offering of
the Notes contemplated hereby (including in connection with determining the
terms of the offering) and not as a financial advisor or a fiduciary to, or an
agent of, the Company or any other person. 
Additionally, no Initial Purchaser is advising the Company or any other
person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction.  The Company shall
consult with its own advisors concerning such matters and shall be responsible
for making their own independent investigation and appraisal of the
transactions contemplated hereby, and the Initial Purchasers shall have no
responsibility or liability to the Company with respect thereto.  Any review by the Initial Purchasers of the
Company, the transactions contemplated hereby or other matters relating to such
transactions will be performed solely for the benefit of the Initial Purchasers
and shall not be on behalf of the Company.


 


2.     Payment and Delivery.  (a)  Payment
for and delivery of the Notes will be made at the offices of Simpson Thacher &
Bartlett LLP at 10:00 A.M., New York City time, on September 30,
2005, or at such other time or place on the same or such other date, not later
than the third business day hereafter, as the Representatives and the Company
may agree upon in writing.  The time and
date of such payment and delivery is referred to herein as the “Closing Date”.


 


(b)  Payment for the Notes shall be
made by wire transfer in immediately available funds to the account(s)
specified by the Company to the Representatives against delivery to the nominee
of The Depository Trust Company, for the account of the several Initial
Purchasers, of global notes representing the Notes purchased by the Initial
Purchasers (collectively, the “Global Notes”). 
The Global Notes will be made available for inspection by the
Representatives not later than 1:00 P.M., New York City time, on the
business day prior to the Closing Date.


 


3.     Representations and Warranties of the Company.  The Company represents and warrants to each
Initial Purchaser that:


 


(a)  Offering Memorandum. 
The Offering Memorandum does not, and as of the Closing Date, will not,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
the Company makes no representation or warranty with respect to any statements
or omissions made in reliance upon and in conformity with information relating
to any Initial Purchaser furnished to the Company in writing by such Initial
Purchaser through the Representatives expressly for use in the Offering
Memorandum.


 


(b)  Incorporated Documents. 
The documents incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum, when filed with the Commission,
conformed or will conform, as the case may be, in all material respects with
the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and did not and will not contain an untrue statement of a material fact
or omit to state a material fact


 


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required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.


 


(c)  Financial Statements. 
The financial statements and the related notes thereto included or
incorporated by reference in the Offering Memorandum comply in all material
respects with the applicable requirements of the Securities Act and the
Exchange Act, as applicable, and present fairly the financial position of the
Company and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
covered thereby except as may be expressly stated in the related notes thereto;
and the other financial information included or incorporated by reference in
the Offering Memorandum has been derived from the accounting records of the
Company and its subsidiaries and presents fairly the information shown thereby.


 


(d)  No Material Adverse Change. 
Since the respective dates as of which information is given in the
Offering Memorandum, (i) there has not been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, business, prospects,
management, financial position, stockholders’ equity or results of operations
of the Company and its subsidiaries taken as a whole, except as otherwise
disclosed or contemplated in the Offering Memorandum; and (ii) except as
set forth or contemplated in the Offering Memorandum neither the Company nor any
of its subsidiaries has entered into any transaction or agreement material to
the Company and its subsidiaries taken as a whole other than in the ordinary
course of business.


 


(e)  Organization. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate or other) to
own its properties and conduct its business as described in the Offering
Memorandum, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business,
so as to require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole.


 


(f)  Subsidiaries.  Each of
the Company’s subsidiaries has been duly incorporated and is validly existing
as a corporation under the laws of its jurisdiction of incorporation, with
power and authority (corporate or other) to own its properties and conduct its
business as described in the Offering Memorandum, and has been duly qualified
as a foreign corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns or leases
properties or conducts any business so as to require such qualification, other
than where the failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a whole;
and all the outstanding shares of capital stock of each subsidiary of the
Company have been duly authorized and validly issued, are fully-paid and
non-assessable, and (except in the case of foreign subsidiaries, for directors’
qualifying shares) are owned by the Company, directly or indirectly, free and
clear of all liens, encumbrances, security interests and claims.


 


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(g)  Due Authorization.  This
Agreement and the Registration Rights Agreement have been duly authorized,
executed and delivered by the Company.


 


(h)  The Indenture.  The
Indenture has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance with
its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors’ rights generally
and (ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability; and the
Indenture (including any amendments and supplements thereto) will conform on
the Closing Date with all requirements of the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”) and the applicable rules and
regulations promulgated thereunder by the Commission applicable to an indenture
that is qualified thereunder.


 


(i)  The Notes.  The Notes
have been duly authorized and, when executed and authenticated in accordance
with the Indenture and delivered to and duly paid for by the purchasers
thereof, will be entitled to the benefits of the Indenture and will be valid
and binding obligations of the Company, enforceable in accordance with their
terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors’ rights generally
and (ii) rights of acceleration and the availability of equitable remedies
may be limited by equitable principles of general applicability; the Notes,
when executed and authenticated in accordance with the Indenture and delivered
to and duly paid for by the purchasers thereof, will rank pari  passu
with all Notes (as defined in the Indenture) issued and to be issued under the
Indenture and all other unsecured debt of the Company which is not expressly
subordinated; and the Notes and the Indenture will conform to the description
thereof in the Offering Memorandum.


