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Exhibit 1.1
EXECUTION COPY
$250,000,000
CITGO PETROLEUM CORPORATION
6% SENIOR NOTES DUE 2011
PURCHASE AGREEMENT
October 15, 2004
Lehman Brothers
Inc.
BNP Paribas Securities
Corp.
BNY Capital Markets,
Inc.
Citigroup Global Markets
Inc.
SG Americas Securities,
LLC
WestLB AG, London
Branch
c/o Lehman Brothers
Inc.
745 Seventh Avenue, Third
Floor
New York, New York
10019
Dear Sirs:
CITGO
Petroleum Corporation, a Delaware corporation (the
"Company"),
proposes, upon the terms and
considerations set forth herein, to issue and sell
to Lehman Brothers Inc.
("Lehman Brothers"), BNP Paribas Securities Corp., BNY
Capital Markets, Inc.,
Citigroup Global Markets Inc., SG Americas Securities,
LLC and WestLB AG, London
Branch (collectively with Lehman Brothers, the
"Initial Purchasers"),
$250,000,000 aggregate principal amount of 6% Senior
Notes due 2011 (the "Notes").
The Notes will have terms and provisions which are
summarized in the Offering
Memorandum (as defined below). The Notes are to be
issued pursuant to an
indenture (the "Indenture") to be dated as of October
22,
2004 (the "Closing Date"),
between the Company and J.P. Morgan Trust Company,
National Association, as
trustee (the "Trustee"). The Company has commenced a
tender offer (together with
any amendments and extensions thereof, the "Tender
Offer") to purchase all of
its outstanding 11-3/8% Senior Notes Due 2011 (the
"11-3/8% Notes") and a
related solicitation of consents (together with
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any amendments and extensions
thereof, the "Consent Solicitation") of the
holders of the 11-3/8% Notes
to certain amendments to the indenture (the
"11-3/8% Note Indenture")
dated as of February 27, 2003 between the Company and
The Bank of New York, as
trustee.
In
connection with the Tender Offer and Consent Solicitation, the
Company
has entered into a
Dealer-Manger and Solicitation Agent Agreement dated as
of
October 8, 2004, between the
Company and Lehman Brothers (the "Dealer-Manager
Agreement"). In order to
consummate the Tender Offer and Consent Solicitation,
the Company has prepared and
distributed to holders of the 11-3/8% Notes an
Offer to Purchase and Consent
Solicitation Statement dated as of October 8, 2004
(together with any other
documents relating to the Tender Offer or Consent
Solicitation, collectively
referred to as, the "Tender Offer and Consent
Solicitation Materials"). The
amendments to the 11-3/8% Note Indenture will be
effected pursuant to a
supplemental indenture (the "First Supplemental
Indenture") to be dated as of
October 20, 2004, between the Company and The Bank
of New York, as trustee. This
Agreement, the Indenture, the First Supplemental
Indenture, the Notes, the
Exchange Notes (as defined below), the Private
Exchange Notes (as defined
below), the Registration Rights Agreement (as defined
below) and the Tender Offer
and Consent Solicitation Materials are referred to
in this Agreement
collectively as the "Operative Documents." All
references
herein to the Company's
Subsidiaries, as defined below, will include all direct
and indirect Subsidiaries of
the Company.
This is to
confirm the agreement concerning the purchase of the Notes
from
the Company by the Initial
Purchasers.
1.
Preliminary Offering Memorandum and Offering Memorandum. The Notes
will
be offered and sold to the
Initial Purchasers without registration under the
U.S. Securities Act of 1933,
as amended (the "Act"), in reliance on an exemption
pursuant to Section 4(2)
under the Act. The Company has prepared a preliminary
offering memorandum, dated
October 8, 2004 (together with all documents
incorporated by reference
therein, the "Preliminary Offering Memorandum"), and
an offering memorandum, dated
October 15, 2004 (together with all documents
incorporated by reference
therein, the "Offering Memorandum"), setting forth
information regarding the
Company, the Indenture, the Notes, the Exchange Notes,
the Private Exchange Notes
and the Registration Rights Agreement. The Company
hereby confirms that it has
authorized the use of the Preliminary Offering
Memorandum and the Offering
Memorandum in connection with the offering and
resale of the Notes by the
Initial Purchasers.
