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EXHIBIT 10.32
U.S. $150,000,000
GIANT INDUSTRIES, INC.
9% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
August 21, 1997
UBS Securities LLC
Donaldson, Lufkin & Jenrette Securities Corporation
BancAmerica Securities, Inc.
Jefferies & Company, Inc.
c/o UBS Securities LLC
299 Park Avenue
New York, NY 10171-0026
Dear Sirs:
Giant Industries, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to UBS Securities LLC ("UBS"), Donaldson, Lufkin & Jenrette Securities
Corporation, BancAmerica Securities, Inc. and Jefferies & Company, Inc. (the
"Purchasers") U.S. $150,000,000 principal amount of 9% Senior Subordinated Notes
due 2007 (the "Notes"). The Notes are to be issued pursuant to an Indenture
dated as of August 26, 1997 (the "Indenture"), among the Company, each of the
Company's subsidiaries, which are listed on the signature pages hereto, as
guarantors of the Notes (the "Subsidiary Guarantors" and, together with the
Company the "Sellers"), and The Bank of New York, as indenture trustee (the
"Trustee"). This is to confirm the agreement between the Sellers and the
Purchasers concerning the issue and purchase of the Notes.
Holders (including subsequent transferees) of the Notes will have
the registration rights set forth in the Registration Rights Agreement of even
date herewith (the "Registration Rights Agreement") between the Sellers and the
Purchasers. Pursuant to the Registration Rights Agreement, the Company has
agreed to file with the Securities and Exchange Commission (the "Commission")
(i) a registration statement under the Securities Act of 1933, as amended (the
"Securities Act") registering the offering of senior subordinated notes (the
"Exchange Notes") identical in all material respects to the Notes (except that
the Exchange Notes will not contain terms with respect to transfer restrictions)
to be offered in exchange for the Notes and (ii) under
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certain circumstances, a shelf registration statement pursuant to Rule 415 under
the Securities Act.
It is understood that (a) the Purchasers will offer and resell some
or all of the Notes in the United States to "qualified institutional buyers" in
reliance on Rule 144A under the Securities Act, and to institutional "accredited
investors", within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, and (b) the Purchasers or affiliates thereof may resell a
portion of the Notes outside the United States to certain persons in reliance on
Regulation S under the Securities Act.
1. Representations and Warranties. The Company and each
Subsidiary Guarantor jointly and severally represent, warrant and agree that:
(a) The Company has prepared a preliminary confidential offering
memorandum dated August 8, 1997 and a confidential offering memorandum
dated the date hereof relating to the Notes. Copies of such preliminary
confidential offering memorandum and such confidential offering memorandum
have been delivered by the Company to the Purchasers. As used in this
Agreement, "Offering Memorandum" means such preliminary confidential
offering memorandum and such confidential offering memorandum as amended
or supplemented. The preliminary confidential offering memorandum, as of
its date, and the Offering Memorandum does not, as of the date hereof, and
will not, as of the date of any amendment or supplement thereto or as of
the Delivery Date (as defined in Paragraph 4), contain 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; provided that the Sellers make
no representation or warranty as to information contained in the Offering
Memorandum in reliance upon and in conformity with written information
furnished to the Sellers by or on behalf of any Purchaser expressly for
inclusion therein and identified in Section 7(g) hereof.
(b) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as presently conducted and as
described in the Offering Memorandum; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse effect
on the assets, liabilities, results of operations, condition (financial or
otherwise), earnings, business affairs or prospects of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) The Subsidiary Guarantors are the only direct or indirect
subsidiaries, whether wholly or partially owned, of the Company. Each of
the Subsidiary Guarantors
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has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and
conduct its business as presently conducted and as described in the
Offering Memorandum and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure
to so qualify would not have a material adverse effect on the assets,
liabilities, results of operations, condition (financial or otherwise),
earnings, business affairs or prospects of such Subsidiary Guarantor. All
the issued and outstanding capital stock of each such Subsidiary Guarantor
is owned by the Company or another Subsidiary Guarantor, free and clear of
any security interest, mortgage, pledge, lien, charge or other encumbrance
(each, a "Lien").
(d) The execution, delivery and performance by the Sellers of this
Agreement, the Registration Rights Agreement, the Indenture, the Notes and
the guarantees of the Notes by the Subsidiary Guarantors (the
"Guarantees") and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or a default or the
loss of any material benefit under, or the termination of, or result in
the creation or imposition of any Lien upon any property or assets of any
Seller pursuant to any contract, indenture, mortgage, loan agreement,
note, lease, license or other instrument (each a "Contract") to which any
Seller is a party or by which any of them may be bound or to which any of
the property or assets of any of them is subject, nor will such action
result in any violation of the provisions of the charter or bylaws of any
Seller or, subject to compliance by the Purchasers with Paragraph 11, any
applicable law, administrative regulation or administrative or court order
or decree applicable to any Seller. Except as contemplated by the
Registration Rights Agreement or as may be required under the Securities
Act or the Trust Indenture Act, no consent, approval, authorization or
order of, or notice to or filing with, any United States Federal or state
governmental agency or body or any court of the United States or of any
state thereof is required of the Sellers in connection with the
transactions contemplated by this Agreement.
(e) This Agreement has been duly and validly executed and delivered
by each Seller and constitutes a legal, valid and binding agreement of
each Seller, enforceable against each Seller in accordance with its terms,
except to the extent that the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing. The Indenture
has been duly authorized and, when executed and delivered by the Sellers
(assuming due execution and delivery by the Trustee), will constitute a
legal, valid and binding agreement of each Seller, enforceable against
each
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Seller, in accordance with its terms, except to the extent that the
enforceability thereof may be limited by (A) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
relating to creditors' rights generally and (B) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing. The Registration Rights Agreement has been duly and validly
executed and delivered by each Seller and constitutes a legal, valid and
binding agreement of each Seller, enforceable against each Seller in
accordance with its terms, except to the extent that the enforceability
thereof may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing.
