Exhibit 4.1
EXECUTION COPY
$2,032,000,000
Sabine Pass LNG,
L.P.
7 1 / 4 % Senior Secured Notes due
2013
7 1 / 2 % Senior Secured Notes due
2016
PURCHASE
AGREEMENT
November 1, 2006
C REDIT S UISSE S ECURITIES (USA) LLC (“ Credit Suisse
”),
As Representative of the Several
Purchasers,
Eleven Madison
Avenue,
New York,
N.Y. 10010-3629
Dear Sirs:
1. Introductory. Sabine Pass
LNG, L.P., a Delaware limited partnership (the “
Company ”), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several initial
purchasers named in Schedule A hereto (the “
Purchasers ”) U.S. $550,000,000 aggregate principal
amount of its 7 1 / 4
% Senior Secured Notes
due 2013 (the “ 2013 Notes ”) and U.S.
$1,482,000,000 aggregate principal amount of its 7
1
/ 2 % Senior Secured Notes due 2016 (the
“ 2016 Notes ”, and collectively with the 2013
Notes, the “ Offered Securities ”) to be issued
under an indenture, dated as of November 9, 2006 as amended or
supplemented from time to time (the “ Indenture
”), between the Company and The Bank of New York, as
Trustee. The United States Securities Act of 1933 is herein
referred to as the “ Securities Act
.”
The holders of the Offered
Securities will be entitled to the benefits of a Registration
Rights Agreement dated November 9, 2006 among the Company and
the Purchasers (the “ Registration Rights Agreement
”), pursuant to which the Company agrees to file a
registration statement with the Securities Exchange Commission (the
“Commission”) registering the exchange of registered
notes for the Offered Securities or resale of the Offered
Securities under the Securities Act.
The Company hereby agrees with the
several Purchasers as follows:
2. Representations and Warranties
of the Company. The Company represents and warrants to, and
agrees with, the several Purchasers that:
(a) A preliminary offering circular,
dated October 23, 2006, as supplemented by the supplement
thereto, dated October 30, 2006 (together, the “
Preliminary Offering Circular ”) relating to the
Offered Securities to be offered by the Purchasers and a final
offering circular (the “ Final Offering Circular
”) disclosing the offering price and other final terms of the
Offered Securities and is dated as of the date of this Agreement
(even if finalized and issued subsequent to the date of this
Agreement) have been or will be prepared by the Company. “
General Disclosure Package ” means the Preliminary
Offering Circular, together with any Issuer Free Writing
Communication (as hereinafter defined) existing at the Applicable
Time (as hereinafter defined) and the information in which is
intended for general distribution to prospective investors, as
evidenced by
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its being specified in Schedule
B to this Agreement (including the term sheet listing the final
terms of the Offered Securities and their offering, included in
Schedule B to this Agreement, which is referred to as the
“ Terms Communication ”). “ Applicable
Time ” means 6:00 p.m. (Eastern time) on the date of this
Agreement. As of the date of this Agreement and as of the Closing
Date, the Final Offering Circular does not, and will 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. At the Applicable Time and as of the Closing Date,
neither (i) the General Disclosure Package, nor (ii) any
individual Supplemental Marketing Material (as hereinafter
defined), when considered together with the General Disclosure
Package, included nor will include any untrue statement of a
material fact or omitted or will 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 two sentences do not apply to statements in or omissions
from the Preliminary Offering Circular or Final Offering Circular,
the General Disclosure Package or any Supplemental Marketing
Material based upon written information furnished to the Company by
any Purchaser through Credit Suisse specifically for use therein,
it being understood and agreed that the only such information is
that described as such in Section 8(b) hereof. The information
required to be delivered to holders and prospective purchasers of
the Offered Securities pursuant to Section 4.03 of the
Indenture and in accordance with Rule 144A(d)(4) under the
Securities Act (the “ Additional Issuer Information
”) does 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. The preceding sentence does not apply to
statements in or omissions from the Preliminary Offering Circular
or Final Offering Circular based upon written information furnished
to the Company by any Purchaser through Credit Suisse specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 8(b)
hereof.
“ Free Writing
Communication ” means a written communication (as such
term is defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or a solicitation of an offer to buy
the Offered Securities and is made by means other than the
Preliminary Offering Circular or the Final Offering Circular.