It is
understood and acknowledged that upon original issuance thereof,
and
until such time as the same
is no longer required under the applicable
requirements of the Act, the
Notes (and all securities issued in exchange
therefor or in substitution
thereof) will bear the following legend (along with
such other legends as
required by the Indenture):
"THE NOTES
EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED
STATES
SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED,
SOLD,
PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHOM
THE
SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE
MEANING OF
RULE 144A UNDER THE ACT PURCHASING FOR ITS OWN ACCOUNT OR
FOR
THE
ACCOUNT OF A QUALIFIED
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INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE
144A, (2)
IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904
OF
REGULATION S UNDER THE ACT, (3) PURSUANT TO AN EXEMPTION
FROM
REGISTRATION UNDER THE ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE),
(4) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT
FROM
THE
REGISTRATION REQUIREMENTS OF THE ACT, (5) IN ACCORDANCE WITH
ANOTHER
EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE ACT (BASED UPON
AN
OPINION OF
COUNSEL IF THE COMPANY SO REQUESTS) OR (6) PURSUANT TO
AN
EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND (B) IN ACCORDANCE
WITH
ALL
APPLICABLE BLUE SKY LAWS OF THE STATES OF THE UNITED
STATES."
You have
advised the Company that you will make offers (the
"Exempt
Resales") of the Notes
purchased by you hereunder on the terms set forth in the
Offering Memorandum, solely
to (i) persons whom you reasonably believe to be
"qualified institutional
buyers" as defined in Rule 144A under the Act ("QIBs")
and (ii) outside the United
States to certain persons in offshore transactions
in reliance on Regulation S
under the Act. Those persons specified in clauses
(i) and (ii) are referred to
herein as the "Eligible Purchasers". You will offer
the Notes to Eligible
Purchasers initially at a price equal to 99.300% of the
principal amount thereof.
Such price may be changed at any time without notice.
Holders
(including subsequent transferees) of the Notes will have
the
registration rights set forth
in the registration rights agreement in the form
of Exhibit A hereto (the
"Registration Rights Agreement"), between the Company
and the Initial Purchasers,
to be dated as of the Closing Date, for so long as
such Notes constitute
Transfer Restricted Securities (as defined in the
Registration Rights
Agreement). Pursuant to the Registration Rights
Agreement,
the Company will agree to
file with the U.S. Securities and Exchange Commission
(the "Commission") under the
circumstances set forth therein (i) a registration
statement under the Act (the
"Exchange Offer Registration Statement") relating
to the Company's Notes (the
"Exchange Notes") to be offered in exchange for the
Notes (such offer to exchange
being referred to as the "Exchange Offer") and
(ii) a shelf registration
statement pursuant to Rule 415 under the Act (the
"Shelf Registration
Statement" together with the Exchange Offer Registration
Statement, the "Registration
Statements") relating to the resale by certain
holders of the Notes and to
use their reasonable best efforts to cause such
Registration Statements to be
declared effective. The Company will also agree
pursuant to the Registration
Rights Agreement, under the circumstances set forth
therein, to issue private
exchange notes (the "Private Exchange Notes") in a
private exchange offer (the
"Private Exchange").
2.
Representations and Warranties of the Company. The Company
represents
and warrants to, and agrees
with, the Initial Purchasers that:
(a) On the date of this Agreement, the Preliminary
Offering
Memorandum and the Offering
Memorandum do not include any untrue statement of a
material fact or omit to
state any material fact necessary in order to make the
statements therein, in the
light of the circumstances under which they were
made, not misleading. The
preceding sentence does not
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apply to statements in or
omissions from the Preliminary Offering Memorandum or
the Offering Memorandum based
upon written information furnished to the Company
by any Initial Purchaser
through Lehman Brothers specifically for use therein,
it being understood and
agreed that the only such information is that described
as such in Section 8(e)
hereof. Except as disclosed in the Offering Memorandum,
on the date of this
Agreement, the Company's Annual Report on Form 10-K most
recently filed with the
Commission and all subsequent reports (collectively, the
"Exchange Act Reports") which
have been filed by the Company with the Commission
or sent to shareholders
pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act") do not
include any untrue statement of a material fact or omit
to state any material fact
necessary to make the statements therein, in the
light of the circumstances
under which they were made, not misleading. Such
documents, when they were
filed with the Commission, conformed in all material
respects to the requirements
of the Exchange Act and the rules and regulations
of the Commission
thereunder.