 


(j)  The Exchange Notes. 
On the Closing Date, the Exchange Notes will have been duly authorized
by the Company and, when duly executed and authenticated in accordance with the
Registration Rights Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company enforceable
against the Company in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors’ rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles
of general applicability.


 


(k)  No Violation or Default.  Neither
the Company nor any of its subsidiaries is, or with the giving of notice or
lapse of time or both would be, in violation of or in default under, its
Restated Articles of Incorporation or By-Laws or any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them or any of
their respective properties is bound, except for violations and defaults which
individually and in the aggregate are not material to the Company and its
subsidiaries taken as a whole or to the holders of the Notes; the issue and
sale of the Notes and the performance by the Company of all the provisions of
its obligations under the Notes, the Indenture, this Agreement and the
Registration Rights Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement 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 is bound


 


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or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will any such action result in any violation of
the provisions of the Restated Articles of Incorporation or By-Laws of the
Company or any applicable law or statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over the
Company, its subsidiaries or any of their respective properties; and no
consent, approval, authorization, order, license, registration or qualification
of or with any such court or governmental agency or body is required for the
issue and sale of the Notes or the consummation by the Company of the
transactions contemplated by this Agreement, the Registration Rights Agreement
or the Indenture, except such consents, approvals, authorizations, orders,
licenses, registrations or qualifications as may be required under state
securities laws in connection with the purchase and distribution of the Notes
by the Initial Purchasers or from the Pennsylvania Public Utility Commission in
connection with the issuance and sale of the Notes.


 


(l)  Legal Proceedings.  Other
than as set forth or contemplated in the Offering Memorandum, there are no
legal or governmental investigations, actions, suits or proceedings pending or,
to the knowledge of the Company, threatened against or affecting the Company or
any of its subsidiaries or any of their respective properties or to which the
Company or any of its subsidiaries is or may be a party or to which any
property of the Company or any of its subsidiaries or to which the Company or
any of its subsidiaries is or may be subject which, if determined adversely to
the Company or any of its subsidiaries, could individually or in the aggregate
reasonably be expected to have a material adverse effect on the general
affairs, business, prospects, management, financial position, stockholders’
equity or results of operations of the Company and its subsidiaries taken as a
whole and, to the best of the Company’s knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others.


 


(m)  Property.  The Company
and its subsidiaries have good and marketable title in fee simple to all items
of real property and good and marketable title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and defects
except such as are described or referred to in the Offering Memorandum or such
as do not materially affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company and
its subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, existing and
enforceable leases with such exceptions as are not material and do not
interfere with the use made or proposed to be made of such property and
buildings by the Company or its subsidiaries.


 


(n)  Investment Company Act.  The
Company is not and, after giving effect to the offering and sale of the Notes,
will not be an “investment company” or entity “controlled” by an “investment
company”, as such terms are defined in the Investment Company Act of 1940, as
amended (the “Investment Company Act”).


 


(o)  Taxes.  Except to the
extent that any such failures would not, individually or in the aggregate, have
material adverse effect on the Company and its subsidiaries taken as a whole,
the Company and its subsidiaries have filed all federal, state, local and
foreign tax returns which have been required to be filed and have paid all
taxes shown thereon and all assessments received by them or any of them to the
extent that such taxes have become due and are not being contested in good
faith; and, except as disclosed in the Offering Memorandum, there is no tax


 


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deficiency which has been or might reasonably be expected to be
asserted or threatened against the Company or any of its subsidiaries.


 


(p)  Conduct of Business.  Each
of the Company and its subsidiaries owns, possesses or has obtained all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities (including foreign
regulatory agencies), all self-regulatory organizations and all courts and
other tribunals, domestic or foreign, necessary to own or lease, as the case
may be, and to operate its properties and to carry on its business as conducted
as of the date hereof, except where the failure to so own or possess or to have
so obtained or made would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries taken as a whole, and
neither the Company nor any such subsidiary has received any actual notice of
any proceeding, relating to the revocation or modification of any such license,
permit, certificate, consent, order, approval or other authorization, except as
described in the Offering Memorandum; each of the Company and its subsidiaries
is in compliance with all laws and regulations relating to the conduct of its
business as conducted as of the date hereof, except where the failure to be in
compliance would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole; and the Company
and its subsidiaries are in compliance with the applicable provisions of the
Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission
adopted pursuant thereto as such rules and regulations currently apply to
the Company and its subsidiaries, except for where the failure to be in
compliance would not, singly or in the aggregate, have a material adverse
effect on the Company and its subsidiaries taken as a whole.


