Exhibit 1.01
EXECUTION COPY
PORT XXXXXX FINANCE CORP.
$255,000,000
12.50% Senior Secured Notes due 2009
Unconditionally Guaranteed Jointly and Severally by
PORT XXXXXX XXXXX COMPANY L.P.
SABINE RIVER HOLDING CORP.
NECHES RIVER HOLDING CORP.
PURCHASE AGREEMENT
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August 10, 1999
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Deutsche Bank Securities Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. Introductory. Port Xxxxxx Finance Corp., a Delaware corporation (the
"Issuer"), proposes, subject to the terms and conditions stated herein, to issue
and sell to Credit Suisse First Boston Corporation ("CSFBC"), Xxxxxxx, Xxxxx &
Co. and Deutsche Bank Securities Inc. (together, the "Initial Purchasers") an
aggregate of $255,000,000 principal amount of its 12.50% Senior Secured Notes
due 2009 (the "Notes"), unconditionally and irrevocably guaranteed (the
"Guarantee, and together with the Notes, the "Offered Securities") jointly and
severally by Port Xxxxxx Xxxxx Company L.P., a Delaware limited partnership (the
"Partnership"), Sabine River Holding Corp., a Delaware corporation and general
partner of the Partnership (the "General Partner") and Neches River Holding
Corp., a Delaware corporation and limited partner of the Partnership (the
"Limited Partner" and, together with the General Partner, the "Partners"). The
Offered Securities will be issued under an indenture (the "Indenture"), to be
dated as of the Closing Date (as defined below), among the Issuer, the
Partnership, the Partners and HSBC Bank USA, as Indenture Trustee. Capitalized
terms not otherwise defined herein shall have the respective meanings ascribed
thereto in Annex A to the Common Security Agreement, to be dated as of the
Closing Date, among the Issuer, the Partnership, the Partners, Winterthur
International Insurance Company Limited, as Administrative Agent for the Oil
Payment Insurers, Bankers Trust Company, as Collateral Trustee for the Secured
Parties, Bankers Trust Company, as Administrative Agent for the Bank Senior
Lenders, the Indenture Trustee and HSBC Bank USA, as Depositary Bank (the
"Common Security Agreement"), whether expressly set forth therein or by
reference to another document. The United States Securities Act of 1933, as
amended, is referred herein to as the "Securities Act."
The Initial Purchasers and the direct and indirect transferees of the
Offered Securities will be entitled to the benefits of the registration rights
agreement, in the form attached hereto as Exhibit M, dated as of the Closing
Date (the "Registration Rights Agreement"). Pursuant to the Registration Rights
Agreement, the Issuer, the Partnership and the Partners have agreed (i) to file
a registration statement with the Securities and Exchange Commission registering
the Exchange Securities (as defined in the Registration Rights Agreement) under
the Securities Act or (ii) to file a shelf registration statement pursuant to
Rule 415 of the Securities Act with the Securities and Exchange Commission. In
addition, under certain circumstances set forth in the Registration Rights
Agreement, the Issuer, the Partnership and the Partners have agreed to issue and
deliver to the Initial Purchasers the Private Exchange Securities (as defined
in the Registration Rights Agreement). The Offered Securities, Exchange
Securities and Private Exchange Securities are referred to collectively as the
"Securities".
It is understood that all payments of principal, interest and premium, if
any, on the Notes will be unconditionally guaranteed jointly and severally by
the Partnership and the Partners (the "Guarantors"). In addition, it is also
understood that, as an inducement for the Initial Purchasers to enter into this
Agreement, and in consideration of the benefits expected to be received from the
Initial Purchasers' purchase of the Offered Securities, (i) the Issuer, the
Partnership, the Partners and Xxxxx Refining Holdings are making certain
representations, warranties and covenants under this Agreement and (ii) Xxxxx
Refining & Marketing is making certain representations and warranties as to the
information set forth in the Offering Document under the headings "Management's
Discussion and Analysis - Operations to Date," "Our Xxxxx Project -
Environmental Matters - Existing Conditions," "Principal Project Participants -
Xxxxx Refining & Marketing," all Xxxxx Refining & Marketing Information
incorporated or to be incorporated by reference into the Offering Document,
"Annex A- Additional Information Regarding Xxxxx Refining & Marketing" and
"Existing Port Xxxxxx Refinery and the Refinery Upgrade Project" in each case,
insofar as such information relates to Xxxxx Refining & Marketing (collectively,
the "Xxxxx Refining & Marketing Information") under a Letter Agreement dated the
date hereof.
Each of the Issuer, the Partnership, each Partner and Xxxxx Refining
Holdings Inc. hereby agrees with the Initial Purchasers as follows:
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2. Representations and Warranties of the Issuer, the Partnership, the
Partners and Xxxxx Refining Holdings. Each of the Issuer, the Partnership, the
Partners and Xxxxx Refining Holdings, jointly and severally represents and
warrants to, and agrees with, the Initial Purchasers that (except that Xxxxx
Refining Holdings makes no representation or warranty with respect to any
information incorporated by reference pursuant to subparagraph (p) below):
a. A preliminary offering circular, dated July 16, 1999, and an
offering circular, dated August 10, 1999, relating to the Offered
Securities to be offered by the Initial Purchasers have been prepared by
the Issuer and the Partnership. Such preliminary offering circular and
offering circular, as supplemented as of the date of this Agreement,
including all documents incorporated therein by reference, or annexed or
attached thereto, together with any other document approved in writing
after the date hereof by the Issuer or the Partnership for use in
connection with the contemplated resale of the Offered Securities, are
hereinafter collectively referred to as the "Offering Document." On the
date of this Agreement, the Offering Document is true and correct in all
material respects and does not include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The preceding sentence does not apply to statements
in, or omissions from, the Offering Document based upon (i) written
information furnished by the Initial Purchasers specifically for use
therein, it being understood and agreed that the only such information is
that described as such in Section 7(b), (ii) Xxxxx Refining & Marketing
Information (as defined in Section 1 above) or (iii) any information
incorporated by reference pursuant to information furnished by and relating
to Xxxxxx Xxxxxxx USA, Xxxxxx Xxxxxxx Corporation, P.M.I. Comercio
International, S.A. de C.V., Air Products and Chemicals, Inc. and
Occidental Petroleum Corporation specifically for use therein ("Selected
Information"). To the best of the knowledge of each of the Issuer, the
Partnership, the Partners and Xxxxx Refining Holdings, the Selected
Information is true and correct in all material respects and does not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements there, in light of
the circumstances under which they were made.
b. The Offered Securities have been duly authorized and, when
delivered and paid for pursuant to this Agreement and the Indenture on the
Closing Date, will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the Issuer
and the Guarantors, as the case may be, entitled to the benefits provided
in the Indenture and, indirectly, the security provided in the Security
Documents, and enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization and
other laws of general applicability related to or affecting creditors'
rights and by general equity principles.
