EXHIBIT 4.5
DEUTSCHE BANK AG LONDON
PREEM HOLDINGS AB (PUBL)
E55,000,000
10.625% Senior Secured Notes due 2011
PURCHASE AGREEMENT
July 13, 2001
DEUTSCHE BANK AG LONDON
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
Preem Holdings AB (publ), a Swedish corporation (the
"COMPANY"), proposes to issue and sell E55,000,000 aggregate principal amount
of its 10.625% Senior Secured Notes due 2011 (the "SECURITIES"). The
Securities will be issued pursuant to the Indenture dated as of April 10,
2001 (the "INDENTURE") between the Company and Bankers Trust Company, as
trustee (the "TRUSTEE"), pursuant to which the Company has previously issued
E250,000,000 aggregate principal amount of 10.625% Senior Secured Notes (the
"First Tranche Notes") with terms similar to those of the Securities. The
Company hereby confirms its agreement with Deutsche Bank AG London (the
"INITIAL PURCHASER") concerning the purchase of the Securities from the
Company by the Initial Purchaser.
The Securities will be offered and sold outside the United
States to the Initial Purchaser without being registered under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), in reliance upon an exemption
therefrom, and resold by the Initial Purchaser (i) in the United States
pursuant to Rule 144A under Securities Act (the "U.S. Offering") and
(ii) outside the United States in reliance on Regulation S under the
Securities Act (the "International Offering," and together with the U.S.
Offering, the "Offering"). The Company has prepared an offering memorandum
dated the date hereof (the "OFFERING MEMORANDUM") setting forth
information concerning the Company and the Securities. Copies of the Offering
Memorandum will be delivered by the Company to the Initial Purchaser pursuant
to the terms of this Agreement. Any references herein to the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted. The Company hereby confirms that it has authorized
the use of the Offering Memorandum in connection with the offering and resale
of the Securities by the Initial Purchaser in accordance with Section II.
Holders of the Securities (including the Initial Purchaser
and its direct and indirect transferees) will be entitled to the benefits of
an Exchange and Registration Rights Agreement, substantially in the form
attached hereto as Annex A (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to
which the Company will agree to file with the Securities and Exchange
Commission (the "COMMISSION") a registration statement under the Securities
Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") registering an issue of
senior secured notes of the Company (the "EXCHANGE SECURITIES") which are
identical in all material respects to the Securities (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions) and under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT").
Pursuant to the Share Pledge Agreement, dated as of April 10,
2001, between the Company and Bankers Trust Company as Trustee (the "SHARE
PLEDGE AGREEMENT") and the Security Assignment Agreement, dated as of April 10,
2001, between the Company and Bankers Trust Company as Trustee (the "SECURITY
ASSIGNMENT AGREEMENT," and together with the Share Pledge Agreement, the
"SECURITY AGREEMENTS"), the Securities, together with the First Tranche
Notes, will be secured by a first priority security interest in the capital
stock of Preem Petroleum AB and certain proceeds from time to time received,
receivable or otherwise distributed in respect thereof, and a first priority
assignment of a subordinated shareholder loan (collectively, the
"COLLATERAL"). The Company and certain of its creditors, including the
Trustee acting on behalf of the holders of the Securities, have previously
entered into certain debt restructuring agreements, pursuant to which the
creditor parties thereto have established their relative rights regarding
repayment of indebtedness owed by the Company to each such creditor and the
treatment of certain shareholder loans.
Capitalized terms used but not defined herein shall have
the meanings given to such terms in the Offering Memorandum.
I. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Initial Purchaser on
and as of the date hereof and the Closing Date (as defined in
Section III) that:
1. The Offering Memorandum, as of the date thereof does not, and
on the Closing Date will not, contain any untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED that the Company makes no
representation or warranty as to information contained in or
omitted from the Offering Memorandum in reliance upon and in
conformity with written information relating to the Initial
Purchaser furnished to the Company by or on behalf of the
Initial Purchaser specifically for use therein (the "INITIAL
PURCHASER'S INFORMATION").
2. The Offering Memorandum as of the date thereof, contains all
of the information that, if requested by a prospective
purchaser of the Securities, would be required to be provided
to such prospective purchaser pursuant to Rule 144A(d)(4)
under the Securities Act.
3. Assuming the accuracy of the representations and warranties of
the Initial Purchaser contained in Section II and their
compliance with the agreements set forth therein, it is not
necessary, in connection with the issuance and sale of the
Securities to the Initial Purchaser and the offer, resale and
delivery of the Securities by the Initial Purchaser in the
manner contemplated by this Agreement and the Offering
Memorandum, to register the Securities under the Securities
Act or to qualify the Indenture under the Trust Indenture Act
of 1939, as amended (the "TRUST INDENTURE ACT").
4. The Company and each of its subsidiaries (except for certain
immaterial subsidiaries which the Company is in the process of
dissolving) have been duly incorporated and are validly
existing as corporations under the laws of their respective
jurisdictions of incorporation, are duly qualified to do
business as foreign corporations in each jurisdiction in which
their respective ownership or lease of property or the conduct
of their respective businesses requires such qualification,
and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in
which they are engaged, except where the failure to so qualify
or have such power or authority would not, singularly or in
the aggregate, have a material adverse effect on the condition
(financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole
(a "MATERIAL ADVERSE EFFECT").
5. The information set forth set forth in the Offering Memorandum
under the heading "Capitalization" is accurate and all of the
outstanding shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable. Except as expressly set forth in the Offering
Memorandum, all of the outstanding shares of capital stock of
each material subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance,
security interest, restriction upon voting or transfer or any
other claim of any third party, except for such liens,
charges, encumbrances, security interests, restrictions and
claims which would not, singularly or in the aggregate, have a
Material Adverse Effect.
6. The Company has full corporate power and authority to execute
and deliver this Agreement, the Securities and the
Registration Rights Agreement (collectively, the "TRANSACTION
DOCUMENTS") and to perform its obligations hereunder and
thereunder; and all corporate action required to be taken by
the Company and, to
the extent relevant, its shareholders, subsidiaries and
affiliates, for the due and proper authorization, execution
and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby have
been duly and validly taken.
7. This Agreement has been duly authorized, executed and
delivered by the Company.
8. The Registration Rights Agreement has been duly authorized by
the Company and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of the
Company enforceable against the Company in accordance with its
terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent
conveyance or transfer, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a
proceeding in equity or at law) and except that rights to
indemnification and contribution may be limited by concerns of
public policy.
9. Each of the Security Agreements has been duly authorized,
executed and delivered by the Company, and the Security
Agreements constitute a perfected security interest in all
right, title and interest of the Company in the Collateral and
constitute valid and legally binding agreements of the Company
enforceable against the Company in accordance with their
terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent
conveyance or transfer, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a
proceeding in equity or at law).
10. The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding
agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization,
moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether
considered in a proceeding in equity or at law). As of the
date hereof and on the Closing Date, the Indenture conforms in
all material respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
11. The Securities have been duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided herein,
will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their
terms, except to the extent that such enforceability may be
limited by
applicable bankruptcy, insolvency, fraudulent conveyance
or transfer, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a
proceeding in equity or at law).
12. [Intentionally omitted.]
13. Each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum.
14. The execution, delivery and performance by the Company of each
of the Transaction Documents, the issuance, authentication,
sale and delivery of the Securities and compliance by the
Company with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents will
not (i) conflict with or result in a breach or violation of
any of the terms or provisions of, or (ii) constitute a
default under, or (iii) result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries (except for the
liens, charges and encumbrances created by the Security
Agreements) pursuant to, in each case, any indenture
(including the Indenture), mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its
subsidiaries is subject, except for such conflicts, breaches,
defaults, liens, charges and encumbrances which would not,
singularly or in the aggregate, have a Material Adverse
Effect, nor will such actions result in any violation of the
provisions of the memorandum of association (if applicable) or
articles of association (or other similar organizational
document) of the Company or any of its subsidiaries or any
statute or any judgment, order, decree, rule or regulation of
any court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their material properties or assets, except for such
violations of statutes, judgments, orders, decrees, rules and
regulations which would not, singularly or in the aggregate,
have a Material Adverse Effect; and no consent, approval,
authorization, order, decree, registration or qualification of
or filing of or with any court or arbitrator or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their respective material
properties or assets under any such statute, judgment, order,
decree, rule or regulation is required for the execution,
delivery and performance by the Company of each of the
Transaction Documents, the issuance, authentication, sale and
delivery of the Securities and compliance by the Company with
the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, orders, decrees,
registrations, qualifications or filings which shall have been
obtained or made prior to the Closing Date and as may be
required to be obtained or made with respect to the
Registration Rights Agreement under the Securities Act, and
applicable state securities laws as provided in that
agreement.
15. KPMG, Stockholm are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants ("AICPA")
and its interpretations and rulings thereunder. The historical
financial statements (including the related notes) of Preem
Petroleum AB and Preem Holdings AB contained in the Offering
Memorandum comply in all material respects with the
requirements applicable to a registration statement on Form
F-1 under the Securities Act; such financial statements and
related notes have been prepared in accordance with generally
accepted accounting principles in Sweden consistently applied
throughout the periods covered thereby and fairly present the
financial position of the entities purported to be covered
thereby at the respective dates indicated and the results of
their operations and their cash flows for the respective
periods indicated; and the financial information contained in
the Offering Memorandum under the headings "Summary--Summary
Consolidated Financial Information", "Capitalization,"
"Selected Consolidated Financial Data" and "Management's
Discussion and Analysis of Financial Conditions and Results of
Operations" are derived from the accounting records of Preem
Petroleum AB and Preem Holdings AB and their respective
subsidiaries and fairly present the information purported to
be shown thereby. The PRO FORMA financial information
contained in the Offering Memorandum has been prepared on a
basis consistent with the historical financial statements
contained in the Offering Memorandum (except for the PRO FORMA
adjustments specified therein), includes all material
adjustments to the historical financial information required
by Rule 11-02 of Regulation S-X under the Securities Act and
the Exchange Act of 1934, as amended (the "EXCHANGE ACT") to
reflect the transactions described in the Offering Memorandum,
gives effect to assumptions made on a reasonable basis and
fairly presents the historical and proposed transactions
contemplated by the Offering Memorandum and the Transaction
Documents. The other historical financial and statistical
information and data included in the Offering Memorandum are,
in all material respects, fairly presented.
16. Except as described in the Offering Memorandum, there are no
judicial, legal, arbitral, rule-making, administrative or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the
subject which, (A) singularly or in the aggregate, if
determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material
Adverse Effect or (B) question the validity or enforceability
of any of the Transaction Documents or any action taken or to
be taken pursuant thereto. To the best knowledge of the
Company, no such proceedings are threatened or contemplated by
governmental authorities or others.
17. No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental
agency or body having jurisdiction over the Company which
prevents the issuance of the Securities or
suspends the sale of the Securities in any jurisdiction;
no injunction, restraining order or order of any nature
by any federal or state court of competent jurisdiction
has been issued with respect to the Company or any of its
subsidiaries that would prevent or suspend the issuance
or sale of the Securities or the use of the Offering
Memorandum in any jurisdiction; and the Company has
complied with any and all requests to it by any
securities authority in any jurisdiction for additional
information to be included in the Offering Memorandum.
18. Neither the Company nor any of its subsidiaries is in
violation of its memorandum of association (if applicable) or
articles of association (or other similar organizational
document) or in default, and no event has occurred which, with
notice or lapse of time or both, would constitute a default,
in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which it is
a party or by which it is bound or to which any of its
property or assets is subject or in violation in any respect
of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject,
except where such violation or default, as the case may be,
would not, singularly or in the aggregate, have a Material
Adverse Effect.
19. The Company and each of its subsidiaries possess all material
licenses, certificates, authorizations and permits issued by,
and have made all declarations and filings with, the
appropriate supra-national, federal, regional, local or
foreign regulatory agencies or bodies which are necessary or
desirable for the ownership of their respective properties or
the conduct of their respective businesses as described in the
Offering Memorandum, except where the failure to possess or
make the same would not, singularly or in the aggregate, have
a Material Adverse Effect, and neither the Company nor any of
its subsidiaries has received notification of any revocation
or modification of any such license, certificate,
authorization or permit or has any reason to believe that any
such license, certificate, authorization or permit will not be
renewed in the ordinary course.
20. Except as described in the Offering Memorandum, the Company
and each of its subsidiaries have filed (or have received an
extension for filing with respect to) all supra-national,
federal, regional, local and foreign income and franchise tax
returns required to be filed through the date hereof (except
when any failure to so file would not be likely to have a
Material Adverse Effect) and have paid (or made adequate
reserves for) all taxes shown to be due thereon, and no tax
deficiency has been determined adversely to the Company or any
of its subsidiaries which has had (nor does the Company or any
of its subsidiaries have any knowledge of any tax deficiency
which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have) a Material
Adverse Effect.
21. Neither the Company nor any of its subsidiaries is subject to
regulation as an "investment company" under the Investment
Company Act of 1940, as amended
(the "INVESTMENT COMPANY ACT"), and the rules and
regulations of the Commission thereunder, or a company
"controlled by" an investment company subject to
regulation under the Investment Company Act and the rules
and regulations of the Commission thereunder, or a
"holding company" or a "subsidiary company" of a holding
company or an "affiliate" thereof within the meaning of
the Public Utility Holding Company Act of 1935, as
amended.
22. The Company and each of its material subsidiaries maintains a
system of internal accounting controls sufficient to provide
reasonable assurance that: transactions are executed in
accordance with management's general or specific
authorizations; transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles in Sweden and to
maintain asset accountability; access to assets is permitted
only in accordance with management's general or specific
authorization; and the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any difference.
23. The Company and each of its subsidiaries have insurance
covering their respective properties, operations, personnel
and businesses, which insurance is in amounts and insures
against such losses and risks as the Company has reasonably
concluded is sufficient based upon experience and industry
practice. Neither the Company nor any of its subsidiaries has
received notice from any insurer or agent of such insurer that
material capital improvements or other material expenditures
are necessary to be made in order to continue insurance at
substantially current levels.
24. The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names,
trademark registrations, service ▇▇▇▇ registrations,
copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for
the conduct of their respective businesses; and the conduct of
their respective businesses will not conflict in any respect
with, and the Company and its subsidiaries have not received
any notice of any claim of conflict with, any such rights of
others which singularly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
25. The Company and each of its subsidiaries have good and
marketable title to, or have valid rights to lease or
otherwise use, all items of real and personal property which
are material to the business of the Company and its
subsidiaries, in each case free and clear of all liens (except
liens created pursuant to the Security Agreements),
encumbrances, claims and defects and imperfections of title
except such as do not materially interfere with the use made
and proposed to be made of such property by the Company and
its subsidiaries or could not reasonably be expected to have a
Material Adverse Effect.
26. No labor disturbance by or dispute with the employees of the
Company or any of its subsidiaries exists or, to the best
knowledge of the Company, is threatened.
27. Except as described in the Offering Memorandum, there has been
no storage, generation, transportation, handling, treatment,
disposal, discharge, emission or other release of any kind of
Hazardous Materials by, due to or caused by the Company or any
of its subsidiaries (or, to the best knowledge of the Company,
any other entity (including any predecessor) for whose acts or
omissions the Company or any of its subsidiaries is or could
reasonably be expected to be liable) upon any of the property
now or previously owned or leased by the Company or any of its
subsidiaries, or upon any other property in violation of any
statute or any ordinance, rule, regulation, order, judgment,
decree or permit or which would, under any applicable statute
or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to
any liability, except for any violation or liability that
could not reasonably be expected to have, singularly or in the
aggregate with all such violations and liabilities, a Material
Adverse Effect; and except as described in the Offering
Memorandum, there has been no disposal, discharge, emission or
other release of any kind onto such property or into the
environment surrounding such property of any Hazardous
Materials with respect to which the Company has any knowledge,
except for any such disposal, discharge, emission or other
release of any kind which could not reasonably be expected to
have, singularly or in the aggregate with all such discharges
and other releases, a Material Adverse Effect. The term
"Hazardous Materials" includes, without limitation, (a) any
petroleum or petroleum product, (b) any polychlorinated
biphenyl and (c) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material, waste or substance
regulated under or within the meaning of any other
Environmental Law. The term "Environmental Law" means every
supra-national, federal, regional, local and foreign law and
regulation relating to the protection of human health or the
environment or imposing liability or requiring standards of
conduct concerning any occupational safety and health, wages,
hours or terms of employment. Except as disclosed in the
Offering Memorandum and except as would not singularly or in
the aggregate, reasonably be expected to have a Material
Adverse Effect, the Company and each of its subsidiaries is in
material compliance with all applicable existing Environmental
Laws. Except as disclosed in the Offering Memorandum, none of
the Company or any of its subsidiaries has received any
written notice and there is no pending or, to the best
knowledge of the Company, threatened action, suit or
proceeding before or by any court or governmental agency or
body alleging liability (including, without limitation,
alleged or potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources
damages, property damages, personal injuries, or penalties) of
the Company or any of its subsidiaries arising out of, based
on or resulting from (A) the presence or release into the
environment of any Hazardous Material at any location owned or
operated by the Company or any of its subsidiaries or
previously owned by the Company or any of its subsidiaries or
(B) any violation or alleged violation of any Environmental
Law, in either case which alleged or potential liability,
singularly
or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
28. Neither the Company, any of its subsidiaries, any of its
direct or indirect shareholders, nor any director, officer,
agent, employee or other person acting on behalf of the
Company or any of its subsidiaries has (i) used any corporate
funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity,
(ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from
corporate funds or (iii) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful
payment.
29. On and immediately after the Closing Date, the Company (after
giving effect to the issuance of the Securities and to the
other transactions related thereto as described in the
Offering Memorandum) will be Solvent. As used in this
paragraph, the term "Solvent" means, with respect to a
particular date, that on such date, the present fair market
value (or present fair saleable value) of the assets of the
Company is not less than the total amount required to pay the
probable liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) as
they become absolute and matured; the Company is able to
realize upon its assets and pay its debts and other
liabilities, contingent obligations and commitments as they
mature and become due in the normal course of business,
assuming the sale of the Securities as contemplated by this
Agreement and the Offering Memorandum; the Company is not
incurring debts or liabilities beyond its ability to pay as
such debts and liabilities mature; and the Company is not
engaged in any business or transaction, and is not about to
engage in any business or transaction, for which its property
would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in
which the Company is engaged. In computing the amount of such
contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount that, in the light
of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to
become an actual or matured liability.
30. Except as set forth in the Offering Memorandum, neither the
Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person that
would give rise to a valid claim against the Company or any
Initial Purchaser for a brokerage commission, finder's fee or
like payment in connection with the offering and sale of the
Securities.
