EXHIBIT 4.4
$250,000,000
▇▇▇▇▇▇▇ CORPORATION
9.25% Senior Notes due 2010
Purchase Agreement
April 11, 2002
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o ▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇▇ Corporation, an Alabama corporation (the "Company"), proposes
to issue and sell to the several Initial Purchasers listed in Schedule 1 hereto
(the "Initial Purchasers"), for whom you are acting as representative (the
"Representative"), $200,000,000 aggregate principal amount of its 9.25% Senior
Notes due 2010 (the "Securities"). The Securities will be issued pursuant to an
Indenture to be dated as of April 18, 2002 among the Company, the guarantors
listed in Schedule 2 hereto (the "Guarantors") and Wachovia Bank National
Association, as trustee (the "Trustee"), and will be guaranteed on an unsecured
senior basis by each of the Guarantors (the "Guarantees"). Simultaneous with the
issuance and sale of the Securities and as a condition precedent thereto, the
Company will be enter into a senior credit agreement among the Company, the
Guarantors, Fleet Capital Corporation, as administrative agent and Fleet
Securities, Inc. as arranger, and the other banks and financial institutions
that are parties thereto (the "Fleet Credit Facility"). The proceeds of the sale
of the Securities and borrowings under the Fleet Credit Facility shall be
applied to (i) repay and cancel the commitments under the existing revolving
credit facility (ii) the 6.72% (6.97% effective October 2001) Notes due annually
through 2002 (iii) the 6.65% (7.65% effective October 2001) Notes due annually
2001 through 2007, (iv) the 6.78% (7.78% effective October 2001) Notes due
annually 2003 through 2008 and (v) the Variable Rate (5.09% at December 29,
2001) Notes due semi-annually through 2005, and to pay, in each case, the
related fees, expenses and premiums (collectively, such transactions shall be
referred to as the "Refinancing").
The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an
1
exemption therefrom. The Company has prepared a preliminary offering memorandum
dated March 29, 2002 (the "Preliminary Offering Memorandum") and will prepare an
offering memorandum dated the date hereof (the "Offering Memorandum") setting
forth information concerning the Company, the Securities and the Guarantees.
Copies of the Preliminary Offering Memorandum have been, and copies of the
Offering Memorandum will be, delivered by the Company to the Initial Purchasers
pursuant to the terms of this Agreement. The Company hereby confirms that it has
authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers in the manner contemplated by this Agreement. Capitalized
terms used but not defined herein shall have the meanings given to such terms in
the Offering Memorandum. References herein to the Preliminary Offering
Memorandum and the Offering Memorandum shall be deemed to refer to and include
any document incorporated by reference therein under the Section titled
"Incorporation by reference".
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated the Closing Date (as defined below)
and substantially in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the Company and the Guarantors will agree
to file one or more registration statements with the Securities and Exchange
Commission (the "Commission") providing for the registration under the
Securities Act of the Securities or the Exchange Securities referred to (and as
defined) in the Registration Rights Agreement.
The Company hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) The Company agrees
to issue and sell the Securities to the several Initial Purchasers as provided
in this Agreement, and each Initial Purchaser, on the basis of the
representations, warranties and agreements set forth herein and subject to the
conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the principal amount of Securities set forth opposite such Initial
Purchaser's name in Schedule 1 hereto at a price equal to 97.25% of the
principal amount thereof plus accrued interest, if any, from April 18, 2002 to
the Closing Date. The Company will not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased as
provided herein.
(b) The Company understands that the Initial Purchasers intend to
offer the Securities for resale on the terms set forth in the Offering
Memorandum. Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it is a qualified institutional buyer within the
meaning of Rule 144A under the Securities Act (a "QIB") and an
accredited investor within the meaning of Rule 501(a) under the
Securities Act;
(ii) it has not solicited offers for, or offered or sold,
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 under the Securities Act
("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 not solicited offers for, or offered or sold,
and will not solicit offers for, or offer or sell, the Securities as
part of their initial offering except:
(A) within the United States to persons whom it
reasonably believes to be QIBs in transactions pursuant to
Rule 144A under the Securities Act ("Rule 144A") and in
connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of the
Securities is aware that such sale is being made in reliance
on Rule 144A; or
(B) in accordance with the restrictions set
forth in Annex A hereto.
(c) Each Initial Purchaser acknowledges and agrees that the
Company and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Sections 5(f), 5(g), 5(h), 5(i), 5(j), 5(k) and 5(l),
counsel for the Company, counsel for the Guarantors and counsel for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers, and compliance by the Initial Purchasers
with their agreements, contained in paragraph (b) above (including Annex A
hereto), and each Initial Purchaser hereby consents to such reliance.
(d) The Company acknowledges and agrees that the Initial
Purchasers may offer and sell Securities to or through any affiliate of an
Initial Purchaser and that any such affiliate may offer and sell Securities
purchased by it to or through any Initial Purchaser.