(f) The Notes have been duly authorized for issuance and sale as
contemplated by this Agreement, the Indenture and the Offering Memorandum
and, on the Delivery Date, will have been duly executed by the Company
and, when issued, authenticated and delivered in the manner provided for
in this Agreement and the Indenture against payment of the consideration
therefor specified in the Offering Memorandum, the Notes, which will be
substantially in the form heretofore delivered to you, will constitute
legal, valid and binding obligations of the Company enforceable against
the Company in accordance with their terms, and will be entitled to the
benefits provided by the Indenture, except to the extent that the
enforceability thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws
relating to creditors' rights generally and (ii) general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; and the Notes will constitute senior subordinated debt
obligations of the Company. The Guarantees have been duly authorized for
issuance as contemplated by this Agreement, the Indenture and the Offering
Memorandum and, on the Delivery Date, will have been duly executed by the
Subsidiary Guarantors and, when issued and delivered in the manner
provided for in this Agreement and the Indenture, will constitute legal,
valid and binding obligations of the Subsidiary Guarantors enforceable
against the respective Subsidiary Guarantors in accordance with their
terms, except to the extent that the enforceability thereof may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws relating to creditors' rights generally and
(ii) general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing; and the Guarantees will constitute senior
subordinated obligations of the Subsidiary Guarantors.
(g) No Seller is in violation of its charter or bylaws and no Seller
is in default in the performance or observance of any obligation,
agreement, covenant or condition
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contained in any Contract or any applicable law, administrative regulation
or administrative or court order or decree, which violation or default
would, singly or in the aggregate, have a Material Adverse Effect.
(h) The Sellers possess such certificates, authorizations or permits
issued by the appropriate regulatory or other governmental agencies or
bodies as are necessary to conduct the business as now conducted by the
Company and as described in the Offering Memorandum, except where the
failure to possess any such certificate, authorization or permit would
not, singly or in the aggregate, have a Material Adverse Effect; and
neither the Company nor any Subsidiary Guarantor has received any notice
of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(i) To the best of the Company's knowledge, Deloitte & Touche LLP,
the accountants who have audited and reported upon the financial
statements and supporting schedules of the Company included in the
Offering Memorandum, are independent public accountants with respect to
the Company and its subsidiaries within the meaning of the Securities Act
and the United States Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the applicable rules and regulations promulgated
thereunder (the "Rules and Regulations").
(j) The financial statements of the Company and its consolidated
subsidiaries included in the Offering Memorandum present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations
for the periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis, except for footnotes to the unaudited financial
statements and provided that the unaudited financial statements are
subject to normal year-end adjustments.
(k) Since the respective dates as of which information is given in
the Offering Memorandum, and except as otherwise stated therein, (i) there
has been no material adverse change in the assets, liabilities, results of
operations, condition (financial or otherwise), earnings, business affairs
or prospects of the Company and its subsidiaries, taken as a whole, (ii)
there have been no transactions entered into by the Company that are
material to the Company and (iii) except for regular quarterly dividends,
there has been no dividend declared, paid or made by the Company on any
class of its capital stock.
(l) Subject to compliance by the Purchasers with Paragraph 11, no
consent, approval, authorization, order or decree of any court or
governmental agency or body is required in connection with the issuance
and sale of the Notes or the consummation by the Sellers of any other
transaction contemplated by this Agreement except as has been
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obtained and is in effect and except as may be required by the securities
or Blue Sky laws of any state of the United States in connection with the
sale of the Notes.
(m) No registration of the Notes under the Securities Act and no
qualification of an indenture under the United States Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), is required in connection
with the offer and sale of the Notes in the manner contemplated by the
Offering Memorandum and this Agreement (other than pursuant to the terms
of the Registration Rights Agreement).
(n) No strike, work stoppage or other similar labor dispute with the
employees of any Seller exists or, to the knowledge of any Seller, is
threatened, which would have a Material Adverse Effect.
(o) There is no action, suit or proceeding before or by any court or
governmental agency or body now pending, or, to the knowledge of any
Seller, threatened against or affecting any Seller which is not disclosed
in the Offering Memorandum, and which, if adversely determined, would
result in a Material Adverse Effect or would prevent or hinder the
consummation of all the transactions contemplated by this Agreement.
(p) Except as set forth in the Offering Memorandum and except for
matters that would not have a Material Adverse Effect, (i) neither the
property nor the operations of any Seller are in violation of any
environmental law or any order of any governmental authority; (ii) no
Seller is in violation of or subject to any pending, or to any Seller's
knowledge, threatened, action, suit, investigation, inquiry or proceeding
by any governmental authority or to any remedial obligations under any
environmental law; (iii) all notices, permits or similar authorizations,
if any, required to be obtained or filed in connection with the property
or business of the Sellers, including, without limitation, past or present
emission, discharge, treatment, storage, disposal or release of a
Hazardous Material (as defined below) into the environment, have been duly
obtained or filed; (iv) the Company has taken or is taking all steps
required by law to determine and has determined in connection with each
such matter that no Hazardous Materials have been disposed of or otherwise
released and there has been no threatened release of any Hazardous
Material from, on or to any property of any Seller; and (v) no Seller has
any present or contingent liability in connection with any release or
threatened release of any Hazardous Material into the environment, whether
on or off its property. The term "Hazardous Material" means any oil
(including petroleum products, crude oil and any fraction thereof), solid
waste, "hazardous substance" or "hazardous waste" (as defined in Section
101(14) of the Comprehensive Environmental Response, Compensation and
Liability Act, Section 1004(5) of the Resource Conservation and Recovery
Act and any regulations promulgated thereunder), or other hazardous
material that is regulated by a local, state or federal governmental
authority charged with protection of the environment.
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(q) Except as described in the Offering Memorandum, all tax returns
required to be filed by any Seller in any jurisdiction or with any tribal
authority have been filed, other than those filings being contested in
good faith, and all material taxes, including withholding taxes, penalties
and interest, assessments, fees and other charges due or claimed to be due
from such entities have been paid, other than those being contested in
good faith and for which adequate reserves have been provided or those
currently payable without penalty or interest.
(r) All the issued and outstanding shares of the capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable.
(s) The Notes, the Guarantees and the Indenture conform in all
material respects to the respective statements relating thereto contained
in the Offering Memorandum.
(t) No holder of any security of the Company has the right to have
any security owned by such holder registered under the Securities Act by
reason of the issue or sale of the Notes.