“ Issuer Free Writing Communication ” means a
Free Writing Communication prepared by or on behalf of the Company,
used or referred to by the Company or containing a description of
the final terms of the Offered Securities or of their offering, in
the form retained in the Company’s records. “
Supplemental Marketing Material ” means any Issuer
Free Writing Communication specified in Schedule C to this
Agreement.
(b) The Company has been duly
organized and is an existing limited partnership in good standing
under the laws of the State of Delaware, with power and authority
(limited partnership and other) to own its properties and conduct
its business as described in the General Disclosure Package; and
the Company is duly qualified to do business as a foreign limited
partnership 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 have such power or authority would not, individually
or in the aggregate, have a material adverse effect on the
business, properties, management, financial position, capital
accounts, results of operations or prospects of the Company or on
the performance by the Company of its obligations with respect to
the Offered Securities (including, without limitation, its
obligations under the Registration Rights Agreement) (a “
Material Adverse Effect ”).
(c) The Indenture has been duly
authorized and, when duly executed and delivered in accordance with
its terms by each of the parties thereto, will conform in all
material respects to the description thereof contained in the
General Disclosure Package and the Final Offering Circular and will
constitute a valid and legally 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.
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(d) The Offered Securities have been
duly authorized, and when the Offered Securities are duly executed,
authenticated, issued and delivered as provided in the Indenture
and paid for pursuant to this Agreement on the Closing Date (as
defined below), will conform in all material respects to the
description thereof contained in the General Disclosure Package and
the Final Offering Circular, and such Offered Securities will be
duly and validly issued and outstanding and 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, and will be entitled to
the benefits of the Indenture.
(e) Except as disclosed in the
General Disclosure Package, there are no contracts, agreements or
understandings between the Company and any person that would give
rise to a valid claim against the Company or any Purchaser for a
brokerage commission, finder’s fee or other like
payment.
(f) 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 and the Registration
Rights Agreement in connection with the issuance and sale of the
Offered Securities by the Company except (i) for the order of
the Commission declaring effective the Exchange Offer Registration
Statement or, if required, the Shelf Registration Statement (each
as defined in the Registration Rights Agreement), (ii) as may
be required under applicable state securities laws in connection
with the purchase and resale of the Offered Securities by the
Purchasers and (iii) those that, if not obtained or made,
would not, individually or in the aggregate, have a Material
Adverse Effect.
(g) The execution, delivery and
performance of the Indenture, this Agreement, and the Registration
Rights Agreement, and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof
will not (i) result in a violation of any statute, rule,
regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or
any of its properties, (ii) result in a breach or violation of
any of the terms or provisions of, or constitute a default under,
any agreement or instrument to which the Company is a party or by
which the Company is bound or to which any of the properties of the
Company is subject, or (iii) result in any violation of the
provisions of the certificate of limited partnership or agreement
of limited partnership of the Company, except, in the case of
clauses (i) and (ii) above, for any such conflict, breach
or violation that would not, individually or in the aggregate, have
a Material Adverse Effect, and the Company has full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(h) This Agreement has been duly
authorized, executed and delivered by the Company.
(i) Except as disclosed in the
General Disclosure Package, the Company has good and indefeasible
title to all real properties and all other properties and assets
owned by it that are material to the business of the Company, in
each case free from liens, encumbrances and defects of title except
those that (i) do not materially interfere with the use made
and proposed to be made of such property by the Company or
(ii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect; and except as
disclosed in the General Disclosure Package, the Company holds any
leased real or personal property under valid and enforceable leases
with no exceptions other than those that (i) do not materially
interfere with the use made and proposed to be made of such
property by the Company or (ii) could not reasonably be
expected, individually or in the aggregate, to have a Material
Adverse Effect.
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(j) Except as disclosed in the
General Disclosure Package and except for those that the Company
expects to be obtained in the ordinary course of its business
during construction of its LNG receiving terminal, the Company
possesses all certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct
the business in its current stage of development, except where the
failure to possess or make the same would not, individually or in
the aggregate, have a Material Adverse Effect, and the Company has
not received any notice of proceedings relating to the revocation
or modification of any such certificate, authority or permit that,
if determined adversely to the Company, would individually or in
the aggregate, have a Material Adverse Effect.