(b) The Company has been duly incorporated and is an
existing
corporation in good standing
under the laws of the State of Delaware, with power
and authority (corporate and
other) to own its properties and conduct its
business as described in the
Offering Memorandum; 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
or in good standing would
not, individually or in the aggregate, have a material
adverse effect on the
condition (financial or other), business, properties or
results of operations of the
Company and its Subsidiaries taken as a whole (a
"Material Adverse
Effect").
(c) The entities listed on Schedule II hereto are the
only
Subsidiaries (as such term is
defined in Rule 1-02(x) of Regulation S-X of the
Commission), direct or
indirect, of the Company.
(d) Each Subsidiary of the Company has been duly incorporated
or
otherwise organized and is an
existing corporation or other entity in good
standing under the laws of
the jurisdiction of its organization, with power and
authority to own its
properties and conduct its business as described in the
Offering Memorandum, except
where the failure to be so duly incorporated or
formed or to so exist in good
standing would not, individually or in the
aggregate, result in a
Material Adverse Effect; and each Subsidiary of 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 or
in good standing would not, individually or in the
aggregate, have a Material
Adverse Effect; all of the issued and outstanding
capital stock of each
Subsidiary of the Company has been duly authorized and
validly issued and is fully
paid and nonassessable; and the capital stock or
other interests of each
Subsidiary owned by the Company, directly or through
Subsidiaries, is owned,
except as disclosed in the Offering Memorandum, free
from liens, encumbrances and
defects.
(e) On the Closing Date, each of the Indenture and the 11-3/8%
Note
Indenture (as supplemented by
the First Supplemental Indenture) will conform in
all material respects to the
requirements of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture
Act"),
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and the rules and regulations
of the Commission applicable to an indenture which
is qualified
thereunder.
(f) The Indenture has been duly authorized; the Notes have been
duly
authorized; and when the
Notes are delivered and paid for pursuant to this
Agreement on the Closing
Date, the Indenture will have been duly executed and
delivered, such Notes will
have been duly executed, authenticated, issued and
delivered and will conform to
the description thereof contained in the Offering
Memorandum and the Indenture
and such Notes 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.
(g) The First Supplemental Indenture has been duly authorized
and
when the First Supplemental
Indenture has been duly executed and delivered, such
First Supplemental Indenture
will constitute a valid and legally binding
obligation of the Company,
enforceable in accordance with its terms, subject to
bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and
similar laws of general
applicability relating to or affecting creditors' rights
and to general equity
principals.
(h) 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, the
Registration Rights Agreement
or any of the other Operative Documents in
connection with the issuance
and sale of the Notes by the Company and the Tender
Offer and Consent
Solicitation, except (i) as may be required by the
securities
or Blue Sky laws of any state
of the United States in connection with the sale
of the Notes and (ii) the
order of the Commission declaring the Exchange Offer
Registration Statement or the
Shelf Registration Statement effective.
(i) The execution, delivery and performance of the
Operative
Documents, the issuance and
sale of the Notes, the issuance of the Exchange
Notes and the Private
Exchange Notes and compliance with the terms and
provisions thereof will not
result in a breach or violation of any of the terms
and provisions of, or
constitute a default under, (i) any statute, any rule,
regulation or order of any
governmental agency or body or any court, domestic or
foreign, having jurisdiction
over the Company or any Subsidiary of the Company
or any of their properties,
(ii) any agreement or instrument to which the
Company or any such
Subsidiary is a party or by which the Company or any
such
Subsidiary is bound or to
which any of the properties of the Company or any such
Subsidiary, is subject, or
(iii) the charter, bylaws or other similar
organizational document of
the Company or any such Subsidiary, except, in the
case of clauses (i) and (ii),
where any such breach, violation or default would
not, individually or in the
aggregate, materially impair the Company's ability
to meet its obligations under
the Notes, the Exchange Notes, the Private
Exchange Notes or any of the
other Operative Documents, or result in a Material
Adverse Effect, and the
Company has full power and authority to authorize, issue
and sell the Notes as
contemplated by this Agreement.
