PURCHASE AGREEMENT

EXHIBIT 1.1

 

$350,000,000

 

XTO ENERGY INC.

 

$350,000,000 5.00% Senior Notes due 2015

 

PURCHASE AGREEMENT

 

September 20, 2004

 

L EHMAN B ROTHERS I NC .

UBS S ECURITIES LLC

B ANC OF A MERICA S ECURITIES LLC

C ITIGROUP G LOBAL M ARKETS I NC .

J.P. M ORGAN S ECURITIES I NC .

M ORGAN S TANLEY & C O . I NCORPORATED

c/o Lehman Brothers Inc.

745 Seventh Avenue

New York, New York 10019

 

Dear Sirs:

 

XTO Energy Inc., a Delaware corporation (the “ Company ”), proposes to issue and sell $350,000,000 aggregate principal amount of its 5.00% Senior Notes due 2015 (the “ Notes ”) to you, as initial purchasers (the “ Initial Purchasers ”). The Notes will be issued pursuant to an indenture (the “ Indenture ”) to be dated on or before the Delivery Date (as hereinafter defined), between the Company and The Bank of New York, as Trustee (the “ Trustee ”). This agreement (this “ Agreement ”) is to confirm the agreement concerning the purchase of the Notes from the Company by the Initial Purchasers. The Notes will be offered and sold to the Initial Purchasers without registration under the Securities Act of 1933, as amended (the “ Securities Act ”), in reliance on an exemption pursuant to Section 4(2) thereunder.

 

In connection with the sale of the Notes, the Company has prepared a preliminary offering memorandum dated September 20, 2004 (the “ Preliminary Offering Memorandum ”) and a final offering memorandum dated the date hereof (the “ Offering Memorandum ” and, together with the Preliminary Offering Memorandum, a “ Memorandum ”), setting forth or incorporating by reference, among other things, a description of the terms of the Notes, the terms of the offering of the Notes and a description of the business of the Company and any material developments relating to the Company occurring after the date of the most recent historical financial statements set forth or incorporated by reference therein. Each Memorandum shall be deemed to include all of the documents incorporated by reference therein, and any reference in this Agreement to any amendment or supplement to a Memorandum shall be deemed to refer to any document filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the

 

Securities Exchange Act of 1934, as amended (the “ Exchange Act ”), after the date of such Memorandum that is incorporated by reference in such Memorandum.

 

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 (each, a “ 144A Purchaser ”) whom you reasonably believe to be “qualified institutional buyers” as defined in Rule 144A under the Securities Act (“ QIBs ”) and (ii) outside the United States to certain persons in offshore transactions in reliance on Regulation S under the Securities Act, the persons specified in clauses (i) and (ii) being referred to herein as the “ Eligible Purchasers .” You will offer the Notes to Eligible Purchasers initially at a price equal to 99.918% 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 (the “ Registration Rights Agreement ”) to be dated the Delivery Date, in substantially the form of Exhibit A hereto. Pursuant to the Registration Rights Agreement, the Company will agree to file with the Securities and Exchange Commission (the “ Commission ”) under the circumstances set forth therein, (i) a registration statement under the Securities Act (the “ Exchange Offer Registration Statement ”) relating to the Company’s 5.00% Senior Notes due 2015 (the “ Exchange Notes ”) to be offered in exchange for an equal principal amount of the Notes and (ii) a shelf registration statement pursuant to Rule 415 under the Securities Act (the “ Shelf Registration Statement ” and, together with the Exchange Offer Registration Statement, the “ Registration Statements ”), relating to the resale by certain holders of the Notes.

 

Section 1. Representations, Warranties and Agreements of the Company. The Company represents, warrants and agrees that:

 

(a) As of its date, the Preliminary Offering Memorandum did not, and on the date of this Agreement and on the Delivery Date, the Offering Memorandum does not, and will not, and any amendment thereto will not, contain 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, except that the representations and warranties set forth in this Section 1(a) do not apply to statements or omissions made in reliance upon and in conformity with information relating to the Initial Purchasers furnished to the Company in writing by any of the Initial Purchasers expressly for use in a Memorandum or any amendment or supplement thereto. Each of the reports filed by the Company pursuant to the Exchange Act and incorporated by reference in any Memorandum conformed or will conform, as the case may be, in all material respects, at the time of filing, to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.