(k) No material labor dispute with
the employees of the Company exists or, to the knowledge of the
Company, is imminent that could reasonably be expected to have a
Material Adverse Effect.
(l) The Company owns, possesses or
can acquire on reasonable terms, adequate rights to use all
material 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 it, and has not received any notice of infringement of
or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company, would, individually or in the aggregate, have a Material
Adverse Effect.
(m) Except as disclosed in the
General Disclosure Package, (i) the Company is not 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 protection of the environment or human
exposure to hazardous or toxic substances (collectively, “
environmental laws ”), (ii) it does not own or
operate any real property contaminated with any substance that is
subject to any environmental laws, and (iii) it has not
received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or
contaminants, except in the case of each of clauses (i),
(ii) and (iii), which violation, contamination, liability or
claim would, individually or in the aggregate, not have a Material
Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(n) Except as disclosed in the
General Disclosure Package, there are no pending actions, suits or
proceedings against or affecting the Company or any of its
properties that, if determined adversely to the Company, could
reasonably be expected to have a Material Adverse Effect, or which
are otherwise material in the context of the sale of the Offered
Securities; and, to the Company’s knowledge, no such actions,
suits or proceedings are threatened or contemplated.
(o) The financial statements and the
related notes thereto included in the General Disclosure Package
present fairly the financial position of the Company as of the
dates shown and its results of operations and cash flows for the
periods shown, and, except as otherwise disclosed in the General
Disclosure Package, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis.
(p) Since the date of the most
recent financial statements of the Company included in the General
Disclosure Package, (i) there has not been any change in the
partnership interest or units of the Company, or any distribution
of any kind declared, set aside for payment, paid or made by the
Company on any partnership interest or units, or any material
adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties,
management, financial position, partners’ capital, results of
operations or prospects of the Company; (ii) the Company has
not entered into any transaction or agreement that is material to
the Company or incurred any liability or obligation, direct or
contingent, that is material to the Company; and (iii) the
Company has not sustained any loss or interference with its
business from fire, explosion, flood
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or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or
any action, order or decree of any court or arbitrator or
governmental or regulatory authority that is material to the
Company, except in the case of each of clauses (i), (ii) and
(iii) as otherwise disclosed in the General Disclosure
Package.
(q) The Company is not an open-end
investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940
(the “ Investment Company Act ”) ; and the
Company is not and, after giving effect to the offering and sale of
the Offered Securities and the application of the proceeds thereof
as described in the General Disclosure Package, will not be an
“investment company” as defined in the Investment
Company Act.
(r) No securities of the same class
(within the meaning of Rule 144A(d)(3) under the Securities
Act) as the Offered Securities are listed on any national
securities exchange registered under Section 6 of the United
States Securities Exchange Act of 1934 (“ Exchange Act
”) or quoted in a U.S. automated inter-dealer quotation
system.
(s) The offer and sale of the
Offered Securities in the manner contemplated by this Agreement
will be exempt from the registration requirements of the Securities
Act by reason of Section 4(2) thereof, Regulation D
thereunder and Regulation S thereunder (“ Regulation S
”); and assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4 and their
compliance with their agreements set forth therein, it is not
necessary, in connection with the issuance and sale of the Offered
Securities to the Purchasers and the offer, resale and delivery of
the Offered Securities by the Purchasers in the manner contemplated
by this Agreement and the Final Offering Circular to qualify an
indenture in respect of the Offered Securities under the United
States Trust Indenture Act of 1939, as amended (the “
Trust Indenture Act ”).
(t) 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 Offered Securities in a manner that would
require registration of the Offered Securities under the Securities
Act. Neither the Company, nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act), nor any
person acting on its or their behalf (other than the Purchasers, as
to which no representation is made) (i) has, within the
six-month period prior to the date hereof, solicited offers for, or
offered or sold, in the United States or to any U.S. person (as
such terms are defined in Regulation S under the Securities
Act) the Offered Securities or any security of the same class or
series as the Offered Securities or (ii) has offered, or will
offer or sell, the Offered Securities (A) in the United States
by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) of Regulation D under
the Securities Act or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act or
(B) with respect to any such securities sold in reliance on
Rule 903 of Regulation S, by means of any directed selling
efforts within the meaning of Rule 902(c) of Regulation S, and all
such persons have complied with the offering restrictions
requirement of Regulation S. The Company, its affiliates and any
person acting on its or their behalf (other than the Purchasers, as
to which no representation is made) have complied and will comply
with the offering restrictions requirement of Regulation S. The
Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities except for this Agreement.