(j) This Agreement has been duly authorized, executed and
delivered
by the Company and the
Registration Rights Agreement has been duly authorized
by
the Company and,
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on the Closing Date, will
have been duly executed and delivered by the Company.
(k) Except as disclosed in the Offering Memorandum, the Company
and
its Subsidiaries have good
and marketable title to all real properties and all
other properties and assets
owned by them, in each case free from liens,
encumbrances and defects that
would materially affect the value thereof or
materially interfere with the
use made or to be made thereof by them; and except
as disclosed in the Offering
Memorandum, 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.
(l) The Company and its Subsidiaries possess adequate
certificates,
authorities or permits issued
by appropriate governmental agencies or bodies
necessary to conduct the
business now operated by them and have not received any
notice of proceedings
relating to the revocation or modification of any such
certificate, authority or
permit that could reasonably be expected, individually
or in the aggregate, to have
a Material Adverse Effect.
(m)
No labor dispute with the employees of the Company or
any
Subsidiary exists or, to the
knowledge of the Company, is imminent that would
have a Material Adverse
Effect.
(n) The Company and its Subsidiaries own, possess or can acquire
on
reasonable terms, adequate
trademarks, trade names and other rights to
inventions, know-how,
patents, copyrights, confidential information and other
intellectual property
(collectively, "intellectual property rights") necessary
to conduct the business now
operated by them, or presently employed by them, and
have not received any notice
of infringement of or conflict with asserted rights
of others with respect to any
intellectual property rights that could reasonably
be expected, individually or
in the aggregate, to have a Material Adverse
Effect.
(o) Except as disclosed in the Offering Memorandum, neither
the
Company nor any of its
Subsidiaries is in violation of any statute, any rule,
regulation, decision or order
of any governmental agency or body or any court,
domestic or foreign, relating
to the use, disposal or release of hazardous or
toxic substances or relating
to the protection or restoration of the environment
or human exposure to
hazardous or toxic substances (collectively,
"environmental
laws"), owns or operates any
real property contaminated with any substance that
is subject to any
environmental laws, is liable for any off-site disposal
or
contamination pursuant to any
environmental laws, or is subject to any claim
relating to any environmental
laws, which violation, contamination, liability or
claim would individually or
in the aggregate have a Material Adverse Effect; and
the Company is not aware of
any pending investigation which might lead to such a
claim.
(p) Except as disclosed in the Offering Memorandum, there are
no
pending actions, suits or
proceedings against or affecting the Company, any of
its Subsidiaries or any of
their respective properties that could reasonably be
expected to 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 any of the
Operative Documents, or which are otherwise
material in the context of
the sale of the Notes, the Exchange Notes or the
Private Exchange Notes; and
no such actions, suits or proceedings are, to the
Company's
knowledge,
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threatened or
contemplated.
(q) The financial statements included in the Preliminary
Offering
Memorandum and the Offering
Memorandum present fairly the financial position of
the Company and its
consolidated Subsidiaries as of the dates shown and
their
results of operations and
cash flows for the periods shown, such financial
statements have been prepared
in conformity with the generally accepted
accounting principles in the
United States applied, except as described in the
notes thereto, on a
consistent basis.
(r) Except as disclosed in the Offering Memorandum, since the
date
of the latest audited
financial statements included in the Offering
Memorandum,
there has been no material
adverse change, nor any development or event
involving a prospective
material adverse change, in the condition (financial or
other), business, properties
or results of operations of the Company and its
Subsidiaries taken as a
whole, and, except as disclosed in or contemplated by
the Offering Memorandum,
there has been no dividend or distribution of any kind
declared, paid or made by the
Company on any class of its capital stock.
(s) The Company is subject to the reporting requirements of
either
Section 13 or Section 15(d)
of the Exchange Act and files reports with the
Commission on the Electronic
Data Gathering, Analysis, and Retrieval (EDGAR)
system.