31. The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
32. None of the Company, any of its affiliates or any person
acting on its or their behalf has engaged or will engage in
any directed selling efforts (as such term is defined in
Regulation S under the Securities Act ("REGULATION S")), and
all such
persons have complied and will comply with the offering
restrictions requirement of Regulation S to the extent
applicable. The Company reasonably believes there is no
"substantial U.S. market interest" in the Securities (within
the meaning of Regulation S).
33. Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Securities Act
("REGULATION D")) has, directly or through any agent, sold,
offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as such term is
defined in the Securities Act), which is or will be integrated
with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
34. None of the Company or any of its affiliates (as defined in
Rule 501(b) of Regulation D) or any other person acting on its
or their behalf has engaged, in connection with the Offering
in any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act.
35. There are no securities of the Company registered under the
United States Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), or listed on a United States national
securities exchange or quoted in a U.S. automated inter-dealer
quotation system. No holder of securities of the Company
(other than holders of the Securities) will be entitled to
have such securities registered under either the Exchange
Offer Registration Statement or the Shelf Registration
Statement (although holders of the First Tranche Notes have
comparable registration rights, and the Company may include
the First Tranche Notes with the Securities on the same
registration statement).
36. The Company believes that no forward-looking statement (within
the meaning of Section 27A of the Securities Act and Section
21E of the Exchange Act) contained in the Offering Memorandum
has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
37. The indemnification and contribution provisions set forth in
Sections IX and X of this Agreement do not contradict Swedish
law or public policy.
38. Since the date as of which information is given in the
Offering Memorandum, except as otherwise disclosed therein:
there has been no material adverse change or any development
involving a prospective material adverse change in the
condition, financial or otherwise, or in the earnings,
business affairs, management or business prospects of the
Company and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business; neither the
Company nor any of its subsidiaries has incurred any liability
or obligation, direct or contingent, that is material to the
Company and its subsidiaries as a whole other than in the
ordinary course of business; neither the Company nor any of
its subsidiaries has entered into any transaction other than
in the ordinary course of business that is material to the
Company and its subsidiaries as a whole; and there
has not been any change in the capital stock or long-term
debt of the Company, or the consolidated long-term debt
of the Company and its subsidiaries taken as a whole, or
any dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock
that is material to the Company and its subsidiaries as a
whole.
39. No stamp or other issuance or transfer taxes or duties,
value-added tax, documentary tax, registration tax and no
withholding or other taxes are payable by or on behalf of the
Initial Purchaser in connection with (a) the issuance of
Securities, (b) the sale, transfer and delivery of the
Securities to the Initial Purchasers pursuant to this
Agreement or for the resale of the Securities placed by or at
the direction of the Initial Purchaser or (c) the execution
and delivery of this Agreement or any of the other Transaction
Documents or the consummation of any of the transactions
contemplated hereby or thereby.
40. Under the laws of the Kingdom of Sweden, the submission by the
Company to the jurisdiction of any United States federal or
state court sitting in the State of New York and the
designation of the law of the State of New York to apply to
this Agreement and the other Transaction Documents will be
binding upon the Company and would be the basis of a judgment
in any related judicial or administrative proceeding initiated
in the Kingdom of Sweden.
41. The form of certificates for the Securities to be sold
pursuant to this Agreement conforms to the corporate law of
the Kingdom of Sweden.
42. To the extent applicable, none of the Company, its
subsidiaries, nor any person or entity controlling the Company
has made an "investment," as defined in the United States
Federal Iran And Libya Sanctions Act of 1996 (the "SANCTIONS
ACT"), subject to the Sanctions Act. To the extent applicable,
none of the Company, its subsidiaries, nor any person or
entity controlling the Company has exported, transferred or
otherwise provided to Libya or any agency or instrumentality
of Libya any goods, services, technology or other items
subject to the Sanctions Act. To the extent applicable, none
of the Company, its subsidiaries, nor any person or entity
controlling the Company has taken any action in violation of
the Iraq Sanctions Act of 1990, or applicable regulations or
orders thereunder.
43. Except as otherwise disclosed in the Offering Memorandum,
there are no business relationships or other related-party
transactions of the nature described in Item 7.B of Form 20-F
of the Commission ("ITEM 7.B") involving the Company or any
other party referred to in Item 7.B, except for transactions
that would be considered immaterial under Item 7.B.
II. PURCHASE AND RESALE OF THE SECURITIES. On the basis of the
representations, warranties and agreements contained herein, and
subject to the terms and conditions set forth herein, the Company
agrees to issue and sell to the Initial Purchaser, and the Initial
Purchaser
agrees to purchase from the Company, the principal amount of
Securities set forth opposite the name of the Initial Purchaser on
Schedule 1 hereto at a purchase price equal to (i) 97 1/2% of the
principal amount plus premium of 3% thereof plus (ii) accrued interest
for each Note. The Company shall not be obligated to deliver any of the
Securities except upon payment for all of the Securities to be
purchased as provided herein.
1. The Initial Purchaser has advised the Company that it proposes
to offer the Securities for resale upon the terms and subject
to the conditions set forth herein and in the Offering
Memorandum. The Initial Purchaser represents, warrants and
agrees that (i) it is purchasing the Securities in an
off-shore transaction exempt from registration under the
Securities Act, (ii) it has not solicited offers for, or
offered or sold the Securities, and will not solicit offers
for, or offer or sell, the Securities, by means of any form of
general solicitation or general advertising within the meaning
of Rule 502(c) of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the
Securities Act and (iii) it has solicited and will solicit
offers for the Securities only from, and has offered or sold
and will offer, sell or deliver the Securities, as part of
their initial offering, only (A) within the United States to
persons whom it reasonably believes to be qualified
institutional buyers ("QUALIFIED INSTITUTIONAL BUYERS"), as
defined in Rule 144A under the Securities Act ("RULE 144A"),
or if any such person is buying for one or more institutional
accounts for which such person is acting as fiduciary or
agent, only when such person has represented to it that each
such account is a Qualified Institutional Buyer to whom notice
has been given that such sale or delivery is being made in
reliance on Rule 144A and in each case, in transactions in
accordance with Rule 144A and (B) outside the United States to
persons other than U.S. persons in reliance on Regulation S.
2. In connection with the offer and sale of Securities in
reliance on Regulation S, the Initial Purchaser represents,
warrants and agrees that:
A. The Securities have not been registered under the
Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of,
U.S. persons except pursuant to an exemption from, or in
transactions not subject to, the registration requirements
of the Securities Act.
B. It has not offered or sold the Securities, and will not
offer or sell, any Securities constituting part of this
offering within the United States except in accordance
with Rule 903 of Regulation S or Rule 144A or any other
available exemption from registration under the Securities
Act.
C. Neither the Initial Purchaser nor any of its affiliates or
any other person acting on its or their behalf has engaged
or will engage in any directed selling efforts with
respect to the Securities, and all such persons have
complied and will comply with the offering restrictions
requirement of Regulation S.
D. It has not and will not enter into any contractual
arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates
or with the prior written consent of the Company.
Terms used in this Section II(2) have the meanings given to them by
Regulation S.
3. The Initial Purchaser represents, warrants and agrees that
(i) it has not offered or sold and prior to the date six
months after the Closing Date will not offer or sell any
Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments
(as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in
the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has
complied and will comply with all applicable provisions
of the Financial Services ▇▇▇ ▇▇▇▇ and the Public Offers
of Securities Regulations 1995 with respect to anything
done by it in relation to the 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 Securities to a person
who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
4. The Initial Purchaser agrees that, prior to or simultaneously
with the confirmation of sale by it to any purchaser of any of
the Securities purchased by the Initial Purchaser from the
Company pursuant hereto, the Initial Purchaser shall furnish
to that purchaser a copy of the Offering Memorandum (and any
amendment or supplement thereto that the Company shall have
furnished to the Initial Purchaser prior to the date of such
confirmation of sale). In addition to the foregoing, the
Initial Purchaser acknowledges and agrees that the Company
and, for purposes of the opinions to be delivered to the
Initial Purchaser pursuant to Section V(4) and (7), counsel
for the Company and for the Initial Purchaser, respectively,
may rely upon the accuracy of the representations and
warranties of the Initial Purchaser and its compliance with
its agreements contained in this Section II, and the Initial
Purchaser hereby consents to such reliance.
5. The Company acknowledges and agrees that the Initial Purchaser
may sell Securities to any of its affiliates and that any such
affiliate may sell Securities purchased by it to the Initial
Purchaser.
6. The Initial Purchaser agrees that it will not directly or
indirectly purchase, offer, sell or deliver any Securities or
have in its possession or distribute or publish the Offering
Memorandum (or any amendment or supplement thereto) or any
other offering material in or from any country or jurisdiction
except under
circumstances that will result in compliance with any
applicable laws and regulations.
7. The Initial Purchaser represents, warrants and agrees that,
because the Offering Memorandum has not been and will not be
registered with the Swedish Financial Supervisory Authority:
(i) the Offering Memorandum shall not be made available, and
(ii) the Securities shall not otherwise be marketed or offered
for sale in Sweden, unless any of the foregoing actions are
deemed not to be an offer to the public in Sweden under the
Financial Instruments Trading Act (1991:980).
III. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and payment for
the Securities shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, London, England, or at such other place as shall be agreed
upon by the Initial Purchaser and the Company, at 10:00 A.M., London
time, on July 20, 2001, or at such other time or date, not later than
seven full business days thereafter, as shall be agreed upon by the
Initial Purchaser and the Company (such date and time of payment and
delivery being referred to herein as the "CLOSING DATE").
1. On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry
transfer of same-day funds in Euro to such account or accounts
as the Company shall specify prior to the Closing Date or by
such other means as the parties hereto shall agree prior to
the Closing Date against delivery to the Initial Purchaser of
the certificates evidencing the Securities. Time shall be of
the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the
obligations of the Initial Purchaser hereunder. Upon delivery,
the Securities shall be in global form, registered in such
names and in such denominations as the Initial Purchaser shall
have requested in writing not less than two full business days
prior to the Closing Date. The Company agrees to make one or
more global certificates evidencing the Securities available
for inspection by the Initial Purchasers in London, England at
least 24 hours prior to the Closing Date.
IV. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the Initial
Purchaser:
1. Prior to the completion of the Offering of the Securities by
the Initial Purchaser, to advise the Initial Purchaser
promptly and, if requested, confirm such advice in writing, of
the happening of any event which makes any statement of a
material fact made in the Offering Memorandum untrue or which
requires the making of any additions to or changes in the
Offering Memorandum (as amended or supplemented from time to
time) in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
to advise the Initial Purchaser promptly of any order
preventing or suspending the use of the Offering Memorandum,
of any suspension of the qualification of the Securities for
offering or sale in any jurisdiction and of the initiation or
threatening of any proceeding for any such purpose; and to use
its best efforts to
prevent the issuance of any such order preventing or
suspending the use of the Offering Memorandum or
suspending any such qualification and, if any such
suspension is issued, to obtain the lifting thereof at
the earliest possible time;
2. To furnish promptly to the Initial Purchaser and counsel for
the Initial Purchaser, without charge, as many copies of the
Offering Memorandum (and any amendments or supplements
thereto) as may be reasonably requested;
3. Prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to the Initial Purchaser
and counsel for the Initial Purchaser and not to effect any
such amendment or supplement to which the Initial Purchaser
shall reasonably object by notice to the Company after a
reasonable period to review;
4. If, at any time prior to completion of the Offering of the
Securities by the Initial Purchaser, any event shall occur or
condition exist as a result of which it is necessary, in the
opinion of counsel for the Initial Purchaser or counsel for
the Company, to amend or supplement the Offering Memorandum in
order that the Offering Memorandum will not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is
delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Offering Memorandum to
comply with applicable law, promptly to prepare such amendment
or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as
so amended or supplemented, will comply with applicable law;
5. For so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, to furnish to holders of the
Securities and prospective purchasers of the Securities
designated by such holders, upon request of such holders or
such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities
Act, unless the Company is then subject to and in compliance
with Section 13 or 15(d) of the Exchange Act or exempt from
reporting pursuant to Rule 12g3-2(b) thereunder (the foregoing
agreement being for the benefit of the holders from time to
time of the Securities and prospective purchasers of the
Securities designated by such holders);
6. Prior to completion of the Offering of the Securities,
promptly to take from time to time such actions as the Initial
Purchaser may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of
such jurisdictions as the Initial Purchaser may designate and
to continue such qualifications in effect for so long as
required for the resale of the Securities; and to arrange for
the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial
Purchaser may reasonably request; PROVIDED that the Company
and its subsidiaries shall not be obligated to
qualify as foreign corporations in any jurisdiction in
which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
7. [Intentionally left blank]
8. To cause the Securities to be listed on the Luxembourg Stock
Exchange in accordance with the rules and regulations thereof
as promptly as practicable and to maintain the listing of the
Securities on such exchange for so long as any Security is
outstanding (or on such other exchange as is reasonably
acceptable to the applicable Trustee);
9. Not to, and to cause its affiliates not to, sell, offer for
sale or solicit offers to buy or otherwise negotiate in
respect of any security (as such term is defined in the
Securities Act) which could be integrated with the sale of the
Securities in a manner which would require registration of the
Securities under the Securities Act;
10. Except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as
the case may be, not to, and to cause its affiliates not to,
and not to authorize or knowingly permit any person acting on
their behalf to, solicit any offer to buy or offer to sell the
Securities by means of any form of general solicitation or
general advertising within the meaning of Regulation D or in
any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act; and not to offer, sell,
contract to sell or otherwise dispose of, directly or
indirectly, any securities under circumstances in which such
offer, sale, contract or disposition would cause the exemption
afforded by Section 4(2) of the Securities Act to cease to be
applicable to the offering and sale of the Securities as
contemplated by this Agreement and the Offering Memorandum;
11. Other than pursuant to and in accordance with the Registration
Rights Agreement and the comparable agreement entered into in
connection with the offer and sale of the First Tranche Notes,
for a period of 180 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file a
registration statement for, or announce any offer, sale,
contract for sale of or other disposition of any debt
securities issued or guaranteed by the Company or any of its
subsidiaries (other than the Securities) without the prior
written consent of the Initial Purchaser;
12. During the period from the Closing Date until two years after
the Closing Date, without the prior written consent of the
Initial Purchaser, not to, and not permit any of its
affiliates (as defined in Rule 144 under the Securities Act)
to, resell any of the Securities that have been reacquired by
them, except for Securities purchased by the Company or any of
its affiliates and resold in a transaction registered under
the Securities Act, or in a transaction outside the United
States in accordance with Regulation S;
13. Not to, for so long as the Securities are outstanding, be or
become, or be or become owned by, 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, and not to be or become, or
be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder;
14. In connection with the offering of the Securities, until the
Initial Purchaser shall have notified the Company of the
completion of the offering of the Securities, not to, and to
cause its affiliated purchasers (as defined in Regulation M
under the Exchange Act) not to, either alone or with one or
more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial
interest, any Securities, or attempt to induce any person to
purchase any Securities; and not to, and to cause its
affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent active trading in or
of raising the price of the Securities;
15. To furnish to the Initial Purchaser on the date hereof a copy
of the independent accountants' report included in the
Offering Memorandum signed by the accountants rendering such
report;
16. To do and perform all things required to be done and performed
by it under this Agreement that are within its control prior
to or after the Closing Date, and to use its best efforts to
satisfy all conditions precedent on its part to the delivery
of the Securities;
17. Except as expressly contemplated by the Offering Memorandum,
to not take any action from the date hereof until the
execution and delivery of the Indenture which, if taken after
such execution and delivery, would have violated any of the
covenants contained in the Indenture;
18. To not take any action prior to the Closing Date which would
require the Offering Memorandum to be amended or supplemented
pursuant to Section IV(4);
19. From the date hereof until the Closing Date, not to issue any
press release or other communication directly or indirectly or
hold any press conference with respect to the Company, its
condition, financial or otherwise, or earnings, business
affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business
and consistent with the past practices of the Company and of
which the Initial Purchaser is notified), without the prior
written consent of the Initial Purchaser, unless in the
judgment of the Company and its counsel, and after
notification to the Initial Purchaser, such press release or
communication is required by law;
20. To apply the net proceeds from the sale of the Securities as
set forth in the Offering Memorandum under the heading "Use of
Proceeds"; and
21. To pay and, to the extent permitted by applicable law,
indemnify and hold harmless the Initial Purchaser against any
stamp or other issuance or transfer taxes or duties,
value-added tax, documentary tax, registration tax,
withholding or other taxes are payable by or on behalf of the
Initial Purchaser in connection with (i) the issuance of
Securities, (ii) the sale, transfer and delivery of the
Securities to the Initial Purchaser pursuant to this Agreement
or for the resale of the Securities placed by or at the
direction of the Initial Purchaser or (iii) the execution and
delivery of this Agreement or any of the other Transaction
Documents or the consummation of any of the transactions
contemplated hereby or thereby.
V. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of the
Initial Purchaser hereunder are subject to the accuracy, on and as of
the date hereof and the Closing Date, of the representations and
warranties of the Company contained herein, to the accuracy of the
statements of the Company and its officers made in any certificates
delivered pursuant hereto, to the performance by the Company of its
obligations hereunder, and to each of the following additional terms
and conditions:
1. The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the
Initial Purchaser as promptly as practicable on or following
the date of this Agreement or at such other date and time as
to which the Initial Purchaser may agree; and no stop order
suspending the sale of the Securities in any jurisdiction
shall have been issued and no proceedings for such purpose
shall have been commenced or shall be pending or threatened.
2. The Initial Purchaser shall not have discovered and disclosed
to the Company on or prior to the Closing Date that the
Offering Memorandum or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion
of counsel for the Initial Purchaser, is material or omits to
state any fact which, in the opinion of such counsel is
material and is required to be stated therein or is necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the
Transaction Documents and the Offering Memorandum, and all
other legal matters relating to the Transaction Documents and
the transactions contemplated thereby, including all such
corporate proceedings and legal matters in relation to the
Company, Corral Petroleum Holdings AB and Preem Petroleum AB,
shall be satisfactory in all material respects to the Initial
Purchaser and the Company, Corral Petroleum Holdings AB and
Preem Petroleum AB shall have furnished to the Initial
Purchaser all documents and information that it or their
counsel may reasonably request to enable them to pass upon
such matters.
4. Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ shall have furnished to the
Initial Purchaser their written opinion, as counsel to the
Company, addressed to the Initial Purchaser and dated the
Closing Date, in form and substance reasonably satisfactory to
the Initial Purchaser, substantially to the effect set forth
in Annex B hereto.
5. ▇▇▇▇▇▇▇▇▇▇ & Swartling Advokatbyra AB shall have furnished to
the Initial Purchaser their written opinion, as special
Swedish counsel to the Company, addressed to the Initial
Purchaser and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchaser,
substantially to the effect set forth in Annex C hereto.
