Exhibit 1.1
EXECUTION COPY
WESTLAKE CHEMICAL
CORPORATION
DEBT SECURITIES
UNDERWRITING
AGREEMENT
January 10, 2006
Deutsche Bank Securities
Inc.
Banc of America Securities
LLC
J.P. Morgan Securities
Inc.
Credit Suisse First Boston
LLC
c/o Deutsche Bank Securities
Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
1. Offering . Westlake
Chemical Corporation, a Delaware corporation (the “
Company ”), proposes to issue and sell to the several
underwriters named in Schedule A hereto (the “
Underwriters ”) U.S. $250.0 million principal amount
of its 6 5 / 8
% Senior Notes due 2016
(the “ Offered Securities ”) to be issued under
an Indenture dated as of January 1, 2006, as supplemented by a
First Supplemental Indenture to be dated January 13, 2006 (as
supplemented, the “ Indenture ”), between the
Company, the Subsidiary Guarantors (as set forth therein) and
JPMorgan Chase Bank, National Association as trustee (the “
Trustee ”). The Offered Securities will be
unconditionally guaranteed as to the payment of principal, premium,
if any, and interest (the “ Guarantees ”) by the
subsidiaries of the Company named in Schedule B hereto (each a
“ Subsidiary Guarantor ” and, collectively, the
“ Subsidiary Guarantors ”). As used herein, the
term “ Operative Documents ” refers to this
Agreement and the Indenture.
The Company and the Subsidiary
Guarantors have filed with the Securities and Exchange Commission
(the “ Commission ”) a registration statement on
Form S-3 (No. 333-124581), including a form of prospectus, for
the registration of the offer and sale of certain securities,
including the Offered Securities, under the Securities Act of 1933,
as amended (the “ 1933 Act ”), from time to time
in accordance with Rule 415 of the rules and regulations of the
Commission under the 1933 Act (the “ 1933 Act
Regulations ”). Such registration statement, as amended,
has been declared effective by the Commission. Promptly after the
time of this Agreement but, in any event, prior to the Closing Date
(as defined hereinafter), the Company and the Subsidiary Guarantors
will prepare and file a prospectus supplement relating to the
Offered Securities, the terms of the offering thereof and the other
matters set forth therein, pursuant to Rule 424(b) under the 1933
Act Regulations. The final prospectus and the final prospectus
supplement relating to the Offered Securities, in the forms filed
with the Commission pursuant to Rule 424(b) under the 1933 Act
Regulations for use in connection with the offering of the Offered
Securities, are collectively referred to herein as the “
Prospectus ” , and such registration statement,
as amended, including the financial statements, schedules and other
information which is incorporated by reference in the prospectus
contained in the registration statement at the time such
registration statement became effective, in the form in which it
became effective, is hereinafter called the “ Registration
Statement ”; provided, however, that all references to
the “Registration Statement” and the
“Prospectus” shall also be deemed to include all
documents incorporated therein by reference pursuant to the
Securities Exchange Act of 1934, as amended (the “ 1934
Act ”), prior to the Applicable Time (as defined
hereinafter). A “ preliminary
prospectus ” shall be deemed to refer to any
prospectus that omitted information to be included upon pricing in
a form of prospectus filed with the Commission pursuant to Rule
424(b) under the 1933 Act Regulations and was used after such
effectiveness and prior to the initial delivery of the Prospectus
to the Underwriters by the Company. For purposes of this Agreement,
all references to the Registration Statement, any preliminary
prospectus or the Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to be identical to the copy filed
with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system (“ EDGAR
”).
“ Issuer Free Writing
Prospectus ,” as used herein, means the documents listed
in Schedule C hereto.
“ Pricing Disclosure
Package ,” as used herein, means the preliminary
prospectus supplement dated January 9, 2006 together with the
Issuer Free Writing Prospectus.
“ Applicable Time
” as used herein, means the time immediately prior to the
time sales of Offered Securities are first made.