2. Payment and Delivery. (a) Payment for and delivery of the
Securities will be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ at 10:00 A.M., New York City time,
on April 18, 2002, or at such other time on the same or such other date, not
later than the fifth business day thereafter, as the Representative and the
Company may agree upon in writing. The time and date of such payment and
delivery is referred to herein as the "Closing Date".
(b) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Initial Purchasers, of one or more global notes
representing the Securities (collectively, the "Global Note"), with any transfer
taxes payable in connection with the sale of the Securities duly paid by the
Company. A copy of the Global Note will be
made available for inspection by the Representative not later than 3:00 P.M.,
New York City time, on the business day prior to the Closing Date.
3. Representations and Warranties of the Company and the
Guarantors. The Company represents and warrants to each Initial Purchaser with
respect to itself and the Guarantors, and each of the Guarantors, solely with
respect to itself, represents and warrants to each Initial Purchaser that:
(a) Offering Memorandum. The Preliminary Offering Memorandum, as
of its date, did not, except as set forth in Schedule 4 hereto, and the Offering
Memorandum, in the form first used by the Initial Purchasers to confirm sales of
the Securities and on the Closing Date, will not, contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Company and the Guarantors make no
representation or warranty with respect to any statements or omissions made in
reliance upon and in conformity with information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through
the Representative expressly for use in the Preliminary Offering Memorandum and
the Offering Memorandum.
(b) Incorporated Documents. The documents referenced in the
Section titled "Incorporation by reference" that are incorporated by reference
in the Preliminary Offering Memorandum and the Offering Memorandum, when filed
with the Commission, conformed or will conform, as the case may be, in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and did not and 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.
(c) Financial Statements. The financial statements and the related
notes thereto included or incorporated by reference in the Preliminary Offering
Memorandum and the Offering Memorandum present fairly the financial position of
the Company and its subsidiaries as of the dates indicated and the results of
their operations and the changes in their cash flows for the periods specified;
such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods covered thereby; and the other financial information (including, without
limitation, the "as adjusted" and "pro forma" information) included or
incorporated by reference in the Preliminary Offering Memorandum and the
Offering Memorandum presents fairly the information shown thereby which (other
than the "as adjusted" and "pro forma" information) has been derived from the
accounting records of the Company and its subsidiaries and, with respect to the
"as adjusted" and "pro forma" information, has been computed based on (i) the
accounting records of the Company and (ii) the assumptions relating to the
transactions contemplated in the Offering Memorandum.
(d) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included or incorporated by reference in the
Preliminary Offering Memorandum and the Offering Memorandum, (i) there has not
been any adverse change in the capital stock or long-term debt of the Company or
any of its subsidiaries, or any dividend (other than the dividend of $.04 per
share paid on February 18, 2002 to the holders of record of the Company's common
stock, $.01 par value) or distribution of any kind declared, set aside for
payment, paid or made by the Company on any class of capital stock, or any
material adverse change, or any development involving a prospective material
adverse change, in or affecting the business, properties, management, financial
position, results of operations or prospects of the Company and its subsidiaries
taken as a whole; (ii) neither the Company nor any of its subsidiaries has
entered into any transaction or agreement not in the ordinary course of business
that is material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is material to
the Company and its subsidiaries taken as a whole; and (iii) neither the Company
nor any of its subsidiaries has sustained any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor disturbance or dispute or any action,
order or decree of any court or arbitrator or governmental or regulatory
authority, except in each case as otherwise disclosed in the Preliminary
Offering Memorandum and the Offering Memorandum.
(e) Organization and Good Standing. Except as provided in Schedule
5, the Company and each of its subsidiaries have been duly organized and are
validly existing and in good standing under the laws of their respective
jurisdictions of formation or organization, are duly qualified to do business
and are in good standing 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 be so qualified or have such power or
authority would not, individually or in the aggregate, have a material adverse
effect on the business, properties, management, financial position, results of
operations or prospects of the Company and its subsidiaries taken as a whole or
on the performance by the Company and the Guarantors of their obligations under
the Securities and the Guarantees (a "Material Adverse Effect"). The Company
does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Schedule 3 to this Agreement.
(f) Capitalization. The Company has an authorized capitalization
as set forth in the Preliminary Offering Memorandum and the Offering Memorandum
under the heading "Capitalization"; and all the outstanding shares of capital
stock or other equity interests of each subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and
(except, in the case of any foreign subsidiary, for directors' qualifying
shares) are owned directly or indirectly by the Company, free and clear of any
lien, charge, encumbrance, security interest, restriction on voting or transfer
or any other claim of any third party, except as otherwise disclosed in the
Preliminary Offering Memorandum and the Offering Memorandum or as contemplated
by the Fleet Credit Facility.
