1
Exhibit 99.1
CITGO Petroleum Corporation
$235,000,000 Medium-Term Notes
Due Nine Months or More
From Date of Issue
Selling Agency Agreement
October 28, 1997
New York, New York
Salomon Brothers Inc
Seven World Trade Center
New York, N.Y. 10048
Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
CITGO Petroleum Corporation, a Delaware corporation (the
"Company"), confirms its agreement with each of you with respect to the issue
and sale by the Company of up to $235,000,000 aggregate principal amount of its
Medium-Term Notes Due Nine Months or More from Date of Issue (the "Notes").
The Notes will be issued under an indenture (the "Indenture") dated as of May
1, 1996 between the Company and The First National Bank of Chicago, as trustee
(the "Trustee"). Unless otherwise specifically provided for and set forth in a
Pricing Supplement (as defined below), the Notes will be issued in minimum
denominations of $1,000 and in denominations exceeding such amount by integral
multiples of $1,000, will be issued only in fully registered form and will have
the interest rates, maturities and, if applicable, other terms set forth in
such
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Pricing Supplement. The Notes will be issued, and the terms thereof
established, in accordance with the Indenture and the Medium-Term Notes
Administrative Procedures attached hereto as Exhibit A (the "Procedures")
(unless a Terms Agreement (as defined in Section 2(b)) modifies or otherwise
supersedes such Procedures with respect to the Notes issued pursuant to such
Terms Agreement). The Procedures may be amended only by written agreement of
the Company and you after notice to, and with the approval of, the Trustee.
For the purposes of this Agreement and subject to Section 12 hereof, the term
"Agent" shall refer to any of you acting solely in the capacity as agent for
the Company pursuant to Section 2(a) and not as principal (collectively, the
"Agents"), the term "Purchaser" shall refer to one of you acting solely as
principal pursuant to Section 2(b) and not as agent, and the term "you" shall
refer to you collectively whether at any time any of you is acting in both such
capacities or in either such capacity. In acting under this Agreement, in
whatever capacity, each of you is acting individually and not jointly.
1. Representations and Warranties. The Company represents
and warrants to, and agrees with, you as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (e) hereof.
(a) The Company has complied with the requirements for use of
Form S-3 under the Securities Act of 1933 (the "Act") and has filed
with the Securities and Exchange Commission (the "Commission") a
registration statement on such Form or Schedule (File Number:
333-3226), including a basic prospectus, which has become effective,
for the registration under the Act of $600,000,000 aggregate principal
amount of debt securities (the "Securities"), including the Notes.
Such registration statement, as amended at the date of this Agreement,
meets the requirements set forth in Rule 415(a)(1)(ix) or (x) under
the Act and complies in all other material respects with said Rule.
The Company has included in such registration statement, or has filed
or will file with the Commission pursuant to the applicable paragraph
of Rule 424(b) under the Act, a supplement to the form of prospectus
included in such registration statement relating to the Notes and the
plan of distribution thereof (the "Prospectus Supplement"). In
connection with the sale of
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Notes the Company proposes to file with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act further supplements
to the Prospectus Supplement (each a "Pricing Supplement") specifying
the interest rates, maturity dates and, if appropriate, other similar
terms of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission, as of the
date of a Terms Agreement and at the date of delivery by the Company
of any Notes sold hereunder (a"Closing Date"), (i) the Registration
Statement, as amended as of any such time, and the Prospectus, as
supplemented as of any such time, and the Indenture will comply in all
material respects with the applicable requirements of the Act, the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the
Securities Exchange Act of 1934 (the "Exchange Act") and the
respective rules thereunder; (ii) the Registration Statement, as
amended as of any such time, did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and (iii) the Prospectus, as
supplemented as of any such time, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that the Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus (or any
supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by any of you
specifically for inclusion in the Registration Statement or the
Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder,
the Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms subject
to the effect of (i) general
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principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law, and (ii) any
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting creditors' rights generally, and such Notes
will have been duly authorized, executed, authenticated and, when paid
for by the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of the
Indenture.
(d) The terms which follow, when used in this Agreement,
shall have the meanings indicated. The term "the Effective Date"
shall mean each date that the Registration Statement and any
post-effective amendment or amendments thereto became or become
effective and each date after the date hereof on which a document
incorporated by reference in the Registration Statement is filed.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto. "Basic Prospectus"
shall mean the form of basic prospectus relating to the Securities
contained in the Registration Statement at the Effective Date.
"Prospectus" shall mean the Basic Prospectus as supplemented by the
Prospectus Supplement. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time. "Rule 415" and "Rule 424" refer to such rules
under the Act. Any reference herein to the Registration Statement,
the Basic Prospectus , the Prospectus Supplement or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3, which were filed
under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement"
with respect to the Registration Statement, the Basic Prospectus, the
Prospectus Supplement
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or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, the
Prospectus Supplement or the Prospectus, as the case may be, deemed to
be incorporated therein by reference.