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or
“stated” (or other references of like import) in the
Registration Statement, any preliminary prospectus, the Pricing
Disclosure Package or the Prospectus shall be deemed to mean and
include all such financial statements and schedules and other
information which is incorporated by reference in the Registration
Statement, any preliminary prospectus, the Pricing Disclosure
Package or the Prospectus, as the case may be, at or prior to the
Applicable Time; and all references in this Agreement to amendments
or supplements to the Registration Statement, any preliminary
prospectus, the Pricing Disclosure Package or the Prospectus shall
be deemed to mean and include the filing of any document under the
1934 Act which is incorporated by reference in the Registration
Statement, such preliminary prospectus, the Pricing Disclosure
Package or the Prospectus, as the case may be, after the Applicable
Time.
2. Representations and Warranties
of the Company and the Subsidiary Guarantors . Each of the
Company and the Subsidiary Guarantors, jointly and severally,
represents and warrants to, and agrees with, the several
Underwriters that:
(a) The Company meets the
requirements for use of Form S-3 under the 1933 Act in connection
with registration, offer and sale of the Offered Securities. At the
time the Registration Statement became effective, the Registration
Statement complied, and as of the Applicable Time and as of the
Closing Date, complies and will comply, in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations.
The Registration Statement, at the time it became effective, did
not, as of the date hereof, does not, and at the Closing Date,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, as of its
date and at the Closing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading. The Pricing Disclosure Package, as of the Applicable
Time and at the Closing Date, did not and will not contain an
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided , however , that the
representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement,
Prospectus or Pricing Disclosure Package made in reliance upon and
in conformity with the Underwriter Information (as defined in
Section 7(b)) or to those parts of the Registration Statement
which constitute the Statements of Eligibility and
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Qualification under the 1939 Act
(the “ Forms T-1 ”) of the Trustee that are
filed as exhibits to the Registration Statement.
(b) Each Issuer Free Writing
Prospectus conformed or will conform in all material respects to
the requirements of the Securities Act and the 1933 Act Regulations
on the date of first use, and the Company has complied or will
comply with any filing requirements applicable to such Issuer Free
Writing Prospectus pursuant to the 1933 Act Regulations.
(c) The documents incorporated by
reference in the Pricing Disclosure Package and the Prospectus, at
the time they were or hereafter are filed with the Commission,
complied or, when so filed, will comply, as the case may be, in all
material respects with the requirements of the 1934 Act and the
rules and regulations thereunder (the “ 1934 Act
Regulations ”), and, when read together and with the
other information in the Pricing Disclosure Package and the
Prospectus, at the time the Registration Statement became
effective, as of the Applicable Time, the date of the Prospectus
and on the Closing Date, did not and will not, as of such time or
dates, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(d) The Offered Securities have been
duly and validly authorized by the Company and, when duly executed
by the Company in accordance with the terms of the Indenture,
assuming due authentication of the Offered Securities by the
Trustee, upon delivery to the Underwriters against payment therefor
in accordance with the terms hereof, will be validly issued and
delivered, and will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture, enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by bankruptcy, fraudulent conveyance
or transfer, insolvency, reorganization, moratorium, and other laws
relating to or affecting creditors’ rights generally and by
general equitable principles. The Offered Securities will conform
in all material respects to the descriptions thereof contained in
the Pricing Disclosure Package and the Prospectus.
(e) The Guarantee by each Subsidiary
Guarantor has been duly and validly authorized by such Subsidiary
Guarantor and when duly endorsed on the Offered Securities by such
Subsidiary Guarantor in accordance with the terms of the Indenture
and upon the due execution, authentication and delivery of the
Offered Securities in accordance with the Indenture against payment
therefor in accordance with the terms hereof, will constitute valid
and binding obligations of such Subsidiary Guarantor, enforceable
against such Subsidiary Guarantor in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
fraudulent conveyance or transfer, insolvency, reorganization,
moratorium, and other laws relating to or affecting
creditors’ rights generally and by general equitable
principles. The Guarantees will conform in all material respects to
the description thereof in the Pricing Disclosure Package and the
Prospectus.