(g) Due Authorization. The Company and each of the Guarantors have
full right, power and authority to execute and deliver this Agreement, the
Securities, the Indenture (including each Guarantee set forth therein), the
Exchange Securities and the Registration Rights Agreement (collectively, the
"Transaction Documents") and to perform their respective obligations hereunder
and thereunder; and all action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents and
the consummation of the transactions contemplated thereby has been duly and
validly taken.
(h) The Indenture. The Indenture has been duly authorized by the
Company and each of the Guarantors 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 and each of the Guarantors
enforceable against the Company and each of the Guarantors in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability (collectively,
the "Enforceability Exceptions"); and on the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act"), and the rules and regulations
of the Commission applicable to an indenture that is qualified thereunder.
(i) The Notes and the Guarantees. The Notes 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 enforceable against the Company in accordance
with their terms, subject to the Enforceability Exceptions, and will be entitled
to the benefits of the Indenture; and the Guarantees have been duly authorized
by each of the Guarantors and, when the Notes have been duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as
provided herein, will be valid and legally binding obligations of each of the
Guarantors, enforceable against each of the Guarantors in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture.
(j) The Exchange Securities. On the Closing Date, the Exchange
Securities (including the related guarantees) will have been duly authorized by
the Company and each of the Guarantors and, when duly executed, authenticated,
issued and delivered as contemplated by the Registration Rights Agreement, will
be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company, as issuer, and each of the Guarantors, as
guarantor, enforceable against the Company and each of the Guarantors in
accordance with their terms, subject to the Enforceability Exceptions, and will
be entitled to the benefits of the Indenture.
(k) Purchase and Registration Rights Agreements. This Agreement
has been duly authorized, executed and delivered by the Company and each of the
Guarantors; and the Registration Rights Agreement has been duly authorized by
the Company and each of the Guarantors 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 and each of the Guarantors enforceable against
the Company and each of the Guarantors in accordance with its terms, subject to
the Enforceability Exceptions, and except that rights to indemnity and
contribution thereunder may be limited by applicable law and public policy.
(l) Descriptions of Transaction Documents. Each Transaction
Document conforms in all material respects to the description thereof contained
in the Preliminary Offering Memorandum and the Offering Memorandum.
(m) No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter, by-laws or similar
organizational documents; (ii) in default in any material respect, and no event
has occurred that, 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 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; or (iii) in violation of any law or statute or any judgment, order or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material
Adverse Effect.
(n) No Conflicts with Existing Instruments. The execution,
delivery and performance by the Company and each of the Guarantors of each of
the Transaction Documents to which each is a party and the Fleet Credit
Facility, the issuance and sale of the Securities or the issuance of the
Guarantees and compliance by the Company and each of the Guarantors with the
terms thereof and the consummation of the transactions contemplated by the
Transaction Documents and the Fleet Credit Agreement, including the use of the
initial borrowings made on the Closing Date of the Fleet Credit Facility and the
proceeds of the Securities, will not (i) conflict with or result in a 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 assets of the Company or any of its subsidiaries pursuant to,
any 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
with respect to the Guarantee Agreement dated as of August 4, 2002, as amended,
(the "Elcatex Guarantee") by the Company in favor of SunTrust Bank, to the
extent waivers are not obtained with regard to the covenants contained therein,
the Guarantees will conflict with the provisions of the Elcatex Guarantee; (ii)
result in any violation of the provisions of the charter, by-laws or similar
organizational documents of the Company or any of its subsidiaries or (iii)
result in the violation of any law or statute or any judgment, order or
regulation of any court or arbitrator or governmental or regulatory authority
having jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets, except, in the
case of clauses (i) and (iii) above, for any such conflict, breach or violation
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(o) No Consents Required. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex A hereto) and their compliance with their agreements set
forth therein, no consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory
authority is required for the execution, delivery and performance by the Company
and each of the Guarantors of each of the Transaction Documents to which each is
a party, the issuance and sale of the Securities or the issuance of the
Guarantees, the entering into of and making initial borrowings made on the
Closing Date under the Fleet Credit Facility, and compliance by the Company and
each of the Guarantors with the terms thereof and the consummation of the
transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, orders and registrations or qualifications
as may be required (i) under applicable state securities laws in connection with
the purchase and resale of the Securities by the Initial Purchasers and (ii)
with respect to the Exchange Securities (including the related guarantees) under
the Securities Act and applicable state securities laws as contemplated by the
Registration Rights Agreement.
(p) Legal Proceedings. Except as described in the Preliminary
Offering Memorandum and the Offering Memorandum, there are no legal,
governmental or regulatory investigations, actions, suits or proceedings pending
to which the Company or any of its subsidiaries is or may be a party or to which
any property of the Company or any of its subsidiaries is or may be the subject
that, individually 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; and to the best knowledge of the Company and each of the
Guarantors, no such investigations, actions, suits or proceedings are threatened
or contemplated by any governmental or regulatory authority or threatened by
others.
(q) Independent Accountants. Ernst & Young LLP, who have certified
certain financial statements of the Company and its subsidiaries 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 American
Institute of Certified Public Accountants and its interpretations and rulings
thereunder.