(u) On the Closing Date, the Company
has no subsidiaries, direct or indirect.
(v) On the Closing Date, the
Indenture will conform in all material respects to the requirements
of the Trust Indenture Act, and the rules and regulations of the
Commission applicable to an indenture which is qualified
thereunder.
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(w) On the Closing Date, the
Exchange Securities (as defined in the Registration Rights
Agreement) will have been duly authorized by the Company; and when
the Exchange Securities are issued, executed, authenticated and
delivered in accordance with the terms of the Exchange Offer (as
defined in the Registration Rights Agreement) and the Indenture,
the Exchange Securities will be entitled to the benefits of the
Indenture and will be the valid and legally binding obligations of
the Company, enforceable against the Company 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.
(x) Each principal project document
referred to under the heading “Description of Principal
Project Documents” in the Final Offering Circular conforms in
all material respects to the descriptions thereof contained in the
Final Offering Circular.
(y) The Registration Rights
Agreement has been duly authorized by the Company and, on the
Closing Date, will have been duly executed and delivered by the
Company. When the Registration Rights Agreement has been duly
executed and delivered by the other parties thereto, 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.
(z) Except as disclosed in the
Disclosure Package, the Company is not (i) in violation of its
certificate of limited partnership, as amended or restated,
agreement of limited partnership, as amended or restated, or
similar organizational documents; (ii) in default, and no
event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which
the Company is bound or to which any of the property or assets of
the Company is subject; or (iii) in violation of any law or
statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the
case of clauses (ii) and (iii) above, for any such
default or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(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 Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Offered Securities registered pursuant to any
Registration Statement.
(bb) Neither the issuance or sale of
the Offered Securities, nor the application of the proceeds thereof
by the Company as described in the General Disclosure Package, will
violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
(cc) Assuming the accuracy of the
representations and warranties of the Purchasers contained in
Section 4 and their compliance with their agreements set forth
therein, the Offered Securities offered and sold in reliance on
Regulation S have been and will be offered and sold only in
offshore transactions.
(dd) The sale of the Offered
Securities pursuant to Regulation S is not part of a plan or scheme
to evade the registration provisions of the Securities
Act.
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(ee) No registration under the
Securities Act of the Offered Securities is required for the sale
of the Offered Securities to the Purchasers as contemplated hereby,
assuming the accuracy of the Purchaser’s representations set
forth in Section 4 hereof.
(ff) The LNG Terminal Use Agreement,
dated November 8, 2004, as amended, between Chevron U.S.A.
Inc. and the Company (the “Chevron TUA”), the LNG
Terminal Use Agreement, dated September 2, 2004, as amended
and supplemented, between Total LNG USA, Inc. and the Company (the
“Total TUA”), the Management Services Agreement, dated
February 25, 2005, between the Company and Sabine Pass
LNG–GP, Inc. (the “Management Services
Agreement”), the Operation and Maintenance Agreement, dated
February 25, 2005, between Cheniere LNG O&M Services, L.P.
and the Company (the “O&M Agreement”), the Guaranty
Agreement, dated December 15, 2004, between ChevronTexaco
Corporation and the Company (the “Chevron Guaranty”),
and the Lump Sum Turnkey Engineering, Procurement and Construction
Agreement, dated December 18, 2004, as modified, between the
Company and Bechtel Corporation (the “Bechtel
Agreement” and, together with the Chevron TUA, the Total TUA,
the Management Services Agreement and the O&M Agreement, the
“Material Contracts”) are each in full force and effect
and each constitute a valid and binding obligation of the Company
and, to the Company’s knowledge, each of the other parties
thereto (the “Other Parties”). Except as disclosed in
the Preliminary Offering Circular and the Final Officer Circular,
neither the Company, nor any of the Other Parties to any Material
Contract (to the Company’s knowledge), are in breach,
violation or default thereof, and no event has occurred which with
notice or lapse of time or both would constitute a breach,
violation or default by the Company or, to the Company’s
knowledge, any Other Party, or permit termination, modification or
acceleration by the Other Parties, under the Material Contracts. As
of the Closing Date, the LNG Terminal Use Agreement between
Cheniere Marketing, Inc. and the Company will be in full force and
effect and will constitute a valid and binding obligation of the
Company and, to the Company’s knowledge, the other party
thereto.