 


(q)  Environmental Compliance.  The
Company and its subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have
received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses, (iii) are
in compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole, and (iv) are not aware of any administrative
or judicial action being contemplated by governmental authorities relating to
Environmental Laws; neither the Company nor any of its subsidiaries are subject
to any consent decree or compliance or administrative order issued pursuant to,
or are the subject of any pending investigation or litigation under, applicable
Environmental Laws except for such actions, decrees, orders or investigations
which do not and are not reasonably expected to have a material adverse effect
on, or cause material changes to, the general affairs, business, prospects,
management, financial position, stockholders’ equity or results of operations
of the Company and its subsidiaries, taken as a whole; and neither the Company
nor any of its subsidiaries is a party to a governmental proceeding arising
under any Environmental Law which involves potential monetary sanctions,
exclusive of interests and costs, of $100,000 or more.


 


(r)  Environmental Costs.  In
the ordinary course of business, the Company reviews the effect of Environmental
Laws on the business, operations and properties of the Company and its


 


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subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to
third parties); and, on the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in
the aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.


 


(s)  No Labor Disputes.  There
are no existing or, to the best knowledge of the Company, threatened labor
disputes with the employees of the Company or any of its subsidiaries which are
likely to have a material adverse effect on the Company and its subsidiaries taken
as a whole.


 


(t)  Employee Benefits.  Each
employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is
maintained, administered or contributed to by the Company or any of its
affiliates for employees or former employees of the Company and its affiliates
has been maintained in compliance with its terms and the requirements of any
applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”).  No prohibited transaction, within the meaning
of Section 406 of ERISA or Section 4975 of the Code has occurred with
respect to any such plan excluding transactions effected pursuant to a
statutory or administrative exemption. 
For each such plan which is subject to the funding rules of Section 412
of the Code or Section 302 of ERISA no “accumulated funding deficiency” as
defined in Section 412 of the Code has been incurred, whether or not
waived, and the fair market value of the assets of each such plan (excluding
for these purposes accrued but unpaid contributions) exceeded the present value
of all benefits accrued under such plan determined using reasonable actuarial
assumptions.


 


(u)  Rule 144A Eligibility. 
On the Closing Date, the Notes will not be of the same class as
securities listed on a national securities exchange registered under Section 6
of the Exchange Act or quoted in an automated inter-dealer quotation system;
and each of the Preliminary Offering Memorandum and the Offering Memorandum, as
of its respective date, contains or will contain all the information that, if
requested by a prospective purchaser of the Notes, would be required to be
provided to such prospective purchaser pursuant to Rule 144A(d)(4) under
the Securities Act.


 


(v)  No Integration. 
Neither the Company nor any of its affiliates (as defined in Rule 501(b) of
Regulation D) has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Securities Act), that is or will be integrated with the sale of
the Notes in a manner that would require registration of the Notes under the
Securities Act.


 


(w)  No General Solicitation or Directed Selling Efforts.  Neither of the Company nor any of its
affiliates or any other person acting on its or their behalf (other than the
Initial Purchasers, as to which no representation is made) has (i) solicited
offers for, or offered or sold, the Notes by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act or (ii) engaged in any
directed selling efforts within the


 


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meaning of Regulation S under the Securities Act (“Regulation S”), and
all such persons have complied with the offering restrictions requirement of
Regulation S.


 


(x)  Securities Law Exemptions. 
Assuming the accuracy of the representations and warranties of the
Initial Purchasers contained in Section 1(b) (including Annex A
hereto) and their compliance with their agreements set forth therein, it is not
necessary, in connection with the issuance and sale of the Notes to the Initial
Purchasers and the offer, resale and delivery of the Notes by the Initial
Purchasers in the manner contemplated by this Agreement and the Offering
Memorandum, to register the Notes under the Securities Act or to qualify the
Indenture under the Trust Indenture Act.


 


4.     Further Agreements of the Company.  The Company covenants and agrees with each
Initial Purchaser that:


 


(a)  Delivery of Copies. 
The Company will deliver to the Initial Purchasers as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum (including all
amendments and supplements thereto) as the Representatives may reasonably
request.


 


(b)  Amendments or Supplements. 
Before making or distributing any amendment or supplement to the
Offering Memorandum or filing with the Commission any document that will be
incorporated by reference therein, the Company will furnish to the
Representatives and counsel for the Initial Purchasers a copy of the proposed
amendment or supplement or document to be incorporated by reference therein for
review, and will not distribute any such proposed amendment or supplement or
file any such document with the Commission to which the Representatives
reasonably objects.


 


(c)  Notice to the Representatives.  The Company will advise the Representatives
promptly, and confirm such advice in writing, (i) of the issuance by any
governmental or regulatory authority of any order preventing or suspending the
use of the Preliminary Offering Memorandum or the Offering Memorandum or the
initiation or threatening of any proceeding for that purpose; (ii) of the
occurrence of any event at any time prior to the completion of the initial
offering of the Notes as a result of which the Offering Memorandum as then
amended or supplemented would include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, not misleading; and (iii) of the
receipt by the Company of any notice with respect to any suspension of the
qualification of the Notes for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company will
use its reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum or suspending any such qualification of the Notes and, if
any such order is issued, will obtain as soon as possible the withdrawal
thereof.