 

(b) When the Notes are issued and delivered pursuant to this Agreement, the Notes will not be of the same class (within the meaning of Rule 144A under the Securities Act) as any other securities of the Company that are listed on a national securities exchange registered under Section 6 of the Exchange Act or that are quoted in a United States automated inter-dealer quotation system.

 

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(c) The Company is not required to deliver the information specified in Rule 144A(d)(4) in connection with Exempt Resales.

 

(d) Neither the Company nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Offering Memorandum any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offering Memorandum; and, since the respective dates as of which information is given in the Offering Memorandum, there has not been any change in the 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, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, otherwise than as set forth or contemplated in the Offering Memorandum.

 

(e) (1) The Company has good and defensible title to all real property, free and clear of all liens, encumbrances and defects, except (A) royalties, overriding royalties and other burdens under oil and gas leases, (B) easements, restrictions, rights-of-way and other matters that commonly affect property, (C) liens securing taxes and other governmental charges, or claims of materialmen, mechanics and similar persons, not yet due and payable, (D) liens and encumbrances under operating agreements, farmout agreements, unitization, pooling and commutation agreements, declarations and orders, and gas sales contracts, securing payment of amounts not yet due and payable and of a scope and nature customary in the oil and gas industry and (E) liens, encumbrances and defects that do not in the aggregate materially affect the value of the real property or materially interfere with the use made or proposed to be made of such real property by the Company; and (2) the working interests in oil, gas and mineral leases or mineral interests which constitute a portion of the real property held by the Company reflect in all material respects the right of the Company to explore or receive production from such real property, and the care taken by the Company and its subsidiaries with respect to acquiring or otherwise procuring such leases or mineral interests was generally consistent with standard industry practices for acquiring or procuring leases and interests therein to explore for hydrocarbons.

 

(f) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of Delaware, is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership or lease of property or the conduct of its business requires such qualification, and has all power and authority necessary to own or hold its properties and to conduct the businesses in which it is engaged; and none of the subsidiaries of the Company is a significant subsidiary, as such term is defined in Rule 405 of the rules and regulations of the Commission under the Securities Act (the “ Rules and Regulations ”).

 

(g) The Company has an authorized capitalization as set forth in the Offering Memorandum. All of the issued shares of capital stock of the Company have been duly

 

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and validly authorized and issued, were issued in compliance with federal and state securities laws and are fully paid and non-assessable. All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of the Company’s capital stock have been duly and validly authorized and issued and were issued in compliance with federal and state securities laws.

 

(h) Neither (i) the execution or delivery hereof by the Company, (ii) the consummation of the transactions contemplated hereby, (iii) the execution and delivery of the Registration Rights Agreement, the Indenture and the Notes by the Company nor (iv) compliance by the Company with all of the provisions of this Agreement, the Registration Right Agreement, the Indenture and the Notes, will (A) result in a breach or violation of, or constitute a default under, the certificate of incorporation, by-laws, partnership agreement or other governing documents of the Company or any of its subsidiaries, or any material agreement, indenture or other instrument to which the Company or any of its subsidiaries is a party or by which any of them is bound, or to which any of their properties is subject or (B) violate any law, rule, administrative regulation or decree of any court, or any governmental agency or body having jurisdiction over the Company, its subsidiaries or any of their respective properties, or result in the creation or imposition of any lien, charge, claim or encumbrance upon any property or asset of the Company or any of its subsidiaries, which in any such event described in this subclause (B) would have a material adverse effect on the Company. Except for the Commission’s declaration of effectiveness of one or both of the Registration Statements under the Securities Act, except for permits, consents, approvals and similar authorizations required under the securities or “Blue Sky” laws of certain jurisdictions, and except for such permits, consents, approvals and authorizations which have been obtained, no permit, consent, approval, authorization or order of any court, governmental agency or body or financial institution is required in connection with the consummation of the transactions contemplated by this Agreement or the Registration Rights Agreement.