(t) The Company is not and, after giving effect to the offering
and
sale of the Notes and the
application of the proceeds thereof as described in
the Offering Memorandum, will
not be an "investment company" as defined in the
Investment Company Act of
1940, as amended.
(u) No securities of the same class (within the meaning of
Rule
144A(d)(3) under the Act) as
the Notes are listed on any national securities
exchange registered under
Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer
quotation system.
(v) Assuming the accuracy of the Initial Purchasers'
representations
set forth in Section 3, the
offer and sale of the Notes by the Company to the
Initial Purchasers in the
manner contemplated by this Agreement will be exempt
from the registration
requirements of the Act by reason of Section 4(2)
thereof
and Regulation S; and it is
not necessary to qualify an indenture in respect of
the Notes under the Trust
Indenture Act, except as may be necessary for the
Company's compliance with the
Registration Rights Agreement.
(w) 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 Act) the Notes or any security of
the same class or series as
the Notes or (ii) has offered or will offer or sell
the Notes (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 Act or (B)
with respect to any Notes
sold in reliance on Rule 903 of Regulation S, by means
of any directed selling
efforts within the meaning of Rule 902(c) of Regulation
S. The Company has not
entered and will not enter into any contractual
arrangement with respect to
the distribution of the Notes except for this
Agreement.
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(x) On the Closing Date, the Exchange Notes and the Private
Exchange
Notes will have been duly
authorized by the Company; and when the Exchange Notes
and the Private Exchange
Notes are issued, executed and authenticated in
accordance with the terms of
the Exchange Offer or the Private Exchange, as the
case may be, and the
Indenture, the Exchange Notes and the Private Exchange
Notes will be entitled to the
benefits of the Indenture and will be the 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.
(y) When the Registration Rights Agreement has been duly
executed
and delivered, the
Registration Rights Agreement will be a valid and
binding
agreement of the Company,
enforceable against the Company in accordance with its
terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization,
moratorium and similar laws
of general applicability relating to or affecting
creditors' rights and to
general equity principles and as to the indemnification
provisions thereof,
principles of public policy. On the Closing Date, the
Registration Rights Agreement
will conform in all material respects to the
statements relating thereto
contained in the Offering Memorandum.
(z) Neither the Company nor any of its Subsidiaries is in
violation
of its respective charter or
by-laws or in default in the performance of any
obligation, agreement,
covenant or condition contained in any indenture, loan
agreement, mortgage, lease or
other agreement or instrument that is material to
the Company and its
Subsidiaries, taken as a whole, to which the Company or
any
of its Subsidiaries is a
party or by which the Company or any of its
Subsidiaries or their
respective property is bound.
(aa) There are no contracts, agreements or understandings
between
the Company and any person
granting such person the right to require the Company
to file a registration
statement under the Act with respect to any securities
of
the Company or to require the
Company to include such securities with the Notes,
the Exchange Notes or the
Private Exchange Notes registered pursuant to any
Registration
Statement.
(bb) Neither the Company nor any of its Subsidiaries nor any
agent
thereof acting on the behalf
of them has taken, and none of them will take, any
action that might cause this
Agreement or the issuance or sale of the Notes to
violate Regulation T,
Regulation U or Regulation X of the Board of Governors
of
the Federal Reserve
System.
(cc) Except as described in the Offering Memorandum, no
"nationally
recognized statistical rating
organization" as such term is defined for purposes
of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company
that it is considering
imposing) any condition (financial or otherwise) on the
Company's retaining any
rating assigned to the Company or any securities of the
Company or (ii) has indicated
to the Company that it is considering (a) 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 so
assigned or (b) any change in
the outlook for any rating of the Company or any
securities of the
Company.
(dd) No form of general solicitation or general advertising
(as
defined in
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Regulation D under the Act)
was used by the Company or any of its respective
representatives (other than
the Initial Purchasers, as to whom the Company makes
no representation) in
connection with the offer and sale of the Notes
contemplated hereby,
including, but not limited to, articles, notices or
other
communications published in
any newspaper, magazine, or similar medium or
broadcast over television or
radio, or any seminar or meeting whose attendees
have been invited by any
general solicitation or general advertising.