(r) Title to Real and Personal Property. The Company and its
subsidiaries have good and marketable title in fee simple to, or have valid
rights to lease or otherwise use, all items of real and personal property that
are material to the respective businesses of the Company and its subsidiaries,
in each case free and clear of all liens, encumbrances, claims and defects and
imperfections of title except with respect to those that (i) do not materially
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; (ii) could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect; or (iii)
are created under the Fleet Credit Facility.
(s) Title to Intellectual Property. The Company and 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 material respect with any such rights of others, and the Company
and its subsidiaries have not received any notice of any claim of infringement
of or conflict with any such rights of others with respect to any intellectual
property that, if determined adversely to the Company or any such subsidiaries,
would individually or in the aggregate have a Material Adverse Effect.
(t) Investment Company Act. Neither the Company nor any of its
subsidiaries is, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Preliminary Offering Memorandum and the Offering Memorandum none of them will
be, an "investment company" or an entity "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, and the
rules and regulations of the Commission thereunder (collectively, "Investment
Company Act").
(u) Taxes. The Company and its subsidiaries have paid all federal
and all material state, local and foreign taxes and filed or obtained extensions
for all tax returns required to be paid or filed through the date hereof; and
except as otherwise disclosed in the Preliminary Offering Memorandum and the
Offering Memorandum, there is no tax deficiency that has been, or could
reasonably be expected to be, asserted against the Company or any of its
subsidiaries or any of their respective properties or assets.
(v) Licenses and Permits. The Company and its subsidiaries possess
all licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Preliminary Offering Memorandum and
the Offering Memorandum, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material Adverse Effect; and
except as described in the Preliminary Offering Memorandum and the Offering
Memorandum, neither the Company nor any of its subsidiaries has received notice
of any revocation or modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary course, except for
any revocation, modification or non-renewal that could not be reasonably
excepted to have, individually or in the aggregate, a Material Adverse Effect.
(w) No Labor Disputes. No labor disturbance by or dispute with
employees of the Company or any of its subsidiaries exists or, to the best
knowledge of the Company and each of the Guarantors, is contemplated or
threatened that could, individually or in the aggregate, have a Material Adverse
Effect.
(x) Compliance With Environmental Laws. Except as disclosed in the
Preliminary Offering Memorandum and the Offering Memorandum, the Company and its
subsidiaries (i) are in compliance with any and all applicable federal, state,
local and foreign laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, "Environmental Laws"), and none of
them has received notice of any outstanding violations of any Environmental
Laws; (ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit,
license or approval, except in any such case for any such failure to comply or
violations, or failure to receive required permits, licenses or approvals, as
would not, individually or in the aggregate, have a Material Adverse Effect.
(y) Compliance With ERISA. Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), that is maintained, administered or contributed to by the
Company or any member of its controlled group within the meaning of Section 414
of the Internal Revenue Code of 1986, as amended (the "Code") ("ERISA
Affiliates") for employees or former employees of the Company and its ERISA
Affiliates has been maintained in material compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Code; no prohibited transaction,
within the meaning of Section 406 of ERISA or Section 4975 of the Code, has
occurred with respect to any such plan, excluding transactions effected pursuant
to a statutory or administrative exemption; and for each such plan that is
subject to the funding rules of Section 412 of the Code or Section 302 of ERISA,
no "accumulated funding deficiency" as defined in Section 412 of the Code has
been incurred, whether or not waived, and the fair market value of the assets of
each such plan (excluding for these purposes accrued but unpaid contributions)
exceeds the present value of all benefits accrued under such plan determined
using reasonable actuarial assumptions.
(z) Accounting Controls. The Company and its subsidiaries maintain
systems of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(aa) Insurance. The Company and its subsidiaries have insurance
covering their respective properties, operations, personnel and businesses,
including business interruption, which insurance is in amounts and insures
against such losses and risks as are reasonably adequate to protect the Company
and its subsidiaries and their respective businesses; and neither the Company
nor any of its subsidiaries has (i)
received notice from any insurer or agent of such insurer that capital
improvements or other expenditures are required or necessary to be made in order
to continue such insurance or (ii) any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage at reasonable cost consistent with prevailing
market rates from similar insurers as may be necessary to continue its business.
(bb) No Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the best knowledge of the Company and each of the
Guarantors, any director, officer, agent, employee or other person associated
with or 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; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(cc) Margin Rules. Neither the issuance, sale and delivery of the
Securities nor the application of the proceeds thereof by the Company as
described in the Preliminary Offering Memorandum and the Offering Memorandum
will violate Regulation T, U or X of the Board of Governors of the Federal
Reserve System or any other regulation of such Board of Governors.