 


(d)  Ongoing Compliance of the Offering Memorandum.  If at any time prior to the completion of the
initial offering of the Notes by the Initial Investors but no later than the
date of the consummation of the Exchange Offer, (i) any event shall occur
or condition shall exist as a result of which the Offering Memorandum as then
amended or supplemented would include any untrue statement of a material fact
or omit to state any material fact necessary in order to make


 


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the statements therein, in the light of the circumstances existing when
the Offering Memorandum is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Offering Memorandum to comply with law,
the Company will immediately notify the Initial Purchasers thereof and
forthwith prepare and, subject to paragraph (b) above, file with the
Commission any document to be incorporated by reference therein and furnish to
the Initial Purchasers such amendments or supplements to the Offering
Memorandum as may be necessary so that the statements in the Offering
Memorandum as so amended or supplemented (or including such document to be
incorporated by reference therein) will not, in the light of the circumstances
existing when the Offering Memorandum is delivered to a purchaser, be
misleading or so that the Offering Memorandum will comply with law.


 


(e)  Blue Sky Compliance. 
The Company will cooperate with the Initial Purchasers to qualify the
Notes for offer and sale under the securities or Blue Sky laws of such
jurisdictions as the Representatives shall reasonably request and will continue
such qualifications in effect so long as required for the offering and resale of
the Notes; provided that the Company shall not be required to (i) qualify
as a foreign corporation or other entity or as a dealer in securities in any
such jurisdiction where it would not otherwise be required to so qualify, (ii) file
any general consent to service of process in any such jurisdiction or (iii) subject
itself to taxation in any such jurisdiction if it is not otherwise so subject.


 


(f)  Clear Market.  During
the period from the date hereof through and including the Closing Date, the
Company will not, without the prior written consent of the Representatives,
offer, sell, contract to sell or otherwise dispose of any debt securities
issued by the Company and having a tenor of more than one year.


 


(g)  Use of Proceeds.  The
Company will apply the net proceeds from the sale of the Notes as described in
the Offering Memorandum under the heading “Use of Proceeds”.


 


(h)  Supplying Information. 
While the Notes remain outstanding and are “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act, the
Company will, during any period in which the Company is not subject to and in
compliance with Section 13 or 15(d) of the Exchange Act, furnish to
holders of the Notes and prospective purchasers of the Notes designated by such
holders, upon the request of such holders or such prospective purchasers, the
information required to be delivered pursuant to Rule 144A(d)(4) under
the Securities Act.


 


(i)  DTC.  The Company will
assist the Initial Purchasers in arranging for the Global Notes to be eligible
for clearance and settlement through The Depository Trust Company (“DTC”).


 


(j)  No Resales by the Company. 
Until the issuance of the Exchange Notes, 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 Notes that have been acquired by any of
them, except for Notes purchased by the Company or any of its affiliates and
resold in a transaction registered under the Securities Act.


 


10





















 


(k)  No Integration. 
Neither the Company nor any of its affiliates (as defined in Rule 501(b) of
Regulation D) will, directly or through any agent, sell, offer for sale,
solicit offers to buy or otherwise negotiate in respect of, any security (as
defined in the Securities Act), that is or will be integrated with the sale of
the Notes in a manner that would require registration of the Notes under the
Securities Act.


 


(l)  No General Solicitation or Directed Selling Efforts.  Neither the Company nor any of its affiliates
or any other person acting on their behalf (other than the Initial Purchasers,
as to which no covenant is given) will (i) solicit offers for, or offer or
sell, the Notes by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) of Regulation D or in
any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act or (ii) engage in any directed selling efforts within
the meaning of Regulation S, and all such persons will comply with the offering
restrictions requirement of Regulation S.


 


(m)  No Stabilization.  The
Company will not take, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Notes.


 


(n)  Filing of Exchange Act Documents.  The Company will file promptly all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act.


 


(o)  Registration Rights. 
The Company will use its reasonable best efforts to cause the exchange
offer to be made in the appropriate form to permit the Notes to be offered in
exchange for Exchange Notes in accordance with the Registration Rights
Agreement and to comply with all applicable federal and state securities laws
in connection with the exchange offer.


 


5.     Conditions of Initial Purchasers’ Obligations. 
The obligation of each Initial Purchaser to purchase Notes on the
Closing Date as provided herein is subject to the performance by the Company of
its respective covenants and other obligations hereunder and to the following
additional conditions:


 


(a)  Representations and Warranties.  The representations and warranties of the
Company contained herein shall be true and correct on the date hereof and on
and as of the Closing Date; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and
correct on and as of the Closing Date.


 


(b)  No Downgrade. 
Subsequent to the execution and delivery of this Agreement, (i) no
downgrading shall have occurred in the rating accorded the Notes or any other
debt securities or preferred stock issued by the Company by any “nationally
recognized statistical rating organization”, as such term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act;
and (ii) no such organization shall have publicly announced that it has under
surveillance or review, or has changed its outlook with respect to, its rating
of the Notes or of any other debt securities or preferred stock issued by the
Company (other than an announcement with positive implications of a possible
upgrading).