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c. The Exchange Securities and the Private Exchange Securities have
been duly authorized by the Issuer and the Guarantors, as the case may be,
and the Issuer and the Guarantors have all requisite corporate power and
authority to execute, issue and deliver the Exchange Securities and the
Private Exchange Securities, if any, and to incur and perform its
obligations provided for therein. When issued in accordance with the terms
of the Registration Rights Agreement and the Indenture, the Exchange
Securities and the Private Exchange Securities, if any, as of the
consummation of the Exchange Offer or the Private Exchange Offer, as the
case may be, will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the Issuer
and the Guarantors, as the case may be, entitled to the benefits provided
in the Indenture and, indirectly, the security provided in the Security
Documents, and enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization and
other laws of general applicability related to or affecting creditors'
rights and by general equity principles.
d. The Indenture, the Registration Rights Agreement and each
Security Document which will be in effect at or prior to the Closing Date
have been duly authorized by each of the Issuer, the Partnership and the
Partners party thereto, and, when executed and delivered by the Issuer, the
Partnership and the Partners, as the case may be, will constitute its valid
and binding obligation, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability related to or
affecting creditors' rights and by general equity principles and, in the
case of the Registration Rights Agreement only, consideration of public
policy.
e. The Offered Securities, the Exchange Securities, the Indenture
and the Registration Rights Agreement will conform in all material respects
to the description thereof contained in the Offering Document.
f. This Agreement has been duly authorized, executed and delivered
by it and constitutes its valid and binding obligation.
g. All financial statements of the Partnership included in the
Offering Document present fairly the financial position of the Partnership
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 applied on a consistent basis.
h. No securities of the Issuer, the Partnership or the Partners of
the same class (within the meaning of Rule 144A(d)(3) under the Securities
Act) as any of the Securities are listed on any national securities
exchange registered under Section 6 of the
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United States Securities Exchange Act of 1934 ("Exchange Act") or quoted in
a U.S. automated inter-dealer quotation system.
i. Assuming the accuracy of the representations and warranties of
the Initial Purchasers set forth in Section 4 of this Agreement, the offer
and sale of the Offered Securities by the Issuer to the Initial Purchasers
will be exempt from the registration requirement of the Securities Act by
reason of Section 4(2) thereof and Regulation S thereunder; and prior to
the effectiveness of the Exchange Offer or the Shelf Registration Statement
it is not necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
j. The issue and sale of the Offered Securities, the issuance and
delivery of the Exchange Securities and the Private Exchange Securities, if
any, the compliance by it with all of the provisions of this Agreement, the
Indenture and the Registration Rights Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which it or any of its
subsidiaries is a party or to which any of its property or assets is
subject, nor will such action result in any violation of the provisions of
its constituent documents or any statute or any order, rule or regulation
of any Governmental Authority. No consent, approval, authorization, order,
registration, clearance or qualification of or with any Governmental
Authority is required for the issue and sale of the Securities, the
issuance and delivery of Exchange Securities and Private Exchange
Securities, if any, by the Issuer or the consummation of the transactions
contemplated by this Agreement, the Indenture or the Registration Rights
Agreement, except (A) the registration under the 1933 Act of the
Securities, the Exchange Securities and the Private Exchange Securities, if
any, in connection with the transactions contemplated by the Registration
Rights Agreement and (B) such governmental authorizations as may be
required under United States state securities or Blue Sky laws or any laws
of jurisdictions outside the United States in connection with the purchase
and distribution of the Securities by or for the account of the Initial
Purchasers.
k. None of the Issuer, the Partnership, the Partners nor any of
their respective affiliates, nor any person acting on their behalf, (i)
has, within the six-month period prior to the date hereof, offered or sold
in the United States or to any U.S. person (as such terms are defined in
Regulation S) the Securities or any security of the same class or series as
any of the Securities or (ii) has offered or will offer to sell the Offered
Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act or (B) with respect to any such securities sold in
reliance on Regulation S, by means of any directed selling efforts within
the meaning of Rule 902(b) of Regulation S. The Issuer, the
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Partnership, the Partners, their respective affiliates and any Person
acting on their behalf have complied and will comply with the offering
restrictions requirement of Rule 902 of Regulation S. None of the Issuer,
the Partnership nor the Partners has entered nor will enter into any
contractual arrangement with respect to the distribution of the Securities
or any securities of the same class or series as the Securities, except for
this Agreement and the Registration Rights Agreement. Each of the Issuer,
the Partnership and the Partners will take reasonable precautions designed
to ensure that any offer or sale, direct or indirect, in the United States
or to any U.S. person of any Securities, or any substantially similar
security issued by any of the Issuers, the Partnership or the Partners,
within six months subsequent to the date on which the distribution of the
Offered Securities has been completed (as notified by CSFBC), is made,
except (i) in accordance with the Registration Rights Agreement or (ii)
under restrictions and other circumstances reasonably designed not to
affect the status of the offer and sale of the Securities in the United
States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Securities Act.
l. Deloitte & Touche LLP and Price Waterhouse Coopers LLP, which
have certified certain financial statements of one or more of the Issuer,
the Partnership, the Partners and Xxxxx Refining & Marketing, whose reports
appear in the Offering Document and which have delivered the initial
letters referred to in Section 6(a), are independent public accountants
within the meaning of the Securities Act.
m. Prior to the date hereof, none of the Issuer, the Partnership,
the General Partner, nor the Limited Partner has taken any action which is
designed to or which has constituted or which might have been expected to
cause or result in stabilization or manipulation of the price of any
security of any of the Issuer, the Partnership, the General Partner, or the
Limited Partner in connection with the sale, resale or exchange of the
Securities;
x. Xxxxxx & Xxxxx, the Independent Engineer, has developed a base
case financial model which is set forth in the report of the Independent
Engineer included in the Offering Document as part of Appendix B (the "IE's
Report") and based on certain assumptions and hypothetical events set forth
in such report (the "Projections"). The Projections are based in part upon
information supplied by the Partnership to the Independent Engineer, which
information the Partnership believes is complete and correct in all
material respects as of the date hereof, and which the Partnership believes
provides a reasonable basis, in light of the assumptions included in the
IE's Report, for the preparation of the Projections. The assumptions
provided by the Partnership and included in the IE's Report for the
purposes of making the Projections were and are (A) made in good faith (B)
believed by the Partnership to be appropriate and reasonable and (C)
consistent in all material respects with the Transaction Documents. The
assumptions provided by the Partnership are disclosed in the IE's Report
included in the Offering
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Document to the extent material for purposes of consideration of the
Projections taken as a whole. The Partnership believes that the Projections
are reasonable in light of the assumptions made therein and are consistent
in all material respects with the Transaction Documents.
o. None of the Issuer, the Partnership, the General Partner nor the
Limited Partner is an open-end investment company, unit investment trust or
face-amount certificate company that is or is required to be registered
under Section 8 of the United States Investment Company Act of 1940; and
none of the Issuer, the Partnership, the General Partner nor the Limited
Partner is or, after giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as described in the
Offering Document, will be an "investment company" as defined in the
Investment Company Act.
p. Each of the representations and warranties made by the Issuer,
the Partnership and the Partners in Article III of the Common Security
Agreement (other than subparagraphs (j), (l) and (x)(iv) thereof) are
hereby incorporated by reference in their entirety as if they were set out
in this Agreement in full and are hereby made by each of the Issuer, the
Partnership and the Partners, provided that in the event of any conflict
between a representation and warranty incorporated by reference pursuant to
this clause (p), on the one hand, and any representation and warranty made
in clauses (a) through (o) of this Agreement, on the other hand, the
representations and warranties made in this Agreement shall control.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements contained in this Agreement, and
subject to the terms and conditions set forth herein, the Issuer agrees to sell
to the Initial Purchasers, and the Initial Purchasers agree, severally but not
jointly, to purchase from the Issuer the Notes at a purchase price of 98.25% of
the principal amount thereof plus accrued interest from August 19, 1999 to the
Closing Date in accordance with the respective principal amounts of the Offered
Securities set forth opposite the names of the Initial Purchasers in Schedule A
hereto.
The Issuer will deliver against payment of the purchase price the Offered
Securities to be initially offered and sold by the Initial Purchasers in
reliance on Regulation S in the form of one or more temporary global securities
in definitive, fully registered form without interest coupons (the "Temporary
Regulation S Global Securities"). The Temporary Regulation S Global Securities
shall be registered in the name of the Depository Trust Company (the "U.S.