6. Per ▇▇▇▇ shall have furnished to the Initial Purchaser his
written opinion, as in-house counsel to Preem Holdings AB,
addressed to the Initial Purchaser and dated the Closing Date,
in form and substance reasonably satisfactory to the Initial
Purchaser, substantially to the effect set forth in Annex D
hereto.
7. The Initial Purchaser shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Initial Purchaser, such opinion or
opinions, dated the Closing Date, with respect to such matters
as the Initial Purchaser may reasonably require, and the
Company shall have furnished to such counsel such documents
and information as they request for the purpose of enabling
them to pass upon such matters.
8. The Company shall have furnished to the Initial Purchaser a
letter (the "INITIAL LETTER") of KPMG, Stockholm, addressed to
the Initial Purchaser and dated the date hereof, in form and
substance satisfactory to the Initial Purchaser, substantially
to the effect set forth in Annex E hereto.
9. The Company shall have furnished to the Initial Purchaser a
letter (the "BRING-DOWN LETTER") of KPMG, Stockholm, addressed
to the Initial Purchaser and dated the Closing Date,
confirming that they are independent public accountants with
respect to the Company and its subsidiaries within the meaning
of Rule 101 of the Code of Professional Conduct of the AICPA
and its interpretations and rulings thereunder, stating, as of
the date of the Bring-Down 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 three business
days prior to the date of the Bring-Down Letter), that the
conclusions and findings of such accountants with respect to
the financial information and other matters covered by the
Initial Letter are accurate and confirming in all material
respects the conclusions and findings set forth in the Initial
Letter.
10. The Company and Preem Petroleum AB shall each have furnished
to the Initial Purchaser a certificate, dated the Closing
Date, of their respective chief executive
officers and its chief financial officers, stating that
(A) such officers have carefully examined the Offering
Memorandum, (B) in their opinion, the Offering
Memorandum, as of its date, did not include any untrue
statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading, and since the date of the Offering
Memorandum, no event has occurred which should have been
set forth in a supplement or amendment to the Offering
Memorandum so that the Offering Memorandum (as so amended
or supplemented) would not include any untrue statement
of a material fact and would not omit to state a material
fact required to be stated therein or necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading
and (C) as of the Closing Date, the representations and
warranties of the Company in this Agreement are true and
correct and the Company has complied with all agreements
and satisfied all conditions on its part to be performed
or satisfied hereunder on or prior to the Closing Date.
11. The Initial Purchaser shall have received a counterpart of the
Registration Rights Agreement which shall have been executed
and delivered by a duly authorized officer of the Company.
12. [Intentionally omitted]
13. [Intentionally omitted]
14. The Securities shall have been duly executed and delivered by
the Company and duly authenticated by the applicable Trustee.
15. [Intentionally left blank]
16. The Securities shall have been approved for listing on the
Luxembourg Stock Exchange.
17. If any event shall have occurred that requires the Company
under Section IV(4) to prepare an amendment or supplement to
the Offering Memorandum, such amendment or supplement shall
have been prepared, the Initial Purchaser shall have been
given a reasonable opportunity to comment thereon, and copies
thereof shall have been delivered to the Initial Purchaser
reasonably in advance of the Closing Date.
18. Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the
Offering Memorandum (exclusive of any amendment or supplement
thereto), except as expressly contemplated by the Offering
Memorandum, there shall not have been any change in the
capital stock or long-term debt or any change, or any
development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries
taken as a whole, the effect of which, in any such case
described above, is, in the judgment of the Initial Purchaser,
so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the
Securities on the terms and in the manner contemplated by this
Agreement and the Offering Memorandum (exclusive of any
amendment or supplement thereto).
19. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued
by any governmental agency or body which would, as of the
Closing Date, prevent the issuance or sale of the Securities
as contemplated by the Offering Memorandum; and no injunction,
restraining order or order of any other nature by any
supra-national, federal, regional, local or foreign court of
competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the
Securities.
20. Subsequent to the execution and delivery of this Agreement, no
downgrading shall have occurred in the rating accorded the
Securities or any of the Company's other debt securities or
preferred stock by a "nationally recognized statistical rating
organization," as such term is defined by the Commission for
purposes of Rule 436(g)(2) of the rules and regulations of the
Commission under the Securities Act, and no such organization
shall have publicly announced that it has under surveillance
or review (other than an announcement with positive
implications of a possible upgrading), its rating of the
Securities or any of the Company's other debt securities or
preferred stock.
21. Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any of the following: (i)
trading in securities generally on the Stockholm Stock
Exchange, the Luxembourg Stock Exchange, the New York Stock
Exchange, the American Stock Exchange or the over-the-counter
markets in the United States shall have been suspended or
limited, or minimum prices shall have been established on any
such exchange or market by the Commission, by any such
exchange or by any other regulatory body or governmental
authority having jurisdiction; (ii) trading in any securities
of the Company on any exchange or in the over-the-counter
market shall have been suspended; (iii) any moratorium on
commercial banking activities shall have been declared by
Swedish, Luxembourg or United States federal, regional and
local authorities; (iv) an outbreak or escalation of
hostilities or a declaration by the United States, Sweden or
Luxembourg of a national emergency or war; or (v) (I) a
material adverse change in general economic, political or
financial conditions the effect of which is, or (II) the
effect of international conditions on the financial markets in
the United States, Sweden or Luxembourg is, in the case of
this clause (v), in the judgment of the Initial Purchaser, so
material and adverse as to make it impracticable or
inadvisable to proceed with the sale or the delivery of the
Securities on the terms and in the manner contemplated by this
Agreement and in the Offering Memorandum (exclusive of any
amendment or supplement thereto).
22. The Initial Purchaser shall have received evidence reasonably
satisfactory to them that the appointment of CT Corporation
System as agent for service of process of the Company pursuant
to Section XVIII hereof has been accepted by such agent.
On or before the Closing Date, the Initial Purchaser and its counsel
shall have received such further documents, opinions, certificates,
letters, schedules, evidence or instruments relating to the business,
corporate, legal or financial affairs of the Company as it shall have
heretofore reasonably requested in connection with the consummation of
the transactions contemplated hereby and by the other Transaction
Documents.
All documents, opinions, certificates, letters, schedules, evidence or
instruments 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 counsel for the
Initial Purchaser.
VI. TERMINATION. The obligations of the Initial Purchaser hereunder may be
terminated by the Initial Purchaser, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and
payment for the Securities if, prior to that time, any of the events
described in Section V (19), (20), (21) or (22) shall have occurred and
be continuing.
VII. [Intentionally omitted]
VIII. REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If (a) this Agreement
shall have been terminated pursuant to Section VI, (b) the Company
shall fail to tender the Securities for delivery to the Initial
Purchaser for any reason permitted under this Agreement or (c) the
Initial Purchaser shall decline to purchase the Securities for any
reason permitted under this Agreement, the Company shall reimburse the
Initial Purchaser for such out-of-pocket expenses (excluding fees and
disbursements of counsel) as shall have been reasonably incurred by the
Initial Purchaser in connection with this Agreement and the proposed
purchase and resale of the Securities.
IX. INDEMNIFICATION.
1. The Company shall indemnify and hold harmless the Initial
Purchaser, its affiliates, their respective officers,
directors, employees, representatives and agents, and each
person, if any, who controls the Initial Purchaser within the
meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section IX(1)
and Section X as an Initial Purchaser), from and against any
loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases
and sales of the Securities), to which any Initial Purchaser
may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other supra-national,
federal, regional, local and foreign statutory law or
regulation, at common law or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based
upon, (i) any
untrue statement or alleged untrue statement of a material
fact contained in the Offering Memorandum or in any
amendment or supplement thereto or in any information provided
by the Company pursuant to Section IV (5) or (ii) the omission
or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse each
Initial Purchaser promptly upon demand for any legal or other
costs, charges and expenses reasonably incurred by any Initial
Purchaser in connection with investigating or defending or
preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; PROVIDED,
HOWEVER, that the Company 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, 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 any Initial Purchaser's Information.
2. The Initial Purchaser shall indemnify and hold harmless the
Company, its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if
any, who controls the Company within the meaning of the
Securities Act or the Exchange Act (collectively referred to
for purposes of this Section IV(2) and Section X as the
Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof,
to which the Company may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common
law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material
fact contained in the Offering Memorandum or in any amendment
or supplement thereto or (ii) the omission or alleged omission
to state therein a material fact required to be stated therein
or 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 any Initial Purchaser's Information, and shall reimburse
the Company for any legal or other costs, charges and expenses
reasonably incurred by the Company in connection with
investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are
incurred.
3. Promptly after receipt by an indemnified party under this
Section IX 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 pursuant
to Section IX(1) or IX(2), notify the indemnifying party in
writing of the claim or the commencement of that action;
PROVIDED, HOWEVER, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may
have under this Section IX except to the extent that it has
been materially prejudiced
(including, without limitation, through the forfeiture of
substantive rights or defenses) by such failure; and,
PROVIDED, FURTHER, that the failure to notify the
indemnifying party shall not relieve it from any
liability which it may have to an indemnified party
otherwise than under this Section IX. 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 Section IX 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 an indemnified party shall have the right to employ
its own counsel in any such action, but the fees,
expenses and other charges of such counsel for the
indemnified party will be at the expense of such
indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by
the indemnifying party, (2) the indemnified party has
reasonably concluded (based upon advice of counsel to the
indemnified party) that there may be legal defenses
available to it or other indemnified parties that are
different from or in addition to those available to the
indemnifying party, (3) a conflict or potential conflict
exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have
the right to direct the defense of such action on behalf
of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such
action within a reasonable time after receiving notice of
the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party
or parties. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding
or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other
charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all
such indemnified party or parties. Each indemnified
party, as a condition of the indemnity agreements
contained in Sections IX(1) and IX(2), shall use all
reasonable efforts to cooperate with the indemnifying
party in the defense of any such action or claim. No
indemnifying party shall be liable for any settlement of
any such action effected without its written consent
(which consent shall not be unreasonably withheld), but
if settled with its written consent or if there be a
final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless
any 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 (which consent shall not
be unreasonably withheld), effect any settlement of any
pending or threatened proceeding 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 claims that are the subject matter of such
proceedings.
The obligations of the Company and the Initial Purchaser in this
Section IX and in Section X are in addition to any other liability that
the Company or the Initial Purchaser, as the case may be, may otherwise
have, including in respect of any breaches of representations,
warranties and agreements made herein by any such party.
X. CONTRIBUTION. If the indemnification provided for in Section IX is
unavailable or insufficient to hold harmless an indemnified party under
Section IX(1) or IX(2), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the 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 Company on the one hand and the Initial Purchaser on
the other from the offering of the 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 Company on the one hand and the Initial Purchaser on the other with
respect to the statements or omissions that 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 Company on the one hand and the Initial Purchaser 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
Securities purchased under this Agreement (before deducting expenses)
received by or on behalf of the Company, on the one hand, and the total
discounts and commissions received by the Initial Purchaser with
respect to the Securities purchased under this Agreement, on the other,
bear to the total gross proceeds from the sale of the Securities under
this Agreement, in each case as set forth in the table on the cover
page of the Offering Memorandum. 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 the Company or information supplied
by the Company on the one hand or to any Initial Purchaser's
Information on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omissions. The Company and the Initial
Purchaser agree that it would not be just and equitable if
contributions pursuant to this Section X were to be determined by PRO
RATA allocation or by any other method of allocation that does not take
into account the equitable considerations referred to herein. 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 Section X shall be deemed to include, for purposes of
this Section X, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the
provisions of this Section X, the Initial Purchaser shall not be
required to contribute any amount in excess of the amount by which the
total discounts and commissions received by the Initial Purchaser with
respect to the Securities purchased by it under this Agreement exceeds
the
amount of any damages which the Initial Purchaser has otherwise
paid or become liable to pay by reason of any 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.
XI. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Initial Purchaser, the Company
and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons,
except as provided in Sections IX and X with respect to affiliates of
the Company and the Initial Purchaser, and officers, directors,
employees, representatives, agents and controlling persons of such
affiliates, the Company and the Initial Purchaser and in Section IV(5)
with respect to holders and prospective purchasers of the Securities.
Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section XI, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
XII. EXPENSES. The Company agrees with the Initial Purchaser to pay (a) the
costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection;
(b) the costs incident to the preparation, printing and distribution of
the Offering Memorandum and any amendments or supplements thereto;
(c) the costs of reproducing and distributing each of the Transaction
Documents; (d) the costs incident to the preparation, printing and
delivery of the certificates evidencing the Securities, including
amounts payable pursuant to Section IV(21) hereof; (e) the fees and
expenses of the Company's counsel and independent accountants; (f) the
fees and expenses of qualifying the Securities under the securities
laws of the several jurisdictions as provided in Section IV(6) and of
preparing, printing and distributing Blue Sky Memoranda (including
related fees and expenses of counsel for the Initial Purchaser);
(g) the costs and expenses incident to any "road show" undertaken in
(h) connection with the marketing of the offering of the Securities;
any fees charged by rating agencies in connection with rating the
Securities; (i) the fees and expenses of the Trustee or any paying or
transfer agents (including related fees and expenses of any counsel to
such parties); (j) all expenses and application and listing fees
incurred in connection with the application for the listing of the
Securities on the Luxembourg Stock Exchange and the approval of the
Securities for book-entry transfer by Euroclear and/or Clearstream
Banking; (k) all other out-of-pocket expenses (including reasonable
fees and disbursements of counsel not exceeding US$75,000) reasonably
incurred by the Initial Purchaser or any of their affiliates in
connection with, or arising out of, the offering and sale of the
Securities; and (l) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement
which are not otherwise specifically provided for in this Section XII.
XIII. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the
Initial Purchaser contained in this Agreement or made by or on behalf
of the Company or the Initial Purchaser pursuant to this Agreement or
any certificate delivered pursuant hereto shall survive the delivery of
and payment for
the Securities and shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any of them or any of their
respective affiliates, officers, directors, employees, representatives,
agents or controlling persons.
XIV. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
1. if to the Initial Purchaser, shall be delivered or sent by
mail or telecopy transmission to Deutsche Bank AG London,
Winchester House, 1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ (telecopier number:
▇▇▇-▇▇-▇▇▇▇-▇▇▇▇); or
2. if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth
in the Offering Memorandum, Attention: President and Chief
Executive Officer (telecopier number: ▇▇▇-▇-▇▇▇-▇▇▇▇), with a
copy to Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (telecopier:
▇▇▇-▇▇-▇▇▇▇-▇▇▇▇);
PROVIDED that any notice to the Initial Purchaser pursuant to
Section IX(3) shall also be delivered or sent by mail to the
Initial Purchaser at its address set forth on the signature page
hereof. Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof.
XV. DEFINITION OF TERMS. For purposes of this Agreement, (a) the term
"business day" means any day on which the Nasdaq National Market System
is open for trading, (b) the term "subsidiary" has the meaning set
forth in Rule 405 under the Securities Act and (c) except where
otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act.
XVI. INITIAL PURCHASER'S INFORMATION. The parties hereto acknowledge and
agree that, for all purposes of this Agreement, the Initial Purchaser's
Information consists solely of the following information in the
Offering Memorandum: the statements concerning the Initial Purchaser
contained in the first, second and seventh paragraphs under the heading
"Plan of Distribution."
XVII. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
XVIII. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE. To the
fullest extent permitted by applicable law, the Company irrevocably
submits to the non-exclusive jurisdiction of any federal or state court
in the Borough of Manhattan in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, in any suit or proceeding based
on or arising under this Agreement or any of the transactions
contemplated hereby, and irrevocably agrees that all claims in respect
of such suit or proceeding may be determined in any such court. The
Company, to the fullest extent
permitted by applicable law, irrevocably and fully waives the
defense of an inconvenient forum to the maintenance of such suit or
proceeding and hereby irrevocably designates and appoints CT
Corporation (the "AUTHORIZED AGENT"), as its authorized agent upon
whom process may be served in any such suit or proceeding. The
Company represents that it has notified the Authorized Agent of
such designation and appointment and that the Authorized Agent has
accepted the same in writing. The Company hereby irrevocably
authorizes and directs its Authorized Agent to accept such service.
The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company
mailed by first class mail or delivered to its Authorized Agent
shall be deemed in every respect effective service of process upon
the Company in any such suit or proceeding. Nothing herein shall
affect the right of any person to serve process in any other manner
permitted by law. The Company agrees that a final action in any
such suit or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other lawful
manner. Notwithstanding the foregoing, any action against the
Company arising out of or based on this Agreement or the
transactions contemplated hereby may also be instituted by the
Initial Purchaser, its officers and employees or any person who
controls the Initial Purchaser within the meaning of the Securities
Act in any competent court in the Kingdom of Sweden and the Company
expressly accepts the jurisdiction of any such court in any such
action.
XIX. JUDGMENT CURRENCY. The Company agrees to indemnify the Initial
Purchaser against any loss incurred as a result of any judgment or
order being given or made for any amount due under this Agreement and
such judgment or order being expressed or paid in a currency (the
"JUDGMENT CURRENCY") other than Euros and as a result of any variation
as between (i) the rate of exchange at which the Euro amount is
converted into such Judgment Currency for the purposes of such judgment
or order and (ii) the spot rate of exchange in the City of New York at
which any such person on the date of payment of such judgment or order
is able to purchase Euros with the amount of the Judgment Currency
actually received by such person. The foregoing indemnity 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 or costs of exchange payable in connection with the purchase
of, or conversion into, Euros.
XX. COUNTERPARTS. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier)
and, if executed in more than one counterpart, the executed agreement,
counterparts shall each be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
XXI. AMENDMENTS. No amendment or waiver of any provision of this Agreement,
nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by
the parties hereto.
XXII. HEADINGS. The headings herein are inserted for convenience of reference
only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the Initial
Purchaser in accordance with its terms.