 


(c)  No Material Adverse Change. 
Subsequent to the execution and delivery of this Agreement, no event or
condition of a type described in Section 3(d) hereof shall have
occurred


 


11





















 


or shall exist, which event or condition is not described in the
Offering Memorandum (excluding any amendment or supplement thereto or any
document filed with the Commission after the date hereof and incorporated by
reference therein) and the effect of which in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the offering, sale or
delivery of the Notes on the terms and in the manner contemplated by this
Agreement and the Offering Memorandum.


 


(d)  Officer’s Certificate. 
The Representatives shall have received on and as of the Closing Date a
certificate of an executive officer of the Company who has specific knowledge
of the Company’s financial matters and is satisfactory to the Representatives (i) confirming
that such officer has carefully reviewed the Offering Memorandum and, to the
best knowledge of such officer, the representation set forth in Section 3(a) hereof
is true and correct, (ii) confirming that the other representations and
warranties of the Company in this Agreement are true and correct and 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
(iii) to the effect set forth in paragraphs (a) through (c) above.


 


(e)  Comfort Letters.  On
the date of this Agreement and on the Closing Date, Ernst & Young LLP
shall have furnished to the Representatives, at the request of the Company,
letters, dated the respective dates of delivery thereof and addressed to the
Initial Purchasers, in form and substance reasonably satisfactory to the
Representatives, containing statements and information of the type customarily
included in accountants’ “comfort letters” to Initial Purchasers with respect
to the financial statements and certain financial information contained or
incorporated by reference in the Offering Memorandum; provided that the letter
delivered on the Closing Date shall use a “cut-off” date no more than three
business days prior to the Closing Date.


 


(f)  Opinion of Counsel for the Company.  Reed Smith LLP, counsel for the Company,
shall have furnished to the Representatives, at the request of the Company,
their written opinion, dated the Closing Date and addressed to the Initial
Purchasers, in form and substance reasonably satisfactory to the
Representatives.


 


(g)  Opinion of Counsel for the Initial Purchasers.  The Representatives shall have received on
and as of the Closing Date an opinion of Simpson Thacher & Bartlett
LLP, counsel for the Initial Purchasers, with respect to such matters as the
Representatives may reasonably request, and such counsel shall have received
such documents and information as they may reasonably request to enable them to
pass upon such matters.


 


(h)  No Legal Impediment to Issuance.  No action shall have been taken and no
statute, rule, regulation or order shall have been enacted, adopted or issued
by any federal, state or foreign governmental or regulatory authority that
would, as of the Closing Date, prevent the issuance or sale of the Notes and no
injunction or order of any federal, state or foreign court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of the
Notes.


 


(i)  Good Standing.  The
Representatives shall have received on and as of the Closing Date satisfactory
evidence of the good standing of the Company and its significant subsidiaries
in their respective jurisdictions of organization and their good standing in
such other jurisdictions


 


12





















 


as the Representatives may reasonably request, in each case in writing
or any standard form of telecommunication, from the appropriate governmental
authorities of such jurisdictions.


 


(j)  Registration Rights Agreement.  The Initial Purchasers shall have received a
counterpart of the Registration Rights Agreement that shall have been executed
and delivered by a duly authorized officer of the Company.


 


(k)  DTC.  The Notes shall
be eligible for clearance and settlement through DTC, Clearstream Banking and
the Euroclear System.


 


(l)  Additional Documents. 
On or prior to the Closing Date, the Company shall have furnished to the
Representatives such further certificates and documents as the Representatives
may reasonably request.


 


All opinions,
letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only
if they are in form and substance reasonably satisfactory to counsel for the
Initial Purchasers.


 


6.     Indemnification and Contribution.


 


(a)  Indemnification of the Initial Purchasers.  The Company agrees to indemnify and hold
harmless each Initial Purchaser, its affiliates, directors and officers and
each person, if any, who controls such Initial Purchaser within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, from and against
any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted, as such fees and expenses are
incurred), joint or several, that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum (or any amendment or
supplement thereto), or any 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, except insofar
as such losses, claims, damages or liabilities arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through
the Representatives expressly for use therein; provided, that with
respect to any such untrue statement in or omission from the Preliminary
Offering Memorandum, the indemnity agreement contained in this paragraph (a) shall
not inure to the benefit of any Initial Purchaser to the extent that the sale
to the person asserting any such loss, claim, damage or liability was an
initial resale by such Initial Purchaser and any such loss, claim, damage or
liability of or with respect to such Initial Purchaser results from the fact
that both (i) a copy of the Offering Memorandum (excluding any documents
incorporated by reference therein) was not sent or given to such person at or
prior to the written confirmation of the sale of such Notes to such person and (ii) the
untrue statement in or omission from such Preliminary Offering Memorandum was
corrected in the Offering Memorandum unless, in either case, such failure to
deliver the Offering Memorandum was a result of non-compliance by the Company
with the provisions of Section 4 hereof.