Depository") or its nominee and deposited with the Indenture Trustee, at its
Corporate Trust Office, as custodian for the U.S. Depository, duly executed by
the Issuer and authenticated by the Indenture Trustee for credit to the
respective accounts of beneficial owners of such global securities at Xxxxxx
Guaranty Trust Company of New York, Brussels office, as operator of Euroclear,
or Citibank, N.A. as operator and Cedelbank. On or after the termination of the
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relevant Distribution Compliance Period, interests in the Temporary Regulation S
Global Security will be exchangeable for corresponding interests in an
unrestricted global Security, in definitive, fully registered form without
interest coupons. As used herein, the term "Distribution Compliance Period,"
with respect to global Securities offered and sold in reliance on Regulation S,
means the period of 40 consecutive days beginning on and including the later of
(i) the day on which the Securities of such series are first offered to persons
other than distributors (as defined in Regulation S) in reliance on Regulation S
(according to a notice to the Issuer and the Indenture Trustee provided by the
Initial Purchaser(s), if any, of the offering of such Securities) and (ii) the
date of the closing of such offering. Until the termination of the Distribution
Compliance Period, interests in the Temporary Regulation S Global Securities may
only be held by the U.S. Depository participants for Euroclear and Cedelbank.
The Issuer will deliver against payment of the purchase price the
Offered Securities to be purchased by each Initial Purchaser in reliance on Rule
144A under the Securities Act in the form of one or more global securities in
definitive, fully-registered form without interest coupons (the "Restricted
Global Security"). The Restricted Global Securities shall be registered in the
name of the U.S. Depository or its nominee and deposited with the Indenture
Trustee, at its Corporate Trust Office, as custodian for such U.S. Depository,
duly executed on behalf of the Issuer and authenticated by the Indenture Trustee
as hereinafter provided.
Payment for the Offered Securities shall be made by the Initial
Purchasers in Federal (same day) funds by official check or checks or wire
transfer to the Bond Proceeds Account drawn to the order of the Collateral
Trustee at the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 at 12:00 P.M. (New York time), on August 19, 1999 or at such other
time and date not later than seven full business days thereafter as CSFBC and
the Issuer may determine, such time being referred to herein as the "Closing
Date," against delivery to the U.S. Depository or its designated custodian of
(i) the Regulation S Global Securities representing all of the offered
Regulation S securities for the respective accounts of the U.S. Depository
participants for Euroclear and Cedelbank and (ii) the Restricted Global
Securities representing all of the 144A securities. The Regulation S Global
Securities and the Restricted Global Securities will be made available for
checking at the above office of Xxxxxxxx & Xxxxxxxx at least 24 hours prior to
the Closing Date.
4. Representations by the Initial Purchasers; Resale by Initial
Purchasers.
a. Each Initial Purchaser severally represents and warrants that it
is an "accredited investor" within the meaning of Regulation D of the
Securities Act.
b. Each Initial Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act of 1933 (the
"Securities Act") and may not be offered or sold within the United States
except in accordance with Regulation S or
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pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act. Each Initial Purchaser
severally represents and agrees that it has offered and sold, and will
offer and sell, the Offered Securities within the United States (i) as part
of its distribution at any time and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A under the Securities Act.
Accordingly, each Initial Purchaser severally agrees that, neither it nor
its affiliates, nor any Persons acting on its or their behalf, have engaged
or will engage in any directed selling efforts with respect to the Offered
Securities, and such Initial Purchaser, its affiliates and all Persons
acting on its or their behalf, have complied with and will comply with the
offering restrictions requirement of Regulation S. Each Initial Purchaser
severally agrees that, at or prior to confirmation of any sale of the
Offered Securities, other than a sale pursuant to Rule 144A, such Initial
Purchaser will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases the Offered
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
THE SECURITIES COVERED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS (i) AS PART
OF THEIR DISTRIBUTION AT ANY TIME OR (ii) OTHERWISE UNTIL 40
DAYS AFTER THE LATER OF THE DATE OF THE COMMENCEMENT OF THE
OFFERING AND THE CLOSING DATE, EXCEPT IN EITHER CASE IN
ACCORDANCE WITH REGULATION S (OR RULE 144A IF AVAILABLE)
UNDER THE SECURITIES ACT. TERMS USED ABOVE HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S."
Terms used in this subsection (b) have the meanings given to them in
Regulation S.
c. Each Initial Purchaser severally agrees that neither it nor any
of its Affiliates has entered or will enter into any contractual
arrangement with respect to the distribution of the Offered Securities,
except for any such arrangements with the other Initial Purchasers or
affiliates of the other Initial Purchasers or with the prior written
consent of the Issuer.
d. Each Initial Purchaser severally agrees that it and each of its
affiliates will not offer or sell the Offered Securities in the United
States by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act, including, but
not limited to, (i) any advertisement, article, notice or other
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communication published in any newspaper, magazine or similar media or
broadcast over television or radio or (ii) any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. Each Initial Purchaser severally agrees, with respect to
resales made in reliance on Rule 144A of any of the Offered Securities, to
deliver either with the confirmation of such resale or otherwise prior to
settlement of such resale a notice to the effect that the resale of such
Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
e. Each Initial Purchaser severally represents and agrees that (i)
it has not offered or sold, and prior to the date six months after the date
of issue of the Offered Securities will not offer or sell, any Offered
Securities to any persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offering of Securities Regulation 1995, (ii) it has
complied and will comply with all applicable provisions of the Financial
Services Act 1986 with respect to anything done by it in relation to the
Offered Securities in, from or otherwise involving the United Kingdom, and
(iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of
the Offered Securities to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such document may otherwise
lawfully be issued or passed on.
5 Covenants of the Issuer, the Partnership and the Partners. Each of the
Issuer, the Partnership and the Partners, jointly and severally, agrees with the
Initial Purchasers:
a. To prepare the Offering Document in a form approved by the
Initial Purchasers; to advise the Initial Purchasers promptly of any
proposal to amend or supplement the Offering Document; and not to effect
such amendment or supplement without CSFBC's prior written consent, which
consent shall not be unreasonably withheld. If, at any time prior to the
completion of the resale of the Offered Securities by the Initial
Purchasers, any event occurs as a result of which the Offering Document as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, the Issuer, the Partnership or the Partners will
promptly notify the Initial Purchasers of such event and will promptly
prepare, at its own expense, an amendment or supplement which will correct
such statement or omission. Neither CSFBC's consent to, nor the Initial
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
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b. To furnish to the Initial Purchasers copies of any preliminary offering
circular, the Offering Document and all amendments and supplements to such
documents, in each case as soon as available and in such quantities as CSFBC
reasonably requests. At any time when the Issuer is not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") and not exempt
from reporting pursuant to Rule 12g3-2(b) under the Exchange Act, it will
promptly furnish or cause to be furnished to the Initial Purchasers and, upon
request of holders and prospective purchasers of the Offered Securities, to such
holders and purchasers, copies of the information required to be delivered to
holders and prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by such
holders of the Offered Securities. The Issuer or the Partnership will pay the
expenses of printing and distributing all such documents.
c. To arrange for the qualification of the Offered Securities for sale, if
requested by the Initial Purchasers, under the laws of such jurisdictions in the
United States as CSFBC designates, and to maintain such qualifications in effect
so long as required for the resale of the Offered Securities by the Initial
Purchasers, provided that none of the Issuer, the Partnership nor the Partners
will be required to qualify as a foreign corporation or to subject itself to
file a general consent to service of process in any such state.
d. To use all of the proceeds received by the Issuer from the sale of the
Offered Securities in the manner specified in the Offering Document under the
caption "Use of Proceeds." The proceeds of the Offered Securities, which will
be "on-lent" directly or indirectly by the Issuer to the Partnership, will not
be used by the Partnership in violation of any applicable law or regulation,
including Regulations T, U or X of the Board of Governors of the Federal Reserve
System.
e. During the period of two years after the Closing Date to furnish to the
Initial Purchasers copies of all materials furnished by it to holders of the
Securities and any stock exchange on which any of the Securities are listed.
f. During the period of two years after the Closing Date, upon the Initial
Purchasers' request, to furnish to each of the Initial Purchasers and any holder
of Securities a copy of the restrictions on transfer, if any, applicable to the
Securities.
g. During the period of two years after the Closing Date, not to permit
any of its respective affiliates (as defined in Rule 144 under the Securities
Act) to, resell any of the Securities that have been reacquired by any of them.