(u) Except as otherwise described in the Offering Memorandum,
neither the Company nor any of its affiliates nor any person acting on
behalf of the Company has, within the six months prior to the date of this
Agreement, offered or sold (regardless of whether such offers or sales
constitute a distribution within the meaning of Regulation M under the
Exchange Act) any Notes, any securities of the same class and/or series as
the Notes, or any immediately convertible into or exchangeable for Notes,
nor will any such offers or sales be made without the prior written
consent of UBS at any time prior to the date that is 90 days after the
completion of the offering of the Notes contemplated hereby. The Company
has not taken and will not take, directly or indirectly, any action
prohibited by Regulation M. The Company has not entered into any
contractual arrangement which provides for the distribution of the Notes
other than this Agreement.
(v) Neither the Company nor any of its affiliates nor any persons
authorized to act on behalf of the Company or any such affiliates (other
than the Purchasers or any person acting on their behalf as to whom the
Sellers do not warrant or covenant) have engaged or will engage in any
directed selling efforts (within the meaning of Regulation S) with respect
to the Notes and the Company, each such affiliate and each person
authorized by the Company to act on behalf of any of them has complied and
will comply with any applicable offering restrictions requirement of
Regulation S.
(w) Neither the Company nor any of its affiliates nor any person
authorized by the Company to act on behalf of the Company or any such
affiliate has offered or sold, or
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will offer or sell, the Notes by means of any form of general solicitation
or general advertising (within the meaning of Rule 502(c) of Regulation D
under the Securities Act), including, but not limited to, (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or
radio or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising.
(x) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Notes are listed on any
national securities exchange registered under Section 6 of the Exchange
Act or quoted in a U.S. "automated inter-dealer quotation system" (as such
term is used in Rule 144A(d)(3)).
(y) The Company is not and will not as a result of the offer and
sale of the Notes be (i) an "investment company" or a company "controlled"
by an investment company within the meaning of the United States
Investment Company Act of 1940, as amended, (ii) a "holding company" or a
"subsidiary company" of a holding company or an "affiliate" thereof within
the meaning of the United States Public Utility Holding Company Act of
1935, as amended, or (iii) subject to regulation under the United States
Federal Power Act or any federal or state statute or regulation limiting
its ability to incur indebtedness for borrowed money.
(z) The Company is not actively considering any plan or transaction
that, if consummated, would result in any mandatory requirement to redeem,
or make an offer to purchase, the Notes pursuant to the terms thereof.
(aa) The Company is a reporting issuer (within the meaning of
Regulation S under the Securities Act).
2. Purchase and Offering of the Notes. On the basis of the
representations and warranties contained in, and upon the terms and subject to
conditions of, this Agreement, the Company agrees to issue and sell to the
Purchasers and the Purchasers agree, severally and not jointly, to purchase and
pay for the respective principal amounts of Notes set forth opposite the name of
the several Purchasers in Schedule I hereto at a price equal to the issue price
of 100% of the principal amount of the Notes (the "Issue Price"). The sale of
the Notes to the Purchasers will be made without registration of the Notes under
the Securities Act, in reliance on the exemption therefrom provided by Section
4(2) of the Securities Act.
3. Commissions and Fees. The Company agrees to pay to the
Purchasers a commission of 2% of the principal amount of the Notes in
consideration of the agreement by the Purchasers to purchase the Notes. The
Purchasers shall be entitled to deduct such commissions from the purchase
price of the Notes.
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4. Delivery and Payment. Payment of the purchase price for the
Notes shall be made by the Purchasers to the Company or its order in U.S.
dollars in same-day funds by 11:00 A.M., New York City time, on August 26, 1997
or at such later date and time as may be determined by agreement between the
Company and UBS. This date and time are sometimes referred to as the "Delivery
Date". Such payment shall be made against delivery of one or more certificates
in global or definitive form for the Notes in such denominations and registered
in such names as the Purchasers request upon notice to the Company at least two
business days prior to the Delivery Date.
5. Covenants. The Company agrees as follows:
(a) The Company shall furnish promptly to each of the Purchasers a
copy of the Offering Memorandum and each amendment and supplement thereto
and shall deliver promptly to the Purchasers such number of copies of the
Offering Memorandum and each amendment and supplement thereto as the
Purchasers may reasonably request.
(b) If at any time prior to the completion, as determined by the
Purchasers, of the distribution of the Notes, any event occurs as a result
of which the Offering Memorandum would contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements made therein, in the light of the circumstances under which
they were made, not misleading, the Company will promptly so notify the
Purchasers and will prepare and furnish to the Purchasers, subject to
Paragraph 5(c), copies of such amendments or supplements to the Offering
Memorandum as may be necessary so that the statements in the Offering
Memorandum as so amended or supplemented will not contain any such untrue
statement or omit to state any such material fact or be misleading and so
that the Offering Memorandum, as so amended or supplemented, will comply
with applicable law.
(c) Within a reasonable amount of time prior to any proposed
publication of any amendment or supplement to the Offering Memorandum, the
Company shall furnish a copy thereof to the Purchasers and shall not
publish or use any such amendment or supplement to which the Purchasers or
their counsel shall reasonably object.
(d) The Company shall comply with the terms of the Indenture and the
Offering Memorandum and shall promptly notify the Purchasers if the
Company discovers that any of its representations contained in this
Agreement is not, at any time prior to the completion of the distribution
of the Notes, true and correct, or if the Company has at any such time
breached any of its obligations hereunder.
(e) If, at any time prior to two years after the Delivery Date, the
Company is neither subject to Section 13 or 15(d) of the Exchange Act nor
exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act,
the Company shall furnish, as soon as available, to the Purchasers, and,
upon request of a holder of Notes, to such holder and
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any prospective purchaser designated by such holder, copies of the
information required to be delivered to holders and prospective purchasers
of any Notes which constitute "restricted securities" under Rule 144 under
the Securities Act in order to permit compliance with Rule 144A under the
Securities Act.
(f) Neither the Company nor any of its affiliates will take,
directly or indirectly, any action designed to or which constitutes or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Notes at any time prior to the Purchasers
notifying the Company of the completion of the distribution of the Notes.
(g) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Purchasers shall reasonably request and to continue such qualification in
effect so long as reasonably required for resale by the Purchasers of the
Notes; provided that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to general service
of process or to taxation in any jurisdiction where it is not then so
subject.
(h) So long as the Notes are outstanding, the Company will promptly
furnish to the Purchasers copies of all reports or other communications
(financial or other) furnished by the Company or the Trustee to holders of
Notes, and copies of filings including financial statements furnished to
or filed with the Commission or any national securities exchange by the
Company.