2. Appointment of Agents; Solicitation by the Agents of
Offers to Purchase; Sales of Notes to a Purchaser. (a) Subject to the terms
and conditions set forth herein, the Company hereby authorizes each of the
Agents to act as its agent to solicit offers for the purchase of all or part of
the Notes from the Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the Agents
agrees, as agent of the Company, to use its reasonable efforts to solicit
offers to purchase the Notes from the Company upon the terms and conditions set
forth in the Prospectus (and any supplement thereto) and in the Procedures.
Each Agent shall make reasonable efforts to assist the Company in obtaining
performance by each purchaser whose offer to purchase Notes has been solicited
by such Agent and accepted by the Company, but such Agent shall not, except as
otherwise provided in this Agreement, be obligated to disclose the identity of
any purchaser or have any liability to the Company in the event any such
purchase is not consummated for any reason. Except as provided in Section
2(b), under no circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that any Agent may
purchase Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of offers to purchase Notes from the Company until such time as the Company has
advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the
Closing Date with respect to each sale of Notes by the Company as a result of a
solicitation made by such Agent, in an amount equal to that percentage
specified in Schedule I hereto of the aggregate principal amount of the Notes
sold by the Company. Such commission shall be payable as specified in the
Procedures.
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Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by an Agent as
agent for the Company at such time and in such amounts as such Agent deems
advisable. The Company may from time to time offer Notes for sale otherwise
than through an Agent; provided, however, that, subject to Section 12 hereof,
so long as this Agreement is in effect the Company shall not solicit or accept
offers to purchase Notes through any agent other than an Agent. It is
understood, however, that if from time to time the Company is approached by a
prospective agent offering to solicit a specific purchase of Notes, the Company
may engage such agent with respect to such specific purchase, provided that (i)
such agent is engaged on terms substantially similar (including the same
commission schedule) to the terms of this Agreement and (ii) the Agents are
given notice of such purchase promptly.
If the Company shall default in its obligations to deliver
Notes to a purchaser whose offer it has accepted, the Company shall indemnify
and hold each of you harmless against any loss, claim or damage arising from or
as a result of such default by the Company.
(b) Subject to the terms and conditions stated herein,
whenever the Company and any of you determines that the Company shall sell
Notes directly to any of you as principal, each such sale of Notes shall be
made in accordance with the terms of this Agreement and a supplemental
agreement relating to such sale. Each such supplemental agreement (which may
be either an oral or written agreement) is herein referred to as a "Terms
Agreement". Each Terms Agreement shall describe the Notes to be purchased by
the Purchaser pursuant thereto and shall specify the aggregate principal amount
of such Notes, the price to be paid to the Company for such Notes, the maturity
date of such Notes, the rate at which interest will be paid on such Notes, the
dates on which interest will be paid on such Notes and the record date with
respect to each such payment of interest, the Closing Date for the purchase of
such Notes, the place of delivery of the Notes and payment therefor, the method
of payment and any requirements for the delivery of opinions of counsel,
certificates from the Company or its officers or a letter from the Company's
independent public accountants as described in Section 6(b). Any such Terms
Agreement may also specify the period of time referred to in Section 4(m). Any
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written Terms Agreement may be in the form attached hereto as Exhibit B. The
Purchaser's commitment to purchase Notes shall be deemed to have been made on
the basis of the representations and warranties of the Company herein contained
and shall be subject to the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser
pursuant to a Terms Agreement shall be made not later than the Closing Date
agreed to in such Terms Agreement, against payment of funds to the Company in
the net amount due to the Company for such Notes by the method and in the form
set forth in the Procedures unless otherwise agreed to between the Company and
the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be
purchased by such Purchaser at a price equal to 100% of the principal amount
thereof less a percentage equal to the commission applicable to an agency sale
of a Note of identical maturity and (ii) may be resold by such Purchaser at
varying prices from time to time or, if set forth in the applicable Terms
Agreement and Pricing Supplement, at a fixed public offering price. In
connection with any resale of Notes purchased, a Purchaser may use a selling or
dealer group and may reallow to any broker or dealer any portion of the
discount or commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the Company
agree to perform the respective duties and obligations specifically provided to
be performed by them in the Procedures.