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h. During the period of two years after the Closing Date, not to become an
open-end investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act, or to become, a closed-end investment company required
to be registered, but not registered, under the Investment Company Act.
i. To pay all expenses (including VAT, if applicable) incidental to the
performance if its obligations under this Agreement and the Indenture,
including without limitation: (i) the fees and expenses of the Indenture
Trustee and its professional advisers; (ii) all expenses in connection with the
execution, issue, authentication, packaging and initial delivery of the
Securities, the preparation and printing of this Agreement, the Indenture, the
Securities, the Offering Document and amendments and supplements thereto, and
any other document relating to the issuance, offer, sale, exchange or delivery
of the Securities; (iii) the fees and expenses of the Independent Consultant;
(iv) any expenses (including reasonable fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions in the United States as CSFBC reasonably
designates and the printing of memoranda relating thereto; (v) any fees charged
by investment rating agencies for the rating of the Securities; (vi) the
reasonable fees and disbursements of New York and Texas counsel to the Initial
Purchasers; and (vii) any expenses incurred in distributing the Offering
Document (including any amendments and supplements thereto). In addition, it
agrees to pay, or reimburse the Initial Purchasers (to the extent incurred by
them) for, all travel expenses of the Initial Purchasers, the Issuer's, the
Partnership's and the Partners' respective officers and employees and for any
expenses of the Initial Purchasers, the Issuer, the Partnership and the Partners
in connection with attending or hosting meetings with prospective purchasers of
the Securities from the Initial Purchasers.
j. Except as otherwise disclosed in the Offering Document and contemplated
by the Common Security Agreement with respect to the other Senior Loan
Agreements (including the incurrence of other Senior Debt), for a period of 90
days after the date of the initial offering of the Offered Securities by the
Initial Purchasers, it will not offer, sell, contract to sell, pledge, guarantee
or otherwise dispose of, directly or indirectly, any other U.S. dollar-
denominated debt securities. Furthermore, it will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any securities
where such offer, sale, pledge, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act or the safe harbor of
Regulation S thereunder to cease to be applicable to the offer and sale of the
Offered Securities.
12
6. Conditions of the Obligation of the Initial Purchasers. The obligation
of the Initial Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of all the representations and warranties on the part of
the Issuer, the Partnership and the Partners herein, to the accuracy of all of
the statements of officers of the Issuer, the Partnership and the Partners
(collectively, the "Relevant Parties") made in the certificates set forth below,
to the performance by the Relevant Parties of their respective obligations under
this Agreement and to the following additional conditions precedent:
a. The Initial Purchasers shall have received letters, dated the date
of this Agreement, of each of Deloitte & Touche LLP and Price Waterhouse
Coopers LLP, substantially in the form set forth in Exhibit A, concerning
the financial information of the Issuer, the Partnership, the Partners and
Xxxxx Refining & Marketing set forth in the Offering Document.
b. Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions as would, in the judgment of CSFBC, be
likely to adversely prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities or (ii) (A) any change, or
any development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of the
Issuer, the Partnership, the Partners or, on a consolidated basis, Xxxxx
Refining & Marketing, which, in the judgment of CSFBC, is material and
adverse and makes it impractical or inadvisable to proceed with the
completion of the offering or sale of and payment for the Offered
Securities; (B) any downgrading in the rating of any debt securities of the
Issuer, the Partners or Xxxxx Refining & Marketing by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any new public announcement that
any such organization has under surveillance or review its rating of any
debt securities of the Issuer, the Partners or Xxxxx Refining & Marketing
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(C) any suspension or limitation of trading in securities generally on the
New York Stock Exchange, Inc.; (D) any general commercial banking
moratorium declared by U.S. Federal or New York authorities; or (E) any
outbreak or escalation of major hostilities in which the United States or
is involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of
CSFBC, the effect of any such outbreak, escalation, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with completion
of the offering or sale of and payment for the Offered Securities.
c. The Initial Purchasers shall have received opinions, dated the
Closing Date, of general counsel for the Xxxxx Entities, in the forms
attached hereto as Exhibit B, with such changes as Xxxxxxxx & Xxxxxxxx
shall reasonably request.
13
d. The Initial Purchasers shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, New York and Delaware counsel to the Issuer, the Partnership, the
Partners, the Xxxxx Entities and Blackstone, (i) opinions, dated the
Closing Date, in the forms attached hereto as Exhibit C, with such changes
that Xxxxxxxx & Xxxxxxxx shall reasonably request and (ii) a
nonconsolidation opinion, dated the Closing Date, satisfactory in form and
content to the Initial Purchasers.
e. The Initial Purchasers shall have received from Xxxxxxxx &
Xxxxxxxx, counsel to the Initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to the validity of the Offered
Securities, the Offering Document, the exemption from registration for the
offer and sale of the Offered Securities by the Issuer to the Initial
Purchasers and the resales by the Initial Purchasers as contemplated hereby
and other related matters as CSFBC may require, and the Issuer, the
Partnership and the Partners shall have furnished to such counsel such
documents as they request for the purpose of enabling them to pass upon
such matters.
f. The Initial Purchasers shall have received the opinions of Mexican
counsel to PMI and PEMEX, in the form attached hereto as Exhibit D.
g. The Initial Purchasers shall have received the opinions of Xxxxxx,
Xxxxxx-Xxxxxxx, Colt & Mosle LLP, U.S. counsel to PMI and Pemex, in the
form attached hereto as Exhibit E.
h. The Initial Purchasers shall have received the opinion of counsel
to the EPC Contractor and the EPC Guarantor, in the form attached hereto as
Exhibit F.
i. The Initial Purchasers shall have received the opinions of Xxxxx
Xxxxx & Xxxxx, Texas real estate counsel to the Issuer, the Partnership and
the Partners in the form attached hereto as Exhibit G, with such changes as
Xxxxxxxx & Xxxxxxxx shall reasonably request.
j. The Initial Purchasers shall have received the opinion of Xxxxxx &
Xxxxxx L.L.P., Texas environmental counsel to the Issuer, the Partnership
and the Partners in the form attached hereto as Exhibit H.
k. The Initial Purchasers shall have received the opinion of counsel
to Occidental Petroleum, in the form attached hereto as Exhibit I.
l. The Initial Purchasers shall have received the opinion of Xxxxxx
Xxxx & Xxxxxxx, English counsel to the Oil Payment Insurers Administrative
Agent, in the form attached hereto as Exhibit J.
14
m. The Initial Purchasers shall have received the opinion of counsel
to the Hydrogen Supplier, in the form attached hereto as Exhibit K.
n. The Initial Purchasers shall have received the opinion of X.X.