(f) The Company and each Subsidiary
Guarantor has been duly incorporated or formed and is an existing
corporation or other entity in good standing under the laws of its
state of incorporation or organization, with power and authority
(corporate and other organizational) to own its properties and
conduct its business as described in the Pricing Disclosure Package
and the Prospectus; and the Company and each Subsidiary Guarantor
is duly qualified to do business as a foreign corporation or other
entity 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
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aggregate, have a material adverse
effect on the current or future condition (financial or other),
business, properties or results of operations of the Company, the
Subsidiary Guarantors and any other subsidiary of the Company,
taken as a whole (a “ Material Adverse Effect
”). The Company and each of the Subsidiary Guarantors has all
requisite power and authority (corporate and other organizational)
to enter into the Operative Documents and to authorize, issue and
sell the Offered Securities and the Guarantees, as the case may be,
as contemplated by this Agreement.
(g) Each subsidiary of the Company
(other than a Subsidiary Guarantor) has been duly incorporated or
formed and is an existing corporation or other entity in good
standing under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate and other
organizational) to own its properties and conduct its business as
described in the Pricing Disclosure Package and the Prospectus; and
each such subsidiary is duly qualified to do business as a foreign
corporation or other entity 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.
(h) The Company has an authorized
capitalization as set forth in the Pricing Disclosure Package and
the Prospectus. All of the issued and outstanding shares of capital
stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable. All of the issued and
outstanding shares of capital stock of each Subsidiary Guarantor
and of each other subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable
and the shares of capital stock of each Subsidiary Guarantor and of
each other subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects,
except as (i) would not, individually or in the aggregate,
have a Material Adverse Effect, (ii) may exist or arise
pursuant to or in connection with the debt agreements described in
the Registration Statement (collectively, the “ Debt
Agreements ”) or (iii) disclosed in the Pricing
Disclosure Package and the Prospectus.
(i) The Indenture has been duly and
validly authorized by the Company and each of the Subsidiary
Guarantors, and upon its execution and delivery and, assuming due
authorization, execution and delivery by the Trustee, will
constitute the valid and binding obligations of the Company and the
Subsidiary Guarantors, enforceable against the Company and the
Subsidiary Guarantors in accordance with its terms, except as such
enforceability may be limited by bankruptcy, fraudulent conveyance
or transfer, insolvency, reorganization, moratorium, and other laws
relating to or affecting creditors’ rights generally and by
general equitable principles. The Indenture will conform in all
material respects to the description thereof in the Pricing
Disclosure Package and the Prospectus.
(j) Except as disclosed in the
Pricing Disclosure Package and the Prospectus, there are no
contracts, agreements or understandings between the Company or any
of the Subsidiary Guarantors and any person that would give rise to
a valid claim against the Company, any Subsidiary Guarantor or any
Underwriter for a brokerage commission, finder’s fee or other
like payment in connection with the sale of the Offered
Securities.
(k) Except for the Registration
Rights Agreement dated August 16, 2004 between the Company and
TTWF LP and except as described in the Pricing Disclosure Package
and the Prospectus, there are no contracts, agreements or
understandings between the Company or any Subsidiary Guarantor and
any person granting such person the right to require the Company or
such Subsidiary Guarantor to file a registration statement under
the 1933 Act with respect to any securities of the Company or such
Subsidiary Guarantor owned or to be owned by such person
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or to require the Company or such
Subsidiary Guarantor to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company or such Subsidiary Guarantor under
the 1933 Act that have not been validly waived or satisfied prior
to the date hereof.
(l) No consent, approval,
authorization, or order of, or filing with, any governmental agency
of the United States or body or any court with jurisdiction in the
United States is required to be obtained or made by the Company or
any of the Subsidiary Guarantors for the consummation of the
transactions contemplated by this Agreement in connection with the
sale of the Offered Securities, except such as have been obtained
and made or will be obtained and made prior to the date hereof
under the 1933 Act (provided, however, a filing with the Commission
pursuant to Rule 424(b), Rule 430, Rule 430B or Rule 433 may be
made after the date hereof so long as such filing is made within
the time period specified in the applicable provision of such rule)
and such as may be required under state securities or blue sky
laws.
(m) The execution, delivery and
performance of the Operative Documents by the Company and the
Subsidiary Guarantors, and the consummation of the transactions
herein contemplated, will not conflict with or result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, (A) any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company, any Subsidiary
Guarantor or any other subsidiary of the Company or any of their
respective properties, or (B) any agreement or instrument to
which the Company, any Subsidiary Guarantor or any other subsidiary
of the Company is a party or by which any of them is bound or to
which any of their respective properties is subject, or
(C) any of their respective charters or by-laws or other
organizational documents, other than, in the case of clauses
(A) or (B) above, such conflicts, breaches, violations or
defaults that would not, individually or in the aggregate, have a
Material Adverse Effect.