Very truly yours,
PREEM HOLDINGS AB (PUBL)
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name:
Title:
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name:
Title:
Accepted:
DEUTSCHE BANK AG LONDON
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Authorized Signatory
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Authorized Signatory
Address for notices pursuant to Section IX(3):
Deutsche Bank AG London
Winchester House
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: Legal Department
Telecopier No.: ▇▇▇-▇▇-▇▇▇▇-▇▇▇▇
SCHEDULE 1
PRINCIPAL AMOUNT
INITIAL PURCHASER OF SECURITIES
----------------- ----------------
Deutsche Bank AG London E55,000,000
Total E55,000,000
ANNEX A
--------------------------------------------------------------------------------
E55,000,000 10-5/8% Senior Secured Notes due 2011
REGISTRATION RIGHTS AGREEMENT
-----------------------------
Dated as of July 20, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ (publ)
and
Deutsche Bank AG London
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PAGE
----
1. Definitions............................................................................................2
2. Exchange Offer.........................................................................................5
3. Shelf Registration Statement...........................................................................8
4. Liquidated Damages.....................................................................................9
5. Registration Procedures...............................................................................11
6. Registration Expenses.................................................................................18
7. Indemnification and Contribution......................................................................19
8. Rule 144A.............................................................................................23
9. Underwritten Registrations............................................................................23
10. Miscellaneous.........................................................................................23
(a) No Inconsistent Agreements.....................................................................23
(b) Adjustments Affecting Transfer Restricted Securities...........................................23
(c) Amendments and Waivers.........................................................................23
(d) Notices........................................................................................24
(e) Successors and Assigns.........................................................................25
(f) Counterparts...................................................................................25
(g) Headings.......................................................................................25
(h) Governing Law..................................................................................25
(i) Remedies.......................................................................................25
(j) Submission to Jurisdiction; Appointment of Agent for Service; Waiver...........................26
(k) Currency Indemnity.............................................................................26
(l) Severability...................................................................................27
(m) Securities Held by the Company or Its Affiliates...............................................27
(n) Third Party Beneficiaries......................................................................27
(o) Entire Agreement...............................................................................27
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is dated
as of July 20, 2001, among Preem Holdings AB (publ), a company organized under
the laws of the Kingdom of Sweden (the "COMPANY") and Deutsche Bank AG London
(the "INITIAL PURCHASER").
This Agreement is entered into in connection with the
Purchase
Agreement, dated as of July 13, 2001, between the Company and the Initial
Purchaser (the "
PURCHASE AGREEMENT"), which provides for the sale by the Company
to the Initial Purchaser of its E55,000,000 10-5/8% Senior Secured Notes due
2011 (the "SECURITIES"). The Securities are to be issued under the indenture
dated as of April 10, 2001 (the "INDENTURE"), between the Company, Deutsche Bank
AG London, as Principal Paying Agent, and Bankers Trust Company, as Trustee. In
order to induce the Initial Purchaser to enter into the
Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and its direct and indirect
transferees and assigns.
The parties hereby agree as follows:
1. DEFINITIONS
Unless otherwise defined herein, terms defined in the
Indenture shall be used herein as defined therein. As used in this Agreement,
the following terms shall have the following meanings:
"ADVICE": As defined in Section 5 hereof.
"AGREEMENT": As defined in the first introductory paragraph
hereof.
"APPLICABLE PERIOD": As defined in Section 2(b) hereof.
"BUSINESS DAY": A day other than a Saturday, Sunday, or other
day in which commercial banking institutions are authorized or required
by law to close in
New York City, Stockholm, Sweden, London or
Luxembourg.
"CLEARSTREAM": Clearstream Banking, SOCIETE ANONYME.
"COMMON DEPOSITARY": The common depositary for Euroclear and
Clearstream Banking, or its nominee.
"COMPANY": As defined in the first introductory paragraph
hereto.
"EFFECTIVENESS PERIOD": As defined in Section 3(a) hereof.
"EFFECTIVENESS TARGET DATE": The 180th day after April 10,
2001.
"EUROCLEAR": ▇▇▇▇▇▇ Guaranty Trust Company of
New York,
Brussels office, as operator of the Euroclear System.
"EVENT DATE": As defined in Section 4(b) hereof.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"EXCHANGE OFFER": As defined in Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT": As defined in
Section 2(a) hereof.
"EXCHANGE SECURITIES": As defined in Section 2(a) hereof.
"FILING DATE": The 75th day after the Issue Date.
"HOLDER": Any holder of Transfer Restricted Securities.
"INDENTURE": As defined in the second introductory paragraph
hereto.
"INITIAL PURCHASER": As defined in the first introductory
paragraph hereto.
"INSPECTORS": As defined in Section 5(o) hereof.
"ISSUE DATE": The date of the issuance of the Securities under
the Indenture.
"LIQUIDATED DAMAGES": As defined in Section 4(a) hereof.
"NASD": As defined in Section 5(s) hereof.
"PARTICIPANT": As defined in Section 7(a) hereof.
"PARTICIPATING BROKER-DEALER": As defined in Section 2(b)
hereof.
"PERSON": An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
"PRIVATE EXCHANGE": As defined in Section 2(b) hereof.
"PRIVATE EXCHANGE SECURITIES": As defined in Section 2(b)
hereof.
"PROSPECTUS": The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities
Act), as amended or supplemented by any prospectus supplement, and all
other amendments
and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
"
PURCHASE AGREEMENT": As defined in the second introductory
paragraph hereto.
"RECORDS": As defined in Section 5(o) hereof.
"REGISTRATION STATEMENT": Any registration statement of the
Company, including, but not limited to, the Exchange Offer Registration
Statement or the Shelf Registration Statement, filed with the SEC
pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in such
registration statement.
"RULE 144": Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other
than Rule 144A) or regulation hereafter adopted by the SEC providing
for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not
affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
"RULE 144A": Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule
(other than Rule 144) or regulation hereafter adopted by the SEC.
"RULE 415": Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
"SEC": The U.S. Securities and Exchange Commission.
"SECURITIES": As defined in the second introductory paragraph
hereto.
"SECURITIES ACT": The United States Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"SHELF NOTICE": As defined in Section 2(c) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 3(a)
hereof.
"TRANSFER RESTRICTED SECURITIES": Each Security until the
earliest to occur of (i) the date on which such Security has been
exchanged by a Person (other than a Participating Broker-Dealer) for
Exchange Securities in the Exchange Offer, (ii) following the exchange
by a Participating Broker-Dealer in the Exchange Offer of such Security
for one or more Exchange Securities, the date on which such Exchange
Securities are sold to a purchaser who receives from such Participating
Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus, (iii) the date on which such Security has been effectively
registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on
which such Security is eligible for distribution to the public
pursuant to Rule 144 under the Securities Act.
"TRUST INDENTURE ACT": The Trust Indenture Act of 1939, as
amended.
"TRUSTEE": The trustee, in its capacity as such, under the
Indenture and, if existent, the trustees under any indenture governing
the Exchange Securities and Private Exchange Securities (if any); the
trustee under the Indenture for the Securities shall initially be
Bankers Trust Company.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING": A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. EXCHANGE OFFER
(a) The Company agrees to file at its sole cost and expense
with the SEC no later than the Filing Date, unless prohibited by applicable
law or SEC policy, an offer to exchange (the "EXCHANGE OFFER") any and all of
the Transfer Restricted Securities (other than Private Exchange Securities,
if any) for a like aggregate principal amount of Securities of the Company,
which are substantially identical in all material respects to the Securities
(the "EXCHANGE SECURITIES") and which are entitled to the benefits of the
Indenture or a trust indenture which is substantially identical in all
material respects to the Indenture (other than such changes to such Indenture
or any such identical trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the Trust Indenture Act) and which, in either case, has been qualified under
the Trust Indenture Act, except that the Exchange Securities (other than
Private Exchange Securities, if any) shall have been registered pursuant to
an effective Registration Statement under the Securities Act and shall
contain no restrictive legend thereon. The Exchange Offer shall be registered
under the Securities Act on the appropriate form (the "EXCHANGE OFFER
REGISTRATION STATEMENT") and shall comply with all applicable tender offer
rules and regulations under the Exchange Act. The Company agrees to (i) file
(or submit on a confidential basis) the Exchange Offer Registration Statement
with the SEC on or prior to 75 days after the Issue Date; (ii) use its
reasonable best efforts to cause the Exchange Offer Registration Statement to
be declared effective under the Securities Act on or before the Effectiveness
Target Date; (iii) (A) file all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement
to become effective, (B) file, if applicable, a post-effective amendment to
such Registration Statement pursuant to Rule 430A under the Securities Act
and (C) cause all necessary filings in connection with the registration and
qualifications of the Exchange Securities to be made under the blue sky laws
of such jurisdictions as are necessary to permit consummation of the Exchange
Offer; and (iv) use its reasonable best efforts to consummate the Exchange
Offer on or prior to 30 days after the date on which the Exchange Offer
Registration Statement is declared effective by the SEC. Upon the Exchange
Offer Registration Statement being declared effective, the Company will offer
the Exchange Securities in exchange for surrender of the Securities. If after
such Exchange Offer Registration Statement is declared effective by the SEC,
the Exchange Offer or the issuance of the Exchange Securities thereunder is
interfered with by any stop order, injunction or other order or requirement
of the SEC or any other governmental agency or court, such Exchange Offer
Registration Statement shall be deemed not to have become effective for
purposes of this Agreement. Each Holder who participates in the Exchange
Offer will be
required to represent that (i) any Exchange Securities received by it will be
acquired in the ordinary course of its business, (ii) it has no arrangement
or understanding with any Person to participate in the distribution (within
the meaning of the Securities Act) of the Exchange Securities, (iii) it is
not an "affiliate" (as defined in Rule 405 under the Securities Act) of the
Company or, if it is such an affiliate, it will comply with the registration
and prospectus delivery requirements of the Securities Act to the extent
applicable and (iv) it is not acting on behalf of any Person who could not
truthfully make the foregoing representations. If such Holder is not a
broker-dealer, such Holder will be required to represent that it is not
engaged in, and does not intend to engage in, the distribution of the
Exchange Securities. If such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading activities,
it will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. Upon consummation of
the Exchange Offer in accordance with this Section 2, the Company shall have
no further obligation to register Transfer Restricted Securities (other than
Private Exchange Securities and other than in respect of any Exchange
Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3
hereof. No securities other than the Exchange Securities shall be included in
the Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," reasonably acceptable to the Initial Purchaser, which
shall contain a summary statement of the positions taken or policies made by
the Staff of the SEC with respect to the potential "underwriter" status of
any broker-dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Securities received by such broker-dealer
in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such
positions or policies have been publicly disseminated by the Staff of the SEC
or such positions or policies, in the judgment of the Initial Purchaser,
represent the prevailing views of the Staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit the use of the Prospectus
by all Persons subject to the prospectus delivery requirements of the
Securities Act, including all Participating Broker-Dealers (unless such
Participating Broker-Dealer will be reselling an unsold allotment from the
original sale of the Securities), and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange
Securities.
After the consummation of the Exchange Offer, the Company
shall use its best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein, in
order to permit such Prospectus to be lawfully delivered by any Participating
Broker-Dealer subject to the prospectus delivery requirements of the
Securities Act and other Persons, if any, with similar prospectus delivery
requirements for such period of time as is necessary to comply with
applicable law in connection with any resale of the Exchange Securities;
PROVIDED, HOWEVER, that such period shall not exceed 180 days after the
consummation of the Exchange Offer (or such longer period if extended
pursuant to the last paragraph of Section 5 hereof) (the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the
Initial Purchaser holds any Securities acquired by it and having, or which
are reasonably likely to be determined to have, the status of an unsold
allotment in the initial distribution, the Company, upon the written request
of the Initial Purchaser simultaneously with the delivery of the Exchange
Securities in the
Exchange Offer, shall issue and deliver to the Initial Purchaser in exchange
(the "PRIVATE EXCHANGE") for such Securities held by the Initial Purchaser a
like principal amount of Securities of the Company, that are substantially
identical in all material respects to the Exchange Securities (the "PRIVATE
EXCHANGE SECURITIES") (and which are issued pursuant to the same indenture as
the Exchange Securities) except for the placement of a restrictive legend on
such Private Exchange Securities. The Private Exchange Securities shall bear
the same CUSIP number, if any, ISIN number and Common Code as the Exchange
Securities to the extent permitted by the CUSIP Service Bureau of Standard &
Poor's and other applicable organizations.
Interest on the Exchange Securities and the Private
Exchange Securities will accrue from the last interest payment date on which
interest was paid on the Securities surrendered in exchange therefor or if no
interest has been paid on the Securities from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in London, England, which may be either the
Trustee or an affiliate of the Trustee;
(3) permit Holders to withdraw tendered Securities at any time
prior to the close of business, London time, on the last business day
on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the Trustees or Authenticating Agent for
cancellation of all Securities so accepted for exchange; and
(3) cause each Trustee promptly to authenticate and deliver to
each Holder of the Securities, Exchange Securities or Private Exchange
Securities, as the case may be, in global form in aggregate principal
amount equal to the respective Securities so accepted for exchange, as
further set forth in the Indenture.
The Exchange Securities and the Private Exchange Securities
may be issued under (i) the Indenture or (ii) indenture substantially
identical in all material respects to the Indenture which in either event
shall provide that (1) the Exchange Securities shall not be subject
to the transfer restrictions set forth in the Indenture and (2) the Private
Exchange Securities shall be subject to the transfer restrictions set forth
in the Indenture. The Indenture or such indenture substantially identical in
all material respects to the Indenture shall provide that the Exchange
Securities, Private Exchange Securities and Securities shall vote and consent
together on all matters as one class and that none of the Exchange
Securities, Private Exchange Securities or Securities will have the right to
vote or consent as a separate class on any matter.
If (i) the Company is not permitted to file the Exchange
Offer Registration Statement or to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or SEC policy, (ii) any
Holder of Transfer Restricted Securities that is a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) notifies the
Company at least 20 Business Days prior to the consummation of the Exchange
Offer that (a) applicable law or SEC policy prohibits such Holder from
participating in the Exchange Offer, (b) such Holder may not resell the
Exchange Securities acquired by it in the Exchange Offer to the public
without delivering a prospectus and the prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such resales
by such Holder or (c) such Holder is a broker-dealer and holds Securities
acquired directly from the Company or an affiliate of the Company, (iii) the
Exchange Offer is not for any other reason consummated within 210 days after
April 10, 2001, or (iv) the Exchange Offer has been completed and in the
opinion of counsel for the Initial Purchaser a Registration Statement must be
filed and a prospectus must be delivered by the Initial Purchaser in
connection with any offering or sale of Transfer Restricted Securities, then
the Company shall promptly deliver written notice thereof (the "SHELF
NOTICE") to the Trustees and in the case of clauses (i) and (iii), all
Holders and, in the case of clauses (ii) and (i) the affected Holders, and
shall at its own cost file a Shelf Registration Statement pursuant to
Section 3 hereof.
3. SHELF REGISTRATION STATEMENT
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) The Company will use its reasonable best efforts to:
(A) file with the SEC a Registration Statement for an offering to be made on
a continuous basis pursuant to Rule 415 covering all of the Transfer
Restricted Securities (the "SHELF REGISTRATION STATEMENT"), within 90 days of
the earliest to occur of clauses (i) through (iv) in Section 2(c) above and
(B) cause the Shelf Registration Statement to be declared effective by the
SEC on or prior to the 150th day after such obligation arises; PROVIDED,
HOWEVER, that if the Company files a Shelf Registration Statement pursuant to
this Section 3(a), it need not abandon the attempt to cause the SEC to
declare the Exchange Offer Registration Statement effective, and it may
satisfy its obligations to register the Securities pursuant to this Agreement
either by complying with Section 2 and/or Section 3. If the Company shall not
have yet filed an Exchange Offer Registration Statement, the Company shall
use its best efforts to file with the SEC the Shelf Registration Statement on
or prior to the Filing Date. The Shelf Registration Statement shall be on
Form F-1 or another appropriate form permitting registration of such Transfer
Restricted Securities for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings), or may be an amendment to the Exchange Offer Registration
Statement. The Company shall not permit any securities other than the
Transfer Restricted Securities to be included in the Shelf Registration
Statement.
The Company shall use its reasonable best efforts to keep
the Shelf Registration Statement continuously effective, supplemented and
amended to ensure that it is available for resales of Securities by the
holders of Transfer Restricted Securities entitled to this benefit and to
ensure that such Shelf Registration Statement conforms and continues to
conform with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the SEC, as announced from time to time,
until the second anniversary of the Issue Date, subject to extension pursuant
to the last paragraph of Section 5 hereof (the "EFFECTIVENESS PERIOD"), or
such shorter period ending when all Transfer Restricted Securities covered by
the Shelf Registration Statement have been sold in the manner set forth and
as contemplated in the Shelf Registration Statement or when the Transfer
Restricted Securities become eligible for resale pursuant to Rule 144 under
the Securities Act without volume restrictions, if any.
(b) If the Shelf Registration Statement ceases to be
effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered thereunder), the
Company shall use its best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof.
(c) The Company shall promptly supplement and amend the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration Statement, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by such Registration Statement or by
any underwriter of such Transfer Restricted Securities based on a reasonable
belief that such supplement or amendment is required by law.
4. LIQUIDATED DAMAGES
(a) The Company and the Initial Purchaser agree that the
Holders of Securities will suffer damages if the Company fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay, as liquidated damages, additional interest on the
Securities ("LIQUIDATED DAMAGES") under the circumstances and to the extent
set forth below (each of which shall be given independent effect and shall
not be duplicative):
(i) if neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been filed on or prior to
the Filing Date, then, commencing on the 76th day after the Issue Date,
Liquidated Damages shall accrue on the Securities over and above the stated
interest at a rate of 0.50% per annum for the first 90 days immediately
following the Filing Date, such Liquidated Damages rate increasing by an
additional 0.50% per annum at the beginning of each subsequent 90-day period,
or part thereof;
(ii) if neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement is declared effective by the
SEC on or prior to the Effectiveness Target Date, then, commencing on the
181st day after the Issue Date, Liquidated Damages shall accrue on the
Securities included or which should have been included in such Registration
Statement over and above the stated interest at a rate of 0.50% per annum for
the first 90 days immediately following the Effectiveness Target Date, such
Liquidated Damages rate increasing by an
additional 0.50% per annum at the beginning of each subsequent 90-day period,
or part thereof; or
(iii) if the Exchange Offer has not been consummated
within 30 days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement, Liquidated Damages shall accrue on the
Securities over and above the stated interest at a rate of 0.50% per annum
for the first 90 days commencing on the 31st day after the Effectiveness
Target Date, such Liquidated Damages rate increasing by an additional 0.50%
per annum at the beginning of each subsequent 90-day period, or part thereof;
or
(iv) (A) the Exchange Offer Registration Statement is
filed and declared effective but thereafter ceases to be effective or fails
to be usable for its intended purpose at any time prior to the time that the
Exchange Offer is consummated and is not succeeded within 5 Business Days by
an additional Registration Statement filed and declared effective or (B) the
Shelf Registration Statement is filed and declared effective but thereafter
ceases to be effective or fails to be usable for its intended purpose at any
time during the Effectiveness Period and is not succeeded within 5 Business
Days by an additional Registration Statement filed and declared effective,
Liquidated Damages shall accrue on the Securities over and above the stated
interest rate at a rate of 0.50% per annum for the first 90 days commencing
on the day the applicable Registration Statement ceases to be effective or
usable for its intended purpose without being declared effective again within
5 Business Days, such Liquidated Damages rate increasing by an additional
0.50% per annum at the beginning of each such subsequent 90-day period, or
part thereof (it being understood and agreed that, notwithstanding any
provision to the contrary, so long as any Note that is the subject of a Shelf
Notice is then covered by an effective Shelf Registration Statement, no
Liquidated Damages shall accrue on such Note); PROVIDED, HOWEVER, that
Liquidated Damages may accrue at a maximum rate of 2% per annum of the
principal amount of Securities; and PROVIDED, FURTHER, that (1) upon the
filing of the Exchange Offer Registration Statement or a Shelf Registration
Statement as required hereunder (in the case of clause (i) of this
Section 4(a)), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement as required hereunder (in the
case of clause (ii) of this Section 4(a)), (3) upon the consummation of the
Exchange Offer (in the case of clause (iii) of this Section 4(a)), and
(4) upon the effectiveness or usability of the Exchange Offer Registration
Statement which had ceased to remain effective or be usable (in the case of
clause (iv)(A) of this Section 4(a)), or upon the effectiveness or usability
of the Shelf Registration Statement which had ceased to remain effective or
be usable (in the case of clause (iv)(B) of this Section 4(a)), Liquidated
Damages on the affected Securities as a result of such clause (or the
relevant subclause thereof), as the case may be, shall cease to accrue.