(dd) Solvency. On and immediately after the Closing Date, the
Company (after giving effect to the issuance of the Securities and 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 (i) 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 liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) as they become absolute
and matured; (ii) 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; (iii) assuming
consummation of the issuance 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; (iv) the Company
is not engaged in any business or transaction, and does not propose 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; and (v) other than as
described in the Offering Memorandum, the Company is not a defendant in any
civil action that could reasonably be expected to result in a judgment that the
Company is or would become unable to satisfy.
(ee) No Restrictions on Subsidiaries. No subsidiary of the Company
is currently prohibited, directly or indirectly, under any agreement or other
instrument to which it is a party or is subject, from paying any dividends to
the Company or to a subsidiary of the Company, from making any other
distribution on such subsidiary's
capital stock to the Company or to a subsidiary of the Company, from repaying to
the Company or to a subsidiary of the Company any loans or advances to such
subsidiary from the Company or a subsidiary of the Company or from transferring
any of such subsidiary's properties or assets to the Company or any other
subsidiary of the Company, other than prohibitions arising under applicable law.
(ff) No Broker's Fees. Neither the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding with any
person (other than this Agreement) that would give rise to a valid claim against
any of them or any Initial Purchaser for a brokerage commission, finder's fee or
like payment in connection with the offering and sale of the Securities.
(gg) Rule 144A Eligibility. On the Closing Date, the Securities
will not be of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted in an
automated inter-dealer quotation system; and each of the Preliminary Offering
Memorandum and the Offering Memorandum, as of its respective date, contains or
will contain all 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.
(hh) No Integration. Neither the Company nor any of its affiliates
(as defined in Rule 501(b) of 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 defined in the Securities Act), that 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.
(ii) No General Solicitation or Directed Selling Efforts. None of
the Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no representation is
made) has (i) solicited offers for, or offered or sold, 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 or (ii) engaged in any
directed selling efforts within the meaning of Regulation S under the Securities
Act ("Regulation S"), and all such persons have complied with the offering
restrictions requirement of Regulation S.
(jj) Securities Law Exemptions. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex A hereto) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance and sale of
the Securities to the Initial Purchasers and the offer, resale and delivery of
the Securities by the Initial Purchasers 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.
(kk) No Stabilization. Neither the Company nor any of the
Guarantors has taken, directly or indirectly, any action designed to or that
could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Securities.
(ll) Forward-Looking Statements. No forward-looking statement
(within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Preliminary Offering Memorandum and the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(mm) Statistical and Market Data. Nothing has come to the attention
of the Company that has caused the Company to believe that the statistical and
market-related data included in the Preliminary Offering Memorandum and the
Offering Memorandum is not based on or derived from sources that are reliable.
4. Further Agreements of the Company and the Guarantors. The
Company and each of the Guarantors jointly and severally covenant and agree with
each Initial Purchaser that:
(a) Delivery of Copies. The Company will deliver to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum (including all amendments and supplements thereto) as the
Representative may reasonably request.
(b) Amendments or Supplements. Before distributing any amendment
or supplement to the Preliminary Offering Memorandum or the Offering Memorandum
or filing with the Commission any document that will be incorporated by
reference therein, the Company will furnish to the Representative and counsel
for the Initial Purchasers a copy of the proposed amendment or supplement or
document to be incorporated by reference therein for review, and will not
distribute any such proposed amendment or supplement or file any such document
with the Commission to which the Representative reasonably objects.
(c) Notice to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) of the issuance
by any governmental or regulatory authority of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or the initiation or, to the knowledge of the Company, threatening of
any proceeding for that purpose; (ii) of the occurrence of any event at any time
prior to the completion of the initial offering of the Securities as a result of
which the Offering Memorandum as then amended or supplemented would include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing when the Offering Memorandum is delivered to a purchaser, not
misleading; and (iii) of the receipt by the Company of any notice with respect
to any suspension of the qualification of the Securities for offer and sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its reasonable best efforts to prevent the
issuance of any such order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or suspending any such qualification of the Securities and, if
issued, will obtain as soon as reasonably possible the withdrawal thereof.
(d) Ongoing Compliance of the Offering Memorandum. If at any time
prior to the completion of the initial offering of the Securities (i) any event
shall occur or condition shall exist as a result of which it is necessary to
amend or supplement the Offering Memorandum in order to make the statements
therein, in the light of the circumstances existing when the Offering Memorandum
is delivered to a purchaser, not misleading or (ii) it is necessary to amend or
supplement the Offering Memorandum to comply with law, the Company will promptly
notify the Initial Purchasers thereof and forthwith prepare and, subject to
paragraph (b) above, furnish to the Initial Purchasers such amendments or
supplements to the Offering Memorandum (or any document to be filed with the
Commission and incorporated by reference therein) as may be necessary so that
the statements in the Offering Memorandum as so amended or supplemented (or
including such document to be incorporated by reference therein) will not, in
the light of the circumstances existing when the Offering Memorandum is
delivered to a purchaser, be misleading or so that the Offering Memorandum will
comply with law.