 


13





















 


(b)  Indemnification of the Company.  Each Initial Purchaser agrees, severally and
not jointly, to indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any information relating to such
Initial Purchaser furnished to the Company in writing by such Initial Purchaser
through the Representatives expressly for use in the Preliminary Offering
Memorandum and the Offering Memorandum (or any amendment or supplement
thereto), it being understood and agreed that the only such information
consists of the following information in the Preliminary Offering Memorandum
and the Offering Memorandum:  (i) the
first sentence of the third paragraph, (ii) the fifth sentence of the
tenth paragraph and (iii) the first sentence of the twelfth paragraph
under the heading “Plan of Distribution”.


 


(c)  Notice and Procedures. 
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such person (the “Indemnified Person”)
shall promptly notify the person against whom such indemnification may be
sought (the “Indemnifying Person”) in writing; provided that the failure
to notify the Indemnifying Person shall not relieve it from any liability that
it may have under this Section 6 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 Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under this Section 6.  If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 6
that the Indemnifying Person may designate in such proceeding and shall pay the
fees and expenses of such counsel related to such proceeding, as incurred.  In any such proceeding, any Indemnified
Person shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary; (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. 
It is understood and agreed that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred.  Any such separate firm for any Initial
Purchaser, its affiliates, directors and officers and any control persons of
such Initial Purchaser shall be designated in writing by the Representatives
and any such separate firm for the Company and any control persons of the
Company shall be designated in writing by the Company.  The Indemnifying Person shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled


 


14





















 


with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Person agrees to indemnify each Indemnified Person from and
against any loss or liability by reason of such settlement or judgment.  Notwithstanding the foregoing sentence, if at
any time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement.  No Indemnifying
Person shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement (x)
includes an unconditional release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all
liability on claims that are the subject matter of such proceeding and (y) does
not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.


 


(d)  Contribution.  If the
indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Initial Purchasers on the other from the
offering of the Notes or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also
the relative fault of the Company on the one hand and the Initial Purchasers on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations.  The relative benefits
received by the Company on the one hand and the Initial Purchasers on the other
shall be deemed to be in the same respective proportions as the net proceeds
(before deducting expenses) received by the Company from the sale of the Notes
and the total discounts and commissions received by the Initial Purchasers in
connection therewith, as provided in this Agreement, bear to the aggregate
offering price of the Notes.  The
relative fault of the Company on the one hand and the Initial Purchasers on the
other 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 by the Initial Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.


 


(e)  Limitation on Liability. 
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined
by pro  rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above.  The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such


 


15





















 


Indemnified Person in connection with any such action or claim.  Notwithstanding the provisions of this Section 6,
in no event shall an Initial Purchaser be required to contribute any amount in
excess of the amount by which the total discounts and commissions received by
such Initial Purchaser with respect to the offering of the Notes exceeds the
amount of any damages that such Initial 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 Initial Purchasers’ obligations to contribute pursuant to this Section 6
are several in proportion to their respective purchase obligations hereunder
and not joint.


 


(f)  Non-Exclusive Remedies. 
The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.


 


7.     Termination.  This Agreement may
be terminated in the absolute discretion of the Representatives, by notice to
the Company, if after the execution and delivery of this Agreement and prior to
the Closing Date (i) trading generally shall have been suspended or
materially limited on the New York Stock Exchange or the over-the-counter
market; (ii) trading of any securities issued or guaranteed by the Company
shall have been suspended on any exchange or in any over-the-counter market; (iii) there
shall have occurred a material disruption of securities settlement or clearance
services; (iv) a general moratorium on commercial banking activities shall
have been declared by federal or New York State authorities; or (v) there
shall have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis, either within or outside the
United States, that, in the judgment of the Representatives, is material and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Notes on the terms and in the manner contemplated by
this Agreement and the Offering Memorandum.


 


8.     Defaulting Initial Purchaser.  (a)  If, on the Closing Date, any
Initial Purchaser defaults on its obligation to purchase the Notes that it has
agreed to purchase hereunder, the non-defaulting Initial Purchasers may in
their discretion arrange for the purchase of such Notes by other persons
satisfactory to the Company on the terms contained in this Agreement.  If, within 36 hours after any such default by
any Initial Purchaser, the non-defaulting Initial Purchasers do not arrange for
the purchase of such Notes, then the Company shall be entitled to a further
period of 36 hours within which to procure other persons satisfactory to the
non-defaulting Initial Purchasers to purchase such Notes on such terms.  If other persons become obligated or agree to
purchase the Notes of a defaulting Initial Purchaser, either the non-defaulting
Initial Purchasers or the Company may postpone the Closing Date for up to five
full business days in order to effect any changes that in the opinion of
counsel for the Company or counsel for the Initial Purchasers may be necessary
in the Offering Memorandum or in any other document or arrangement, and the
Company agrees to promptly prepare any amendment or supplement to the Offering
Memorandum that effects any such changes. 
As used in this Agreement, the term “Initial Purchaser” includes, for
all purposes of this Agreement unless the context otherwise requires, any
person not listed in Schedule 1 hereto that, pursuant to this Section 8,
purchases Notes that a defaulting Initial Purchaser agreed but failed to
purchase.