(n) This Agreement has been duly
authorized, executed and delivered by the Company and the
Subsidiary Guarantors.
(o) Except as disclosed in the
Pricing Disclosure Package and the Prospectus, the Company, each of
the Subsidiary Guarantors and each of the other subsidiaries of the
Company has (A) good and indefeasible title to (in the case of
fee interests in real property), (B) valid leasehold interests
in (in the case of leasehold interests in real or personal
property) and (C) valid title to (in the case of all other
personal property), all of its respective properties and assets
reflected in the Company’s consolidated financial statements
included in the Registration Statement, the Pricing Disclosure
Package and the Prospectus free and clear of all liens,
encumbrances and defects, except for such failures to have such
title to or interests in, and for such liens, encumbrances and
defects, as would not, individually or in the aggregate, have a
Material Adverse Effect.
(p) The Company, the Subsidiary
Guarantors and each other subsidiary of the Company possess
adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them, except as would not, individually or in the
aggregate, have a Material Adverse Effect, and have 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, the Subsidiary Guarantors or
any such subsidiary, would individually or in the aggregate, have a
Material Adverse Effect.
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(q) No labor dispute with the
employees of the Company, the Subsidiary Guarantors or any other
subsidiary of the Company exists or, to the knowledge of the
Company or any of the Subsidiary Guarantors, is imminent that would
reasonably be expected to have a Material Adverse
Effect.
(r) The Company, the Subsidiary
Guarantors and the other subsidiaries of the Company 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, except as would not, individually or in
the aggregate, have a Material Adverse Effect, and have 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, the Subsidiary
Guarantors or any such subsidiary, would individually or in the
aggregate have a Material Adverse Effect.
(s) Except as disclosed in the
Pricing Disclosure Package and the Prospectus, and except for such
matters as would not, individually or in the aggregate, have a
Material Adverse Effect or be required to be disclosed in the
Prospectus by the Commission pursuant to the 1933 Act Regulations,
the Company, the Subsidiary Guarantors and the other subsidiaries
of the Company (or, to the knowledge of the Company or the
Subsidiary Guarantors, any other entity for whose acts or omissions
the Company is or the Subsidiary Guarantors are or may be liable)
(1) are conducting and have conducted their businesses,
operations and facilities in compliance with Environmental Laws (as
defined below); (2) possess and maintain in full force and
effect any and all permits, licenses or registrations required
under Environmental Law for the conduct of their businesses
(“ Environmental Permits ”); (3) have not,
pursuant to any contract, assumed responsibility to cure any
currently identified material liability under Environmental Law or
to remediate any currently identified Hazardous Substances (as
defined below) spill or release; (4) have not received any
notice from a governmental authority or any other third party
alleging any violation of Environmental Law or liability thereunder
(including, without limitation, liability as a “potentially
responsible party” and/or for costs of investigating or
remediating sites containing Hazardous Substances and/or damages to
natural resources); (5) are not subject to any pending or, to
the knowledge of the Company or the Subsidiary Guarantors,
threatened claim or other legal proceeding under any Environmental
Laws against the Company or its subsidiaries; (6) do not have
knowledge of any pending Environmental Law, or any unsatisfied
condition in an Environmental Permit, or any release of Hazardous
Substances that, individually or in the aggregate, can reasonably
be expected to require any material capital expenditures to
maintain the Company’s or the subsidiaries’ compliance
with Environmental Law or with their Environmental Permits; and
(7) does not (A) rely on any third party for an indemnity
for, or the contractual assumption of, any material remediation
obligation or liability under Environmental Law and (B) have
reasonable cause to believe that such third party will default in
its obligation to comply with such indemnity or contractual
assumption. As used in this paragraph, “ Environmental
Laws ” means any and all applicable federal, state,
local, and foreign laws, statutes, ordinances, rules, regulations,
requirements and common law, or any enforceable administrative or
judicial interpretation, order, consent, decree or judgment
thereof, relating to pollution or the protection of human health or
the environment, including, without limitation, those relating to,
regulating, or imposing liability or standards of conduct
concerning (i) noise or odor, (ii) emissions, discharges,
releases or threatened releases of Hazardous Substances into
ambient air, surface water, groundwater or land, (iii) the
generation, manufacture, processing, distribution, use, treatment,
storage, disposal, release, transport or handling of, or exposure
to, Hazardous Substances, (iv) the protection of wildlife or
endangered or threatened species, or (v) the investigation,
remediation or cleanup of, or exposure to, any Hazardous
Substances. As used in this
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paragraph, “ Hazardous
Substances ” means pollutants, contaminants or hazardous,
dangerous or toxic substances, materials, constituents or wastes or
petroleum, petroleum products and their breakdown constituents, or
any other chemical substance regulated under Environmental
Laws.