4. Agreements. The Company agrees with you that:
(a) Prior to the termination of the offering of the Notes
(including by way of resale by a Purchaser of Notes), the Company will
not file any amendment of the Registration Statement or supplement to
the Prospectus (except for (i) periodic or current reports filed under
the Exchange Act, (ii )a supplement relating to any offering of Notes
providing solely for the specification of or a change in the maturity
dates, interest rates, issuance prices or other similar terms of any
Notes or (iii) a supplement relating to an offering of Securities
other than the Notes) unless the Company has
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furnished each of you a copy for your review prior to filing and given
each of you a reasonable opportunity to comment on any such proposed
amendment or supplement. Subject to the foregoing sentence, the
Company will cause each supplement to the Prospectus to be filed with
the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to you of such filing. The Company will promptly advise
each of you (i) when the Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b), (ii)
when, prior to termination of any offering of Notes, any amendment of
the Registration Statement shall have been filed or become effective,
(iii) of any request by the Commission for any amendment of the
Registration Statement or supplement to the Prospectus or for any
additional information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Notes for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a
result of which the Prospectus as then supplemented would 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, or if it
shall be necessary to amend the Registration Statement or to
supplement the Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, the Company promptly will notify
each of you to suspend solicitation of offers to purchase Notes (and,
if so notified by the Company, each of you shall forthwith suspend
such solicitation and cease using the Prospectus as then supplemented)
and, upon such notification, your obligation to solicit offers to
purchase Notes hereunder shall cease. In the event that the Company
desires you to
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thereafter commence solicitations of offers to purchase Notes, or in
the event that any of you are holding Notes for resale, the Company
shall (i) prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (ii) supply any supplemented Prospectus to each of
you in such quantities as you may reasonably request. If such
amendment or supplement, and any documents, certificates and opinions
furnished to each of you pursuant to paragraph (g) of this Section 4
in connection with the preparation or filing of such amendment or
supplement are satisfactory in all respects to you, you will, upon the
filing of such amendment or supplement with the Commission and upon
the effectiveness of an amendment to the Registration Statement, if
such an amendment is required, resume your obligation to solicit
offers to purchase Notes hereunder.
(c) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the Act, will file
promptly all documents required to be filed with the Commission
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act and will
furnish to each of you copies of such documents. In addition, on or
prior to the date on which the Company makes any announcement to the
general public concerning earnings or concerning any other event which
is required to be described, or which the Company proposes to
describe, in a document filed pursuant to the Exchange Act, the
Company will furnish to each of you the information contained or to be
contained in such announcement. The Company will notify each of you
as soon as practicable of (i) any decrease in the rating of the Notes
or any other debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or (ii) any notice given of any intended
or potential decrease in any such rating or of a possible change in
any such rating that does not indicate the direction of the possible
change, as soon as the Company learns of any such decrease or notice.
(d) As soon as practicable, the Company will make generally
available to its security holders and to each of you
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an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the
Act and Rule 158 under the Act.
(e) The Company will furnish to each of you and your counsel,
without charge, copies of the Registration Statement (including
exhibits thereto) and, so long as delivery of a prospectus may be
required by the Act, as many copies of the Prospectus and any
supplement thereto as you may reasonably request.
(f) The Company will arrange for the qualification of the
Notes for sale under the laws of such jurisdictions as any of you may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Notes (provided that the Company
shall not be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in
any state), and will arrange for the determination of the legality of
the Notes for purchase by institutional investors.
(g) The Company shall furnish to each of you such
information, documents, certificates of officers of the Company and
opinions of counsel for the Company relating to the business,
operations and affairs of the Company, the Registration Statement, the
Prospectus, and any amendments thereof or supplements thereto, the
Indenture, the Notes, this Agreement, the Procedures and the
performance by the Company and you of its and your respective
obligations hereunder and thereunder as any of you may from time to
time and at any time prior to the termination of this Agreement
reasonably request.
(h) The Company shall, whether or not any sale of the Notes
is consummated, (i) pay all expenses incident to the performance of
its obligations under this Agreement and any Terms Agreement,
including the fees and disbursements of its accountants and counsel,
the cost of printing or other production and delivery of the
Registration Statement, the Prospectus, all amendments thereof and
supplements thereto, the Indenture, this Agreement, any Terms
Agreement and all other documents relating to the offering, the cost
of preparing, printing, packaging and delivering the Notes, the fees
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and disbursements, including fees of counsel, incurred in compliance
with Section 4(f), the fees and disbursements of the Trustee and the
fees of any agency that rates the Notes, (ii) reimburse each of you as
requested for all reasonable out-of-pocket expenses (including without
limitation advertising expenses), if any, incurred by you in
connection with this Agreement and (iii) pay the reasonable fees and
expenses of your counsel incurred in connection with this Agreement
and incurred from time to time in connection with the transactions
contemplated hereby.