(ee) The sale of the Notes pursuant to Regulation S is not part of
a
plan or scheme to evade the
registration provisions of the Act.
3.
Purchase of the Notes by the Initial Purchasers; Agreements to
Sell,
Purchase and Resell. (a) The
Company hereby agrees, on the basis of the
representations, warranties
and agreements of the Initial Purchasers contained
herein and subject to all the
terms and conditions set forth herein, to issue
and sell to the Initial
Purchasers and, upon the basis of the representations,
warranties and agreements of
the Company herein contained and subject to all the
terms and conditions set
forth herein, each Initial Purchaser agrees, severally
and not jointly, to purchase
from the Company, at a purchase price of 97.550% of
the principal amount thereof,
the principal amount of the Notes set forth
opposite the name of such
Initial Purchaser in Schedule I hereto. The Company
will not be obligated to
deliver any of the Notes to be delivered hereunder
except upon payment for all
of the Notes to be purchased as provided herein. The
Company and Lehman Brothers
hereby acknowledge that pursuant to the Introducing
Agent Agreement, to be
entered into on or prior to the Closing Date (the
"Introducing Agent
Agreement"), by and between Lehman Brothers and Seton
Securities Group, Inc. (the
"Introducing Agent"), Lehman Brothers has agreed, in
exchange for the referral of
the Company to Lehman Brothers in February 2004, to
pay to the Introducing Agent,
the fees set forth in the Introducing Agent
Agreement. The Company hereby
consents to the payment of, and acknowledges, that
the fees payable pursuant to
the Introducing Agent Agreement will be paid
following the consummation of
the Tender Offer and Consent Solicitation and the
issuance of the Notes in
accordance with the terms of the Introducing Agent
Agreement.
(b) Each of the Initial Purchasers, severally and not
jointly,
hereby represents and
warrants to the Company that it will offer the Notes for
sale upon the terms and
conditions set forth in this Agreement and in the
Offering Memorandum. Each of
the Initial Purchasers hereby represents and
warrants to, and agrees with,
the Company that such Initial Purchaser (i) is a
QIB with such knowledge and
experience in financial and business matters as are
necessary in order to
evaluate the merits and risks of an investment in the
Notes; (ii) is purchasing the
Notes pursuant to a private sale exempt from
registration under the Act;
(iii) in connection with the Exempt Resales, will
solicit offers to buy the
Notes only from, and will offer to sell the Notes only
to, Eligible Purchasers in
accordance with this Agreement and on the terms
contemplated by the Offering
Memorandum; and (iv) will not offer or sell the
Notes, nor has it offered or
sold the Notes by, or otherwise engaged in, any
form of general solicitation
or general advertising (within the meaning of
Regulation D, including, but
not limited to, advertisements, articles, notices
or other communications
published in any newspaper, magazine or similar medium
or broadcast over television
or radio, or any seminar or meeting whose attendees
have been invited by any
general solicitation or general advertising) and, with
respect to Notes sold outside
the United States to non-U.S. purchasers in
reliance on Regulation S
under the Act, will not engage
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in any directed selling
efforts, within the meaning of Rule 902 under the Act in
connection with the offering
of the Notes. The Initial Purchasers have advised
the Company that they will
offer the Notes to Eligible Purchasers at a price
initially equal to 99.300% of
the principal amount thereof, plus accrued
interest, if any, from the
date of issuance of the Notes. Such price may be
changed by the Initial
Purchasers at any time thereafter without notice.
(c) Each of the Initial Purchasers, severally and not
jointly,
represents, warrants and
agrees with the Company that (i) it has not offered or
sold and, prior to the date
six months after the date of issuance of the Notes,
will not offer or sell any of
the 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 U.K. Public Offers of
Securities Regulations of 1995 (as amended); (ii) it
has complied and will comply
with all applicable provisions of the Financial
Services and Markets Act 2000
(the "FSMA") with respect to anything done by it
in relation to the Notes in,
from or otherwise involving the United Kingdom; and
(iii) 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 FSMA) received
by it in connection with the
issue or sale of any of the Notes in circumstances
in which Section 21(1) of the
FSMA would not apply to the Company.