 


16





















 


(b)  If, after giving effect to any
arrangements for the purchase of the Notes of a defaulting Initial Purchaser or
Initial Purchasers by the non-defaulting Initial Purchasers and the Company as
provided in paragraph (a) above, the aggregate principal amount of such
Notes that remains unpurchased does not exceed one-eleventh of the aggregate
principal amount of all the Notes, then the Company shall have the right to
require each non-defaulting Initial Purchaser to purchase the principal amount
of Notes that such Initial Purchaser agreed to purchase hereunder plus such
Initial Purchaser’s pro  rata share (based on the principal amount
of Notes that such Initial Purchaser agreed to purchase hereunder) of the Notes
of such defaulting Initial Purchaser or Initial Purchasers for which such
arrangements have not been made.


 


(c)  If, after giving effect to any
arrangements for the purchase of the Notes of a defaulting Initial Purchaser or
Initial Purchasers by the non-defaulting Initial Purchasers and the Company as
provided in paragraph (a) above, the aggregate principal amount of such
Notes that remains unpurchased exceeds one-eleventh of the aggregate principal
amount of all the Notes, or if the Company shall not exercise the right
described in paragraph (b) above, then this Agreement shall terminate
without liability on the part of the non-defaulting Initial Purchasers.  Any termination of this Agreement pursuant to
this Section 8 shall be without liability on the part of the Company,
except that the Company will continue to be liable for the payment of expenses
as set forth in Section 9 hereof and except that the provisions of Section 6
hereof shall not terminate and shall remain in effect.


 


(d)  Nothing contained herein shall
relieve a defaulting Initial Purchaser of any liability it may have to the
Company or any non-defaulting Initial Purchaser for damages caused by its
default.


 


9.     Payment of Expenses.  (a)  Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company agrees to pay or cause to be paid all costs and expenses incident
to the performance of their respective obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale,
preparation and delivery of the Notes and any taxes payable in that connection;
(ii) the costs incident to the preparation and printing of the Preliminary
Offering Memorandum and the Offering Memorandum (including any amendment or
supplement thereto) and the distribution thereof; (iii) the costs of
reproducing and distributing each of the documents relating to this offering; (iv) the
fees and expenses of the Company’s counsel and independent accountants; (v) the
fees and expenses incurred in connection with the registration or qualification
and determination of eligibility for investment of the Notes under the laws of
such jurisdictions as the Representatives may designate and the preparation,
printing and distribution of a Blue Sky Memorandum (including the related fees
and expenses of counsel for the Initial Purchasers); (vi) any fees
charged by rating agencies for rating the Notes; (vii) the fees and
expenses of the Trustee and any paying agent (including related fees and
expenses of any counsel to such parties); (viii) all expenses and
application fees incurred in connection with the approval of the Notes for
book-entry transfer by DTC; and (ix) all expenses incurred by the Company
in connection with any “road show” presentation to potential investors.


 


(b)  If (i) this Agreement is
terminated pursuant to Section 7, (ii) the Company for any reason
fails to tender the Notes for delivery to the Initial Purchasers or (iii) the
Initial Purchasers decline to purchase the Notes for any reason permitted under
this Agreement, the Company


 


17





















 


agrees to reimburse the Initial Purchasers for all out-of-pocket costs
and expenses (including the fees and expenses of their counsel) reasonably
incurred by the Initial Purchasers in connection with this Agreement and the
offering contemplated hereby.  Otherwise,
the Initial Purchasers shall pay their own expenses, including the fees and
expenses of their counsel.


 


10.   Persons Entitled to Benefit of Agreement.  This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective successors and any
controlling persons referred to herein, and the affiliates, officers and
directors of each Initial Purchaser referred to in Section 6 hereof.  Nothing in this Agreement is intended or
shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.  No purchaser of Notes
from any Initial Purchaser shall be deemed to be a successor merely by reason
of such purchase.


 


11.   Survival.  The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company and the
Initial Purchasers contained in this Agreement or made by or on behalf of the
Company or the Initial Purchasers pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the
Notes and shall remain in full force and effect, regardless of any termination
of this Agreement or any investigation made by or on behalf of the Company or
the Initial Purchasers.


 


12.   Certain Defined Terms.  For purposes of
this Agreement, (a) except where otherwise expressly provided, the term “affiliate”
has the meaning set forth in Rule 405 under the Securities Act; (b) the
term “business day” means any day other than a day on which banks are permitted
or required to be closed in New York City; and (c) the term “subsidiary”
has the meaning set forth in Rule 405 under the Securities Act.


 


13.   Miscellaneous.  (a)  Authority of the Representatives.  Any action by the Initial Purchasers
hereunder may be taken by the Representatives on behalf of the Initial
Purchasers, and any such action taken by the Representatives shall be binding
upon the Initial Purchasers.


 


(b)  Notices.  All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted and confirmed by any standard
form of telecommunication.  Notices to
the Initial Purchasers shall be given to the Representatives c/o J.P. Morgan
Securities Inc., 270 Park Avenue, New York, New York 10017 (fax: (212) 834-6702);
Attention: Transaction Execution Group. 
Notices to the Company shall be given to them at Equitable Resources, Inc.,
225 North Shore Drive, Pittsburgh, Pennsylvania 15212 (fax: 412-553-7700);
Attention: Johanna G. O’Loughlin, Senior Vice President, General Counsel and
Corporate Secretary.