(i) Each acceptance by the Company of an offer to purchase
Notes will be deemed to be an affirmation that its representations and
warranties contained in this Agreement are true and correct at the
time of such acceptance, as though made at and as of such time, and a
covenant that such representations and warranties will be true and
correct at the time of delivery to the purchaser of the Notes relating
to such acceptance, as though made at and as of such time (it being
understood that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the Registration
Statement and Prospectus as amended or supplemented at each such
time). Each such acceptance by the Company of an offer for the
purchase of Notes shall be deemed to constitute an additional
representation, warranty and agreement by the Company that, as of the
settlement date for the sale of such Notes, after giving effect to the
issuance of such Notes, of any other Notes to be issued on or prior to
such settlement date and of any other Securities to be issued and sold
by the Company on or prior to such settlement date, the aggregate
amount of Securities (including any Notes) which have been issued and
sold by the Company will not exceed the amount of Securities
registered pursuant to the Registration Statement. The Company will
inform you promptly upon your request of the aggregate amount of
Securities registered under the Registration Statement which remain
unsold.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement relating to any offering of Securities other than the Notes
or providing solely for the specification
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of or a change in the maturity dates, the interest rates, the issuance
prices or other similar terms of any Notes sold pursuant hereto), the
Company will deliver or cause to be delivered promptly to each of you
a certificate of the Company, signed by the Chief Executive Officer,
the President, or any Vice President and the principal financial
officer, Treasurer, or principal accounting officer of the Company,
dated the date of the effectiveness of such amendment or the date of
the filing of such supplement, in form reasonably satisfactory to you,
of the same tenor as the certificate referred to in Section 5(d) but
modified to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the
Commission and to the Registration Statement and the Prospectus as
amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or
supplement (i) relating to any offering of Securities other than the
Notes or (ii) providing solely for the specification of or a change in
the maturity dates, the interest rates, the issuance prices or other
similar terms of any Notes sold pursuant hereto), the Company shall
furnish or cause to be furnished promptly to each of you a written
opinion of counsel of the Company satisfactory to each of you, dated
the date of the effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to each of you, of the
same tenor as the opinion referred to in Section 5(b) but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such amendment or the
filing of such supplement or, in lieu of such opinion, counsel last
furnishing such an opinion to you may furnish each of you with a
letter to the effect that you may rely on such last opinion to the
same extent as though it were dated the date of such letter
authorizing reliance (except that statements in such last opinion will
be deemed to relate to the Registration Statement and the Prospectus
as amended and supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
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(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to include or incorporate
amended or supplemental financial information, the Company shall cause
its independent public accountants promptly to furnish each of you a
letter, dated the date of the effectiveness of such amendment or the
date of the filing of such supplement, in form satisfactory to each of
you, of the same tenor as the letter referred to in Section 5(e) with
such changes as may be necessary to reflect the amended and
supplemental financial information included or incorporated by
reference in the Registration Statement and the Prospectus, as amended
or supplemented to the date of such letter; provided, however, that,
if the Registration Statement or the Prospectus is amended or
supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, the Company's independent
public accountants may limit the scope of such letter, which shall be
satisfactory in form to each of you, to the unaudited financial
statements, the related "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and any other
information of an accounting, financial or statistical nature included
in such amendment or supplement, unless, in the reasonable judgment of
any of you, such letter should cover other information or changes in
specified financial statement line items.
(m) During the period, if any, specified (whether orally or
in writing) in any Terms Agreement, the Company shall not, without the
prior consent of the Purchaser thereunder, offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce the
offering of, any debt securities issued or guaranteed by the Company
substantially similar to the Securities sold pursuant to such Terms
Agreement.
(n) The Company shall not be required to comply with the
provisions of subsections (j), (k) or (l) of this Section during any
period from the time (i) the Agents shall have suspended solicitation
of purchases of the Notes pursuant to a request from the Company and
(ii) the Agents shall not then hold any Notes purchased as principal
pursuant hereto, until the time the Company shall determine that
solicitation of
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purchases of the Notes should be resumed or you shall subsequently
purchase Notes from the Company as principal.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes shall be
subject to the accuracy of the representations and warranties on the part of
the Company contained herein as of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the Commission and as of
each Closing Date, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional
conditions:
(a) If filing of the Prospectus, or any supplement thereto,
is required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to each Agent the
opinion of Xxxxxxx & Xxxxx L.L.P., counsel for the Company, dated the
Execution Time, to the effect that:
(i) each of the Company and CITGO Refining and
Chemicals Company, L.P., CITGO East Coast Refining
Corporation, CITGO Asphalt Refining Company and CITGO
Investment Company (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated or
duly organized as a partnership and is validly existing as a
corporation or partnership in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
full corporate or partnership power and authority to own its
properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign
corporation or partnership and is in good standing under the
laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts
material business;
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(ii) all the outstanding shares of capital stock or
partnership interests of each Subsidiary have been duly and
validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the
Prospectus, all outstanding shares of capital stock or
partnership interests of the Subsidiaries are owned by the
Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest and, to the
knowledge of such counsel, after due inquiry, any other
security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Prospectus; and the Notes conform to
the description thereof contained in the Prospectus (subject
to the insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which will be
described in supplements to the Prospectus as contemplated by
the fourth sentence of Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed
and delivered, has been duly qualified under the Trust
Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect); and the Notes have been duly authorized
and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by
the purchasers thereof, will constitute legal, valid and
binding obligations of the Company entitled to the benefits of
the Indenture;
(v) the Registration Statement has become effective
under the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been or will
be made in the manner and within the time period required by
Rule 424(b); to the best knowledge of such counsel, no stop
order suspending the effectiveness of
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the Registration Statement has been issued and no proceedings
for that purpose have been instituted or threatened; and the
Registration Statement and the Prospectus (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) comply as to form in all material respects
with the applicable requirements of the Act, the Exchange Act
and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe that the
Registration Statement at the Effective Date or at the
Execution Time contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus includes any untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized,
executed and delivered by the Company;
(vii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein except
such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in
connection with the sale of the Notes as contemplated by this
Agreement and such other approvals (specified in such opinion)
as have been obtained;
(viii) none of the execution and delivery of the
Indenture, the issue and sale of the Notes, nor the
consummation of any other of the transactions herein
contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of, or
constitute a default under any law or the charter or by-laws
of the Company or the terms of any material indenture or other
agreement or instrument known to such counsel and to which the
Company or any of its
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subsidiaries is a party or bound or any judgment, order,
regulation or decree known to such counsel to be applicable to
the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries;
(ix) to the best of such counsel's knowledge, after
due inquiry, no holders of securities of the Company have
rights to the registration of such securities under the
Registration Statement; and
(x) the information contained in the Prospectus under
the caption "Certain U.S. Federal Income Tax Considerations"
is a fair and accurate summary of the principal United States
Federal income tax consequences associated with the ownership
of the Notes.