(gg) The Company is not classified
as an association (or publicly traded partnership) taxable as a
corporation for United States federal income tax
purposes.
(hh) The Company has insurance
covering its properties, operations, personnel and business, which
insurance is in amounts and insures against such losses and risks
as are reasonably adequate for the conduct by the Company of its
business; and the Company has not received written notice from any
insurer or agent of such insurer that capital improvements or other
expenditures are required or necessary to be made in order to
continue such insurance.
(ii) The information provided by the
Company to Stone & Webster Management Consultants Inc.
(the “ Independent Engineer ”) in connection
with the Independent Engineer’s report appearing in Appendix
A to the Preliminary Offering Circular and the Final Offering
Circular (the “ Independent Engineer’s Report
”) has been provided in good faith by the Company.
(jj) The statements included in the
Preliminary Offering Circular and the Final Offering Circular under
the heading “Summary – Illustrative Cash Flow
Summary” were made by the Company in good faith and with a
reasonable basis and reflect the Company’s good faith best
estimate of the matters described therein. All assumptions material
to such statements are set forth in the Preliminary Offering
Circular and the Final Offering Circular.
(kk) None of the Company, or to the
knowledge of the Company, any director, officer, agent or, employee
of the Company is aware of or has taken any action, directly or
indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “ FCPA ”),
including, without limitation, making use of the mails or any means
or instrumentality of interstate commerce
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corruptly in furtherance of an
offer, payment, promise to pay or authorization of the payment of
any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Company has conducted its business in compliance with
the FCPA. Cheniere Energy, Inc., the Company’s indirect
parent, has instituted and maintains policies and procedures
designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance with the FCPA, and the Company, as
a consolidated entity of Cheniere Energy, Inc., will be subsumed
within such policy.
(ll) The execution and delivery of
each of the Security Documents (as defined in the Indenture) to
which the Company is a party, or will be a party on the Closing
Date, will be effective to create in favor of the Collateral
Trustee (as defined in the Indenture) for the benefit of the
Secured Parties (as defined in the Indenture) as collateral
security for the payment and performance of the obligations secured
thereby, a valid and enforceable security interest in the
Collateral (as defined in the Indenture) covered or purported to be
covered thereby and, upon the recordation of the Mortgage (as
defined in the Indenture) and the filing of the UCC-1 financing
statements (the “ Financing Statements ”),
respectively, with the priority purported to be created thereby to
the extent that such liens and security interests can be perfected
by such recordation or filing. The Mortgage is or will be in
appropriate form for recording as a mortgage of real estate to
protect, preserve and perfect the liens and security interests on
the fixtures and real property created or to be created by the
Mortgage. The Financing Statements on the Closing Date will be in
appropriate form for filing (including the description of the
Collateral set forth therein or attached thereto) in each office
and in each jurisdiction where required to perfect the lien and
security interest in personal property and fixtures described
above.
3. Purchase, Sale and Delivery of
Offered Securities. On the basis of the representations,
warranties and agreements and subject to the terms and conditions
set forth herein, the Company agrees to sell to the several
Purchasers, and each of the Purchasers agrees, severally and not
jointly, to purchase from the Company, at a purchase price of
98.65% of the principal amount thereof in the case of the 2013
Notes and 98.65% of the principal amount thereof in the case of the
2016 Notes plus accrued interest from November 9, 2006 to the
Closing Date, the respective principal amounts of Offered
Securities set forth opposite the names of the several Purchasers
in Schedule A hereto.