Xxxxxx & Company, Cayman Islands counsel to Blackstone, in the form
attached hereto as Exhibit L.
o. The Initial Purchasers shall have received the opinion of
Xxxxxxxxxxxx & Oxford, special Texas counsel to the Issuer, the
Partnership, the Limited Partner and the General Partner, in the form
attached hereto as Exhibit M.
p. The Initial Purchasers shall have received a certificate, dated
the Closing Date, in a form acceptable to CSFBC, of the President or any
Vice President and a principal financial or accounting officer of each of
the Issuer, the Partnership, the General Partner and the Limited Partner,
in which such persons, to the best of their knowledge after reasonable
investigation, shall state that the applicable representations and
warranties in this Agreement of the Issuer and the General Partner,
respectively, are true and correct, that the Issuer and the General
Partner, respectively, have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied under this Agreement at
or prior to the Closing Date, and that, subsequent to the date of the most
recent financial statements included in the Offering Document, 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 Issuer , the
Partnership, the General Partner and the Limited Partner, respectively,
except as set forth in, or contemplated by, the Offering Document or as
described in such certificate.
q. The Initial Purchasers shall have received a certificate, dated
the Closing Date, in a form acceptable to CSFBC, of the President or any
Vice President and a principal financial or accounting officer of Xxxxx
Refining & Marketing in which such persons, to the best of their knowledge
and reasonable investigation, shall state that the representations and
warranties of Xxxxx Refining & Marketing set forth in the Letter Agreement
are true and correct and that subsequent to the date of the most recent
financial statements included in the Offering Document, there has been no
material adverse change, nor any development or event involving a material
adverse change, in the condition (financial or other), business, properties
or results of operations of Xxxxx Refining & Marketing that has a Material
Adverse Effect, except as set forth in, or contemplated by, the Offering
Document or as described in such certificate.
r. The Initial Purchasers shall have received letters, dated the
Closing Date, of each of Deloitte & Touche LLP and Price Waterhouse Coopers
LLP, which meet the requirements of paragraph (a) above, except that (i)
the specified date referred to in such
15
subsection will be a date not more than three days prior to the Closing
Date for purposes of this paragraph (r) and (ii) with respect to the letter
from Deloitte & Touche, such letter shall provide comfort regarding Xxxxx
Refining & Marketing's quarterly report on form 10-Q for the quarter ended
June 30, 1999, to be filed shortly after the date of this Agreement and
prior to the Closing Date.
s. The Initial Purchasers shall have received a letter of Xxxxxx &
Xxxxx, dated the Closing Date, addressed to the Initial Purchasers and in a
form satisfactory to CSFBC, confirming that it is an independent consultant
with respect to the Project and reaffirming, as of the Closing Date, the
accuracy and completeness in all material respects of all statements made
in its reports included in the Final Offering Document.
t. Each of Xxxxx'x and S&P shall have delivered to the Partnership
and the Initial Purchasers a final rating letter setting forth a rating
with respect to the Offered Securities of at least "Ba3" and "BB,"
respectively.
u. On or prior to the Closing Date, each of the Issuer, the
Partnership and the Partners shall have furnished to the Initial Purchasers
evidence reasonably satisfactory to the Initial Purchasers of the
acceptance of the appointment of an agent for service of process referenced
in Section 14.
v. Each of the conditions precedent set forth in Section 9.01 of the
Common Security Agreement shall have been fully satisfied.
The Partnership will furnish the Initial Purchasers with such conformed copies
of such other opinions, certificates, letters and documents as the Initial
Purchasers may reasonably request. CSFBC may in its sole discretion waive
compliance with any conditions to its obligations under this Agreement, whether
in respect of the Closing Date or otherwise.
7. Indemnification and Contribution.
a. Each of the Partnership, the Issuer, the Partners and Xxxxx
Refining Holdings, jointly and severally, will indemnify and hold harmless
the Initial Purchasers against any losses, claims, damages, liabilities
(collectively, "Losses") to which any Initial Purchaser may become subject,
under the Securities Act or otherwise, insofar as such Losses (or actions
in respect thereof) arise out of or are based upon any breach of any of the
representations and warranties of the Issuer, the Partnership, the Partners
or Xxxxx Refining Holdings contained in this Agreement (except that Xxxxx
Refining Holdings shall have no such indemnification obligation in respect
of any representations and warranties incorporated by reference pursuant to
subparagraph (p) of Section 2 hereof) or any untrue statement or alleged
untrue statement of a material fact contained in the Offering Document
(including, for the purposes of clarity, the Selected Information),
16
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and will reimburse such Initial Purchaser for any legal or
other expenses reasonably incurred by such Initial Purchaser in connection
with investigating or defending any such Loss as such expenses are
incurred, provided, however, that neither the Issuer, the Partnership, the
Partners nor Xxxxx Refining Holdings will be liable in any such case to the
extent that any such Loss arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with (i)
Xxxxx Refining & Marketing Information or (ii) written information
furnished by any Initial Purchaser through CSFBC specifically for use
therein, it being understood and agreed that the only such information
consists of the information described as such in paragraph (b) below
provided further, however, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any
preliminary offering circular the indemnity agreement contained in this
subsection (a) shall not inure to the benefit of any Initial Purchaser that
sold the Securities concerned to the person asserting any such Losses to
the extent that such sale was an initial resale by such Initial Purchaser
and any such Loss of such Initial Purchaser results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the
final Offering Document (exclusive of any material included therein but not
attached thereto) if the Issuer had previously furnished copies thereof to
such Initial Purchaser.
b. Each Initial Purchaser, severally and not jointly, will indemnify
and hold harmless the Issuer, the Partnership, the Partners and Xxxxx
Refining Holdings against any Losses to which any of them may become
subject, under the Securities Act or otherwise, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any breach of
any of the representations and warranties of such Initial Purchaser
contained herein or any untrue statement or alleged untrue statement of any
material fact contained in the Offering Document, or any amendment or
supplement thereto, or any related preliminary offering circular, or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written
information furnished to the Issuer, the Partnership, the Partners or Xxxxx
Refining Holdings by such Initial Purchaser through CSFBC specifically for
use therein, and will reimburse any legal or other expenses reasonably
incurred by the Issuer, the Partnership, the Partners or Xxxxx Refining
Holdings in connection with investigating or defending any such Loss as
such expenses are incurred, it being understood and agreed that the only
such information furnished by the Initial Purchasers consists of the
17
following information in the Offering Document: the third paragraph,
the third sentence of the seventh paragraph and the tenth paragraph under
the caption "Plan of Distribution."
c. Promptly after receipt by an indemnified party under this Section
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 paragraph (a) or (b) above, notify in writing the indemnifying party
of the commencement thereof; but the omission so to notify the indemnifying
party will not relieve it from any liability that it may have to any
indemnified party otherwise than under paragraph (a) or (b) above. In case
any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel satisfactory to such indemnified
party (who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party) and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and does
not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
d. If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under paragraph (a)
or (b) above, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the Losses
referred to in paragraph (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuer, the
Partnership, the Partners and Xxxxx Refining Holdings on the one hand and
the Initial Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Issuer, the Partnership, the Partners and
Xxxxx Refining Holdings on the one hand and the Initial Purchasers on the
other in connection with the statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative
benefits received by the Issuer, the Partnership, the Partners and Xxxxx
Refining Holdings on the one hand and the Initial Purchasers on the other,
shall be deemed to be in the same proportion as the total net proceeds from
the offering (before
18
deducting expenses) received by the Issuer bear to the total discounts and
commissions received by the Initial Purchasers from the Issuer under this
Agreement. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Issuer, the Partnership, the Partners and
Xxxxx Refining Holdings on the one hand, or the Initial Purchasers on the
other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the Losses referred
to in the first sentence of this paragraph (d) shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim which is
the subject of this paragraph (d). Notwithstanding the provisions of this
paragraph (d), no Initial Purchaser shall be required to contribute any
amount in excess of the amount by which the total price at which the
Offered Securities purchased by it were resold exceeds the amount of any
damages that such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations in this paragraph
(d) to contribute are several in proportion to their respective purchase
obligations and not joint.
e. The obligations of the Issuer, the Partnership, the Partners and
Xxxxx Refining Holdings under this Section shall be in addition to any
liability that they may otherwise have and shall extend, upon the same
terms and conditions, to each Person, if any, who controls any Initial
Purchaser within the meaning of the Securities Act or the Exchange Act; and
the several obligations of the Initial Purchasers under this Section shall
be in addition to any liability that the Initial Purchasers may otherwise
have and shall extend, upon the same terms and conditions, to each officer
and director of the Issuer, the Partnership, the Partners and Xxxxx
Refining Holdings and to each Person, if any, who controls the Issuer, the
Partnership, the Partners or Xxxxx Refining Holdings within the meaning of
the Securities Act or the Exchange Act.