In rendering such opinion, Xxxxxxx & Xxxxx L.L.P. (i) may state that
its opinion is limited to the laws of the States of Texas and New
York, the corporate laws of the State of Delaware and the Federal laws
of the United States and (ii) may rely (A) as to matters involving the
application of laws of any jurisdiction other than the States of Texas
and New York or the United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other counsel of good
standing believed to be reliable and who are satisfactory to counsel
for the Agents and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and
public officials. References to the Prospectus in this paragraph (b)
include any supplements thereto at the date such opinion is rendered.
(c) Each Agent shall have received from Xxxxxxx, Xxxxxx &
Xxxxx, counsel for the Agents, such opinion or opinions, dated the
date hereof, with respect to the issuance and sale of the Notes, the
Indenture, the Registration Statement, the Prospectus (together with
any supplement thereto) and other related matters as the Agents may
reasonably require, and the Company shall have furnished to
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such counsel such documents as they reasonably request for the purpose
of enabling them to pass upon such matters.
(d) The Company shall have furnished to each Agent a
certificate of the Company, signed by the Chief Executive Officer, the
President or any Vice President and the principal financial officer,
Treasurer or principal accounting officer of the Company, dated the
Execution Time, to the effect that to the best of their knowledge
based upon reasonable investigation:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as
if made on the date hereof and the Company has complied with
all the agreements and satisfied all the conditions on its
part to be performed or satisfied as a condition to the
obligation of the Agents to solicit offers to purchase the
Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse change
in the condition (financial or other), earnings, business or
properties of the Company and its consolidated subsidiaries
taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement
thereto).
(e) At the Execution Time, Deloitte & Touche LLP shall have
furnished to each Agent a letter or letters (which may refer to
letters previously delivered to the Agents), dated as of the Execution
Time, in form and substance satisfactory to the Agents, confirming
that they are independent accountants
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within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and stating in
effect that:
(i) in their opinion the audited financial
statements, financial statement schedules included or
incorporated in the Registration Statement and the Prospectus
and reported on by them comply in form in all material
respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their performance of the procedures
specified by the American Institute of Certified Public
Accountants for the review of interim financial information as
described in SAS No. 71, Interim Financial Information;
carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders and directors (including committees) of the
Company and the Subsidiaries; and inquiries of certain
officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as
to transactions and events subsequent to the date of the most
recent audited financial statements included or incorporated
in the Prospectus, nothing came to their attention which
caused them to believe that:
(1) any unaudited financial statements
included or incorporated in the Registration
Statement and the Prospectus do not comply in form in
all material respects with applicable accounting
requirements and with the published rules and
regulations of the Commission with respect to
financial statements included or incorporated in
quarterly reports on Form 10-Q under the Exchange
Act; and said unaudited financial statements are
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not in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements included or incorporated in the
Registration Statement and the Prospectus;
(2) with respect to the period subsequent to
the date of the most recent financial statements
(other than any capsule information), audited or
unaudited, included or incorporated in the
Registration Statement and the Prospectus, there
were, at a specified date not more than five business
days prior to the date of the letter, any increases
in total current and long- term debt, including
capitalized lease obligations, and short-term debt of
the Company and its subsidiaries or changes in common
stock of the Company or decreases in stockholders'
equity of the Company as compared with the amounts
shown on the most recent consolidated balance sheet
included or incorporated in the Registration
Statement and the Prospectus, or for the period from
the date of the most recent financial statements
included or incorporated in the Registration
Statement and the Prospectus to such specified date
there were any decreases, as compared with the
corresponding period in the preceding year in
consolidated net sales or income before income taxes
and extraordinary charge or in net income of the
Company and its subsidiaries, except in all instances
for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an
explanation by the Company as to the significance
thereof unless said explanation is not deemed
necessary by the Agents; or
(3) the amounts included in any unaudited
"capsule" information included in the Registration
Statement and the Prospectus do not agree with the
amounts set forth in the unaudited financial
statements for the same periods or were not
determined on a basis substantially consistent with
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that of the corresponding amounts in the audited
financial statements included or incorporated in the
Registration Statement and the Prospectus;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Registration
Statement and the Prospectus and in Exhibit 12 to the
Registration Statement, including the information included or
incorporated in Items 1, 2, 6 and 7 of the Company's Annual
Report on Form 10-K, incorporated by reference in the
Registration Statement and the Prospectus, and the information
included in the "Management's Discussion and Analysis of
Financial Condition and Results of Operations" included or
incorporated by reference in the Company's Quarterly Reports
on Form 10-Q, incorporated in the Registration Statement and
the Prospectus, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) if unaudited pro forma financial statements are
included or incorporated in the Registration Statement and the
Prospectus, on the basis of a reading of the unaudited pro
forma financial statements, carrying out certain specified
procedures, inquiries of certain officials of the Company and
the acquired company who have responsibility for financial and
accounting matters, and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro
forma financial statements do not comply in form in all
material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
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References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) At the Execution Time, the Company shall have furnished
to the Agents the opinion (addressed to the Agents) of Xxxx X.