(e) Blue Sky Compliance. The Company will cooperate with the
Initial Purchasers to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representative shall
reasonably request and will continue such qualifications in effect so long as
may be reasonably required for the offering and resale of the Securities;
provided that neither the Company nor any of the Guarantors shall be required to
(i) qualify as a foreign corporation or other entity or as a dealer in
securities in any such jurisdiction where it would not otherwise be required to
so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it
is not so subject.
(f) Clear Market. Other than as contemplated by the Offering
Memorandum, during the period from the date hereof through and including the
date that is 180 days after the date hereof, the Company and each of the
Guarantors will not, without the prior written consent of the Representative,
offer, sell, contract to sell or otherwise issue any debt securities issued or
guaranteed by the Company or any of the Guarantors and having a tenor of more
than one year. (g) Use of Proceeds. The Company will apply the net proceeds from
the sale of the Securities as described in the Preliminary Offering Memorandum
and the Offering Memorandum.
(h) Supplying Information. While the Securities remain outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company and each of the Guarantors will, during any period
in which the Company is not subject to and in compliance with Section 13 or
15(d) of the Exchange Act, furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon the request of
such holders or such prospective purchasers, the
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act.
(i) PORTAL and DTC. The Company will provide reasonable assistance
to the Initial Purchasers in arranging for the Securities to be designated
Private Offerings, Resales and Trading through Automated Linkages ("PORTAL")
Market securities in accordance with the rules and regulations adopted by the
National Association of Securities Dealers, Inc. ("NASD") relating to trading in
the PORTAL Market and for the Securities to be eligible for clearance and
settlement through The Depository Trust Company ("DTC").
(j) No Resales by the Company. Until the issuance of the Exchange
Securities or the effectiveness of the shelf registration statement contemplated
by the Registration Rights Agreement, the Company will not, and will not permit
any of its affiliates (as defined in Rule 144 under the Securities Act) to,
resell any of the Securities that have been acquired by any of them, except for
Securities purchased by the Company or any of its affiliates and resold in a
transaction registered under the Securities Act.
(k) No Integration. Neither the Company nor any of its affiliates
(as defined in Rule 501(b) of Regulation D) will, directly or through any agent,
sell, offer for sale, solicit offers to buy or otherwise negotiate in respect
of, any security (as defined in the Securities Act), that 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.
(l) No General Solicitation or Directed Selling Efforts. None of
the Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no covenant is given)
will (i) 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 or (ii) engage in any directed
selling efforts within the meaning of Regulation S, and all such persons will
comply with the offering restrictions requirement of Regulation S.
(m) No Stabilization. Until the Representative shall have notified
the Company in writing of the completion of the resale of the Securities by the
Initial Purchasers, neither the Company nor any of the Guarantors will take,
directly or indirectly, any action designed to or that could reasonably be
expected to cause or result in any stabilization or manipulation of the price of
the Securities.
(n) Dissolution of ▇▇▇▇▇▇▇ Athletic, Inc. and ▇▇▇▇▇▇▇ Athletic
West, Inc.. Within 60 days of the Closing Date, the Company will take all
reasonable actions required to be taken on its part to dissolve, liquidate, wind
up or merge each of ▇▇▇▇▇▇▇ Athletic, Inc., a Georgia corporation, and ▇▇▇▇▇▇▇
Athletic West, Inc., a Nevada corporation, into the Company or a Guarantor
pursuant to the applicable provisions of the laws of such corporation's state of
incorporation. At the time of such dissolution, liquidation, winding up or
merger, all of the assets of such corporation, net of any fees and expenses
associated with such dissolution, liquidation, winding up or merger, will be
distributed to the Company or to a Guarantor. Notwithstanding anything to
contrary contained in this Agreement, this Section 4(n) shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect.
5. Conditions of Initial Purchasers' Obligations. The obligation
of each Initial Purchaser to purchase Securities on the Closing Date as provided
herein is subject to the performance by the Company and each of the Guarantors
of their respective obligations hereunder and to the following additional
conditions:
(a) Representations and Warranties. The representations and
warranties of the Company and the Guarantors contained herein shall be true and
correct on the date hereof and on and as of the Closing Date; the statements of
the Company, the Guarantors and their respective officers made in any
certificates delivered pursuant to this Agreement shall be true and correct on
and as of the Closing Date; and the Company and the Guarantors shall have
complied with all agreements and all conditions to be performed or satisfied on
their part hereunder at or prior to the Closing Date.
(b) No Downgrading. Subsequent to the execution and delivery of
this Agreement, (i) no downgrading shall have occurred in the rating accorded
the Securities by any "nationally recognized statistical rating organization",
as such term is defined by the Commission for purposes of Rule 436(g)(2) under
the Securities Act; and (ii) 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.
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not
described in the Offering Memorandum (excluding any amendment or supplement
thereto or any document filed with the Commission after the date hereof and
incorporated by reference therein) and the effect of which, in the reasonable
judgment of the Representative, makes it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Securities on the terms and in the
manner contemplated by this Agreement and the Offering Memorandum.