(i) The Company will take all action that is appropriate or
necessary to assure that its offerings of other securities will not be
integrated, for purposes of the registration requirements of the
Securities Act, with the offerings contemplated hereby.
(j) If requested by the Purchasers, the Company shall use its best
efforts to permit the Notes to be designated PORTAL securities in
accordance with the rules and regulations adopted by the National
Association of Securities Dealers, Inc. (the "NASD") relating to the
trading in the PORTAL Market; unless so requested by the Purchasers, the
Company will not take any action to permit the Notes to be designated
PORTAL securities without the Purchasers' consent, which shall not be
unreasonably withheld.
(k) The Company shall use its best efforts to assist the Purchasers
in arranging to cause the Notes to be eligible for settlement through the
facilities of The Depository Trust Company ("DTC").
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(l) The Company shall, if requested by the Purchasers, use its best
efforts to cause the Notes to be eligible for settlement through the
facilities of Cedel Bank, societe anonyme ("Cedel"), and the Euroclear
System ("Euroclear").
6. Costs and Expenses. The Company agrees (whether or not the
transactions contemplated hereby are consummated) to pay all costs and expenses
(including any taxes) incident to the authorization, issuance, sale and delivery
of the Notes or relating to the preparation of this Agreement, the Registration
Rights Agreement, the Indenture and the Offering Memorandum, including, without
limitation: (i) all costs, expenses and taxes in connection with the
preparation, issue, exchange and delivery of the Notes, including any stamp or
similar issue tax and any related interest or penalties incident to the
authorization and issue of the Notes, and the sale and delivery of the Notes to
the Purchasers; (ii) all fees and expenses of counsel for the Company and other
advisors engaged by the Company; (iii) all fees and expenses of the Trustee and
any registrar and paying and transfer agents; (iv) all fees and expenses
incurred in connection with any rating of the Notes; (v) all fees of DTC, Cedel
and Euroclear; (vi) expenses in connection with the qualification of the Notes
for sale as contemplated by Paragraph 5(g), including but not limited to all
filing fees (but excluding fees and expenses of counsel for the Purchasers); and
(vii) all listing fees and expenses in connection with any listing of the Notes
on any securities exchange or The NASDAQ Stock Market, Inc. The Purchasers will
pay for all fees and expenses of counsel for the Purchasers and other advisors
engaged by the Purchasers incurred in connection with the offering of the Notes,
expenses incurred to print the Offering Memorandum and the travel and other
out-of-pocket expenses of the Purchasers and the Company incurred in connection
with "road show" presentations; provided that, in the event this Agreement is
terminated pursuant to Paragraph 10(i), the Company will pay all such fees and
expenses.
7. Indemnification.
(a) The Sellers, jointly and severally, shall indemnify and hold
harmless each Purchaser and its affiliates and each person, if any, who
controls any Purchaser or its affiliates within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act and each director,
officer, employee or agent of any Purchaser or its affiliates (each a
"Purchaser Indemnified Party"), from and against any loss, claim, damage
or liability, joint or several, and any action in respect thereof, to
which any Purchaser Indemnified Party may become subject, insofar as such
loss, claim, damage, liability or action (i) arises out of, or is based
upon, or relates to any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum, or which arises out
of, or is based upon, the omission or alleged omission to state in the
Offering Memorandum a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading or (ii) arises out of, or is based upon, or relates to any
breach of a representation, warranty or agreement of the Sellers set forth
herein, and shall promptly reimburse each Purchaser Indemnified Party for
any legal and other expenses reasonably incurred, as such legal and other
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expenses are incurred, by such Purchaser Indemnified Party in
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action; provided that the Sellers shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, or relates to any
untrue statement or alleged untrue statement or omission or alleged
omission made in the Offering Memorandum in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Purchaser expressly for inclusion therein and identified in
Section 7(g) hereof. The foregoing indemnity agreement is in addition to
any liability which the Sellers may otherwise have to any Purchaser
Indemnified Party.
(b) Each Purchaser shall severally and not jointly indemnify and
hold harmless the Company and its affiliates, any person who controls the
Company or its affiliates within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and each director,
officer, employee and agent of the Company or its affiliates (each a
"Company Indemnified Party"), from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which
any Company Indemnified Party may become subject, insofar as such loss,
claim, damage, liability or action (i) arises out of, or is based upon, or
relates to any untrue statement or alleged untrue statement of a material
fact contained in the Offering Memorandum, or which arises out of, or is
based upon, or relates to 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, but in each case only to the extent that the 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
Company by or on behalf of any Purchaser expressly for inclusion therein
and identified in Section 7(g) hereof, or (ii) arises out of, or is based
upon, or relates to any breach of a representation, warranty or agreement
of such Purchaser set forth herein, and shall promptly reimburse such
Company Indemnified Party for any legal and other expenses reasonably
incurred by such Company Indemnified Party in investigating or defending
or preparing to defend against any such loss, claim, damage, liability or
action. The foregoing indemnity agreement is in addition to any liability
which a Purchaser may otherwise have to any such Company Indemnified
Party.
(c) Promptly after receipt by an indemnified party under this
Paragraph 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Paragraph 7, notify the
indemnifying party in writing of the claim or the commencement of the
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Paragraph 7 except to the extent it has been materially prejudiced by such
failure and provided, further, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may
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have to an indemnified party otherwise than under this Paragraph 7. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified
party under this Paragraph 7 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation; provided, however, that any
indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have been
advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the indemnifying party and in the reasonable judgment of such counsel
it is advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the indemnifying
party in writing that it elects to employ separate counsel at the expense
of the indemnifying party, the indemnifying party shall not have the right
to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (plus separate
local counsel, if retained by the indemnified party) at any time for all
such indemnified parties, which firm shall be designated in writing by
UBS, if the indemnified parties under this Paragraph 7 are Purchaser
Indemnified Parties, or by the Company, if the indemnified parties under
this Paragraph 7 are Company Indemnified Parties.