Xxxxxxxx, Esq., Vice President and General Counsel for the Company, to
the effect that:
(i) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any
court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries,
of a character required to be disclosed in the Registration
Statement which is not adequately disclosed in the Final
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as
an exhibit, which is not described or filed as required; and
the statements included or incorporated in the Final
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company fairly
summarize such matters; and
(ii) the Registration Statement has become effective
under the Act; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose
have been instituted or threatened; and such counsel has no
reason to believe that at the Effective Date the Registration
Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading or that the Final Prospectus includes any untrue
statement of the material fact or omits to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(g) Prior to the Execution Time, the Company shall have
furnished to each Agent such further information, documents,
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certificates and opinions of counsel as the Agents may reasonably
request.
If any of the conditions specified in this Section 5 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agents and counsel for the Agents,
this Agreement and all obligations of any Agent hereunder may be canceled at
any time by the Agents. Notice of such cancelation shall be given to the
Company in writing or by telephone or telecopier confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of Xxxxxxx, Swaine & Xxxxx, counsel for the Agents,
at Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the Execution
Date.
6. Conditions to the Obligations of a Purchaser. The
obligations of a Purchaser to purchase any Notes will be subject to the
accuracy of the representations and warranties on the part of the Company
herein as of the date of the related Terms Agreement and as of the Closing Date
for such Notes, to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed and to the following additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) To the extent agreed to between the Company and the
Purchaser in a Terms Agreement, the Purchaser shall have received,
appropriately updated, (i) a certificate of the Company, dated as of
the Closing Date, to the effect set forth in Section 5(d) (except that
references to the Prospectus shall be to the Prospectus as
supplemented as of the date of such Terms Agreement), (ii) the opinion
of Xxxxxxx & Xxxxx L.L.P., counsel for the Company, dated as of the
Closing Date, to the effect set forth in Section 5(b), (iii) the
opinion of
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Cravath, Xxxxxx & Xxxxx, counsel for the Purchaser, dated as of the
Closing Date, to the effect set forth in Section 5(c), (iv) the
opinion of Peer X. Xxxxxxxx, Esq., Vice President and General Counsel
for the Company, dated as of the Closing Date, to the effect set forth
in Section 5(f), and (v) letter of Deloitte & Touche LLP, independent
accountants for the Company, dated as of the Closing Date, to the
effect set forth in Section 5(e).
(c) Prior to the Closing Date, the Company shall have
furnished to the Purchaser such further information, certificates and
documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement and the applicable Terms Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement or such Terms
Agreement and required to be delivered to the Purchaser pursuant to the terms
hereof and thereof shall not be in all material respects reasonably
satisfactory in form and substance to the Purchaser and its counsel, such Terms
Agreement and all obligations of the Purchaser thereunder and with respect to
the Notes subject thereto may be canceled at, or at any time prior to, the
respective Closing Date by the Purchaser. Notice of such cancelation shall be
given to the Company in writing or by telephone or telecopier confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to
Purchase. (a) The Company agrees that any person who has agreed to purchase
and pay for any Note pursuant to a solicitation by any of the Agents shall have
the right to refuse to purchase such Note if, at the Closing Date therefor, any
condition set forth in Section 5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such Note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of Sections 9(b)(i) through (v) shall have occurred (with the judgment
of the Agent which presented the offer to purchase such Note being substituted
25
-25-
for any judgment of a Purchaser required therein) the effect of which is, in
the judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the sale and delivery of such Note (it being understood that under no
circumstance shall any such Agent have any duty or obligation to the Company or
to any such person to exercise the judgment permitted to be exercised under
this Section 7(b) and Section 9(b)).
8. Indemnification and Contribution. (a) The Company agrees
to indemnify and hold harmless each of you, the directors, officers, employees
and agents of each of you and each person who controls each of you within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which you, they or any of
you or them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Securities as originally filed or in any amendment thereof, or in the
Prospectus or any preliminary Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
when made, not misleading, and agrees to reimburse each such indemnified party,
as incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by any of you
specifically for inclusion therein and, provided, further, that the foregoing
indemnity agreement with respect to any preliminary Prospectus shall not inure
to the benefit of any Agent, the directors, partners, officers, employees and
agents of each Agent and each person who controls such Agent within the meaning
of either the Act or the Exchange Act from whom the person asserting
26
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any such loss, claim, damage, liability or action purchased securities if a
copy of the final Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or
given to such person, if required by law so to have been delivered, at or prior
to the written confirmation of the sale of Securities to such person, and if
the final Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage, liability or action. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each of you agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to you, but only with reference to written information relating to
such of you furnished to the Company by such of you specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which you may otherwise have.