(t) Except as disclosed in the
Pricing Disclosure Package and the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, the
Subsidiary Guarantors, any other subsidiary of the Company or any
of their respective properties that, if determined adversely to the
Company, the Subsidiary Guarantors or any other subsidiary of the
Company, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the
ability of the Company or the Subsidiary Guarantors to perform its
their respective obligations under the Operative Documents, or
which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company’s or any Subsidiary
Guarantor’s knowledge, contemplated.
(u) The financial statements
included in the Registration Statement, the Pricing Disclosure
Package and the Prospectus 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, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States (“ GAAP ”) applied on a consistent
basis; all non-GAAP financial information included in the
Registration Statement complies with the requirements of
Item 10 of Regulation S-K under the 1933 Act.
(v) Except as disclosed in the
Pricing Disclosure Package and the Prospectus, since the date of
the latest audited financial statements included in the Pricing
Disclosure Package and the Prospectus 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, the Subsidiary Guarantors and the other subsidiaries of
the Company, taken as a whole, and, except as disclosed in or
contemplated by the Pricing Disclosure Package and the Prospectus,
there has been no dividend or distribution of any kind declared,
paid or made by the Company or each of the Subsidiary Guarantors on
any class of its capital stock.
(w) As of the date hereof, the
Company is subject to the reporting requirements of Section 13
of the 1934 Act and files reports with the Commission on
EDGAR.
(x) 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
Pricing Disclosure Package and the Prospectus, will not be an
“investment company” as defined in the Investment
Company Act of 1940.
(y) The Company, the Subsidiary
Guarantors and the other subsidiaries of the Company have filed all
federal, state and local income and franchise tax returns required
to be filed through the date hereof, except where the failure to so
file such returns would not, individually or in the aggregate, have
a Material Adverse Effect, and have paid all taxes due thereon, and
other than tax deficiencies which the Company, any Subsidiary
Guarantor or any other subsidiary of the Company is contesting in
good faith and for which adequate reserves have been provided in
accordance with GAAP, there is no tax deficiency that has been
asserted against the Company, any Subsidiary Guarantor or any other
subsidiary of the Company that would, individually or in the
aggregate, have a Material Adverse Effect.
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(z) Prior to the date hereof,
neither the Company nor any of its affiliates has taken any action
which is designed to or which has constituted or which might have
been expected to cause or result in unlawful stabilization or
manipulation of the price of any security of the Company in
connection with the offering of the Offered Securities.
(aa) PricewaterhouseCoopers LLP who
have certified certain financial statements of the Company and its
subsidiaries are an independent registered public accounting firm
as contemplated by the 1933 Act and the 1933 Act
Regulations.
(bb) The Company, the Subsidiary
Guarantors and the other subsidiaries of the Company maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific
authorization and (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
GAAP and to maintain accountability for assets.
(cc) The Company, the Subsidiary
Guarantors and the other subsidiaries of the Company maintain
disclosure controls and procedures (as defined in Rule 13a-14 of
the 1934 Act Regulations) designed to ensure that information
required to be disclosed by the Company, including its consolidated
subsidiaries, in the reports that it files or submits under the
1934 Act is recorded, processed, summarized and reported in
accordance with the 1934 Act Regulations. The Company has carried
out evaluations, under the supervision and with the participation
of the Company’s management, of the effectiveness of the
design and operation of the Company’s disclosure controls and
procedures in accordance with Rule 13a-15 of the 1934 Act
Regulations.