The Company will deliver against
payment of the purchase price the Offered Securities to be offered
and sold by the Purchasers in reliance on Regulation S (the
“ Regulation S Securities ”) in the form of one
or more permanent global Offered Securities in registered form
without interest coupons (the “ Offered Regulation S
Global Securities ”) which will be deposited with the
Trustee as custodian for The Depository Trust Company (“
DTC ”) for the respective accounts of the DTC
participants for Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System (“
Euroclear ”), and Clearstream Banking,
société anonyme (“ Clearstream, Luxembourg
”) and registered in the name of Cede & Co., as
nominee for DTC. The Company will deliver against payment of the
purchase price the Offered Securities to be purchased by each
Purchaser hereunder and to be offered and sold by each Purchaser in
reliance on Rule 144A under the Securities Act (the “ 144A
Securities ”) in the form of one permanent global
security in definitive form without interest coupons (the “
Restricted Global Securities ”) deposited with the
Trustee as custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC. The Offered Regulation S
Global Securities and the Restricted Global Securities shall be
assigned separate CUSIP numbers. The Restricted Global Securities
shall include the legend regarding restrictions on transfer set
forth under “Transfer Restrictions” in the Final
Offering Circular. Until the termination of the distribution
compliance period (as defined in Regulation S) with respect to the
offering of the Offered Securities, interests in the Offered
Regulation S Global Securities may only be held by the DTC
participants for Euroclear and Clearstream, Luxembourg. Interests
in any permanent global Offered Securities will be held only in
book-entry form through Euroclear, Clearstream, Luxembourg or DTC,
as the case may be, except in the limited circumstances described
in the Final Offering Circular.
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Payment for the Regulation S
Securities and the 144A Securities shall be made by the Purchasers
in Federal (same day) funds by wire transfer to an account at a
bank acceptable to Credit Suisse at 11:00 a.m., (Eastern time), on
November 9, 2006, or at such other time not later than seven
full business days thereafter as Credit Suisse and the Company
determine, such time being herein referred to as the “
Closing Date ”, against delivery to the Trustee as
custodian for DTC of (i) the Offered Regulation S Global
Securities representing all of the Regulation S Securities for the
respective accounts of the DTC participants for Euroclear and
Clearstream, Luxembourg and (ii) the Restricted Global
Securities representing all of the 144A Securities. The Offered
Regulation S Global Securities and the Restricted Global Securities
will be made available for checking at the office of
Latham & Watkins LLP, 885 Third Avenue, New York, New York
10022, at least 24 hours prior to the Closing Date.
4. Representations by Purchasers;
Resale by Purchasers.
(a) Each Purchaser severally
represents and warrants to the Company that it is an
“accredited investor” within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser acknowledges that
the Offered Securities have not been registered under the
Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except
in accordance with Regulation S or pursuant to an exemption from
the registration requirements of the Securities Act. Each Purchaser
represents and agrees that it has offered and sold the Offered
Securities and will offer and sell the Offered Securities
(i) as part of their distribution at any time and
(ii) otherwise until the later of the commencement of the
offering and the Closing Date, only in accordance with Rule 144A or
Rule 903 under the Securities Act. Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or
their behalf, have engaged or will engage in any directed selling
efforts with respect to the Offered Securities, and such Purchaser,
its affiliates and all persons acting on its or their behalf have
complied and will comply with the offering restrictions requirement
of Regulation S. The Purchaser agrees that, at or prior to
confirmation of sale of the Offered Securities, other than a sale
pursuant to Rule 144A, such Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases the Offered Securities from it
during the restricted period a confirmation or notice to
substantially the following effect:
“The Securities covered hereby
have not been registered under the U.S. Securities Act of 1933 (the
“Securities Act”) and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or
(ii) otherwise until 40 days after the later of the date of
the commencement of the offering and the closing date, except in
either case in accordance with Regulation S (or Rule 144A if
available) under the Securities Act. Terms used above have the
meanings given to them by Regulation S.”
Terms used in this subsection
(b) have the meanings given to them by Regulation
S.
(c) Each Purchaser severally agrees
that it and each of its affiliates has not entered and will not
enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other
Purchasers or with the prior written consent of the
Company.