(b) The Company shall notify the Trustee and each Paying
Agent within 5 Business Days after each and every date on which an event
occurs in respect of which Liquidated Damages is required to be paid (an
"EVENT DATE"). Any amounts of Liquidated Damages due pursuant to (a)(i),
(a)(ii), (a)(iii) or (a)(iv) of this Section 4 will be payable as set forth
in the Indenture and the Notes semi-annually on each September 30 and
March 31 (to the holders of record on September 15 and March 15 immediately
preceding such dates), commencing with the first such date occurring after
any such Liquidated Damages commences to accrue. The amount of Liquidated
Damages will be determined by multiplying the applicable Liquidated Damages
rate by the principal amount of the affected Securities of such Holders,
multiplied by a fraction,
the numerator of which is the number of days such Liquidated Damages rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360. The
Company shall notify the Trustee within 5 Business Days of the cessation of
any requirement to pay Liquidated Damages hereunder.
(c) Upon both commencement and completion of the Exchange
Offer, the Company will provide notice thereof (if and so long as the
Securities are listed on the Luxembourg Stock Exchange and the rules of such
stock exchange shall so require) by publication in a newspaper having a
general circulation in Luxembourg (which is expected to be the LUXEMBURGER
WORT).
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company shall effect such
registration(s) to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by
the Company hereunder the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date,
a Registration Statement or Registration Statements as prescribed by Sections
2 or 3 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; PROVIDED, HOWEVER, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Company shall furnish to and afford the Holders of the Transfer
Restricted Securities covered by such Registration Statement or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each
case at least 5 Business Days prior to such filing).
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period or until consummation of the Exchange Offer,
as the case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus. Notwithstanding the foregoing,
if the Board of Directors of the Company determines in good faith that it is
in the best
interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material event or transaction involving
the Company or its subsidiaries, the Company may (i) in the event a Shelf
Registration Statement has been filed, allow the Shelf Registration Statement
to fail to be effective or usable as a result of such nondisclosure for up to
60 days during the Effectiveness Period, but in no event for any period in
excess of 30 consecutive days, and (ii) in the event the Exchange Offer is
consummated, allow the Exchange Offer Registration Statement to fail to be
effective or usable as a result of such non-disclosure for up to 15 days
during the Applicable Period. The Company shall be deemed not to have used
its best efforts to keep a Registration Statement effective during the
Applicable Period if it voluntarily takes any action that would result in
selling Holders of the Transfer Restricted Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Securities not being
able to sell such Transfer Restricted Securities or such Exchange Securities
during that period unless such action is required by applicable law or unless
the Company complies with this Agreement, including without limitation, the
provisions of paragraph 5(k) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, notify the
Holders of Transfer Restricted Securities, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within 5 Business Days),
and, if requested by such Persons, confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Company, one conformed copy of
such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated
by reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
prospectus is required by the Securities Act to be delivered in connection
with sales of the Transfer Restricted Securities or resales of Exchange
Securities by Participating Broker-Dealers, the representations and
warranties of the Company contained in any agreement (including any
underwriting agreement), contemplated by Section 5(n) hereof cease to be true
and correct, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Transfer Restricted
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the happening of any
event, the existence of any condition or any information becoming known that
makes any statement made in such Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in or amendments or supplements to such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement,
it will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, and (vi) of the determination by the Company
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) Use its best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Transfer
Restricted Securities or the Exchange Securities for sale in any
jurisdiction, and, if any such order is issued, to use its best efforts to
obtain the withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to
Section 3 and if requested by the managing underwriter or underwriters (if
any), or the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities being sold in connection with an underwritten
offering or any Participating Broker-Dealer, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them determines is
necessary to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Company has received notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment and
(iii) supplement or make amendments to such Registration Statement.
(f) If (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, furnish to
each selling Holder of Transfer Restricted Securities and to each such
Participating Broker-Dealer who so requests and to counsel and each managing
underwriter, if any, at the sole expense of the Company, one conformed copy
of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, deliver to
each Holder of Transfer Restricted Securities, or each such Participating
Broker-Dealer, as the case may be, their respective counsel, and the
underwriters, if any, at the sole expense of the Company, as many copies of
the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request;
and, subject to the last paragraph of this Section 5, the Company hereby
consents to the use of such Prospectus and each amendment or supplement
thereto by each of the Holders of Transfer Restricted Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and
dealers (if any), in connection with the offering and sale of the Transfer
Restricted Securities covered by, or the sale by Participating Broker-Dealers
of the Exchange Securities pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Transfer Restricted
Securities or Exchange Securities or any delivery of a Prospectus contained
in the Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, use its reasonable best efforts to register or qualify (and to
cooperate with selling Holders of Transfer Restricted Securities or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Transfer Restricted Securities) for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer, or the managing
underwriter or underwriters reasonably request; PROVIDED, HOWEVER, that where
Exchange Securities held by Participating Broker-Dealers or Transfer
Restricted Securities are offered other than through an underwritten
offering, the Company agrees to cause its counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed
pursuant to this Section 5(h); keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Securities held by Participating Broker-Dealers
or the Transfer Restricted Securities covered by the applicable Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required to
(A) qualify generally to do business in any jurisdiction where it is not then
so qualified, (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in any such jurisdiction where it is not then
so subject.
(i) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Transfer Restricted
Securities and the managing underwriter or underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold, which certificates shall not bear
any restrictive legends and shall be in a form eligible for deposit with the
Common Depositary; and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the managing underwriter
or underwriters, if any, or Holders may request.
(j) Use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement and the Exchange
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the selling Holders
thereof or the underwriter or underwriters, if any, to dispose of such
Transfer Restricted Securities or Exchange Securities, except as may be
required solely as a consequence of the nature of a selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
(k) If (l) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or
5(c)(vi) hereof, as promptly as practicable prepare and (subject to Section
5(b) hereof) file with the SEC, at the sole expense of the Company, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document
so that, as thereafter delivered to the purchasers of the Transfer Restricted
Securities being sold thereunder or to the purchasers of the Exchange
Securities to whom such Prospectus will be delivered by a Participating
Broker-Dealer, any such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(l) Unless the rating in effect for the Securities is
equally applicable and in effect for the Exchange Securities and the Transfer
Restricted Securities, use its best efforts to cause the Transfer Restricted
Securities covered by a Registration Statement or the Exchange Securities, as
the case may be, to be rated with the appropriate rating agencies.
(m) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, provide a CUSIP
number, ISIN Code and Common Code for the Transfer Restricted Securities or
Exchange Securities, as the case may be.
(n) In connection with any underwritten offering of
Transfer Restricted Securities pursuant to a Shelf Registration Statement,
enter into an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Securities and take all such
other actions as are reasonably requested by the managing underwriter or
underwriters in order to facilitate the registration or the disposition of
such Transfer Restricted Securities and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters with
respect to the business of the Company and its subsidiaries (including any
acquired business, properties or entity, if applicable) and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities similar
to the Securities, and confirm the same in writing if and when requested;
(ii) obtain the written opinion of counsel to the Company and written updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings
of debt similar to the Securities and such other matters as may be reasonably
requested by the managing underwriter or underwriters; (iii) obtain "comfort"
letters and updates thereof in form, scope and substance reasonably
satisfactory to the managing underwriter or underwriters from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "comfort" letters in connection with
underwritten offerings of debt similar to the Securities and such other
matters as reasonably requested by the managing underwriter or underwriters;
and (iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set
forth in Section 7
hereof (or such other provisions and procedures acceptable
to Holders of a majority in aggregate principal amount of Transfer Restricted
Securities covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section, including, without limitation, the
Holders of Transfer Restricted Securities and the underwriters. The above
shall be done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(o) If (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, make
available for inspection by any selling Holder of such Transfer Restricted
Securities being sold, or each such Participating Broker-Dealer, as the case
may be, any underwriter participating in any such disposition of Transfer
Restricted Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating Broker-Dealer,
as the case may be, or underwriter (collectively, the "INSPECTORS"), at the
offices where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and instruments of the
Company and its subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested
by any such Inspector in connection with such Registration Statement. Records
that the Company determines, in good faith, to be confidential and any
Records that it notifies the Inspectors are confidential shall not be
disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction, (iii) disclosure of
such information is, in the opinion of counsel for any Inspector, necessary
or advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement, or any
transactions contemplated hereby or arising hereunder or (iv) the information
in such Records has been made generally available to the public. Each selling
Holder of such Transfer Restricted Securities and each such Participating
Broker-Dealer will be required to agree that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the securities of the
Company unless and until such information is generally available to the
public. Each selling Holder of such Transfer Restricted Securities and each
such Participating Broker-Dealer or underwriter, as the case may be, will be
required further to agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company at its sole expense to undertake appropriate
action to prevent disclosure of the Records deemed confidential.
(p) Provide an indenture trustee for the Transfer
Restricted Securities or the Exchange Securities, as the case may be, and
cause the applicable Indenture or the trust indenture provided for in Section
2(a) hereof, as the case may be, to be qualified under the Trust Indenture
Act not later than the effective date of the first Registration Statement
relating to the Transfer Restricted Securities; and in connection therewith,
cooperate with the trustee under any such indenture and the Holders of the
Transfer Restricted Securities, to effect such changes to
such indenture as may be required for such indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; furnish the trustee
with an officer's certificate certifying that such indenture has been so
qualified under the Trust Indenture Act and that the Transfer Restricted
Securities are the subject of a Registration Statement; and execute, and use
its reasonable best efforts to cause such trustee to execute, all documents
as may be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such indenture to be so qualified
in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no
later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering, commencing
on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall cover said
12-month periods.
(r) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Transfer Restricted Securities by Holders
to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange Securities, as
the case may be, the Company shall ▇▇▇▇, or cause to be marked, on such
Transfer Restricted Securities that such Transfer Restricted Securities are
being cancelled in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; in no event shall such Transfer
Restricted Securities be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Transfer Restricted
Securities covered by any Registration Statement and each underwriter, if
any, participating in the disposition of such Transfer Restricted Securities
and their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the "NASD").
(t) Use its best efforts to take all other steps necessary
or advisable to effect the registration of the Exchange Securities and/or
Transfer Restricted Securities covered by a Registration Statement
contemplated hereby.
(u) Make an application to list the Exchange Securities on
the Luxembourg Stock Exchange and to use its best efforts to have the
Exchange Securities admitted to trading on the Luxembourg Stock Exchange as
promptly as practicable and thereafter maintained such listing.
The Company may require each seller of Transfer Restricted
Securities as to which any Shelf Registration Statement is being effected to
(i) furnish to the Company such information regarding such seller and the
distribution of such Transfer Restricted Securities and (ii) make such
representations, in each case as the Company may, from time to time,
reasonably request. The Company may exclude from such registration the
Transfer Restricted Securities of any seller who unreasonably fails to
furnish such information or make such representations within a reasonable
time after receiving such request. Each seller as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
Each Holder of Transfer Restricted Securities and each
Participating Broker-Dealer agrees by acquisition of such Transfer Restricted
Securities or Exchange Securities to be sold by such Participating
Broker-Dealer, as the case may be, that, upon actual receipt of any notice
from the Company of the happening of any event of the kind described in
Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder will
forthwith discontinue disposition of such Transfer Restricted Securities
covered by such Registration Statement or Prospectus or Exchange Securities
to be sold by such Holder or Participating Broker-Dealer, as the case may be,
until such Holder's or Participating Broker-Dealer's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 5(k) hereof,
or until it is advised in writing (the "ADVICE") by the Company that the use
of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Company shall give any
such notice, each of the Effectiveness Period and the Applicable Period shall
be extended by the number of days during such periods from and including the
date of the giving of such notice to and including the date when each seller
of Transfer Restricted Securities covered by such Registration Statement or
Exchange Securities to be sold by such Participating Broker-Dealer, as the
case may be, shall have received (x) the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof or (y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer Registration Statement or a Shelf
Registration Statement is filed or becomes effective, including, without
limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
NASD in connection with an underwritten offering, (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with
Blue Sky qualifications of the Transfer Restricted Securities or Exchange
Securities and determination of the eligibility of the Transfer Restricted
Securities or Exchange Securities for investment under the laws of such
jurisdictions (x) where the holders of Transfer Restricted Securities are
located, in the case of the Exchange Securities, or (y) as provided in
Section 5(h) hereof, in the case of Transfer Restricted Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during the
Applicable Period)), and (C) all expenses and fees in connection with the
obtaining of any approval from any relevant authority in Sweden;
(ii) printing expenses, including, without limitation, the printing of
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
any Registration Statement or by any Participating Broker-Dealer, as the case
may be, (iii) fees and disbursements of counsel for the Company and fees and
disbursements of special counsel for the sellers of Transfer Restricted
Securities (subject to the provisions of Section 6(b) hereof), (iv) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (v) rating agency fees, if any, and any fees associated with
making the Exchange Securities eligible for trading through Euroclear and
Clearstream Banking, (vi) Securities Act liability insurance, if the Company
desires such insurance, (vii) reasonable fees and expenses of all other
Persons retained by the Company, (viii) internal expenses of the Company
(including, without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties), (ix) the
expense of any annual audit, (x) the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities
exchange, including, without limitation, the Luxembourg Stock Exchange, and
(xi) the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary in order to comply
with this Agreement.
(b) The Company shall reimburse the Holders of the Transfer
Restricted Securities being registered in a Shelf Registration Statement for
the fees and disbursements of not more than one counsel (in addition to
appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities to be included in such
Registration Statement (which counsel shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
unless otherwise affirmatively stated by the Holders) and other out-of-pocket
expenses of such Holders of Transfer Restricted Securities incurred in
connection with the registration and sale of the Transfer Restricted
Securities pursuant to a Shelf Registration Statement or the exchange of
Transfer Restricted Securities pursuant to the Exchange Offer.
XXIII. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless each
Holder of Transfer Restricted Securities offered pursuant to a Shelf
Registration Statement, each Participating Broker-Dealer selling Exchange
Securities during the Applicable Period and the Initial Purchaser, and their
respective affiliates, their respective officers, directors, employees,
representatives and agents, and each Person, if any, who controls any such
Person within the meaning of the Securities Act or the Exchange Act (each a
"PARTICIPANT"), from and against any loss, claim, damage or liability, joint
or several, or any action in respect thereof (including, without limitation,
any loss, claim, damage, liability or action relating to purchases and sales
of Transfer Restricted Securities and Exchange Securities as the case may be)
to which any such Holder, Broker-Dealer or Initial Purchaser may become
subject, whether commenced or threatened under the Securities Act, the
Exchange Act, any other supra-national, federal, regional, local and foreign
statutory law or regulation at common law or otherwise, insofar a such loss,
claim, damage, liability or action arises out of, or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or in any blue sky
application or other document prepared or executed by the Company (or based
upon any written information furnished by the Company) specifically for the
purpose of qualifying any or all of the Transfer Restricted Securities under
the securities laws of any state or other jurisdiction (such application,
document or information being hereinafter called a "BLUE SKY APPLICATION"),
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and shall reimburse each Participant promptly upon
demand for any legal or other costs, charges and expenses reasonably incurred
by that Participant in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in
connection with
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that the Company 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, an untrue statement or alleged untrue
statement in or omission or alleged omission from the Registration Statement
or Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company by or on behalf of any Participant specifically for
inclusion therein; and PROVIDED, FURTHER, that with respect to any such
untrue statement in or omission from any preliminary prospectus the indemnity
agreement contained in this Section 7(a) shall not inure to the benefit of
any such Participant to the extent that the sale to the Person asserting any
such loss, claim, damage, liability or action was an initial resale by such
Participant and any such loss, claim, damage, liability or action of or with
respect to such Participant results from the fact that both (A) to the extent
required by applicable law, a copy of the Prospectus was not sent or given to
such Person at or prior to the written confirmation of the sale of such
securities to such Person and (B) the untrue statement in or omission from
such preliminary prospectus was corrected in the Prospectus unless, in either
case, such failure to deliver the Prospectus was a result of non-compliance
by the Company with Section 5(g) of this Agreement.
(b) Each Holder of Transfer Restricted Securities offered
pursuant to a Shelf-Registration Statement, each Participating Broker-Dealer
selling Exchange Securities during the Applicable Period and the Initial
Purchaser (each a "PARTICIPANT INDEMNIFYING PARTY") severally and not
jointly, shall indemnify and hold harmless the Company, its affiliates, their
respective officers, directors, employees, representatives and agents, and
each Person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 7(b) and Section 7(d) as the Company), from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Company or any such director, officer or controlling
Person may become subject, whether commenced or threatened under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement
or alleged untrue statement of a material fact contained (A) in any
preliminary prospectus or the Registration Statement or Prospectus, or in any
amendment or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state therein, a material fact
required to be stated therein or 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 the written information furnished to the Company
by that Participant Indemnifying Party specifically for inclusion therein,
and shall reimburse the Company for any legal or other costs, charges and
expenses reasonably incurred by the Company in connection with investigating
or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action
as such expenses are incurred.
(c) Promptly after the receipt by an indemnified party
under this Section 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 pursuant to Section 7, notify the
indemnifying party in writing of the claim or the commencement of that
action; PROVIDED, HOWEVER, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have under this Section
7 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and, PROVIDED,
FURTHER, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party otherwise
than under this Section 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 Section 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
an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless
(1) the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there
may be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based upon advice of counsel to
the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in sections 7(a) and 7(b)
shall use all reasonable efforts to cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any 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 (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding 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 claims that are the subject matter of such proceedings.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b), then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the
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 Company on the one hand and the Participants on the other from the
offering of the 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 Company on the one hand and the
Participants 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 Company on the one hand and the Participants on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities (before deducting expenses) received by
or on behalf of the Company bear on the one hand, and the total underwriting
discounts and commissions received by the Initial Purchaser with respect to
the Securities purchased under the
Purchase Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Securities under
the
Purchase 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 the Company or information supplied by the Company on the one hand
or the Participants on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Participants
agree that it would not be just and equitable if contributions pursuant to
this Section 7(d) were to be determined by PRO RATA allocation (even if the
Participants were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. 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 Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Participant shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased by it were resold exceeds the amount
of any damages which such Purchaser has otherwise paid or become liable to
pay by reason of any 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 Participant's obligations to contribute as provided in
this Section 7(d) are several in proportion to their respective purchase
obligations and not joint.