 

(i) Neither the Company nor any of its subsidiaries is in violation of its certificate of incorporation or bylaws or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or any other agreement or instrument to which it is a party or by which it or any of its properties is bound.

 

(j) This Agreement has been duly authorized, executed and delivered by the Company.

 

(k) The Notes and the Exchange Notes will be pari passu with all existing and future unsecured and unsubordinated indebtedness of the Company.

 

(l) The Indenture has been duly and validly authorized, and, on or prior to the Delivery Date, will be executed and delivered by the Company and, assuming it has been duly and validly authorized, executed and delivered by the Trustee, will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors’ rights generally and by

 

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general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Indenture conforms in all material respects to the description thereof in the Offering Memorandum and with the requirements of the Trust Indenture Act of 1939, as amended (the “ TIA ”), and the rules and regulations of the Commission applicable to an indenture that is qualified under the TIA.

 

(m) The Notes have been duly and validly authorized by the Company for issuance and sale to the Initial Purchasers pursuant to this Agreement and, when executed by the Company and authenticated by the Trustee in accordance with the Indenture and delivered to the Initial Purchasers against payment therefor in accordance with the terms hereof, will have been validly issued and delivered, free of any preemptive or similar rights to subscribe to or purchase the same arising by operation of law or under the charter or by-laws of the Company or otherwise, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles, and the Notes conform to the description thereof in the Offering Memorandum. The Company has all requisite corporate power and authority to issue, sell and deliver the Notes in accordance with and upon the terms and conditions set forth in this Agreement and Offering Memorandum. All corporate action required to be taken by the Company for the authorization, issuance, sale and delivery of the Notes to be sold by the Company hereunder has been validly and sufficiently taken.

 

(n) The Registration Rights Agreement has been duly and validly authorized, and, on or prior to the Delivery Date, will be executed and delivered by the Company and, assuming it has been duly and validly authorized, executed and delivered by you, will be a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization or similar laws relating to or affecting creditors’ rights generally, by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law) and, as to rights of indemnification, by principles of public policy.

 

(o) The Exchange Notes have been duly and validly authorized by the Company for issuance pursuant to the Registration Rights Agreement and, if and when so issued and executed by the Company and authenticated by the Trustee in accordance with the Indenture, will have been validly issued and delivered, free of any preemptive or similar rights to subscribe to or purchase the same arising by operation of law or under the charter or by-laws of the Company or otherwise, and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other similar laws relating to or affecting the enforcement of creditors’ rights generally and by general equitable principles. Neither the filing of a Registration Statement nor the offering of the Exchanges Notes in exchange for the Notes as contemplated by the Registration Rights Agreement will give rise to any rights, other than those which have been duly waived or satisfied, for or relating to the registration of

 

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any other securities of the Company. The Company has all requisite corporate power and authority to issue and deliver the Exchange Notes in accordance with and upon the terms and conditions set forth in the Registration Rights Agreement and Offering Memorandum. All corporate action required to be taken by the Company for the authorization, issuance and delivery of the Exchange Notes to be issued by the Company under the Registration Rights Agreement has been validly and sufficiently taken.

 

(p) The financial statements (including the related notes and supporting schedules) included or incorporated by reference in each Memorandum present fairly the financial condition and results of operations of the entities purported to be shown thereby, at the dates and for the periods indicated, and have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved.

 

(q) Arthur Andersen LLP, who have certified certain financial statements of the Company for the year ended December 31, 2001, whose report appears in the Offering Memorandum or is incorporated by reference therein, were independent public accountants within the meaning of Regulation S-X under the Securities Act for the periods in which they certified such financial statements of the Company.

 

(r) KPMG LLP (“ KPMG ”), who have certified certain financial statements of the Company, whose reports appear in the Offering Memorandum or are incorporated by reference therein and who have delivered the initial letter referred to in Section 7(f) hereof, are independent public accountants within the meaning of Regulation S-X under the Securities Act.