(d) No indemnifying party shall be liable for any settlement
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with such consent or if there be a
final judgment for the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless each indemnified party from
and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is a party
and indemnity could have been sought hereunder by such indemnified party,
unless such settlement is (i) for money damages only, (ii) includes an
unconditional release of such indemnified party from all liability on any
claims that are
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the subject matter of such proceeding and (iii) does not include a
statement as to or an admission of fault, culpability or a failure to act
by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Paragraph 7 shall
for any reason be unavailable to or insufficient to hold harmless any
indemnified party under Paragraph 7(a) or 7(b) hereof in respect of any
loss, claim, damage or liability, or any action in respect thereof,
referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the aggregate amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Purchasers on the other from the offering
of the Notes 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 Sellers on the one hand and the Purchasers
on the other with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as
well as any other relevant equitable considerations. The relative benefits
received by the Sellers on the one hand and the Purchasers on the other
with respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes (obtained by
subtracting accrued interest, if any, but before deducting expenses)
received by the Sellers bear to the total commissions received by the
Purchasers with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Sellers on the one hand or the
Purchasers on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Paragraph 7(e) shall be deemed
to include, for purposes of this Paragraph 7(e), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. 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. For purposes of this
Paragraph 7, each affiliate of a Purchaser and each person, if any, who
controls any of the Purchasers within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same
rights to contribution as each of the Purchasers, and each director,
officer, employee or agent of the Company, each affiliate of the Company
and each person, if any, who controls the Company or any affiliate of the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act shall have the same rights to contribution as the
Sellers.
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(f) The parties hereto agree that it would not be just or equitable
if contribution pursuant to this Paragraph 7 were determined by pro rata
allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in Paragraph 7(e). The
remedies provided for in this Paragraph 7 are not exclusive and shall not
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(g) The Company and the Purchasers agree that the only written
information furnished to the Company by or on behalf of any Purchaser
expressly for inclusion in the Offering Memorandum consists of (i) the
last paragraph on the cover page, (ii) the fourth full paragraph on the
page preceding the Offering Memorandum Summary, and (iii) the third,
fourth, fifth, sixth, seventh and tenth paragraphs under the caption "Plan
of Distribution."
(h) The Sellers, jointly and severally, agree to indemnify each
Purchaser Indemnified Party, and each Purchaser, severally and not
jointly, agrees to indemnify each Company Indemnified Party, as a result
of any judgment being rendered in connection with the Indenture, the Notes
or this Agreement or the Offering Memorandum for which indemnification or
contribution is provided pursuant to this Paragraph 7 and such judgment or
order being paid in a currency (the "Judgment Currency") other than United
States dollars, as a result of any variation as between (i) the rate of
exchange at which United States dollars are converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the spot rate
of exchange in New York City at which the indemnified party on the date of
payment of such judgment or order is able to purchase United States
dollars with the amount of the Judgment Currency actually received by the
indemnified party. The foregoing indemnity shall constitute a separate and
independent obligation of the Sellers and the Purchasers and shall
continue in full force and effect notwithstanding any such judgment or
order as aforesaid. The term "spot rate of exchange" shall include any
premiums and costs of exchange payable in connection with the purchase of,
or conversion into, United States dollars.
8. Conditions to Obligation of the Purchasers. The obligations of
the several Purchasers to purchase the Notes are subject to the accuracy, when
made and on the Delivery Date, of the representations and warranties of the
Sellers contained herein, to the performance by the Sellers of their respective
obligations hereunder to be performed at or prior to the Delivery Date and to
each of the following additional conditions:
(a) The Purchasers shall not have disclosed to the Company on or
prior to the Delivery Date that the Offering Memorandum contains an untrue
statement of a fact which, in the reasonable opinion of the Purchasers, is
material or omits to state a fact which, in the reasonable opinion of the
Purchasers, is material and is necessary in order to make the statements
therein, in the light of the circumstances under which they were
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made, not misleading; the Company shall not have prepared and distributed
any amendment or supplement to the Offering Memorandum either without
prior review by, or over the reasonable objection of, the Purchasers; and
no change shall have occurred in Rule 144A or Regulation S under the
Securities Act which in the reasonable judgment of the Purchasers makes it
impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Notes on the terms and in the manner contemplated in the
Offering Memorandum.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Registration
Rights Agreement, the Indenture, the Notes, the Offering Memorandum and
all other legal matters relating to this Agreement and the transactions
contemplated hereby and thereby shall be reasonably satisfactory in all
respects to the Purchasers and their counsel, and the Company shall have
furnished to the Purchasers all documents and information that they may
reasonably request to enable them to pass upon such matters.
(c) The Company shall have delivered to the Purchasers a certified
copy of the resolutions of the Board of Directors (or any authorized
committee thereof, together with the resolutions of the Board of Directors
establishing such committee) of the Company and each of the Subsidiary
Guarantors approving the creation and issue of the Notes and the
Guarantees, respectively, on the terms and conditions of the Indenture and
this Agreement and approving the terms hereof and authorizing the
execution and delivery of this Agreement, the Registration Rights
Agreement, the Indenture, the Notes and all other documents relevant to
the issue of the Notes by the Company.
(d) The Company shall have furnished to the Purchasers the opinion
or opinions of Fennemore Craig, P.C., United States counsel to the
Company, addressed to the Purchasers and dated the Delivery Date to the
effect that:
(i) The Indenture has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors and (assuming
the due authorization, execution and delivery thereof by the
Trustee) constitutes the legal, valid and binding agreement of the
Company and each Subsidiary Guarantor, enforceable against the
Company and each Subsidiary Guarantor in accordance with its terms,
except to the extent that the enforceability thereof may be limited
by (A) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws relating to creditors' rights
generally, and (B) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(ii) This Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors.
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(iii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the Subsidiary
Guarantors and constitutes the legal, valid and binding agreement of
the Company and each Subsidiary Guarantor, enforceable against the
Company and each Subsidiary Guarantor in accordance with its terms,
except to the extent that the enforceability thereof may be limited
by (A) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws relating to creditors' rights
generally and, (B) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(iv) The Notes have been duly authorized by all necessary
corporate action on the part of the Company and have been duly
executed by the proper officers of the Company, and, when duly
authenticated by the Trustee and delivered as contemplated hereby
and by the Indenture, will be valid and binding obligations of the
Company enforceable in accordance with their terms and entitled to
the benefits of the Indenture; except, in each case, to the extent
that the enforceability thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer or
similar laws relating to creditors' rights generally and, (B)
general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing.