8. Default of Initial Purchasers. If any Initial Purchaser defaults in its
several obligation to purchase Offered Securities under this Agreement and the
aggregate principal amount of the Offered Securities that such defaulting
Initial Purchaser agreed but failed to purchase does not exceed 10% of the total
principal amount of the Offered Securities, the non-defaulting Initial Purchaser
may make arrangements for the purchase of such Offered Securities by other
Persons, including by any non-defaulting Initial Purchaser, but if no such
arrangements are made by the Closing Date, the non-defaulting Initial Purchasers
shall be obligated to purchase the Offered Securities that such defaulting
Initial Purchaser agreed but failed to purchase. If any Initial Purchaser so
defaults and the aggregate principal amount of the Offered Securities with
respect to which such default occurs exceeds 10% of the total principal amount
of the Offered
19
Securities and arrangements for the purchase of such Offered Securities by the
non-defaulting Initial Purchasers are not made within 36 hours after such
default, then the Issuer, the Partnership and the Partners shall be entitled to
a further period of 36 hours within which to procure another person satisfactory
to the non-defaulting Initial Purchasers to purchase the Offered Securities
under the terms contained herein. In the event that within seventy-two hours
after such default, arrangements for the purchase of such Offered Securities by
other persons are not made, this Agreement will terminate without liability on
the part of any non-defaulting Initial Purchaser or the Issuer or the
Partnership, except as provided in Section 7. As used in this Agreement, the
term "Initial Purchaser" includes any person substituted for an Initial
Purchaser under this Section. Nothing in this Section 8 will relieve a
defaulting Initial Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuer, the Partnership, the Partners, Xxxxx Refining Holdings and the Initial
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Initial Purchaser, the Issuer, the
Partnership, the Partners or Xxxxx Refining Holdings or any of their respective
representatives, officers or directors or any controlling Person, and will
survive delivery of and payment for the Offered Securities. If for any reason
the purchase of the Offered Securities by the Initial Purchasers is not
consummated, the Partnership shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 5 and the respective obligations of
the Issuer, the Partnership, the Partners, Xxxxx Refining Holdings and the
Initial Purchasers pursuant to Section 7 shall remain in effect. If the
purchase of the Offered Securities by the Initial Purchasers is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (C),
(D) or (E) of Section 6(b)(ii), the Partnership will reimburse each Initial
Purchaser not in default in its obligation to purchase the Offered Securities
for all its out-of-pocket expenses (including reasonable fees and disbursements
of counsel) incurred by them in connection with the offering of the Offered
Securities.
10. Notices. All communications hereunder will be in writing and (i) if
sent to the Initial Purchasers will be mailed, delivered or telegraphed and
confirmed to CSFBC at Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 10010-3629,
Attention: Investment Banking Department -- Transactions Advisory Group, (ii) if
sent to the Partnership, will be mailed, delivered or telegraphed and confirmed
to it at 0000 X. Xxxxxxx Xxxxx, Xxxxxx Xx. 00, Xxxx Xxxxxx, Xxxxx 00000 (iii) if
sent to the Issuer, will be mailed, delivered or telegraphed and confirmed to it
at 0000 X. Xxxxxxx Xxxxx, Xxxxxx Xx. 00, Xxxx Xxxxxx, Xxxxx 00000, (iv) if sent
to the General Partner will be mailed, delivered or telegraphed and confirmed to
it at 0000 X. Xxxxxxx Xxxxx, Xxxxxx Xx. 00, Xxxx Xxxxxx, Xxxxx 00000, (v) if
sent to the Limited Partner, will be mailed, delivered or telegraphed and
confirmed to it at 0000 X. Xxxxxxx Xxxxx, Xxxxxx Xx. 00, Xxxx
20
Xxxxxx, Texas 77640, and (vi) if sent to Xxxxx Refining Holdings will be mailed,
delivered or telegraphed and confirmed to it at 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx 00000.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the controlling
Persons referred to in Section 7, but only to the extent set forth in Section 7,
and no other Person will have any right or obligation hereunder, except that
holders of Offered Securities shall be entitled to enforce the agreements for
their benefit contained in the second and third sentences of Section 5(b)
against the Issuer, the Partnership and the Partners as if such holders were
parties thereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
14. Jurisdiction. Each of the Issuer, the Partnership, the Partners and
Xxxxx Refining Holdings hereby submit to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or related to this Agreement or the
transactions contemplated hereby and thereby. Each of the Issuer, the
Partnership, the Partners and Xxxxx Refining Holdings irrevocably waives any
claim, defense or objection that it is not subject to personal jurisdiction in a
Federal or state court in the Borough of Manhattan in The City of New York or
that venue for such suit is not properly laid in such court. Each of the Issuer,
the Partnership, the Partners and Xxxxx Refining Holdings will irrevocably
appoint CT Corporation System as its authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any such
suit or proceeding, and agrees that service of process upon such agent, and
written notice of said service to such entity, by the person seeing the same to
the address provided in Section 10, shall be deemed in every respect effective
service of process upon the Issuer, the Partnership, the Partners and Xxxxx
Refining Holdings, respectively, in any such suit or proceeding. Each of the
Issuer, the Partnership, the Partners and Xxxxx Refining Holdings further agree
to take any and all action as may be necessary to maintain such designation and
appointment of such agent in full force and effect for a period of seven years
from the date of this Agreement.
21
If the foregoing is in accordance with the Initial Purchasers'
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement among the
Issuer, the Partnership, the Partners, Xxxxx Refining Holdings and the Initial
Purchasers in accordance with its terms.
Very truly yours,
PORT XXXXXX FINANCE CORP.,
as Issuer
By /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
PORT XXXXXX XXXXX COMPANY L.P.
By: SABINE RIVER HOLDING CORP.,
as Guarantor
By /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
SABINE RIVER HOLDING CORP.,
as General Partner and Guarantor
By /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
22
NECHES RIVER HOLDING CORP.,
As Limited Partner and Guarantor
By /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
Xxxxx Refining Holdings, Inc.
By /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
:
The foregoing Purchase Agreement
is hereby confirmed and accepted as
of the date first above written.
Credit Suisse First Boston Corporation
By /s/ Xxxxxx Xxxxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
Xxxxxxx, Xxxxx & Co.
By /s/ Xxxxxxx, Xxxxx & Co.
--------------------------
Deutsche Bank Securities Inc.
By /s/ Xxxx XxXxxx
--------------------------
Name: Xxxx XxXxxx
Title: Managing Director
By /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
Title: Vice President
23
SCHEDULE A
Principal Amount of
12.50% Senior Secured
Notes due 2009
----------------------------
Credit Suisse First $178,500,000
Boston Corporation
Xxxxxxx, Xxxxx & Co. $ 63,750,000
Deutsche Bank Securities Inc. $ 12,750,000
Total $255,000,000
25
Exhibit A-1
[LETTERHEAD OF DELOITTE TOUCHE APPEARS HERE]
August 10, 1999
The Board of Directors of
Port Xxxxxx Finance Corp.
Sabine River Holding Corp. and
Neches River Holding Corp.
0000 X. Xxxxxxx Xxxxx
Xxxxxx Xx. 00
Xxxx Xxxxxx, Xxxxx 00000
The Board of Directors of
Xxxxx Refining & Marketing, Inc. and
Xxxxx Refining Holdings, Inc.