The obligations of the Company and any Participant
Indemnifying Party in this Section 7 are in addition to any other liability
that the Company or any Participant Indemnifying Party, as the case may be,
may otherwise have, including in respect of any breaches of representations,
warranties and agreements made herein by any such party.
7. RULE 144A
The Company covenants to furnish to the holders of the
Securities and to prospective investors, upon the request of such holder, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as the Securities are not freely transferable under
the Securities Act.
8. UNDERWRITTEN REGISTRATIONS
If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Holders of a majority in
aggregate principal amount of such Transfer Restricted Securities included in
such offering and shall be reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities may participate
in any underwritten registration hereunder unless such Holder (a) agrees to
sell such Holder's Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
9. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Company represents,
warrants and agrees that it has not, as of the date hereof, nor will it,
after the date of this Agreement, enter into any agreement with respect to
any of its securities that is inconsistent with the rights granted to the
Holders of Transfer Restricted Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Company will not enter into any
agreement with respect to any of its securities which will grant to any
Person piggy-back registration rights with respect to the Exchange Offer
Registration Statement or the Shelf Registration Statement.
(b) ADJUSTMENTS AFFECTING TRANSFER RESTRICTED SECURITIES.
The Company shall not, directly or indirectly, take any action with respect
to the Transfer Restricted Securities as a class that would adversely affect
the ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, otherwise
than with the prior written consent of (A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Transfer
Restricted Securities with respect to the Transfer Restricted Securities and
(B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Securities held by all
Participating Broker-Dealers with respect to Exchange Securities; PROVIDED,
HOWEVER, that Section 7 and this Section 10(c) may not be amended, modified
or supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any Person
who was a Holder or Participating Broker-Dealer of Transfer Restricted
Securities or Exchange Securities, as the case may be, disposed of pursuant
to any Registration Statement). Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of the Transfer Restricted
Securities whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Transfer Restricted Securities may
be given by Holders of at least a majority in aggregate principal amount of
the Transfer Restricted Securities being sold by such Holders pursuant to
such Registration Statement; PROVIDED, HOWEVER, that the provisions of this
sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(d) NOTICES. All notices and other communications
(including, without limitation, any notices or other communications to either
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Transfer Restricted Securities or
any Participating Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may be, set forth on
the records of the registrar under the applicable Indenture, with a
copy in like manner to the Initial Purchaser as follows:
Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(2) if to the Initial Purchaser, at the addresses
specified in Section 10(d)(1);
(3) if to the Company, as follows:
Preem Holdings AB (publ)
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.:▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Company shall be entitled to
act and rely upon any request, consent, notice or agreement given or made on
behalf of the Initial Purchaser.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to each Trustee
at the address and in the manner specified in each Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto and the Holders; PROVIDED, HOWEVER, that this Agreement shall
not inure to the benefit of or be binding upon a successor or assign of a
Holder unless and to the extent such successor or assign holds Transfer
Restricted Securities.
(f) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
(i) REMEDIES. In the event of a breach by the Company or by
any Holder of any of their obligations under this Agreement, each Holder or
the Company, as the case may be, in addition to being entitled to exercise
all rights granted by law, including recovery of damages (other than the
recovery of damages for a breach by the Company of its obligations under
Sections 2 or 3 hereof for which liquidated damages have been paid pursuant
to Section 4 hereof), will be entitled to specific performance of its rights
under this Agreement. The Company and each Holder agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and
hereby further agree that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a
remedy at law would be adequate.
(j) SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE; WAIVER. To the fullest extent permitted by applicable law, the
Company irrevocably submits to the non-exclusive jurisdiction of any federal
or state court in the Borough of Manhattan in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, in any suit or proceeding
based on or arising under this Agreement, and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. The Company, to the fullest extent permitted by applicable law,
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation (the "Authorized Agent"), for the later of a period
of ten years or until such time as no Notes are outstanding as its authorized
agent upon whom process may be served in any such suit or proceeding. The
Company represents that it has notified the Authorized Agent of such
designation and appointment and that the Authorized Agent has accepted the
same in writing. The Company hereby irrevocably authorizes and directs its
Authorized Agent to accept such service. The Company further agrees that
service of process upon its Authorized Agent and written notice of said
service to the Company mailed by first class mail or delivered to its
Authorized Agent shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. Nothing herein shall
affect the right of any person to serve process in any other manner permitted
by law. The Company agrees that a final action in any such suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner. Notwithstanding the foregoing, any
action against the Company arising out of or based on this Agreement or the
transactions contemplated hereby may also be instituted by the Initial
Purchaser, their officers and employees or any person who controls the
Initial Purchaser within the meaning of the Securities Act in any competent
court in the Kingdom of Sweden, and the Company expressly accepts the
jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent
permitted by law, any immunity to jurisdiction to which it may otherwise be
entitled (including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of or based on this Agreement or the
transactions contemplated hereby.
The provisions of this Section 10(j) are intended to be
effective upon the execution of this Agreement without any further action by
the Company or the Initial Purchaser and the introduction of a true copy of
this Agreement into evidence shall be conclusive and final evidence as to
such matters.
(k) CURRENCY INDEMNITY. The Company shall indemnify each
Participant against any loss incurred by it as a result of any judgment or
order being given or made and expressed and paid in a currency (the "Judgment
Currency") other than Euros and as a result of any variation as between
(i) the rate of exchange at which the Euro amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in
New York,
New York at which such Participant on the date
of payment of such judgment or order is able to purchase Euros with the
amount of the Judgment Currency actually received by
such Participant. If the Euros so purchased are greater than the amount
originally due to such Participant hereunder, such Participant agrees to pay
to the Company an amount equal to the excess of the Euros so purchased over
the amount originally due to such Participant hereunder. The foregoing shall
constitute a separate and independent obligation of the Company and the
Participant, as the case may be, 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, Euros.
(l) SEVERABILITY. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. If any term,
provision, covenant or restriction of this Agreement is held by a court of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their best efforts
to find and employ an alternative means to achieve the same or substantially
the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(m) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or its "affiliates" (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(n) THIRD PARTY BENEFICIARIES. Holders of Transfer
Restricted Securities and Participating Broker-Dealers are intended third
party beneficiaries of this Agreement, and this Agreement may be enforced by
such Persons.
(o) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement and each Indenture, is intended by the parties as a final
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein and therein and any
and all prior oral or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and memoranda
between the Initial Purchaser on the one hand and the Company on the other,
or between or among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest with respect
to the subject matter hereof and thereof are merged herein and replaced
hereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
PREEM HOLDINGS AB (PUBL)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name:
Title:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name:
Title:
DEUTSCHE BANK AG LONDON
By:
--------------------------------
AUTHORIZED REPRESENTATIVE
By:
--------------------------------
AUTHORIZED REPRESENTATIVE
[LETTERHEAD]
ANNEX B
April 10, 2001
Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
UBS AG, acting through
its business group
UBS Warburg
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special counsel as to United States federal law and
New York law to Preem Holdings AB (publ), a corporation organized under the
laws of the Kingdom of Sweden (the "COMPANY"), in connection with the
offering of E250,000,000 aggregate principal amount of 10 5/8% senior
secured notes due 2011 (the "SECURITIES") to be issued under an Indenture
(the "INDENTURE") between the Company and Bankers Trust Company, as Trustee
(the "TRUSTEE"), and sold pursuant to the
Purchase Agreement (the
"AGREEMENT") dated April 3, 2001, by and among the Company, Deutsche Bank AG
London and UBS Warburg Ltd. (the "INITIAL PURCHASERS").
In connection with the foregoing, we reviewed certain documents,
including the documents mentioned in our opinion to you dated the date
hereof, furnished to us by the Company or otherwise in our possession and we
participated in conferences with directors, officers and other
representatives of the Company and with representatives of the independent
public accountants for the Company, and representatives of Swedish counsel
for the Company at
which conferences the contents of the Company's Offering Memorandum related
to the Securities, dated April 3, 2001 (the "OFFERING MEMORANDUM") and
related matters were discussed.
Because the primary purpose of our professional engagement was not
to establish or confirm factual, financial or accounting matters and because
of the wholly or partially business, financial, accounting or other non-legal
character of many of the statements contained in the Offering Memorandum, we
are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering
Memorandum except as expressly specified in numbered paragraph (7) of our
separately delivered opinion to you dated the date hereof, and we make no
representation that we have independently verified the accuracy, completeness
or fairness of such statements (except as aforesaid). In particular, and
without limiting the foregoing, we have not examined the accounting or
financial records from which the financial statements, schedules and other
financial data contained in the Offering Memorandum have been derived. We
also note that, while certain portions of the Offering Memorandum (including
the financial statements) have been included therein on the authority of
"experts" within the meaning of the Securities Act of 1933, as amended, we
are not "experts" with respect to any portion of the Offering Memorandum.
We have, however, generally reviewed and discussed such statements
with the Company, the Company's independent public accountants and with the
Company's Swedish counsel. In the course of the review, discussion and
conferences referred to above, nothing has come to our attention that causes
us to believe that the Offering Memorandum as of its date and as of the
Closing Date (other than any financial statements, schedules and other
financial data therein, as to which we make no statement) contained or
contains any untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements contained therein, in light
of the circumstances under which they were made, not misleading.
We are furnishing this letter to you, as Initial Purchasers, solely
for your benefit, and no other person is entitled to rely hereon. This letter
is not to be used, circulated, quoted to, or otherwise referred to for any
other purpose without our prior written consent.
Very truly yours,
AKIN, GUMP, STRAUSS, ▇▇▇▇▇ & ▇▇▇▇
[LETTERHEAD]
April 10, 2001
Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
UBS AG, acting through
its business group
UBS Warburg
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
We have acted as special counsel as to United States federal law and
New York law to Preem Holdings AB (publ), a corporation organized under the
laws of the Kingdom of Sweden (the "COMPANY"), in connection with the
offering of E250,000,000 aggregate principal amount of 10 5/8% senior secured
notes due 2011 (the "SECURITIES") to be issued under an Indenture (the
"INDENTURE") between the Company and Bankers Trust Company, as Trustee (the
"TRUSTEE"), and sold pursuant to a
Purchase Agreement (the "AGREEMENT") by
and among the Company, as issuer and seller of the Securities, Deutsche Bank
AG London and UBS AG, acting through its business group UBS Warburg (the
"INITIAL PURCHASERS"). This opinion is rendered at the request of the Company
pursuant to Section V(4) of the Agreement. All capitalized terms used in this
letter, without definition, have the meanings assigned to them in the
Agreement.
In connection with this letter, we have examined executed originals
or copies of executed originals of the Agreement and of each of the following
transaction documents (collectively, the "TRANSACTION DOCUMENTS"), each of
which is dated the date hereof or as of the date hereof, unless otherwise
noted: (a) the Indenture, (b) the Registration Rights Agreement and (c) the
Securities. In addition, we have examined the Company's Preliminary Offering
Memorandum
dated March 19, 2001, related to the offer of the Securities, the Company's
Offering Memorandum, dated April 3, 2001, related to the offer of the
Securities (the "OFFERING MEMORANDUM"), and each of the following documents
(collectively, the "SWEDISH LAW DOCUMENTS"): (i) Share Pledge Agreement,
dated as of the Closing Date, between the Company and the Trustee, (ii) the
Security Assignment Agreement, dated as of the Closing Date, between the
Company and the Trustee, (iii) Loan Agreement 1A, dated as of the Closing
Date, between the Company and Preem Petroleum AB ("PREEM PETROLEUM"),
(iv) Loan Agreement 1B, dated as of the Closing Date, between the Company and
Preem Petroleum, (v) Loan Agreement 2, dated as of the Closing Date, between
the Company and Corral Petroleum Holdings AB (publ) ("CORRAL"), and (vi) the
Debt Restructuring Agreement, dated as of the Closing Date, between the
Company, Corral and Preem Petroleum.
We have examined originals or certified copies of such corporate
records of the Company and other certificates and documents of officials of
the Company, public officials and others as we have deemed appropriate for
purposes of this letter. As to various questions of fact relevant to this
letter, we have relied, without independent investigation, upon certificates
of public officials, certificates of officers of the Company, and
representations and warranties of the Company in the Agreement, the
Transaction Documents and the Security Agreements, all of which we assume to
be true, correct and complete. We have made no investigation or review of any
matters relating to the Company or any other Person other than as expressly
listed herein and in our separately delivered letter to you dated the date
hereof.
We have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to authentic
original documents of all copies submitted to us as conformed, certified or
reproduced copies and that the certificates for the Securities conform to the
specimen thereof we have reviewed and that the Securities will be duly
authenticated in accordance with the terms of the Indenture. We have also
assumed the legal capacity of natural persons, the corporate or other power
and due authorization of each person, other than the Company and Preem
Petroleum, not a natural person to execute and deliver the Agreement and the
Transaction Documents and to consummate the transactions contemplated by the
Agreement and the Transaction Documents, due execution and delivery of the
Agreement and each Transaction Document by all parties thereto, other than
the Company and Preem Petroleum, and that the Agreement and each Transaction
Document constitutes the legal, valid and binding obligation of each party
thereto other than the Company and Preem Petroleum, enforceable against such
party in accordance with its terms.
Based upon the foregoing and subject to the assumptions, exceptions,
qualifications and limitations set forth hereinafter, we are of the opinion
that:
Assuming due authorization, execution and delivery by the Company under the
laws of the Kingdom of Sweden of the Agreement, the Agreement has been duly
executed and delivered by the Company insofar as New York law is concerned.
1. Assuming due authorization, execution and delivery by the Company under
the laws of the Kingdom of Sweden, the Indenture has been duly executed
and delivered by the Company insofar as New York law is concerned and,
assuming due authorization,
execution and delivery by the Trustee of the Indenture, the Indenture
is a valid and binding agreement, enforceable against the Company in
accordance with its terms.
2. Assuming due authorization, execution and delivery by the Company under
the laws of the Kingdom of Sweden, the Securities, when (a) issued and
authenticated in accordance with the terms of the Indenture, and
(b) delivered to and paid for by the Initial Purchasers in
accordance with the terms of the Agreement, will have been duly
executed and delivered by the Company insofar as New York law is
concerned and will be valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture.
3. Assuming due authorization, execution and delivery by the Company under
the laws of the Kingdom of Sweden, and assuming due authorization,
execution and delivery by the other parties thereto, the Registration
Rights Agreement, will have been duly executed and delivered by the
Company insofar as New York law is concerned and is a valid and binding
agreement, enforceable against the Company in accordance with its
terms.
4. The issuance and sale by the Company at the Closing Date of the
Securities, the compliance by the Company with the terms thereof and of
the Agreement, the Transaction Documents and the Swedish Law Documents
and the consummation of the transactions contemplated by the Agreement,
the Transaction Documents and the Swedish Law Documents do not violate
(a) any existing applicable statutory law, rule or regulation of any
Included Law (as defined below) (other than state securities or "Blue
Sky" laws as to which we have not been requested to express any
opinion) or (b) to our knowledge, any order of any government,
government instrumentality or court of the United States or the State
of New York having jurisdiction over the Company or any of its material
subsidiaries or any of their properties or assets.
5. No consent, approval, authorization, order, decree, registration or
qualification of or filing of or with any United States Federal or New
York governmental agency or body (each a "FILING") is required for the
execution, delivery and performance by the Company, Preem Petroleum or
Corral, as applicable, of the Agreement, each of the Transaction
Documents and the Swedish Law Documents, the issuance, authentication,
sale and delivery of the Securities and compliance by the Company,
Preem Petroleum or Corral, as applicable, with the terms thereof and
the consummation of the transactions contemplated by the Transaction
Documents and the Swedish Law Documents in accordance with their
respective terms, except such as may be required by state securities or
Blue Sky laws, and except Filings required to be obtained or made
pursuant to the Registration Rights Agreement, Filings under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, and
Filings, consents or approvals that have been obtained.
6. The statements made in the Offering Memorandum under the captions
"Description of Notes" and "Exchange Offer and Registration Rights
Agreement," insofar as such statements purport to constitute a summary
of the terms of the Indenture and the Registration Rights Agreement,
and "Certain Swedish and United States Federal Income
Tax Consequences - United States," insofar as such statements purport
to summarize matters of U.S. federal law, constitute accurate
summaries of such documents and matters in all material respects.
7. Neither the Company nor any of its subsidiaries is (a) subject to
regulation as an "investment company" or a company "controlled by" an
investment company under the Investment Company Act of 1940, as
amended, and the rules and regulations of the U.S. Securities and
Exchange Commission (the "COMMISSION") thereunder or (b) is subject to
regulation as a "holding company" or a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company" under the
Public Utility Holding Company Act of 1935, as amended.
8. Neither the consummation of the transactions contemplated by the
Agreement nor the sale, issuance, execution or delivery of the
Securities will violate Regulation T, U or X of the Federal Reserve
Board Regulations.
9. Assuming the accuracy of the representations and warranties of, and
compliance with the covenants and agreements of each of the parties to,
the Agreement, no registration of the Securities under the Securities
Act or qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT") is required for the
initial offer and sale of the Securities by the Company to the Initial
Purchasers or the reoffer, resale and delivery of the Securities by the
Initial Purchasers to the initial purchasers therefrom in the manner
contemplated by the Agreement, the Indenture and the Offering
Memorandum other than any registration or qualification that may be
required in connection with the Exchange Offer Registration Statement
and the Shelf Registration Statement contemplated by the Offering
Memorandum or in connection with the Registration Rights Agreement.
10. The Indenture conforms in all material respects with the requirements
of the Trust Indenture Act and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
11. There are no stamp or other issuance or transfer taxes or duties,
value-added taxes, documentary taxes, withholding or other taxes
payable in New York State or New York City, other than nominal filing
fees, by or on behalf of the Initial Purchasers in connection with
(a) the issuance of Securities, (b) the sale, transfer and delivery of
the Securities to the Initial Purchasers pursuant to the Agreement or
(c) the execution and delivery of the Agreement or any of the other
Transaction Documents or the consummation on the Closing Date of any of
the transactions contemplated thereby.