 

(s) The Company and each of its subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as is adequate for the conduct of their respective businesses and the value of their respective properties as is customary for companies engaged in similar businesses in similar industries.

 

(t) The Company and each of its subsidiaries own or possess adequate rights to use all material patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights and licenses necessary for the conduct of their respective businesses and have no reason to believe that the conduct of their respective businesses will conflict with, and have not received any notice of any claim of conflict with, any such rights of others.

 

(u) Except as described in the Offering Memorandum, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property or assets of the Company or any of its subsidiaries is the subject which, if determined adversely to the Company or any of its subsidiaries, would have a material adverse effect on the consolidated financial position, stockholders’ equity, results of operations, business or prospects of the Company and its subsidiaries; and to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others.

 

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(v) No labor disturbance by the employees of the Company exists or, to the knowledge of the Company, is imminent, which could be reasonably expected to have a material adverse effect on the general affairs, management, consolidated financial position, stockholders’ equity, results of operations, business or prospects of the Company and its subsidiaries.

 

(w) Since the date as of which information is given in the Offering Memorandum through the date hereof, and except as may otherwise be disclosed in the Offering Memorandum, the Company has not (i) issued or granted any securities other than pursuant to any of its employee benefit plans, (ii) incurred any liability or obligation, direct or contingent, other than liabilities and obligations which were incurred in the ordinary course of business or (iii) entered into any transaction not in the ordinary course of business.

 

(x) The Company (i) makes and keeps accurate books and records and (ii) maintains internal accounting controls which provide reasonable assurance that (A) transactions are executed in accordance with management’s authorization, (B) transactions are recorded as necessary to permit preparation of its financial statements and to maintain accountability for its assets, (C) access to its assets is permitted only in accordance with management’s authorization and (D) the reported accountability for its assets is compared with existing assets at reasonable intervals.

 

(y) Neither the Company nor any of its subsidiaries, nor any director, officer, agent, employee or other person acting on behalf of the Company or any of its subsidiaries, has used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.

 

(z) There has been no storage, disposal, generation, manufacture, refinement, transportation, handling or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous substances by the Company or any of its subsidiaries (or, to the knowledge of the Company, any of their predecessors in interest) at, upon or from any of the property now or previously owned or leased by the Company or its subsidiaries in violation of any applicable law, ordinance, rule, regulation, order, judgment, decree or permit or which would require remedial action under any applicable law, ordinance, rule, regulation, order, judgment, decree or permit, except for any violation or remedial action which would not be reasonably likely to have, singularly or in the aggregate with all such violations and remedial actions, a material adverse effect on the general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries; there has been no material spill, discharge, leak, emission, injection, escape, dumping or release of any kind onto such property or into the environment surrounding such property of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous substances due to or caused by the Company or any of its subsidiaries or with respect to which the Company or any of its subsidiaries have

 

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knowledge, except for any such spill, discharge, leak, emission, injection, escape, dumping or release which would not be reasonably likely to have, singularly or in the aggregate with all such spills, discharges, leaks, emissions, injections, escapes, dumpings and releases, a material adverse effect on the general affairs, management, consolidated financial position, stockholders’ equity or results of operations of the Company and its subsidiaries; and the terms “hazardous wastes,” “toxic wastes,” “hazardous substances” and “medical wastes” shall have the meanings specified in any applicable local, state, federal and foreign laws or regulations with respect to environmental protection.

 

(aa) The Company is not an investment company as defined in the Investment Company Act of 1940, as amended.

 

(bb) The information supplied by the Company to its independent petroleum engineering consultants for purposes of preparing the reserve reports used to calculate estimates of reserves of the Company included in the Offering Memorandum, including, without limitation, production, costs of operation and development, current prices for production, agreements relating to current and future operations and sales of production, was true and correct in all material respects on the date supplied and was prepared in accordance with customary industry practices; Miller and Lents, Ltd., independent consulting petroleum engineers, who prepared estimates of the extent and value of proved oil and natural gas reserves, are independent with respect to the Company.