0000 Xxxxxxxx Xxxxxx
Xx.Xxxxx, Xxxxxxxx 00000
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Deutsche Banc Xxxx Xxxxx
c/o Credit Suisse First Boston
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
We have audited the balance sheets of Port Xxxxxx Finance Corp. (the "Issuer")
and of Port Xxxxxx Xxxxx Company L.P., Sabine River Holding Corp., and Neches
River Holding Corp. (the "Guarantors") as of August 5, 1999. The balance sheet
of Port Xxxxxx Xxxxx Company L.P., the sole shareholder of the Issuer, is
included in the Offering Circular of the Issuer, dated August 10, 1999, relating
to the $225,000,000, 12.5% Senior Notes Due 2009 (the "Notes"). Our report with
respect thereto is also included in that Offering Circular. The Offering
Circular, dated August 10, 1999, is herein referred to as the Offering Circular.
We have also audited the consolidated balance sheets of Xxxxx Refining &
Marketing, Inc. and Subsidiaries ("Xxxxx") as of December 31, 1998 and 1997, and
the related consolidated statements of earnings, stockholders' equity, and cash
flows for each of the two years in the period ended December 31, 1998, all
included in Xxxxx'x annual report on Form 10-KA for the year ended
[LOGO APPEARS HERE]
December 31, 1998, and incorporated by reference in the Offering Circular; our
report with respect thereto is also incorporated by reference in the Offering
Circular.
This letter is being furnished in reliance upon your representation to us that:
a. You are knowledgeable with respect to the due diligence review process that
would be performed if this placement of securities were being registered
pursuant to the Securities Act of 1933 (the "Act").
b. In connection with the offering of the Notes, the review process you have
performed is substantially consistent with the due diligence review process
that you would have performed if this placement of securities were being
registered pursuant to the Act.
In connection with the Offering Circular:
1. We are independent certified public accountants with respect to the Issuer,
the Guarantors and Xxxxx under Rule 101 of the AICPA's Code of Professional
Conduct, and its interpretations and rulings.
2. We have not audited any financial statements of the Issuer or the
Guarantors as of any date or for any period subsequent to August 5, 1999;
although we conducted audits as of August 5, 1999, the purpose (and
therefore scope) of the audits was to enable us to express our opinion on
the balance sheets as of August 5, 1999. Therefore, we are unable to and do
not express any opinion on the financial position, results of operations
or cash flows of the Issuer or the Guarantors as of any date or for any
period subsequent to August 5, 1999.
3. We have not audited any financial statements of Xxxxx as of any date or for
any period subsequent to December 31, 1998; although we conducted an audit
for the year ended December 31, 1998, the purpose (and therefore the scope)
of the audit was to enable us to express our opinion on the consolidated
financial statements of Xxxxx as of December 31, 1998, and for the year
then ended, but not on the consolidated financial statements for any
interim period within that year. Therefore, we are unable to and do not
express any opinion on the unaudited condensed consolidated balance sheet
as of March 31, 1999, and the unaudited condensed consolidated statements
of income, stockholders' equity, and cash flows for the three-month periods
ended March 31, 1999 and 1998, included in Xxxxx'x quarterly report on Form
10-Q for the quarter ended March 31, 1999, incorporated by reference in the
Offering Circular, or on the financial position, results of operations, or
cash flows as of any date or for any period subsequent to December 31,
1998.
4. For purposes of this letter we have read the 1999 minutes of meetings of
the Board of Directors of the Issuer, the Guarantors and Xxxxx as set forth
in the minute books at August 5, 1999, officials of the Issuer, the
Guarantors and Xxxxx having advised us that the minutes of all such
meetings through that date were set forth therein; we have carried out
other procedures to August 5, 1999, as follows (our work did not extend to
the period from August 5, 1999 to August 10, 1999, inclusive):
-2-
a. With respect to Xxxxx for the three-month periods ended March 31, 1991 and
1998, we have:
(i) Performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial Information,
on the unaudited condensed consolidated balance sheet as of March
31,1999, and unaudited condensed consolidated statements of income,
stockholders' equity, and cash flows for the three-month periods ended
March 31, 1999 and 1998, included in Xxxxx'x quarterly report on Form
10-Q for the quarter ended March 31, 1999, incorporated by reference
in the Offering Circular.
(ii) Inquired of certain officials of Xxxxx who have responsibility for
financial and accounting matters whether the unaudited condensed
consolidated financial statements referred to in 4a(i) comply as to
form in all material respects with generally accepted accounting
principals.
b. With respect to Xxxxx for the three and six month periods ended June 30,
1999, we have:
(i) Read the unaudited capsule financial information as of and for
the three and six month periods ended June 30, 1999 as set forth
in the Recent Developments section of the Offering Circular.
(ii) Performed the procedures specified by the American Institute of
Certified Public Accountants for a review of interim financial
information as described in SAS No. 71, Interim Financial
Information, on the unaudited condensed consolidated balance
sheet as of June 30, 1999, and unaudited condensed consolidated
statements of income, stockholders' equity, and cash flows for
the three and six month periods ended June 30, 1999 and 1998,
such financial statements are incomplete as they omit certain
disclosures.
(iii) Inquired of certain officials of Xxxxx who have responsibility
for financial and accounting matters whether the unaudited
condensed consolidated financial statements referred to in a(i)
comply as to form in all material respects with generally
accepted accounting principals.
The foregoing procedures do not constitute an audit conducted in accordance with
generally accepted auditing standards. Also, they would not necessarily reveal
matters of significance with respect to the comments in the following paragraph.
Accordingly, we make no representations regarding the sufficiency of the
foregoing procedures for your purposes.
-3-
5. Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that:
a. Any material modifications should be made to the Xxxxx unaudited
condensed consolidated financial statements described in 4a(i),
incorporated in the Offering Circular by reference, for them to be in
conformity with generally accepted accounting principles.
b. Any material modifications should be made to the Xxxxx unaudited
condensed financial statements described in 4b(ii), not included in
the Offering Circular, for them to be in conformity with generally
accepted accounting principles.
6. Officials of Xxxxx have advised us that no financial statements of Xxxxx as
of any date or for any period subsequent to June 30, 1999, are available;
accordingly, the procedures carried out by us with respect to changes in
financial statement items for Xxxxx after June 30, 1999, have, of
necessity, been even more limited than those with respect to the periods
referred to in 4. We have inquired of certain officials of Xxxxx who have
responsibility for financial and accounting matters whether (a) at August
5, 1999, there was any change in the capital stock, increase in long term
debt or any change in stockholders' equity of Xxxxx as compared with
amounts shown on the June 30, 1999, unaudited condensed consolidated
balance sheet, or (b) for the period from July 1, 1999, to August 5, 1999,
there were any decreases, as compared with the corresponding period in the
preceding year, in consolidated net sales and operating revenues, in
earnings (loss) from continuing operations before discontinued operations
and extraordinary items or of net earnings (loss) of Xxxxx. On the basis of
these inquiries and our reading of the minutes as described in 4, nothing
came to our attention that caused us to believe that there was any such
change, increase, or decrease, except in all instances for changes,
increases, or decreases that the Offering Circular discloses have occurred
or may occur.
7. For purposes of this letter, we have also read the items identified by you
on the attached copy of selected pages from the Offering Circular, Xxxxx'x
December 31, 1998 10-KA filing, and Xxxxx'x March 31, 1999 10-Q filing and
have performed the following procedures, which were applied as indicated
with respect to the symbols explained below. It should be understood that
(1) we make no representations regarding Xxxxx'x determination and
presentation of the non-GAAP measures of financial performance (EBITDA,
EBITDA as adjusted), and (2) the non-GAAP measures presented may not be
comparable to similarly titled measures reported by other companies.
a. Compared the amount with (or recomputed from) Xxxxx'x audited
consolidated financial statements (after rounding and/or
reclassification, where applicable) and notes thereto, as of or for
the period indicated, incorporated by reference in the Offering
Circular and found them to be in agreement.
b. Compared the amount with (or recomputed from) Xxxxx'x unaudited
consolidated financial statements (after rounding and/or
reclassification, where applicable), as of or
-4-
for the period indicated, incorporated by reference in the Offering
Circular and found them to be in agreement.
c. Compared the amount with (or recomputed from) a schedule or report
prepared by Xxxxx and found them to be in agreement. We further
checked such schedules or reports prepared by Xxxxx and found that
they were in agreement with, or properly derived from the general
accounting records of Xxxxx that are subject to Xxxxx'x internal
controls.
d. Compared the amount with (or computed from) audited balance sheet
(after rounding, where applicable) and notes thereto of Port Xxxxxx
Xxxxx Company, L.P., as of or for the period indicated, included in
the Offering Circular and found them to be in agreement.