(v) The Guarantees have been duly authorized by all necessary
corporate action on the part of the Subsidiary Guarantors and have
been duly executed by the proper officers of the Subsidiary
Guarantors, and, when delivered as contemplated hereby and by the
Indenture, will be valid and binding obligations of the Subsidiary
Guarantors enforceable in accordance with their terms; except, in
each case, to the extent that the enforceability thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or similar laws relating to creditors' rights
generally and, (B) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or
at law) and an implied covenant of good faith and fair dealing.
(vi) The Notes, the Guarantees and the Indenture conform in
all material respects to the respective statements relating thereto
contained in the Offering Memorandum, and the forms of certificates
used to evidence the Notes comply with the requirements of the
Securities Act, the Exchange Act and the Trust Indenture Act.
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(vii) Subject to compliance by the Purchasers with Paragraph
11 hereof, no authorization, consent or approval of, or other order
by, any administrative or governmental, authority or agency or, to
the best of such counsel's knowledge, any court is required by or on
behalf of the Company in connection with the purchase and sale of
the Notes by the Purchasers, except as may have been obtained or may
be required by the securities or Blue Sky laws of any state of the
United States.
(viii) The statements in the Offering Memorandum under the
caption "Certain Federal Income Tax Consequences" are correct in all
material respects.
(ix) No registration of the Notes or the Guarantees under the
Securities Act and no qualification of an indenture under the Trust
Indenture Act is required in connection with the offer and sale of
the Notes in the manner contemplated by the Offering Memorandum,
this Agreement and the other arrangements made to restrict offers
and sales of the Notes.
(x) The Company is not and will not as a result of the offer
and sale of the Notes be (i) an "investment company" or a company
"controlled" by an investment company within the meaning of the
United States Investment Company Act of 1940, as amended, (ii) a
"holding company" or a "subsidiary company" of a holding company or
an "affiliate" thereof within the meaning of the United States
Public Utility Holding Company Act of 1935, as amended, or (iii)
subject to regulation under the United States Federal Power Act or
any federal or state statute or regulation limiting its ability to
incur indebtedness for borrowed money.
In addition, such counsel shall state that such counsel has participated in the
preparation of the Offering Memorandum, including conferences with officers and
other representatives of the Company and its subsidiaries, and representatives
of the independent public accountants of the Company and its subsidiaries, at
which conferences the contents of the Offering Memorandum and related matters
were discussed and, although they are not passing upon the accuracy or
completeness of the statements contained in the Offering Memorandum (except as
specified in 8(d)(vi) and (viii) above), on the basis of the foregoing, nothing
has come to the attention of such counsel which gives them reason to believe
that the Offering Memorandum, as of its date and at the Delivery Date (except as
to the information provided to the Company described in Section 7(g) and the
financial statements, financial data and supporting schedules contained or
incorporated therein, as to which such counsel need express no opinion),
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of circumstances in which made, not
misleading. The aforementioned opinion shall be limited to the Federal laws of
the United States of America, the laws of the State of Arizona and the general
corporate law of the
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State of Delaware. Such counsel may rely on opinions of local counsel
satisfactory to UBS with respect to matters of law of jurisdictions other than
the State of Arizona.
(e) The Company shall have furnished to the Purchasers the opinion
or opinions of Morgan Gust, Esq., Vice President, General Counsel and
Secretary to the Company, addressed to the Purchasers and dated the
Delivery Date to the effect that:
(i) The Company has been duty incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware; has the corporate power and authority to own,
lease and operate its properties and to conduct its business as
presently conducted and as described in the Offering Memorandum; and
is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so
qualify would not have a Material Adverse Effect.
(ii) Each Subsidiary Guarantor has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation; has the corporate power
and authority to own, lease and operate its properties and to
conduct its business as presently conducted and as described in the
Offering Memorandum; and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a Material Adverse
Effect. All the issued and outstanding capital stock of each
Subsidiary Guarantor is owned, directly or indirectly, by the
Company, and, to the knowledge of such counsel, free and clear of
any Lien.
(iii) The descriptions in the Offering Memorandum of statutes,
legal and governmental proceedings, contracts and other documents
are accurate and fairly present the information which, to such
counsel's knowledge, is required to be shown; and such counsel does
not know of any statutes or legal or governmental proceedings
required to be described in the Offering Memorandum that are not
described as required, or of any contracts or documents of a
character required to be described in the Offering Memorandum that
are not described as required.
(iv) To the best of such counsel's knowledge, neither the
Company nor any Subsidiary Guarantor is in violation of its charter
or bylaws, and to the best of such counsel's knowledge neither the
Company nor any Subsidiary Guarantor is in default in the
performance or observance of any obligation, agreement,
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covenant or condition contained in any material Contract or any
applicable law, administrative regulation or administrative or court
order or decree known to such counsel, which violation or default
would have a Material Adverse Effect.
(v) To the best of such counsel's knowledge, the issuance and
delivery of the Notes and the Guarantees, the execution and delivery
of this Agreement, the Registration Rights Agreement and the
Indenture and the consummation of the transactions contemplated
herein and therein, will not conflict with or constitute a breach
of, or default under, or result in the creation or imposition of any
Lien upon any material property or assets of the Company or any
Subsidiary Guarantor pursuant to any material Contract.
(vi) The issuance and delivery of the Notes and the
Guarantees, the execution and delivery of this Agreement, the
Registration Rights Agreement and the Indenture and the consummation
of the transactions contemplated herein and therein, will not result
in any violation of the provisions of the charter or bylaws of the
Company or any Subsidiary Guarantor or, to the best of such
counsel's knowledge, any material applicable law, administrative
regulation, administrative or court order or decree known to such
counsel.
In addition, such counsel shall state that such counsel has reviewed
the sections of the Offering Memorandum under the captions "Business - Legal
Matters" and "Business - Other Matters - Regulatory, Environmental and Other
Matters Affecting Refining and Marketing," and, on the basis of such review, to
the best of such counsel's knowledge, such sections of the Offering Memorandum,
as of the date of the Offering Memorandum and at the Delivery Date, did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances in which made, not misleading. The aforementioned
opinion shall be limited to the Federal law of the United States of America, the
laws of the State of Arizona and the corporate law of the State of Delaware.
Such counsel may rely on opinions of local counsel satisfactory to UBS with
respect to matters at law of jurisdictions other than the State of Arizona. Such
counsel may rely on certificates of good standing and foreign qualification from
appropriate state officials with respect to opinions regarding good standing and
foreign qualification.