 

(cc) Neither the Company, any of its affiliates (as defined in Rule 501 under the Securities Act) nor any person acting on its behalf (excluding the Initial Purchasers as to which no representation or warranty is made) has offered or sold the Notes by means of any general solicitation or general advertising within the meaning of Rule 502(c) under the Securities Act or, with respect to Notes sold outside the United States to non-U.S. persons (as defined in Rule 902 under the Securities Act), by means of any directed selling efforts within the meaning of Rule 902 under the Securities Act, and the Company, any affiliate of the Company and any person acting on its or their behalf (other than the Initial Purchasers) have complied with and will implement the “offering restriction” within the meaning of Rule 902 under the Act.

 

(dd) Except as disclosed in the Offering Memorandum, within the six months preceding the date hereof, neither the Company nor any other person acting on behalf of the Company has offered or sold to any person any Notes, or any securities of the same or a similar class as the Notes, other than Notes offered or sold to the Initial Purchasers hereunder; and the Company will take reasonable precautions designed to insure that any offer or sale, direct or indirect, in the United States or to any U.S. person (as defined in Rule 902 under the Securities Act) of any Notes or any substantially similar security issued by the Company, within six months subsequent to the date on which the distribution of the Notes has been completed (as notified to the Company by the Initial Purchasers), is made under restrictions and other circumstances reasonably designed not to affect the status of the offer and sale of the Notes in the United States and to U.S.

 

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persons contemplated by this Agreement as transactions exempt from the registration provisions of the Securities Act.

 

(ee) Assuming the accuracy of the representations and warranties of the Initial Purchasers in Section 12 hereof, it is not necessary in connection with the offer, sale and delivery of the Notes to the Initial Purchasers in the manner contemplated by this Agreement to register any of the Notes under the Securities Act or to qualify the Indenture under the TIA.

 

(ff) There are no contracts or other documents which are required by the Rules and Regulations to be described in the Offering Memorandum and which have not been described in such Offering Memorandum.

 

(gg) No relationship, direct or indirect, exists between or among the Company on the one hand, and the directors, officers, stockholders, customers or suppliers of the Company on the other hand, which is required by the Rules and Regulations to be described in the Offering Memorandum which is not so described.

 

(hh) The Company has filed all federal, state and local income and franchise tax returns required to be filed through the date hereof and has paid all taxes due thereon, and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company have any knowledge of any asserted tax deficiency which, if determined adversely to the Company or any of its subsidiaries, would have) a material adverse effect on the consolidated financial position, stockholders’ equity, results of operations, business or prospects of the Company and its subsidiaries.

 

Section 2. Purchase of the Notes by the Initial Purchasers. Subject to the terms and conditions and upon the basis of the representations and warranties herein set forth, the Company agrees to issue and sell to the Initial Purchasers, and each of the Initial Purchasers agrees, severally and not jointly, to purchase from the Company, at a price equal to 99.268% of the principal amount thereof, plus accrued interest, if any, from September 23, 2004, the principal amount of the Notes set forth opposite such Initial Purchaser’s name in Schedule I hereto.

 

Section 3. Offering of Notes by the Initial Purchasers. Upon authorization by the Initial Purchasers of the release of the Notes, the several Initial Purchasers propose to offer the Notes for sale upon the terms and conditions set forth in the Offering Memorandum.

 

Section 4. Delivery of and Payment for the Notes. The Closing shall be held at the offices of Kelly, Hart & Hallman, Fort Worth, Texas, at 10:00 A.M., New York City time, on September 23, 2004 or at such other date or place as shall be determined by agreement between the Initial Purchasers and the Company. This date and time are sometimes referred to as the “Delivery Date.” On the Delivery Date, one or more certificates in definitive global form representing the Notes, with Notes sold to 144A Purchasers and those sold pursuant to Regulation S under the Securities Act to be evidenced by different global certificates, shall be delivered by or on behalf of the Company to Lehman Brothers Inc., through the facilities of The Depository Trust Company (“DTC”), for the account of each Initial Purchaser, against payment

 

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to or upon the order of the Company of the purchase price by wire transfer in immediately available funds. Time shall be of the essence, and delivery at the time and place specified pursuant to this Agreement is a further condition of the obligation of each Initial Purchaser hereunder.