 


(c)  Governing Law.  This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.


 


(d)  Entire Agreement and Counterparts.  This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. 
This Agreement may be signed in counterparts (which may include
counterparts


 


18





















 


delivered by any standard form of telecommunication), each of which
shall be an original and all of which together shall constitute one and the
same instrument.


 


(e)  Amendments or Waivers. 
No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective
unless the same shall be in writing and signed by the parties hereto.


 


(f)  Headings.  The
headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.


 


(g)  Partial
Unenforceability.  The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof.  If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable,
there shall be deemed to be made such minor changes (and only such minor
changes) as are necessary to make it valid and enforceable.


 


19





















 


If the
foregoing is in accordance with your understanding, please indicate your
acceptance of this Agreement by signing in the space provided below.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  EQUITABLE RESOURCES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ PHILIP P. CONTI

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Philip P. Conti

  
	
   

  	
   

  	
  Title:

  	
  Vice President, Chief Financial Officer

  and Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
  Accepted: September 27,
  2005

  	
   

  
	
   

  	
   

  
	
  J.P. MORGAN
  SECURITIES INC.

  	
   

  
	
  BANC OF
  AMERICA SECURITIES LLC

  	
   

  
	
   

  	
   

  
	
  For
  themselves and on behalf of the

  	
   

  
	
  several
  Initial Purchasers listed

  	
   

  
	
  in Schedule 1
  hereto.

  	
   

  
	
   

  	
   

  
	
  By: J.P.
  MORGAN SECURITIES INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ MARIA
  SRAMEK

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Maria Sramek

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  	
   

  
								



 


20





















 


SCHEDULE 1


 


	
  Initial Purchaser

  	
   

  	
  Principal Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Banc of America Securities LLC

  	
   

  	
  $

  	
  69,000,000

  	
   

  
	
  J.P. Morgan Securities Inc.

  	
   

  	
  69,000,000

  	
   

  
	
  Harris Nesbitt Corp.

  	
   

  	
  12,000,000

  	
   

  
	
  Total

  	
   

  	
  $

  	
  150,000,000

  	
   

  



 





















 


ANNEX A


 


Restrictions
on Offers and Sales Outside the United States


 


In connection
with offers and sales of Notes outside the United States:


 


(a) Each Initial Purchaser acknowledges
that the Notes 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 pursuant to an exemption from, or in transactions not
subject to, the registration requirements of the Securities Act.


 


(b) Each Initial Purchaser, severally
and not jointly, represents, warrants and agrees that:


 


(i)            Such Initial Purchaser has
offered and sold the Notes, and will offer and sell the Notes, (A) as part
of their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering of the Notes and the Closing
Date, only in accordance with Regulation S under the Securities Act (“Regulation
S”) or Rule 144A or any other available exemption from registration under
the Securities Act.


 


(ii)           None of such Initial Purchaser or any of its affiliates or
any other person acting on its or their behalf has engaged or will engage in
any directed selling efforts with respect to the Notes, and all such persons
have complied and will comply with the offering restrictions requirement of
Regulation S.


 


(iii)          At or prior to the confirmation of sale of any Notes sold in
reliance on Regulation S, such Initial Purchaser will have sent to each
distributor, dealer or other person receiving a selling concession, fee or
other remuneration that purchase Notes from it during the distribution
compliance period a confirmation or notice to substantially the following
effect:


 


“The
Notes covered hereby have not been registered under the U.S. Securities Act of
1933, as amended (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 commencement of the offering of the Notes and the date
of original issuance of the Notes, except in accordance with Regulation S or Rule 144A
or any other available exemption from registration under the Securities
Act.  Terms used above have the meanings
given to them by Regulation S.”


 


(iv)          Such Initial Purchaser has not and will not enter into any
contractual arrangement with any distributor with respect to the distribution
of the Notes, except with its affiliates or with the prior written consent of
the Company.


 


A-1





















 


Terms used in
paragraph (a) and this paragraph (b) and not otherwise defined in
this Agreement have the meanings given to them by Regulation S.


 


(c) Each Initial Purchaser, severally
and not jointly, represents, warrants and agrees that:


 


(i)            it has not offered or sold and
prior to the date six months after the Closing Date will not offer or sell any
Notes 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 United
Kingdom Public Offers of Securities Regulations 1995 (as amended);


 


(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
United Kingdom Financial Services and Markets Act 2000 (the “FSMA”)) received
by it in connection with the issue or sale of any Notes in circumstances in
which Section 21(1) of the FSMA does not apply to the Company; and


 


(iii)          it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation to the
Notes in, from or otherwise involving the United Kingdom.


 


(d)           Each Initial Purchaser acknowledges that no action has been
or will be taken by the Company that would permit a public offering of the
Notes, or possession or distribution of the Preliminary Offering Memorandum,
the Offering Memorandum or any other offering or publicity material relating to
the Notes, in any country or jurisdiction where action for that purpose is
required.


 


A-2





















 


EXHIBIT A


 


Form of
Registration Rights Agreement