(d) Each of the Initial Purchasers understands that the Company
and,
for purposes of the opinions
to be delivered to the Initial Purchasers pursuant
to Sections 7(b) and 7(c)
hereof, counsel to the Company and counsel to the
Initial Purchasers, will rely
upon the accuracy and truth of the foregoing
representations, warranties
and agreements and the Initial Purchasers hereby
consent to such
reliance.
4.
Delivery of the Notes and Payment Therefor. Delivery to the
Initial
Purchasers of and payment for
the Notes will be made at the office of Milbank,
Tweed, Hadley & McCloy
LLP at One Chase Manhattan Plaza, New York, New York
10005, at 9:00 A.M., New York
City time, on the Closing Date. The place of
closing for the Notes and the
Closing Date may be varied by agreement between
the Initial Purchasers and
the Company.
The Notes
will be delivered to the Initial Purchasers or the Trustee
as
custodian for The Depository
Trust Company ("DTC") against payment by or on
behalf of the Initial
Purchasers of the purchase price therefore, by wire
transfer in immediately
available funds to such account or accounts as the
Company shall specify to
Lehman Brothers prior to the Closing Date, by causing
DTC to credit the Notes to
the account of the Initial Purchasers at DTC. The
Notes will be evidenced by
one or more global securities in definitive form (the
"Global Notes") and/or by
additional definitive securities, and will be
registered, in the case of
the Global Notes, in the name of Cede & Co. as
nominee of DTC, and in the
other cases, in such names and in such denominations
as the Initial Purchasers
shall request prior to 9:30 A.M., New York City time,
on the second Business Day
preceding the Closing Date. The Notes to be delivered
to the Initial Purchasers
will be made available to the Initial Purchasers in
New York City for inspection
and
10
<PAGE>
packaging not later than 9:30
A.M., New York City time, on the Business Day
preceding the Closing Date or
as otherwise agreed upon between the Company and
the Initial
Purchasers.
5.
Agreements of the Company. The Company agrees with each
Initial
Purchaser as
follows:
(a) Until the earlier of (i) the consummation of the Exchange
Offer,
(ii) the effective date of
the Shelf Registration Statement, (iii) the date on
which none of the Initial
Purchasers or any of their respective affiliates holds
any of the Notes as part of
the initial distribution or (iv) the date upon which
none Initial Purchasers or
any of their respective affiliates continue to hold
any Exchange Notes or Private
Exchange Notes, the Company will furnish to the
Initial Purchasers, without
charge, such number of copies of the Preliminary
Offering Memorandum and the
Offering Memorandum and any amendments or
supplements thereto as they
may reasonably request.
(b) The Company will not make any amendment or supplement to
the
Preliminary Offering
Memorandum or to the Offering Memorandum without the
prior
consent of the Initial
Purchasers, which consent will not be unreasonably
withheld.
(c) The Company consents to the use, in accordance with
the
securities or Blue Sky laws
of the jurisdictions in which the Notes are offered
by the Initial Purchasers and
by dealers, prior to the date of the Offering
Memorandum, of each
Preliminary Offering Memorandum so furnished by the
Company.
The Company consents to the
use of the Offering Memorandum in accordance with
the securities or Blue Sky
laws of the jurisdictions in which the Notes are
offered by the Initial
Purchasers and by all dealers to whom Notes may be sold,
in connection with the
offering and sale of the Notes.
(d) If, at any time prior to completion of the distribution of
the
Notes by the Initial
Purchasers to Eligible Purchasers, any event occurs that
in
the judgment of the Company
or in the reasonable opinion of counsel for the
Initial Purchasers should be
set forth in the Offering Memorandum so that the
Offering Memorandum does not
include any untrue statement of 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,
or
if it is necessary to
supplement or amend the Offering Memorandum in order to
comply with any law, the
Company will prepare an appropriate supplement or
amendment thereto, and will
expeditiously furnish to the Initial Purchasers and
dealers a reasonable number
of copies thereof.
(e) The Company will cooperate with the Initial Purchasers and
with
their