(dd) 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 Offered Securities to
violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
(ee) No “nationally recognized
statistical rating organization” as such term is defined for
purposes of Rule 436(g)(2) of the 1933 Act Regulations (i) has
imposed (or has informed the Company or any Subsidiary Guarantor
that it is considering imposing) any condition (financial or
otherwise) on the Company’s or any Subsidiary
Guarantor’s retaining any rating assigned to the Company or
any Subsidiary Guarantor or any securities of the Company or any
Subsidiary Guarantor or (ii) has indicated to the Company or
any Subsidiary Guarantor 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, any Subsidiary
Guarantor or any securities of the Company or any Subsidiary
Guarantor.
(ff) The Company has not distributed
and, prior to the later to occur of the Closing Date and completion
of the distribution of the Offered Securities, will not distribute
any offering material in connection with the offering and sale of
the Offered Securities other than any preliminary prospectus, the
Prospectus and any Issuer Free Writing Prospectus.
3. Purchase, Sale and Delivery of
Offered Securities. On the basis of the representations,
warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and the
Subsidiary Guarantors agrees to sell to the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the
Company and the Subsidiary Guarantors, at a purchase price of
98.424% of the principal amount thereof plus accrued interest from
January 13, 2006 to
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the Closing Date the respective principal
amounts of the Offered Securities, together with the related
Guarantees, set forth opposite the names of the several
Underwriters in Schedule A hereto.
The Company will deliver against
payment of the purchase price the Offered Securities and the
Guarantees in the form of one or more permanent global securities
in definitive form (the “ Global Securities ”)
deposited with the Trustee as custodian for The Depository Trust
Company (“ DTC ”) and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent
Global Securities will be held only in book-entry form through DTC,
except in the limited circumstances described in the Prospectus.
Payment for the Offered Securities shall be made by the
Underwriters in Federal (same day) funds by wire transfer to an
account at a bank reasonably acceptable to the Underwriters
specified by the Company, at 9:00 A.M., New York time, on
January 13, 2006, or at such other time not later than seven
full business days thereafter as the Underwriters and the Company
determine, such time being herein referred to as the “
Closing Date ”, against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the
Offered Securities. The form of Global Securities will be made
available for checking at the office of Baker Botts L.L.P., One
Shell Plaza, 910 Louisiana Street, Houston, Texas 77002 at least 24
hours prior to the Closing Date.
4. Offering by Underwriters.
It is understood that the several Underwriters propose to offer the
Offered Securities for sale to the public as set forth in the
Prospectus.
5. (A) Certain Agreements of the
Company and the Subsidiary Guarantors. Each of the Company and
the Subsidiary Guarantors, jointly and severally, agrees with the
several Underwriters that:
(a) At any time when a prospectus
relating to the Offered Securities is required to be delivered
under the 1933 Act, the Company and the Subsidiary Guarantors will
not file or make any amendment to the Registration Statement or any
supplement to the Prospectus (except for periodic or current
reports filed under the 1934 Act) unless the Company has and the
Subsidiary Guarantors have furnished the Underwriters a copy for
its review prior to filing and given the Underwriters a reasonable
opportunity to comment on any such proposed amendment or
supplement. The Underwriters shall make its responses thereto, if
any, promptly. Immediately following the Applicable Time, the
Company and the Subsidiary Guarantors will prepare a prospectus
supplement, in form approved by the Underwriters, setting forth the
amount of shares of Offered Securities to be sold, the
Underwriters’ names, the price at which the Offered
Securities are to be purchased by the Underwriters from the
Company, the initial offering price, the selling concession and
reallowance, if any, and such other information as the Underwriters
and the Company and the Subsidiary Guarantors deem appropriate in
connection with the offering of the Offered Securities. The Company
and the Subsidiary Guarantors will promptly cause the Prospectus to
be filed with the Commission pursuant to Rule 424(b) of the 1933
Act Regulations in the manner and within the time period prescribed
by such rule and will provide evidence satisfactory to the
Underwriters of such filing. The Company and the Subsidiary
Guarantors will promptly advise the Underwriters (i) at any
time when a prospectus relating to the Offered Sec