(d) Officer's Certificate. The Representative shall have received
on and as of the Closing Date a certificate of an executive officer of the
Company and of each Guarantor who has specific knowledge of the Company's or
such Guarantor's financial matters and is reasonably satisfactory to the
Representative, in form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Annex B hereto.
(e) Comfort Letters. On the date of this Agreement and on the
Closing Date, Ernst & Young LLP shall have furnished to the Representative, at
the request of the Company, letters, dated the respective dates of delivery
thereof and addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to the Representative,
containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in, or incorporated by
reference into, the Preliminary Offering Memorandum and the Offering Memorandum.
(f) Opinion of Counsel for the Company and Delaware Guarantors.
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company and Mossy Oak
Apparel Company, Cross Creek Holdings, Inc., ▇▇▇▇▇▇▇ Financial Services, Inc.,
▇▇▇▇▇▇▇ Asset Management, Inc. and RINTEL Properties, Inc. (together, the
"Delaware Guarantors"), shall have furnished to the Representative, at the
request of the Company, their written opinion, dated the Closing Date and
addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, substantially to the effect set forth in
Annex C hereto.
(g) Opinion of In-house Counsel for the Company. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq. , General Counsel for the Company and Guarantors, shall have furnished to
the Representative his written opinion, dated the Closing Date and addressed to
the Initial Purchasers, in form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Annex D hereto.
(h) Opinion of Counsel for the Alabama Guarantors. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Rose & White LLP shall have furnished to the Representative their written
opinion, as counsel to the Company, DeSoto ▇▇▇▇▇, Inc., ▇▇▇▇▇▇▇ Apparel, LLC and
▇▇▇▇▇▇▇ Yarn LLC (the "Alabama Guarantors"), addressed to the Initial Purchasers
and dated the Closing Date, in form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Annex E hereto.
(i) Opinion of Counsel for Jerzees Apparel, LLC. ▇▇▇▇▇▇ & Bird,
LLP shall have furnished to the Representative their written opinion, as counsel
to Jerzees Apparel, LLC, addressed to the Initial Purchasers and dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Annex F hereto.
(j) Opinion of Counsel for Cross Creek Apparel, LLC. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇ shall have furnished to the Representative their
written opinion, as counsel to Cross Creek Apparel, LLC, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Representative, substantially to the effect set forth in
Annex G hereto.
(k) Opinion of Counsel for ▇▇▇▇▇▇▇ Co-op LLC. ▇▇▇▇▇▇ ▇'▇▇▇▇▇▇ &
▇▇▇▇ shall have furnished to the Representative their written opinion, as
counsel to ▇▇▇▇▇▇▇ Co-op LLC, addressed to the Initial Purchasers and dated the
Closing Date, in form and substance reasonably satisfactory to the
Representative, substantially to the effect set forth in Annex H hereto.
(l) Opinion of Counsel for the Initial Purchasers. The
Representative shall have received on and as of the Closing Date an opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Initial Purchasers, with respect to such matters as the
Representative may reasonably request, and such counsel shall have received such
documents and information as they may reasonably request to enable them to pass
upon such matters.
(m) No Legal Impediment to Issuance. No action shall have been
taken and no statute, rule, regulation or order shall have been enacted, adopted
or issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantees; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Securities or the issuance of
the Guarantees.
(n) Good Standing. The Representative shall have received on and
as of the Closing Date satisfactory evidence of the good standing of the Company
and the Guarantors in their respective jurisdictions of organization and their
good standing in such other jurisdictions as the Representative may reasonably
request, in each case in writing or any standard form of telecommunication, from
the appropriate governmental authorities of such jurisdictions.
(o) Registration Rights Agreement. The Initial Purchasers shall
have received a counterpart of the Registration Rights Agreement that shall have
been executed and delivered by a duly authorized officer of the Company and each
of the Guarantors.
(p) Fleet Credit Facility. All documents to be executed in
connection with the Fleet Credit Facility (the "Credit Documentation") shall
have been duly executed and delivered by the Company, the Guarantors and the
requisite lenders and other parties thereto and the Company and the Guarantors
shall have satisfied all conditions precedent to borrowings under the Fleet
Credit Facility (other than those conditions precedent that are waived by the
lenders under the Fleet Credit Facility or extensions of time were received by
the Company on such conditions precedent, provided that notice of any such
waiver or extension is provided to the Initial Purchasers on or prior to the
Closing Date) and the commitments available for borrowing thereunder, after the
use of the initial borrowings made on the Closing Date of the Fleet Credit
Facility and the proceeds of the Securities, shall be in an amount no less than
$60 million.
(q) No Event of Default. At the Closing Date, after giving effect
to the consummation of the transactions by the Transaction Documents, including
the Refinancing, there shall exist no default or event of default under the
Indenture or the Fleet Credit Facility.