The Company acknowledges that the statements set forth in the last paragraph of
the cover page, and under the heading "Plan of Distribution", of the Prospectus
Supplement constitute the only information furnished in writing by any of you
for inclusion in the documents referred to in the foregoing indemnity, and you
confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial rights and
defenses and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at the
indemnifying party's expense to represent the indemnified party in any action
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for which indemnification is sought (in which case the indemnifying party shall
not thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), which in the case of either (i) or (ii) below shall be
reasonably satisfactory to the indemnified party, and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with an actual conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party. (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party; provided, however that in no event shall the
indemnifying party be liable for legal fees or expenses of more than one
primary firm representing the indemnified parties or more than one local
counsel in each state or jurisdiction in which an action in which
indemnification is available has been brought. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or
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insufficient to hold harmless an indemnified party for any reason, the Company
and each of you agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of you may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company and by
each of you from the offering of the Notes from which such Losses arise;
provided, however, that in no case shall any of you be responsible for any
amount in excess of the commissions received by such of you in connection with
the sale of Notes from which such Losses arise (or, in the case of Notes sold
pursuant to a Terms Agreement, the aggregate commissions that would have been
received by such of you if such commissions had been payable). If the
allocation provided by the immediately preceding sentence is unavailable for
any reason, the Company and each of you shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company and of each of you in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal
to the total net proceeds from the offering (before deducting expenses) of the
Notes from which such Losses arise, and benefits received by each of you shall
be deemed to be equal to the total commissions received by such of you in
connection with the sale of Notes from which such Losses arise (or, in the case
of Notes sold pursuant to a Terms Agreement, the aggregate commissions that
would have been received by such of you if such commissions had been payable).
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company or any of
you. The Company and each of you agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 8, each
person who controls any of you within the meaning of the Act or the Exchange
Act and each director, officer, employee and agent of any of you shall have the
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same rights to contribution as you and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of the
Company who shall have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Termination. (a) This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be
terminated either by the Company as to any Agent or by any of you insofar as
this Agreement relates to any Agent, by giving written notice of such
termination to such Agent or the Company, as the case may be. This Agreement
shall so terminate at the close of business on the first business day following
the receipt of such notice by the party to whom such notice is given. In the
event of such termination, no party shall have any liability to the other party
hereto, except as provided in the fourth paragraph of Section 2(a), Section
4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in
the absolute discretion of the Purchaser, by notice given to the Company prior
to delivery of any payment for any Note to be purchased thereunder, if prior to
such time (i) there shall have occurred, subsequent to the agreement to
purchase such Note, any change, or any development involving a prospective
change, in or affecting the business or properties of the Company and its
consolidated subsidiaries taken as a whole the effect of which is, in the
judgment of the Purchaser, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of such Note, (ii) there
shall have been, subsequent to the agreement to purchase such Note, any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change, (iii)
trading of any of the Company's securities shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (iv) a banking moratorium
shall have been declared by either Federal or New York
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State authorities or (v) there shall have occurred any outbreak or escalation
of hostilities, declaration by the United States of a national emergency or war
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the judgment of the Purchaser, impracticable or inadvisable to
proceed with the offering or delivery of such Notes as contemplated by the
Prospectus (exclusive of any supplement thereto).
10. Survival of Certain Provisions. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of you set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of you or the Company or any of the directors, officers,
employees, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Notes. The provisions of Sections
4(h) and 8 hereof shall survive the termination or cancelation of this
Agreement. The provisions of this Agreement (including without limitation
Section 7 hereof) applicable to any purchase of a Note for which an agreement
to purchase exists prior to the termination hereof shall survive any
termination of this Agreement. If at the time of termination of this Agreement
any Purchaser shall own any Notes with the intention of selling them, the
provisions of Section 4 shall remain in effect until such Notes are sold by the
Purchaser.
11. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to any of you, will be mailed,
delivered or telecopied and confirmed to such of you, at the address specified
in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telecopied and confirmed to it at Xxx Xxxxxx Xxxxx, 0000 Xxxxx Xxxx Xxxxxx,
Xxxxx, XX 00000, facsimile number 000-000-0000, attention of the Treasurer,
with a copy to the General Counsel.
12. Amendments. This Agreement may be amended or
supplemented if, but only if, such amendment or supplement is in writing and is
signed by the Company and each Agent; provided that the Company may from time
to time, on seven days prior written notice to the Agents but without the
consent of any Agent, amend this Agreement to add as a party hereto one or more
additional firms registered under the Exchange Act, whereupon each such firm
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shall become an Agent hereunder on the same terms and conditions as the other
Agents that are parties hereto. The Agents shall sign any amendment or
supplement giving effect to the addition of any such firm as an Agent under
this Agreement.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto, their respective successors, the
directors, officers, employees, agents and controlling persons referred to in
Section 8 hereof and, to the extent provided in Section 7, any person who has
agreed to purchase Notes, and no other person will have any right or obligation
hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW.