(f) The Company shall have furnished to the Purchasers on the
Delivery Date a certificate, dated the Delivery Date, of the President or
a Vice President and the principal financial or accounting officer of the
Company stating that to the best of their knowledge based on reasonable
investigation, the representations and warranties of the Sellers in
Paragraph 1 are true and correct as of the Delivery Date; and the Sellers
have complied with all the agreements and satisfied all the conditions on
their part to be performed or satisfied at or prior to the Delivery Date.
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(g) The Company shall have furnished to the Purchasers on the
Delivery Date an agreed upon procedures letter (the "procedures letter")
of Deloitte & Touche LLP, addressed to the Purchasers and dated the
Delivery Date, (i) confirming that they are independent public accountants
within the meaning of, and are in compliance with the applicable
requirements relating to the qualification of accountants under, Rule 101
of the Rules of Conduct of the American Institute of Certified Public
Accountants and (ii) stating, as of the date of the procedures letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Offering Memorandum, as of a date not more than five days prior to the
date of the procedures letter), the findings of such firm with respect to
the financial information included or incorporated by reference in the
Offering Memorandum and such other matters as the Purchasers may
reasonably request.
(h) The Purchasers shall have received the opinion of Andrews &
Kurth L.L.P., its U.S. counsel, with respect to the Securities, the
Offering Memorandum and other related matters the Purchasers may
reasonably request.
(i) The Notes shall have been accepted for (i) settlement through
the facilities of DTC, and (ii) if applicable, settlement through the
facilities of Cedel and Euroclear.
(j) The Sellers shall have furnished to the Purchasers such further
certificates and documents, including certificates of officers of the
Subsidiary Guarantors, as the Purchasers shall have reasonably requested.
(k) The Sellers shall have executed and delivered the
Registration Rights Agreement.
All opinions, letters, evidences and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to Andrews & Kurth L.L.P., U.S. counsel to the Purchasers.
9. Stabilization. The Purchasers may, at their discretion, to the
extent permitted by applicable law, make purchases and sales of the Notes for
their own accounts in the open market or otherwise for long or short account, on
such terms as they deem advisable in connection with the distribution of the
Notes, with a view to stabilizing or maintaining the market price of the Notes
at a level other than that which might otherwise prevail on the open market.
Such transactions, if commenced, may be discontinued at any time. In such
circumstances, as between the Company, on the one hand, and the Purchasers, on
the other hand, the Purchasers shall act as principal, and any loss resulting
from stabilization shall be borne, and
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any profit arising therefrom and any sum received by it shall be beneficially
retained, by the Purchasers for their own account.
10. Termination. The Purchasers, in their absolute discretion, may
terminate this Agreement by notice given to and received by the Company at any
time before payment is made to the Company on the Delivery Date (i) if there has
been, since the respective dates as of which information is given in the
Offering Memorandum, any Material Adverse Change, which is in the reasonable
judgment of the Purchasers, so material and adverse as to make it impracticable
or inadvisable to proceed with the purchase, sale and delivery of the Notes on
the terms and in the manner contemplated by the Offering Memorandum or (ii) if
trading in any securities of the Company has been suspended by the Commission or
a national securities exchange or the NASD, or if trading generally has been
suspended or materially limited on or by the American Stock Exchange, the New
York Stock Exchange or the NASD or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or of the NASD or any
other governmental authority, or (iii) if a banking moratorium has been declared
by either Federal, New York or California authorities in the United States or
authorities in London. In addition, notwithstanding anything contained in this
Agreement the Purchasers may by notice to the Company terminate this Agreement
at any time before the time on the Delivery Date when payment would otherwise be
due under this Agreement to the Company in respect of the Notes if, in the
opinion of the Purchasers, there shall have been such a change in national or
international financial, political or economic conditions or currency exchange
rates or exchange controls or any calamity or crisis as would in their
reasonable judgment be likely to prejudice the success of the offering and
distribution of the Notes as contemplated by the Offering Memorandum or dealings
in the Notes in the secondary market. Upon any termination notice being given
under this Paragraph 10, the parties to this Agreement shall (except for the
respective liabilities of the Company and the Purchasers in relation to expenses
and indemnification and contribution as provided in Paragraph 6 and Paragraph 7,
respectively, and except for any liability arising before or in relation to such
termination) be released and discharged from their respective obligations under
this Agreement.
11. Representations, Warranties and Agreements of the
Purchasers. Each Purchaser severally represents, warrants and agrees that:
(a) The Purchasers understand that the Notes have not been and will
not be registered under the Securities Act; the Notes have not been and
will not be offered or sold by a Purchaser or its affiliates or persons
acting on its behalf except in accordance with Regulation S under the
Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act. The Purchasers have offered and sold
the Notes and will offer and sell the Notes, (i) as part of their
distribution at any time and (ii) otherwise until 40 days after the later
of the commencement of the offering of the Notes and the Delivery Date
(the "restricted period"), only in accordance with the provisions of
Regulation S, Rule 144A under the Securities Act or to institutional
"accredited
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investors," as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act. Accordingly, no Purchaser, nor their affiliates nor any
persons acting on their behalf has engaged or will engage in any directed
selling efforts with respect to the Notes, and they have complied and will
comply with any applicable offering restrictions requirement of Regulation
S with respect to the Notes. Each Purchaser will have sent, at or prior to
confirmation of sale of Notes pursuant to Regulation S, to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration in respect of the Notes from it during the restricted period
a confirmation or notice to substantially the following effect:
"The Notes covered hereby have not been registered under the United
States Securities Act of 1933, as amended (the "Securities Act"), and may
not be offered or sold within the United States or to, or for the account
or benefit of, United States persons (i) as part of their distribution at
any time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date, except in either case
in accordance with Regulation S or Rule 144A under the Securities Act.
Terms used in this paragraph have the meanings given to them by Regulation
S."
Terms used in this paragraph (a) have the meanings given to them by Regulation
S.
(b) No action has been taken or will be taken in any country or
jurisdiction by a Purchaser (either on its own account or as agent for the
Company) either in connection with an offering of the Notes or in
connection with the possession or distribution of the Offering Memorandum
or any other offering material relating to the Notes which requires any
action to be taken or filing or registration to be made for that purpose
in any country or jurisdiction, or which would result in the material
breach of any applicable rules or regulations or the like (whether by a
Purchaser or the Company) in any such country or jurisdiction. Each
Purchaser will comply in all material respects with all applicable laws
and regulations in each jurisdiction in which it purchases, offers, sells
or delivers Notes or has in its possession or distributes or causes or
permits to be distributed the Offering Memorandum or any other offering
material.