(d) Each Purchaser severally agrees
that it and each of its affiliates has not solicited offers for, or
offered or sold, and will not solicit offers for or sell, the
Offered Securities in the United States by means of any form of
general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D under the Securities Act involving a
public offering within the meaning of Section 4(2), including,
but not limited to (i) any advertisement, article, notice or
other communication published in any newspaper, magazine or similar
media or
9
broadcast over television or radio,
or (ii) any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising. Each
Purchaser severally agrees, with respect to resales made in
reliance on Rule 144A of any of the Offered Securities, to deliver
either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the
exemption from the registration requirements of the Securities Act
provided by Rule 144A.
(e) Each of the Purchasers severally
represents and agrees that (i) it has not solicited offers
for, or offered or sold, and prior to the expiry of a period of six
months from the closing date, will not offer or sell, any Offered
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has only communicated or
caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the “ FSMA ”))
received by it in connection with the issue or sale of any Offered
Securities 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 Offered Securities in, from
or otherwise involving the United Kingdom.
5. Certain Agreements of the
Company. The Company agrees with the several Purchasers
that:
(a) The Company will advise Credit
Suisse promptly of any proposal to amend or supplement the
Preliminary Offering Circular or the Final Offering Circular and
will not effect such amendment or supplementation without Credit
Suisse’s consent, such consent not to be unreasonably
withheld. If, at any time prior to the completion of the resale of
the Offered Securities by the Purchasers, there occurs an event as
a result of which the Preliminary Offering Circular or the Final
Offering Circular, the General Disclosure Package or any
Supplemental Marketing Material included or would include an untrue
statement of a material fact or omitted or would omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances prevailing at such time, not
misleading, or if it is necessary at any such time to amend or
supplement the Preliminary Offering Circular or the Final Offering
Circular, the General Disclosure Package or any Supplemental
Marketing Material to comply with any applicable law, the Company
promptly will notify Credit Suisse of such event and promptly will
prepare, at its own expense, an amendment or supplement which will
correct such statement or omission. Neither Credit Suisse’s
consent to, nor the Purchasers’ delivery to offerees or
investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6. The
first sentence of this subsection does not apply to statements in
or omissions from the Preliminary Offering Circular or the Final
Offering Circular, the General Disclosure Package or any
Supplemental Marketing Material made in reliance upon and in
conformity with written information furnished to the Company by any
Purchaser through Credit Suisse specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 8(b) hereof.
(b) The Company will furnish to
Credit Suisse copies of the Preliminary Offering Circular, each
other document comprising a part of the General Disclosure Package,
the Final Offering Circular, all amendments and supplements to such
documents and each item of Supplemental Marketing Material, in each
case as soon as available and in such quantities as Credit Suisse
reasonably requests. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company will
promptly furnish or cause to be furnished to Credit Suisse (and,
upon request, to each of the other Purchasers) and, upon request of
holders and prospective purchasers of the Offered Securities, to
such holders and purchasers, copies of the information required to
be delivered to holders and prospective purchasers of the Offered
Securities pursuant to
10
Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto) in order to
permit compliance with Rule 144A in connection with resales by
such holders of the Offered Securities. The Company will pay the
expenses of printing and distributing to the Purchasers all such
documents.
(c) The Company will arrange for the
qualification of the Offered Securities for sale and the
determination of their eligibility for investment under the laws of
such jurisdictions in the United States and Canada as Credit Suisse
designates and will continue such qualifications in effect so long
as required for the resale of the Offered Securities by the
Purchasers, provided that the Company will not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any such state or take any action that would
subject it to taxation based on its income or revenues in any
jurisdiction where it is not currently subject to
taxation.
(d) During the period of two years
hereafter, the Company will furnish to Credit Suisse and, upon
request, to each of the other Purchasers, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
shareholders for such year; and the Company will furnish to Credit
Suisse and, upon request, to each of the other Purchasers as soon
as available, a copy of each report or other document mailed to
stockholders or furnished to the Commission; provided that
such annual reports, reports or other documents shall be deemed to
have been provided if such annual report, report or other document
is available through EDGAR or on or through the Company’s
website.
(e) During the period of two years
after the Closing Date, the Company will, upon request, furnish to
Credit Suisse, each of the other Purchasers and any holder of
Offered Securities a copy of the restrictions on transfer
applicable to the Offered Securities.
(f) During the period of two years
after the Closing Date, the Company will not, and will not permit
any of its affiliates (as defined in Rule 144 under