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If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and you.
Very truly yours,
CITGO Petroleum Corporation
By:
---------------------------------
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
Salomon Brothers Inc
By:
---------------------
Vice President
Chase Securities Inc.
By:
---------------------
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SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal to the
following percentage of the principal amount of each Note sold on an agency
basis by such Agent:
Maturity Commission Rate
-------- ---------------
9 months to less than 12 months .125%
12 months to less than 18 months .150%
18 months to less than 2 years .200%
2 years to less than 3 years .250%
3 years to less than 4 years .350%
4 years to less than 5 years .450%
5 years to less than 6 years .500%
6 years to less than 7 years .550%
7 years to less than 8 years .600%
8 years to less than 9 years .600%
9 years to less than 10 years .600%
10 years to less than 15 years .625%
15 years to less than 20 years .700%
20 years to less than 30 years .750%
30 years and beyond to be negotiated
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Unless otherwise specified in the applicable Terms Agreement,
the discount or commission payable to a Purchaser shall be determined on the
basis of the commission schedule set forth above.
Address for Notice to you:
Notices to Salomon Brothers Inc shall be directed to it at
Seven World Trade Center, New York, New York 10048, Attention of the
Medium-Term Note Department.
Notices to Chase Securities, Inc. shall be directed to it at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Medium-Term Note Desk.
35
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EXHIBIT B
CITGO Petroleum Corporation
Medium Term Notes
Due More Than Nine Months
from Date of Issue
TERMS AGREEMENT
, 199
Attention:
Subject in all respects to the terms and conditions of the
Selling Agency Agreement (the "Agreement") dated , 1997, between
Salomon Brothers Inc,
, and you, the undersigned agrees to purchase the following Notes of
CITGO Petroleum Corporation:
[Add additional terms as may be needed to identify Notes.]
[Specified Currency]:
Aggregate Principal Amount: $
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount or Commission: % of Principal Amount
Purchase Price: % of Principal Amount [plus
36
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accrued interest from
, 199 ]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Agreement:
[Purchaser]
By:
-------------------------
Accepted:
CITGO Petroleum Corporation
By:
------------------------
Title:
37
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[Form of Reverse Inquiry Letter]
[Trade Date]
[Dealer]
[Address]
[Address]
Re: $__,000,000 Medium-Term Notes
Pricing Supplement Number:________
Settlement Date:__________________
(See attached Term Sheet)
Dear [Dealer]:
Reference is made to the Selling Agency Agreement dated _______________, 199__
(the "Agreement") pertaining to up to $ ,000,000 aggregate principal amount of
Medium-Term Notes (the "Notes") to be offered from time to time by CITGO
Petroleum Corporation (the "Company"). The provisions of the Agreement (a copy
of which has been previously provided to you) are hereby incorporated by
reference and each of the representations and warranties set forth therein
shall be deemed to be made to you as of the date hereof. Subject to the terms
set forth therein, the Company hereby appoints you as an Agent (as such term is
defined in the Agreement) of the Company for purposes of soliciting one offer
to purchase Notes from the Company containing the terms as set forth in the
above referenced Pricing Supplement. This appointment is effective as to and
extends only to the one transaction which you are presenting to the Company
(see attached Term Sheet) and the Agreement shall automatically be terminated
as to you upon the earlier to occur of (i) payment made in full to the Company
for the Notes sold pursuant to the offer presented or (ii) the Company or you
determine not to proceed with the transaction. Upon such termination of the
Agreement by the Company, neither you nor the Company shall have any liability
to the other except as provided in those sections of the Agreement referenced
in Section___ thereof. You agree to be bound by, and
38
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comply with, all of the provisions of the Agreement applicable to the Agents
thereunder.
*[As a condition precedent to your obligation to consummate the transaction
referred to above, you shall receive the following: (i) the opinions of
counsel, dated __________ [recent date or most recent periodic update [pursuant
to Sections ___ and ____ of the Agreement; (ii) an Officer's Certificate dated
_______ [recent date], pursuant to Section ___ of the Agreement; (iii) a letter
from [Accountant] dated ________ [most recent date or most recent periodic
update] delivered pursuant to Section ___ of the Agreement; and (iv) a copy of
the resolutions adopted by the Company with respect to the Form of Note
evidencing the securities described in the above referenced Pricing Supplement,
certified by an appropriate officer of the Company.]
This letter shall be governed by and construed in accordance with the laws of
the State of New York.
If the foregoing is in accordance with your understanding, please sign and
return to us two counterparts hereof, whereupon this letter shall constitute a
binding agreement between the Company and you in accordance with its terms.
Very truly yours,
By:
----------------------------
Name:
Title:
Agreed and Accepted as of the date hereof:
[Dealer]
By:
-------------------------------
Name:
Title:
39
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*This language is to be negotiated between the Issuer and the Reverse Inquiry
Agent at the time of the trade.