 

Section 5. Further Agreements of the Company. The Company agrees:

 

(a) To furnish to the Initial Purchasers, without charge, as of the date of the Offering Memorandum, such number of copies of the Offering Memorandum as it may then be amended or supplemented as they may reasonably request;

 

(b) To make promptly, upon the reasonable request of the Initial Purchasers, any amendments or supplements to the Offering Memorandum that may be necessary or advisable in connection with the resale of the Notes by the Initial Purchasers, and not to make any amendment or supplement to the Offering Memorandum of which the Initial Purchasers shall not previously have been advised and furnished a copy for a reasonable period of time prior to the proposed amendment or supplement and as to which the Initial Purchasers shall not have given their consent;

 

(c) If, at any time prior to the earlier of (1) consummation of the exchange offer contemplated by the Registration Rights Agreement and (2) completion of the initial resale by the Initial Purchasers of the Notes to persons other than their affiliates (as determined by the Initial Purchasers), any events shall have occurred 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 the statements therein, in the light of the circumstances under which they were made when such Offering Memorandum is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Offering Memorandum in order to comply with applicable law, to notify the Initial Purchasers and, upon their request, to prepare and furnish without charge to each Initial Purchaser and to any dealer in securities as many copies as the Initial Purchasers may from time to time reasonably request of an amended or supplemented Offering Memorandum which will correct such statement or omission or effect such compliance;

 

(d) Not to take any action designed to or that might reasonably be expected to cause or result in stabilization or manipulation of the price of the Notes to facilitate the sale or resale of the Notes;

 

(e) To cooperate with the Initial Purchasers in their efforts to permit the Notes to be designated PORTAL securities in accordance with the rules and regulations adopted by the National Association of Securities Dealers relating to trading in The Portal Market, and to use its reasonable best efforts to permit the Notes to be eligible for clearance and settlement through DTC, including the preparation and filing with DTC of a letter of representations signed by the Company and the Trustee;

 

(f) Promptly from time to time to take such action as the Initial Purchasers may reasonably request to qualify the Notes for offering and sale under the securities laws

 

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of such jurisdictions in the United States as the Initial Purchasers may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Notes; provided that in connection therewith the Company shall not be required to qualify as a foreign corporation, to become subject to taxation or to file a general consent to service of process in any jurisdiction;

 

(g) Not to sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any “security” (as defined in the Securities Act) that could be integrated with the sale of the Notes in a manner which would require the registration of the Notes under the Securities Act;

 

(h) For a period of five years following the Delivery Date, to furnish to Lehman Brothers Inc. and UBS Securities LLC (or, upon written request, such other Initial Purchasers) copies of all materials furnished by the Company to its shareholders and all public reports and all reports and financial statements furnished by the Company to the Commission pursuant to the Exchange Act or any rule or regulation of the Commission thereunder or to the Noteholders;

 

(i) To apply the net proceeds from the sale of the Notes being sold by the Company as set forth in the Offering Memorandum;

 

(j) For so long as any of the Notes remain outstanding, to make available, upon request, to any seller of the Notes, or prospective purchaser designated by such seller, the information specified in Rule 144A(d)(4) under the Securities Act, unless the Company is then subject to Section 13 or 15(d) of the Exchange Act;

 

(k) To take such steps as shall be necessary to ensure that neither the Company nor any subsidiary shall become an investment company as defined in the Investment Company Act of 1940, as amended; and

 

(l) To 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 subsequent to the date of the Offering Memorandum and for so long as the delivery of a Offering Memorandum is required in connection with the offering or sale of the Notes.

 

Section 6. Expenses . Whether or not this Agreement becomes