8. Our audits of the financial statements for the periods referred to in the
introductory paragraph of this letter comprised audit tests and procedures
deemed necessary for the purpose of expressing an opinion on the
financial statements taken as a whole. For none of the periods referred to
therein, or any other period, did we perform audit tests for the purpose
of expressing an opinion on individual balances of accounts or summaries of
selected transactions such as those enumerated above and, accordingly, we
express no opinion thereon.
9. It should be understood that we make no representations regarding questions
of legal interpretation or regarding the sufficiency for your purposes of
the procedures enumerated in the preceding paragraph; also, such procedures
would not necessarily reveal any material misstatement of the amounts or
percentages listed above. Further, we have addressed ourselves solely to
the foregoing data as set forth in the Offering Circular and make no
representation regarding the adequacy of disclosure or regarding whether
any material facts have been omitted.
10. This letter is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the company in connection with the offering of the securities
covered by the Offering Circular, and it is not to be used, circulated,
quoted, or otherwise referred to within or without the underwriting group
for any purpose, including but not limited to the registration, purchase,
or sale of securities, nor is it to be filed with or referred to in whole
or in part in the Offering Circular or any other document, except that
reference may be made to it in the underwriting agreement or in any list of
closing documents pertaining to the offering of the securities covered by
the Offering Circular.
Yours truly,
Deloitte & Touche LLP
-5-
Exhibit A-2
[LETTERHEAD OF PRICEWATERHOUSECOOPERS APPEARS HERE]
August 10, 1999
Xxxxx Refining & Marketing, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
and
Credit Suisse First Boston Corporation
Xxxxxxx, Xxxxx & Co.
Deutsche Banc. Xxxx Xxxxx
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
As Initial Purchasers for Port Xxxxxx Finance Corp. $255,000,000 Senior Secured
Notes due 2009.
Dear Sirs and Madams:
We have audited the consolidated statements of operations, stockholder's equity
and cash flows of Xxxxx Refining & Marketing, Inc. and Subsidiaries (the
"Company") for the year ended December 31, 1996, as incorporated by reference in
the Offering Circular of Port Xxxxxx Finance Corp. $255,000,000 Senior Secured
Notes due 2009 (the "Securities"). Our report with respect thereto is
incorporated by reference in the Offering Circular. This Offering Circular,
dated August 10, 1999, is herein referred to as the "Offering Circular".
Xxxxx Refining & Marketing, Inc. - 2 August 10, 1999
This letter is being furnished in reliance upon your representation to us that:
a. You are knowledgeable with respect to the due diligence review process that
would be performed if this placement of securities were being registered
pursuant to the Securities Act of 1933 (the "Act").
b. In connection with the offering of Securities of Port Xxxxxx Finance Corp.,
the review process you have performed is substantially consistent with the
due diligence review process that you would have performed if this
placement of the Securities were being registered pursuant to the Act.
In connection with the Offering Circular:
1. We are independent certified public accountants with respect to the Company
under Rule 101 of the AICPA's Code of Professional Conduct, and its
interpretations and rulings.
2. We have not audited any financial statements of the Company as of any date
or for any period subsequent to December 31, 1996; although we have
conducted an audit for the year ended December 31, 1996, the purpose (and
therefore the scope) of the audit was to enable us to express our opinion
on the consolidated financial statements as of December 31, 1996 and for
the year then ended, but not on the financial statements for any interim
period within that year. Therefore, we are unable to and do not express any
opinion on the financial position, results of operations or cash flows as
of any date or any period subsequent to December 31, 1996. We are not the
Company's independent accountants for any period subsequent to December 31,
1996.
3. For purposes of this letter, we have also read the items identified by you
on the attached copy of pages from the Offering Circular and copy of pages
from the Company's Annual Report on Form 10-K, as amended by Amendment No.
1 thereto on Form 10-K/A for the fiscal year ended December 31, 1998 as
incorporated by reference in the Offering Circular and have performed the
following procedures, which were applied as indicated with respect to the
letters explained below:
Xxxxx Refining & Marketing Inc. - 3 August 10, 1999
A. We compared the amounts to the corresponding amounts included in the
Company's audited consolidated financial statements for the respective
accounting period and found them to be in agreement after giving
effect to aggregation or rounding. However, we make no comment with
respect to reasons given to any causal relationships. The audited
consolidated financial statements have been reclassified to reflect
the Company's retail operations as discontinued.
B. We compared the amounts to the consolidated financial statements
prepared by the Company which were adjusted for the effects of
reclassifying of the Company's retail operations as discontinued. We
compared these consolidated financial statements to the audited
consolidated financial statements and found them to be in agreement
except to the extent that they reflect the reclassification the
Company's retail operations as discontinued. After compensating for
the effects of such reclassification, we found the consolidated
financial statements prepared by the Company to be in agreement with
the audited consolidated financial statements.
C. We compared the amount to the corresponding amount included in or
derived from the Company's accounting records (or recomputed the
amount, if applicable based on such accounting records) and found it
to be in agreement after giving effect to rounding. With respect to
the refining and retail sales, operating income, operating expenses,
costs of sales, net margins, and divisional general and administrative
expenses, we make no comment regarding the appropriateness of the
classification of expense categories, the allocation by location or
the allocation between refining, retail, or pipelines. With respect to
the classification of certain operating expenses or items as unusual,
we make no comment regarding the completeness or appropriateness of
the Company's determination of what constitutes unusual expenses or
items. With respect to the Company's definition of operating cash
flow, we make no comment regarding the appropriateness of the
definition used by the Company. We also make no comment with respect
to reasons given to any causal relationships.
4. Our audit of the financial statements for the period referred to in the
introductory paragraph of this letter comprised audit tests and procedures
deemed necessary for the purpose of expressing an opinion on such financial
statements taken as a whole. For none of the periods referred to therein,
or any other period, did we perform audit tests for the
Xxxxx Refining & Marketing, Inc. - 4 August 10, 1999
purpose of expressing an opinion on individual balances of accounts or
summaries of selected transactions such as those items marked on the
attached copies of pages of the Offering Circular or items incorporated by
reference and, accordingly, we express no opinion thereon.
5. It should be understood that we make no representations regarding questions
of legal interpretation or regarding the sufficiency for your purposes of
the procedures enumerated in paragraph 3. Also, such procedures would not
necessarily reveal any material misstatement of the amounts or percentages
listed above. Further, we have addressed ourselves solely to the foregoing
data as set forth in the Offering Circular and 1998 10-K/A and make no
representations regarding the adequacy of disclosure or regarding whether
any material facts have been omitted.
6. This letter is solely for the information of the addressees and to assist
the initial purchasers in conducting and documenting their investigation of
the affairs of the Company in connection with the offering of the
securities covered by the Offering Circular, and it is not to be used,
circulated, quoted, or otherwise referred to for any other purpose,
including, but not limited to the purchase or sale of securities, nor is it
to be filed with or referred to in whole or in part in the Offering
Circular or any other document, except that reference may be made to it in
the underwriting agreement or in any list of closing documents pertaining
to the offering of the securities covered by the Offering Circular.
Very truly yours,
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
jpt/ymf
[Exhibits B through M not filed with this registration statement]
EXHIBIT N
REGISTRATION RIGHTS AGREEMENT*
----------------
* This agreement filed as Exhibit 4.03 to the registration statement of which
this exhibit is a part.