12. Assuming the validity of such actions under the laws of the Kingdom of
Sweden, under the laws of the State of New York relating to submission
to personal jurisdiction, the Company has, pursuant to Section XVIII of
the Agreement, legally and validly submitted to the personal
jurisdiction of any state or federal court located in the Borough of
Manhattan, The City of New York, New York in any action based on or
arising under the Agreement or the transactions contemplated thereby,
and has legally, validly and
effectively appointed the Authorized Agent as its authorized agent
for the purposes described in Section XVIII of the Agreement.
The opinions and other matters in this letter are qualified in their
entirety and subject to the following:
A. We express no opinion as to the laws of any jurisdiction other than the
Included Laws. We have made no special investigation or review of any
published constitutions, treaties, laws, rules or regulations or
judicial or administrative decisions ("LAWS"), other than a review of
(i) the Laws of the State of New York and (ii) the Federal Laws of the
United States of America. For purposes of this opinion, the term
"INCLUDED LAWS" means the items described in clauses (i) and (ii) of
the preceding sentence that are, in our experience, normally applicable
to transactions of the type contemplated in the Agreement, the
Transaction Documents and the Swedish Law Documents. The term Included
Laws specifically excludes (a) Laws of any counties, cities, towns,
municipalities and special political subdivisions and any agencies
thereof and (b) Laws relating to antitrust issues. Notwithstanding the
foregoing, the term Included Laws does not exclude Laws of New York
City in connection with paragraph 12 hereof.
B. This letter and the matters addressed herein are as of the date hereof
or such earlier date as is specified herein, and we undertake no, and
hereby disclaim any, obligation to advise you of any change in any
matter set forth herein, whether based on a change in the law, a change
in any fact relating to the Company or any other Person, or any other
circumstance. This opinion letter is limited to the matters expressly
stated herein and no opinions are to be inferred or may be implied
beyond the opinions expressly set forth herein.
C. The matters expressed in this letter are subject to and qualified and
limited by (i) applicable bankruptcy, insolvency, fraudulent transfer
and conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally; (ii) general principles of
equity, including principles of commercial reasonableness, good faith
and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity); (iii) commercial reasonableness and
unconscionability and an implied covenant of good faith and fair
dealing; (iv) the power of the courts to award damages in lieu of
equitable remedies; and (v) public policy underlying securities Laws
with respect to rights to indemnification and contribution.
D. We express no opinion as to the enforceability of any provision
contained in the Agreement or any of the Transaction Documents
restricting access to legal or equitable remedies including, without
limitation, proper jurisdiction, forum non conveniens and venue, the
penultimate sentence of Section 11.9 of the Indenture, or the
penultimate sentence of Section 10(j) of the Registration Rights
Agreement.
E. We have assumed that no fraud, dishonesty, forgery, coercion, duress or
breach of fiduciary duty exists or will exist with respect to any of
the matters relevant to the opinions expressed in this letter.
F. We express no opinion as to (i) the compliance of the transactions
contemplated by the Agreement with any regulations or governmental
requirements applicable to any party other than the Company; (ii) the
financial condition or solvency of the Company; (iii) the ability
(financial or otherwise) of the Company or any other party to meet
their respective obligations under the Agreement and the Transaction
Documents; (iv) except to the extent covered by the letter dated the
date hereof from this firm to the Initial Purchasers relating to
statements made in, or omitted from, the Offering Memorandum, the
compliance of the Agreement and the Offering Memorandum or the
transactions contemplated thereby with, or as to the effect of any of
the foregoing under, antifraud provisions of the Federal and state
securities laws, rules and regulations; (v) the value of any security
provided to secure the payment of obligations contemplated by the
Securities and the Indenture; and (vi) the conformity of the Agreement
and the Transaction Documents to any term sheet or commitment letter.
G. This letter is solely for your benefit, and no other Persons other than
Bankers Trust Company, as Trustee, shall be entitled to rely upon this
letter. Without our prior written consent, this letter may not be
quoted in whole or in part or otherwise referred to in any document and
may not be furnished or otherwise disclosed to or used by any other
Person, except for (i) delivery of copies hereof to counsel for the
addressees hereof, (ii) inclusion of copies hereof in a closing file,
and (iii) use hereof in any legal proceeding arising out of the
transactions contemplated by the Agreement filed by an addressee hereof
against this law firm or in which any addressee hereof is a defendant.
H. Although the opinions herein are limited to the Included Laws, we have
relied, with your permission, on the opinions of ▇▇▇▇▇▇▇▇▇▇ Swartling
Advokatbyra AB, special Swedish counsel to the Company, and the opinion
of Per ▇▇▇▇, General Counsel of the Company, in each case dated the
date hereof, in connection with the opinions expressed herein. We have
relied solely on the opinion of ▇▇▇▇▇▇▇▇▇▇ Swartling Advokatbyra in
respect of due authorization, execution and delivery under the laws of
the Kingdom of Sweden of the Agreement and each of the Transaction
Documents.
Very truly yours,
AKIN, GUMP, STRAUSS, ▇▇▇▇▇ & ▇▇▇▇
[Letterhead]
ANNEX C
▇▇▇▇▇▇▇▇▇▇ SWARTLING
To:
Deutsche Bank AG London
Winchester House
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Stockholm, 20 July 2001
Dear Sirs,
We have acted as legal counsel in Sweden for Preem Holdings AB (publ) (the
"COMPANY") in connection with the issue of a second tranche of 10 5/8 % senior
secured notes due 2011 (the "NOTES").
1. WE HAVE EXAMINED:
(a) an executed copy of a purchase agreement, dated 13 July 2001, between
the Company and Deutsche Bank AG London (the "INITIAL PURCHASER"),
pursuant to which the issue of the Notes will initially be made to the
Initial Purchaser (the "PURCHASE AGREEMENT");
(b) an executed copy of an indenture, dated 10 April 2001, between the
Company and Bankers Trust Company of New York (the "TRUSTEE") with
respect to the Notes (the "INDENTURE");
(c) executed copies of the Initial Global Notes (as defined in the
Indenture) relating to the second tranche, dated 20 July 2001;
(d) an executed copy of a registration rights agreement, dated 20 July
2001, among the Company and the Initial Purchaser;
(e) an executed copy of a debt restructuring agreement, dated 10 April
2001, among the Company, Corral Petroleum Holdings AB (publ) (the
"PARENT") and Preem Petroleum AB;
(f) an executed copy of a shareholder loan agreement, No. 1A, dated 10
April 2001, between the Company and Preem Petroleum AB, together with a
copy of the loan note issued thereunder (the "LOAN NOTE");
(g) an executed copy of a shareholder loan agreement, No. 1B, dated 10
April 2001, between the Company and Preem Petroleum AB;
(h) an executed copy of a shareholder loan agreement, No. 2, dated 10 April
2001, between the Parent and the Company;
(i) an executed copy of a share pledge agreement, dated 10 April 2001,
between the Company and the Trustee, regarding the shares in Preem
Petroleum AB (the "SHARE PLEDGE AGREEMENT");
(j) an executed copy of a security assignment agreement, dated 10 April
2001, between the Company and the Trustee, regarding subordinated debt
owed by Preem Petroleum AB (the "SECURITY ASSIGNMENT AGREEMENT");
(k) an executed copy of a loan agreement, dated 20 July 2001, between the
Company and the Parent;
(l) an offering memorandum of the Company with respect to the Notes, dated
13 July 2001 (the "OFFERING MEMORANDUM");
(m) a registration certificate for the Company, dated 11 July 2001;
(n) the articles of association for the Company;
(o) the share register for the Company;
(p) a registration certificate for the Parent, dated 11 July 2001;
(q) the articles of association for the Parent;
(r) the share register for the Parent;
(s) registration certificates for Preem Finans AB, Preem Petroleum AB,
Preem Raffinaderi AB, Skandinaviska Raffinaderi AB Scanraff,
Skandinaviska Kracker AB Scancracker and Goteborgs Smorjmedelsfabrik
(Scanlube) AB (the "SWEDISH SUBSIDIARIES") dated 16 July 2001;
(t) the articles of association for the Swedish Subsidiaries;
(u) the share registers for the Swedish Subsidiaries;
(v) a share certificate representing shares Nos. 1-610,258 in Preem
Petroleum AB (the "SHARES") (REVIEWED IN CONNECTION WITH THE ISSUE OF
THE FIRST TRANCHE OF NOTES);
(w) searches in respect of the Swedish Companies (as defined below) in the
computerised records of the Swedish Patent and Registration Office on
the date hereof;
(x) the minutes from a per capsulam meeting with the board of directors of
the Company held on 2 July 2001, containing, INTER ALIA, an approval of
the issue of the Notes;
(y) the minutes from a per capsulam meeting with the board of directors of
the Parent held on 1 March 2001, containing, INTER ALIA, an approval of
the issue of the first tranche of notes;
(z) the minutes from a per capsulam meeting with the board of directors of
the Company held on 1 March 2001, containing, INTER ALIA, an approval
of the issue of the first tranche of notes;
(aa) the minutes from a per capsulam meeting with the board of directors of
Preem Petroleum AB held on 2 April 2001, containing, INTER ALIA, an
approval of certain agreements to which it is a party relating to the
issue of the first tranche of notes; and
(bb) such other documents as we have considered necessary or desirable to
examine in order to give this opinion.
The documents referred to above in paragraphs 1. (a) - (k) are herein
collectively referred to as the "TRANSACTION DOCUMENTS" and each a "TRANSACTION
DOCUMENT". The documents referred to above in paragraphs 1. (a) - (d) are herein
collectively referred to as the "US TRANSACTION DOCUMENTS" and each a "US
TRANSACTION DOCUMENT". The documents referred to above in paragraphs 1. (e) -
(k) are herein collectively referred to as the "SWEDISH TRANSACTION DOCUMENTS"
and each a "SWEDISH TRANSACTION DOCUMENT". The Parent, the Company and the
Swedish Subsidiaries are herein collectively referred to as the "SWEDISH
COMPANIES".
2. WE HAVE ASSUMED:
(a) the genuineness of all signatures and the authenticity and completeness
of all documents submitted to us and the conformity to authentic
original documents of all documents submitted to us as certified,
conformed, photostatic or facsimile copies;
(b) that all documents, authorisations, powers and authorities produced to
us remain in full force and effect and have not been amended or
affected by any subsequent action not disclosed to us;
(c) that all parties to the Transaction Documents (other than the Swedish
Companies) are duly incorporated and validly existing under the laws of
their relevant jurisdictions;
(d) that the Transaction Documents are duly authorised and executed by, and
are within the capacity and powers of, the parties thereto (other than
the Swedish Companies);
(e) that the US Transaction Documents constitute legally valid, binding and
enforceable obligations of the parties thereto under the laws of the
State of New York, being the laws by which such documents are expressed
to be governed;
(f) that the Notes will be duly authenticated in accordance with the terms
of the Indenture when they are delivered to, and paid for by, the
Initial Purchaser;
(g) that there are no provisions of the laws of any jurisdiction other than
Sweden which would have any implications on the opinion we express;
(h) the accuracy and completeness of all factual representations contained
in documents produced to us, and therefore we have made no independent
investigation thereof;
(i) that all necessary consents, authorisations and approvals whatsoever
required in any relevant jurisdiction (other than Sweden) for the
execution and performance of the Transaction Documents by each of the
parties thereto have been, or will be, obtained and that all necessary
notices, filings, registrations and recordings required in any
applicable jurisdiction (other than Sweden) in respect of the
Transaction Documents
have been, or will be, given or effected in accordance with the laws
and regulations of every such applicable jurisdiction;
(j) that Preem Petroleum AB has not issued any coupons with respect to the
Shares, as warranted by the Company in Clause 8.2 (c) of the Share
Pledge Agreement;
(k) that the share certificate representing the Shares and the Loan Note
are, and will be, kept by the Trustee either (i) in Sweden or (ii) in a
jurisdiction where the security interests created by the Share Pledge
Agreement and the Security Assignment Agreement are recognised and
enforceable;
(l) that the Offering Memorandum will not be made available in Sweden, and
that no Notes will be marketed or offered for sale in Sweden, in
circumstances which would be deemed to be an offer to the public in
Sweden under the Financial Instruments Trading Act; and
(m) that the Trustee is a duly authorised agent for and representative of
the holders of the Notes from time to time under the laws of each
relevant jurisdiction (other than Sweden).
3. ON THE BASIS OF THE FOREGOING AND SUBJECT TO THE QUALIFICATIONS AND
RESERVATIONS HEREINAFTER SET FORTH, WE ARE OF THE OPINION THAT:
(a) each Swedish Company is duly incorporated, organised and validly
existing as a limited liability company, possessing the capacity to ▇▇▇
and be sued in its own name, with full power, authority and legal right
(corporate and other) to carry on business, to own property and, to
execute, deliver and to perform all of its obligations under, the
Transaction Documents to which it is a party;
(b) the Transaction Documents have been duly authorised, executed and
delivered by the relevant Swedish Company and such documents
constitute, or in respect of the Notes will constitute, when duly
authenticated, legally valid and binding obligations of the relevant
Swedish Company enforceable against such Swedish Company under the laws
of Sweden;
(c) neither the execution, delivery or the performance by a Swedish Company
of any Transaction Document to which it is a party nor the consummation
of the transactions contemplated thereby, and neither the issuance,
authentication sale or delivery of the Notes nor the compliance by a
Swedish Company with the terms thereof, will:
(i) violate or result in any breach of, or constitute a default under,
any (A) applicable law or (B) regulation issued by the Swedish
Government; or
(ii) be contrary Swedish public policy as expressed in available
precedents (the choice of law, however, is dealt with in Section 3 (i)
below); or
(iii) contravene or result in any breach of any provision of the
articles of association of the relevant Swedish Company;
(d) neither the execution, delivery or performance by a Swedish Company of
any Transaction Document nor the consummation of the transactions
contemplated thereby, and neither the issuance, authentication sale or
delivery of the Notes nor the compliance by a Swedish Company with the
terms thereof, requires any order or decree, consent or approval of,
giving of notice to, registration with, or taking of any other action
in respect of any governmental authority or agency, except for filings
with Sveriges Riksbank in connection with payments, provided, however,
that failure to comply with said filing requirement will not affect the
validity of the transactions contemplated by the Transaction Documents;
(e) no registration, recording, filing or notarisation and no payment of
any tax is necessary to ensure the validity, enforceability or
admissibility in evidence of any of the Transaction Documents, or the
priority, if any, of the respective rights of the Trustee and the
holders of the Notes from time to time, or any of them, under any of
the Transaction Documents;
(f) each of the Transaction Documents, is in proper legal form to be
produced before Swedish courts in proceedings, if translated into
Swedish at the time of the proceedings;
(g) to the best of our knowledge, but without any independent investigation
having been made (other than the searches referred to in Section 1(w)
above), none of the Swedish
Companies has taken any corporate action and no steps have been
taken or legal proceedings been started against any Swedish Company
for its bankruptcy, liquidation or dissolution, or for the
appointment of a liquidator, bankruptcy administrator or similar
officer;
(h) the execution and performance by each Swedish Company of the
Transaction Documents to which it is a party, constitute its private
and commercial acts; the Swedish Companies are subject to legal
proceedings in Sweden; each of the Initial Purchaser and the Trustee
would be permitted to commence proceedings against each relevant
Swedish Company in Swedish courts of competent jurisdiction based on
each Transaction Document to which it is a party, and neither the
Swedish Companies nor any of their respective assets enjoy any rights
of sovereign or other immunity from legal proceedings or the execution
of judgement or attachment;
(i) the choices of the laws of the State of New York to govern the US
Transaction Documents are valid and binding choices of law and will be
recognised and applied by the courts of Sweden, upon proof of the
relevant provisions of such foreign laws, subject, however, to the
qualification that foreign laws will not be applied to the extent
contrary to Swedish public policy and that Swedish law will be applied
in a bankruptcy proceeding in respect of, or an execution against, the
Company;
(j) the Company's irrevocable submissions to the jurisdiction of any
federal or state court in the Borough of Manhattan in the City of ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America in the US
Transaction Documents are its legally valid and binding obligations,
with the exception that the Swedish bankruptcy courts have exclusive
jurisdiction in respect of all property of the Company at the
bankruptcy of the Company; the waiver by the Company of any objection
to the venue of proceedings in any such U.S. court is valid under
Swedish law; as a matter of Swedish law, the appointment of the
Authorised Agent (as defined in Section XVIII of the Purchase
Agreement) as authorised agent for the service of process is valid and
binding, provided it is effective for this purpose under US law;
(k) although there is no legislative authority or court precedents on the
subject, it is generally believed that any final judgement of a court
of competent jurisdiction sitting in New York City against the Company
in a matter relating to the US Transaction Documents will be regarded
by a Swedish court as evidence of the outcome of the dispute to which
such judgement relates, but a Swedish court may choose to rehear the
dispute AB INITIO; we believe (although we do not express any opinion
hereon) that a judgement which is rendered under observance of due
process, against which there lies no more appeal, and the recognition
of which would not manifestly contravene fundamental principles of the
legal order or public policy of Sweden, should be acknowledged without
retrial on the merits;
(l) no holder of any of the Notes will be, purely on account of such
holding, subject to any liability in respect of any liability of the
Company, and there are no restrictions under Swedish law on sale or
transfer of the Notes for as long as a sale or transfer is not made in
circumstances which would be deemed to be an offer to the public in
Sweden under the Financial Instruments Trading Act;
(m) the Company will not be required to make any deduction or withholding
for, or on account of, any tax from any amount paid by the Company
under the Notes, other than in respect of interest paid to an
individual or the estate of a deceased individual with tax residence in
Sweden;
(n) no stamp, registration, transfer or similar taxes, duties or charges of
any significance are payable in Sweden in connection with the
execution, delivery, performance and enforcement of the Transaction
Documents, and no such taxes and duties are payable in Sweden by the
Initial Purchaser upon or in connection with the sale and delivery to
or by the Initial Purchaser of the Notes as contemplated by the
Offering Memorandum;
(o) the Company has the capitalisation (by way of share capital) as set
forth in the Offering Memorandum, and all of the outstanding shares in
each of the Swedish Companies have been duly and validly issued and are
fully paid and non-assessable; and the share capital of the Company
conforms in all material respects to the description thereof contained
in the Offering Memorandum;
(p) all of the issued shares in each Swedish Subsidiary are, according to
the share registers and share certificates, (except as set forth in the
Offering Memorandum) owned directly or indirectly by the Company;
except for the share certificate for Preem Petroleum AB which has been
pledged pursuant to the Share Pledge Agreement, the share certificates
for the Swedish Subsidiaries are in the possession of the respective
shareholder and, except for the share register for Preem Petroleum AB,
the share registers for the Swedish Subsidiaries do not contain any
notice of a pledge or other lien over the shares; consequently, except
as set out above, there is no pledge or other lien in existence over
such shares which would be valid as against the shareholder's creditors
or in the shareholder's bankruptcy;
(q) the certificates used to evidence the Notes comply with all applicable
legal requirements in Sweden;
(r) the Share Pledge Agreement constitutes a duly created and valid
perfected first-priority security interest in favour of the holders of
the Notes over the Shares, enforceable by the Trustee against the
Company or the Company's bankruptcy administrator and against third
parties under the laws of Sweden; and
(s) the Security Assignment Agreement constitutes a duly created and valid
perfected first-
priority security interest in favour of the holders of the Notes over
the Loan Note and the debt evidenced thereby, enforceable by the
Trustee against the Company or the Company's bankruptcy administrator
and against third parties under the laws of Sweden.