(c) No Purchaser will offer or sell the Notes in the United States
by means of any form of general solicitation or general advertising within
the meaning of Section 502(c) under the Securities Act; provided, however,
that such limitation shall not preclude the placing of any customary
tombstone advertisement with respect to the resale of the Notes following
the expiration of the restricted period. With respect to resales made in
reliance on Rule 144A of any of the Notes, each Purchaser will 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
Notes has been made in reliance upon the exemption from the registration
requirements of the Securities Act provided by Rule 144A.
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(d) (i) No Purchaser has offered or sold nor will any Purchaser
offer or sell in the United Kingdom any Notes other than to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses (except in circumstances that do not constitute an offer to the
public within the meaning of the Public Offers of Securities Regulations
1995), (ii) each Purchaser 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 Notes in, from or otherwise
involving the United Kingdom, and (iii) each Purchaser has only issued or
passed on and will only issue or pass on to any person in the United
Kingdom, any document received by it in connection with the issuance of
the Notes if that person is of a kind described in Article 11(3) of The
Financial Services Act 1986 (Investment Advertisements) (Exemption) Order
1995 or is a person to whom the document may otherwise be lawfully issued
or passed on.
The Company acknowledges and agrees that the Purchasers may, subject
to the provisions of this Paragraph 11, offer Notes to other brokers and dealers
for resale by such brokers and dealers.
12. Survival of Representations, Warranties and Agreements. The
representations, warranties and agreements and other statements of any person
set forth in or made pursuant to this Agreement shall survive the delivery of
and payment for the Notes and shall remain in full force and effect as made on
the Delivery Date regardless of any investigation made by or on behalf of any
person referred to in Paragraph 7. The provisions of Paragraphs 6 and 7 shall
survive the termination or cancellation of this Agreement.
13. Notices. Any notice or notification in any form to be given
hereunder shall be in writing and shall be delivered in person or sent by
telephone or facsimile transmission (but in the case of a notification by
telephone, with subsequent confirmation by letter or facsimile transmission).
Any notice or notification to the Company or any Subsidiary Guarantor shall be
addressed to or in care of the Company at:
Giant Industries, Inc.
23733 North Scottsdale Road
Scottsdale, Arizona 85255
Attention: General Counsel
Telecopy No: (602) 585-8985
Any notice or notification to the Initial Purchaser or to the Purchasers shall
be addressed to it or them at:
c/o UBS Securities LLC
299 Park Avenue
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New York, NY 10171-0026
Telecopy No: (212) 821-3285
Any notice or notification shall take effect at the time of receipt.
14. Benefit. This Agreement shall be binding upon the Purchasers,
the Sellers and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(a) the representations, warranties, indemnities and agreements of the Sellers
contained in this Agreement shall also be deemed to be for the benefit of each
Purchaser Indemnified Party and (b) the representations, warranties, indemnities
and agreements of the Purchasers contained in Paragraph 7 hereof shall be deemed
to be for the benefit of each Company Indemnified Party. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Paragraph 14, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein. This Agreement shall not be assigned by any party hereto without the
prior written consent of the other parties hereto.
15. Miscellaneous. This Agreement shall be governed by and construed
in accordance with the internal (and not the conflict) laws of the State of New
York. This Agreement may be executed in one or more counterparts, and if
executed in more than one counterpart, the executed counterparts shall together
constitute a single instrument. The descriptive headings in this Agreement are
for convenience of reference only and shall not define or limit the provisions
hereof Time shall be of the essence of this Agreement.
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If the foregoing is in accordance with the Purchasers' understanding
of our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Sellers and the
Purchasers in accordance with its terms.
Very truly yours,
THE COMPANY:
GIANT INDUSTRIES, INC.,
a Delaware corporation
By: /s/ A. Wayne Davenport
------------------------
Name: A. Wayne Davenport
Title:Vice President
THE SUBSIDIARY GUARANTORS:
GIANT INDUSTRIES ARIZONA, INC.,
an Arizona corporation
By: /s/ A. Wayne Davenport
------------------------
Name: A. Wayne Davenport
Title:Vice President
GIANT EXPLORATION
& PRODUCTION COMPANY,
a Texas corporation
By: /s/ A. Wayne Davenport
------------------------
Name: A. Wayne Davenport
Title:Vice President
CINIZA PRODUCTION COMPANY,
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a New Mexico corporation
By: /s/ A. Wayne Davenport
------------------------
Name: A. Wayne Davenport
Title:Vice President
GIANT STOP-N-GO OF NEW MEXICO, INC.,
a New Mexico corporation
By: /s/ A. Wayne Thompson
------------------------
Name: A. Wayne Davenport
Title:Vice President
GIANT FOUR CORNERS, INC.
an Arizona corporation
By: /s/ A. Wayne Thompson
------------------------
Name: A. Wayne Davenport
Title:Vice President
PHOENIX FUEL CO., INC.
an Arizona corporation
By: /s/ A. Wayne Davenport
------------------------
Name: A. Wayne Davenport
Title:Vice President
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SAN JUAN REFINING COMPANY,
a New Mexico corporation
By: /s/ A. Wayne Davenport
------------------------v
Name: A. Wayne Davenport
Title:Vice President
GIANT MID-CONTINENT, INC.,
an Arizona corporation
By: /s/ A. Wayne Davenport
------------------------
Name: A. Wayne Davenport
Title:Vice President
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THE PURCHASERS:
The foregoing Purchase Agreement is hereby confirmed and accepted as of the date
first above written.
UBS SECURITIES LLC
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
BANCAMERICA SECURITIES, INC.
JEFFERIES & COMPANY, INC.
By: UBS Securities LLC
By: /s/ Susan Ward
----------------------------
Name: Susan Ward
Title: Managing Director
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SCHEDULE I
INITIAL PURCHASERS PRINCIPAL
AMOUNT OF NOTES
--------------
UBS Securities LLC........................................... $75,000,000
Donaldson, Lufkin & Jenrette Securities Corporation.......... 45,000,000
BancAmerica Securities, Inc.................................. 15,000,000
Jefferies & Company, Inc..................................... 15,000,000
--------------
$150,000,000
==============
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