4. THE FOREGOING OPINION IS SUBJECT TO THE FOLLOWING QUALIFICATIONS AND
RESERVATIONS:
(a) anything contained in this opinion (except for the opinions in Sections
3 (r) and (s) to the extent they deal with the valid creation of a
security interest) is subject to all limitations resulting from
bankruptcy, insolvency, liquidation, reorganisation and similar laws
affecting the rights of creditors generally;
(b) pursuant to the Contracts Act, the terms of an agreement may be
modified or set aside by a court to the extent that such terms are
deemed to create unreasonable results, even if the circumstances giving
rise thereto have arisen after the agreement was entered into;
(c) the taking of proceedings in other jurisdictions may preclude the
taking of proceedings in Sweden, if the claims and the parties
respectively in the proceedings are substantially identical;
(d) Swedish courts may award judgements in currencies other than Swedish
Kronor, but the judgement debtor has the right to pay the judgement
debt, even though denominated in a foreign currency, in Swedish Kronor
at the rate of exchange prevailing at the date of payment (whether
voluntary or after enforcement);
(e) the enforcement of the rights of a party under an agreement may be
limited by general time bar provisions or the doctrine of laches (Sw.
PREKLUSION);
(f) it is not established by law or court precedent that a power of
attorney can be made irrevocable and it is therefore submitted that all
powers of attorney contained in the Transaction Documents can be
revoked and that they will terminate by operation of law and without
notice at the bankruptcy of the party giving such powers;
(g) the object of a company's business as set out in the articles of
association, the issue of shares or other equity securities, and the
control of ownership, are matters within the control of the
shareholders, any undertakings by the Company relating to these matters
in Section IV. 13 of the Purchase Agreement may therefore be
unenforceable to the extent they relate to actions by the shareholders
of the Company;
(h) the voting rights given to the Trustee in the Share Pledge Agreement
are given by power of attorney, which is valid only for one year;
(i) in proceedings before a Swedish Court, the Swedish Procedural Code will
apply in respect of, INTER ALIA, service of process, allocation of
costs for the proceedings, availability of interim measures and
evaluation of evidence; consequently, provisions in or in relation to
the Transaction Documents relating to such matters will not be
enforceable to the extent inconsistent therewith;
(j) provisions in the Transaction Documents, specifying that provisions
thereof may only be amended or waived in writing, may not be
enforceable to the extent that an oral agreement or implied agreement
by trade practice or course of conduct has been created modifying
provisions of the Transaction Documents;
(k) this opinion is limited to matters of Swedish law as presently in force
and as enacted by Swedish legislative authorities, and no opinion is
expressed as to the laws of any other jurisdiction or supra-national
organisation (such as the EC); and
(l) this opinion is given on the basis that it will be governed by and
construed in accordance with Swedish law, is strictly limited to
matters stated herein and is not to be read as extending by implication
to any other matters in connection with the Transaction Documents.
5. DESCRIPTION OF SWEDISH LAW IN THE OFFERING MEMORANDUM
The descriptions in the Offering Memorandum of Swedish
statutes, legal and governmental proceedings and contracts and other documents
governed by Swedish law are accurate in all material respects in their
description of Swedish law.
The statements set forth in the Offering Memorandum under the
captions "Note on Certain Regulatory Issues related to Sweden.", "Summary -
Structure of the Offering of the Notes", "Risk Factors - We are subject to
governmental and environmental regulations...", "Risk Factors - We may be liable
for environmental damages...", "Risk Factors - Legal action by the Swedish
Competition Authority, other European regulatory authorities...", "Risk Factors
- We were a dormant subsidiary of Preem Petroleum AB...", "Risk Factors - If
Preem Holdings AB or Preem Petroleum AB incurs substantial operating losses or a
reduction in the value of its assets...", "Risk Factors - Swedish insolvency
laws differ from U.S. insolvency laws...",
"Structure of the April 2001 Offering", "Business - Intellectual Property",
"Business - Legal Proceedings", "Business - Enforcement of Civil
Liabilities.", "Management - Employment Agreements", "Related Party
Transactions - Shareholder Loan", "Related Party Transactions - Intercompany
Loans", "Description of Certain Indebtedness" and "Certain Swedish and United
States Federal Income Tax Consequences - Sweden.", to the extent they
represent statements or summaries of Swedish legal matters, constitute
accurate summaries of such legal matters in all material respects.
The foregoing statements are, to the extent they relate to
contracts and documents, based on our due diligence review and where the
aforementioned sections of the Offering Memorandum describe a contract or
document which we have not reviewed, we have assumed that such contract or
document is not governed by Swedish law.
6. DUE DILIGENCE REVIEW
As a basis for the preparation of the Offering Memorandum, we have on
29 June 2001 carried out a limited due diligence review for the
purpose of up-dating the due diligence report produced in connection
with the issue of the first tranche of senior secured notes in April
2001. The information and documents reviewed by us have been
submitted to us in a so called data-room at the premises of Preem
Petroleum AB in Stockholm. We have also received certain written and
oral information directly from employees of the Preem group.
Certain documents were assembled by the Preem group in a data-room
during spring 2001, in connection with the issue of a first tranche
of senior secured notes. These documents were reviewed by us as the
basis for a due diligence report that was delivered in connection
with such issue. These documents have not been re-examined by us and
to the extent this opinion relates to such documents, it is based on
the review carried out during the period 15 January - 10 April 2001.
Certain other documents were assembled by the Preem group in a
data-room in 1999, in connection with a proposed issue of notes.
These documents were reviewed by us as the basis for a due diligence
report to be delivered in connection with the proposed issue. Such
documents have not been re-examined by us and to the extent this
opinion relates to such documents, it is based on the review carried
out in 1999.
Further, our review has been limited to constituent documents and
corporate records for the Swedish Companies and to other documents
governed by Swedish law.
During the course of our due diligence review we have not found any
indications to the effect that:
(a) the Swedish Companies should not have the full power, authority and
legal right to carry on the businesses in which they are engaged;
(b) the execution, delivery or the performance by a Swedish Company of
any Transaction Document to which it is a party or the consummation
of the transactions contemplated thereby, or the issuance,
authentication, sale or delivery of the Notes, or the compliance by
the Company with the terms thereof, will:
(i) violate or result in any breach of, or constitute a default
under, any judgement, order, decree, rule or regulation of any
court or arbitrator or governmental agency or body having
jurisdiction over the Swedish Companies or any of their
respective properties or assets; or
(ii) conflict with or result in a material breach or violation of
any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or asset of the
relevant Swedish Company pursuant to any material indenture,
mortgage, deed of trust, loan agreement or other material
agreement or instrument to which such Swedish Company is a
party or by which such Swedish Company is bound or to which
any of the property or assets of such Swedish Company is
subject;
(c) the Company is in violation in any material respect of its articles
of association or in violation in any material respect of any law,
ordinance, governmental rule, regulation, or court decree to which it
or its properties or assets may be subject, which in each case is not
disclosed in the Offering Memorandum.
This opinion is addressed to the Initial Purchaser for its own use
and benefit and for the use of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, in its
capacity as legal adviser to the Company, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇,
in its capacity as legal adviser to the Initial Purchaser. This opinion may
not be relied upon by any other person, or for any purpose other than in
connection with the Transaction Documents, and it is not to be used,
circulated, quoted or otherwise referred to for any other purpose.
Yours faithfully,
▇▇▇▇▇▇▇▇▇▇ SWARTLING ADVOKATBYRA
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
ANNEX D
July ___, 2001
Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Dear Sirs:
I, Per ▇▇▇▇, act as General Counsel to Preem Holdings AB (publ) (the "Company"),
a subsidiary of Corral Petroleum Holdings AB (publ) ("Corral"), and refer to the
10 5/8 % Senior Secured Notes due 2011, Purchase Agreement dated July ___, 2001
(the "Purchase Agreement") between the Company and the Initial Purchaser. Terms
and expressions used in this letter have the same meaning as those defined in
the Purchase Agreement, if not expressly defined otherwise hereunder.
i. Neither the Company nor any of its subsidiaries is (a) in violation of
its articles of association or (b) in default in any material respect,
and no event has occurred which, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance
of any term, covenant or condition contained in any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which it is a party or by which it is bound or to which
any of its property or assets is subject;
ii. Neither the Company nor any of its subsidiaries is in material
violation of any law, ordnance, governmental rule, regulation or court
decree to which it or its properties or assets may be subject;
iii. There are no judicial, legal, arbitral, rule-making, administrative or
governmental proceedings pending or, to the best of my knowledge,
threatened in the Kingdom of Sweden to which the Company or any of its
subsidiaries is a named party or of which any property or assets of the
Company or any of its subsidiaries is the subject which (a) singularly
or in the aggregate, if determined adversely to the Company or any of
its subsidiaries, would have a Material Adverse Effect or (b) questions
the validity or enforceability of any of the Transaction Documents or
any action taken or to be taken pursuant thereto; and
iv. The Company and each of its subsidiaries possess all material licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate supranational, federal
or foreign regulatory agencies or bodies which are
necessary for the ownership of their respective properties or the
conduct of their respective businesses as described in the Offering
Memorandum, except where the failure to possess or make the same
would not, singularly or in the aggregate, have a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has
received notification of any revocation or modification of any such
license, certificate, authorization or permit or has any reason to
believe that any such license, certificate, authorization or permit
will not be renewed in the ordinary course.
Yours sincerely,
Per ▇▇▇▇
General Counsel
ANNEX E
July 13, 2001
The Board of Directors of
Preem Holdings AB
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇-▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
We have audited the consolidated balance sheet of Preem Petroleum AB and
subsidiaries as of December 31, 1999 and 2000, and the related consolidated
statements of operations and cash flows for each of the years in the
three-year period ended December 31, 2000 included in the Offering Memorandum
of Preem Holdings AB, dated July 13, 2001 relating to 55,000,000 10? Senior
Secured Notes Due 2001 (the "Notes"); our report with respect thereto is also
included in that Offering Memorandum. The Offering Memorandum, dated July 13,
2001, is herein referred to as the Offering Memorandum. We have also audited
the balance sheet of Preem Holdings AB as of December 31, 1999 and 2000 and
the related statements of operations and cash flow for each of the years in
the three-year period ended December 31, 2000. As used herein, "the Company"
refers to each of Preem Holdings AB and Preem Petroleum AB and its
consolidated subsidiaries.
This letter is being furnished in reliance upon your representation to use 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 that 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 Memorandum:
1. We are independent certified public accountants with respect to each
Company under Rule 101 of the AICPA's Code of Professional Conduct and
its interpretations and rulings as well as under the applicable
published rules and regulations in Sweden.
2. We have not audited any financial statements of either Company as of
any date or for any period subsequent to December 31, 2000; although we
have conducted an audit for the year ended December 31, 2000, 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, 2000, and for the year the 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 unaudited consolidated
balance sheets as of March 31, 2001, and the unaudited consolidated
statements of income, retained earnings (stockholders' equity), and
cash flows for the three-month periods ended March 31, 2000 and 2001,
included in the Offering Memorandum or the financial position, results
of operations, or cash flows as of any date or for any period
subsequent to December 31, 2000.
3. For purposes of this letter we have read the 2001 minutes of meetings
of the stockholders and the boards of directors of each Company and its
respective subsidiaries as set forth in the minute books at July 10,
2001, officials of each such Company having advised us that the minutes
of all such meetings through that date were set forth therein; we have
carried out other procedures to July 10, 2001, as follows (our work did
not extend to the period from July 10, 2001 to July 13, 2001,
inclusive).
a. With respect to the three-month periods ended March 31, 2001
and 2000, 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 each
Company's unaudited consolidated balance sheet as of
March 31, 2001, and unaudited consolidated statements
of income, retained earnings (stockholders' equity),
and cash flows for the three-month periods ended
March 31, 2001 and 2000, included in the Offering
Memorandum.
(ii) Inquired of certain officials of each Company who
have responsibility for financial and accounting
matters whether the unaudited consolidated financial
statements referred to in a(i) comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published
rules and regulations.
b. With respect to the period from April 1, 2001 to May 31, 2001,
we have
(i) Read the unaudited consolidated financial statements
of each Company and its respective subsidiaries for
April and May of both 2000 and 2001 furnished to us
by the Company, officials of each such Company having
advised us that no such financial statements as of
any date or for any period subsequent to May 31,
2001, were available.
(ii) Inquired of certain officials of each Company who
have responsibility for financial and accounting
matters whether the unaudited consolidated financial
statements referred to in b(i) are stated on a basis
substantially
consisted with that of the unaudited consolidated
financial statements included in the Offering
Memorandum.
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.
4. Nothing came to our attention as a result of the foregoing procedures,
however, that caused us to believe that:
a. (i) any material modifications should be made to the
unaudited consolidated financial statements described
in 3a(i), included in the Offering Memorandum, for
them to be in conformity with generally accepted
accounting principles,
(ii) the unaudited consolidated financial statements
described in 3a(i) do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published
rules and regulations,
b. (i) at May 31, 2001, there was any change in the capital
stock, increase in long-term debt, or decrease in
consolidated net current assets or stockholders'
equity of the consolidated companies as compared with
amounts shown in the March 31, 2001, unaudited
consolidated balance sheet included in the Offering
Memorandum, or (ii) for the period from April 1, 2001
to May 31, 2001, there were any decreases, as
compared to the corresponding period in the preceding
year, in consolidated net sales or in the total or
per-share amounts of net income, except in all
instances for changes, increases, or decreases that
the Offering Memorandum discloses have occurred or
may occur.
5. As mentioned in 3.b, above, officials of each Company have advised us
that no consolidated financial statements as of any date or for any
period subsequent to May 31, 2001, are available. We have inquired of
certain officials of each Company who have responsibility for financial
and accounting matters whether (a) at July 10, 2001, there was any
change in the capital stock, increase in consolidated long-term debt,
or decrease in consolidated net current assets or shareholders' equity
of the consolidated companies as compared with amounts shown on the
December 31, 2000, consolidated balance sheet included in the Offering
Memorandum or (b) for the period from January 1, 2001 to July 10, 2001,
there were any decreases, as compared with the corresponding period in
the preceding year, in consolidated net sales and operating revenues,
in operating income or in the total amounts of consolidated net
earnings. On the basis of these inquiries and our reading of the
minutes as described in 3, nothing came to our attention that cause us
to believe that there was any such change, increase, or decrease,
except in all instances for changes, increases, or decreases that the
Offering Memorandum discloses have occurred
or may occur.
6. For purposes of this letter, we have also read the items identified by
you on the attached copy of selected pages from the Offering Memorandum
and have performed the following procedures, which were applied as
indicated with respect to the symbols explained below.
a. Compared the amount or percentage to or recalculated the
amount or percentage from the corresponding amount or
percentage appearing in the applicable Company's audited
consolidated financial statements and notes hereto, included
in the Offering Memorandum, and found them to be in agreement.
b. Compared the amount or percentage to or recalculated the
amount or percentage from the corresponding amount or
percentage appearing in the applicable Company's audited
interim consolidated financial statements and notes hereto,
including in the Offering Memorandum, and found them to be in
agreement.
c. Recalculated the percentage or amount from and/or compared the
amount to a corresponding amount appearing on a schedule or
report prepared by the applicable Company and found them to be
in agreement. Management of each Company have represented to
us that the schedules were derived from the regularly
maintained accounting record of such Company.
d. Recalculated the Euro amount based on the corresponding
Swedish Kronor amount appearing in or derived from the audited
consolidated financial statements included in the Offering
Circular or a schedule prepared by the applicable Company,
using the December 31, 2000 exchange rates as specified in the
"Exchange Rate Information" section at page (iv) of the
Offering Memorandum. This conversion does not necessarily
result in the same Euro amount as would have arisen if the
conversion has been performed in accordance with US GAAP. We
make no representation as to the appropriateness of the
exchange rates used.
e. Recalculated the amount from corresponding amounts appearing
in the audited consolidated financial statements including in
the Offering Circular or a schedule prepared by Preem
Petroleum AB based upon the definition of "EBITDA" as
described in note 9 on page 12 of the Offering Memorandum. We
make no representation as to the appropriateness of such
definition or whether it reflects an appropriate measure of
the debt service ability of the Company.
f. Recalculated the amounts under "As Adjusted" in the section of
the Offering Memorandum entitled "Capitalization" based on
applicable assumptions specified in the Offering Memorandum
and found them to be in agreement. However, we make no comment
as to the reasonableness of those assumptions nor as to the
successful completion of the offering, the amount of
application of proceeds to be received therefrom, or whether
such use will actually take place.
g. Recalculated the amount under the headings "Pro forma 2000"
and "Pro forma 2001" in the sections of the Offering
Memorandum entitled "Summary Consolidated Financial
Information", "Selected Consolidated Financial Data" and
"Unaudited Consolidated Financial Information" based on the
applicable assumptions specified in the Offering Memorandum
and found them to be in agreement. However, we make no comment
as the reasonableness of those assumptions nor as to the
successful completion of the offering, the interest rate of
the bonds to be issued, the amount or the application of
proceeds to be received, or whether such use will actually
take place.
h. Compared the amount to the applicable Company's audited
consolidated financial statements as filed with the Swedish
authorities. These financial statements have not be audited by
us and we do not give any comfort to the fairness or
correctness of these numbers.
For the purposes of reporting our findings, in those instances in which
one or more of the compared amounts or percentages stated were rounded
to some degree and the amounts or percentages were in agreement, except
that they were not rounded to the same degree, we have nevertheless
stated that we found the compared amounts and percentages to be in
agreement.
7. Our audit of the consolidated 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 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 purpose of expressing an opinion on
individual balances of amounts or summaries of selected transactions
such as those enumerated above and, accordingly, we express no opinion
thereon.
8. 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 6; 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
Memorandum and make no representations regarding the adequacy of
disclosure or regarding whether any material facts have been omitted.
9. This letter is solely for the information of the addresses and to
assist the Initial Purchaser (as defined in the Offering Memorandum) in
conducting and documenting their investigation of the affairs of the
Companies in connection with the offering of the securities covered by
the Offering Memorandum, 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 Memorandum or any other document,
except that reference may be made to it in any list of closing
documents pertaining to the offering of the securities covered by the
Offering Memorandum.
Yours truly,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Partner