(r) Documentation. The Representative shall have received true
copies of the Fleet Credit Facility and all other material documentation related
thereto.
(s) Refinancing. The Company shall have delivered all necessary
notices or obtained waivers of any required notice provisions and performed all
actions necessary to consummate the Refinancing and the premiums, fees and
expenses in connection therewith shall not exceed $35 million.
(t) PORTAL and DTC. The Securities shall have been approved by the
NASD for trading in the PORTAL Market and shall be eligible for clearance and
settlement through DTC.
(u) Additional Documents. On or prior to the Closing Date, the
Company and the Guarantors shall have furnished to the Representative such
further certificates and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence 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 Purchasers.
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company and
each of the Guarantors jointly and severally agree to indemnify and hold
harmless each Initial Purchaser, its affiliates and each person, if any, who
controls such Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation,
reasonable legal fees and other expenses incurred in connection with any suit,
action or proceeding or any claim asserted), joint or several, caused by any
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum (or any amendment or
supplement thereto), or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through
the Representative expressly for use therein; provided, that with respect to any
such untrue statement in or omission from the Preliminary Offering Memorandum,
the indemnity agreement contained in this paragraph (a) shall not inure to the
benefit of any Initial Purchaser to the extent that the sale to the person
asserting any such loss, claim, damage or liability was an initial resale by
such Initial Purchaser and any such loss, claim, damage or liability of or with
respect to such Initial Purchaser results from the fact that both (i) a copy of
the Offering Memorandum (excluding any documents incorporated by reference
therein) 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 (ii) the untrue
statement in or omission from such Preliminary Offering Memorandum was corrected
in the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Company with the
provisions of Section 4 hereof.
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of
the Guarantors and each person, if any, who controls the Company or any of the
Guarantors within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the indemnity set forth in paragraph (a) above, but only with
respect to any losses, claims, damages or liabilities caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with any information relating to such Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through the
Representative expressly for use in the Preliminary Offering Memorandum and the
Offering Memorandum (or any amendment or supplement thereto).
(c) Notice and Procedures. If any suit, action, proceeding
(including any governmental or regulatory investigation), claim or demand shall
be brought or asserted against any person in respect of which indemnification
may be sought pursuant to either paragraph (a) or (b) above, such person (the
"Indemnified Person") shall promptly notify the person against whom such
indemnification may be sought (the "Indemnifying Person") in writing; provided
that the failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have under this Section 6 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 Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under this Section 6. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm for any Initial
Purchaser, its affiliates and any control persons of such Initial Purchaser
shall be designated in writing by ▇.▇. ▇▇▇▇▇▇ Securities Inc. and any such
separate firm for the Company, the Guarantors and any control persons of the
Company and the Guarantors shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify
each Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested that an Indemnifying Person reimburse
the Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding and (y) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) Contribution. If the indemnification provided for in
paragraphs (a) and (b) above is unavailable to an Indemnified Person or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other from the offering of the Securities or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the
Guarantors on the one hand and the Initial Purchasers on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the
Company from the sale of the Securities and the total discounts and commissions
received by the Initial Purchasers in connection therewith, as provided in this
Agreement, bear to the aggregate offering price of the Securities. The relative
fault of the Company and the Guarantors on the one hand and the Initial
Purchasers on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or any Guarantor or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company, the Guarantors and the
Initial Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation (even if the
Initial Purchasers were treated as one entity for such purpose) or by any other
method of allocation that does
not take account of the equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an Indemnified Person as a result of the
losses, claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 6, in no event
shall an Initial Purchaser be required to contribute any amount in excess of the
amount by which the total discounts and commissions received by such Initial
Purchaser with respect to the offering of the Securities exceeds the amount of
any damages that such Initial Purchaser has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute pursuant to this Section 6 are several in
proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this
Section 6 are not exclusive and shall not limit any rights or remedies that may
otherwise be available to any Indemnified Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market; (ii) trading of any
securities issued or guaranteed by the Company or any of the Guarantors shall
have been suspended on any exchange or in any over-the-counter market; (iii) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities; or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that in the
judgment of the Representative is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement and
the Offering Memorandum.
8. Defaulting Initial Purchaser. (a) If, on the Closing Date, any
Initial Purchaser defaults on its obligation to purchase the Securities that it
has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in
their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchasers do not arrange for the purchase of such Securities, then the
Company and the Guarantors shall be entitled to a further period of 36 hours
within which to procure other persons satisfactory to the non-defaulting Initial
Purchasers to purchase such Securities on such terms. If other persons become
obligated or agree to purchase the Securities of a defaulting Initial Purchaser,
either the non-defaulting Initial Purchasers or the Company may postpone the
Closing Date for up to five full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Initial
Purchasers may be
necessary in the Offering Memorandum or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the
Offering Memorandum that effects any such changes. As used in this Agreement,
the term "Initial Purchaser" includes, for all purposes of this Agreement unless
the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 8, purchases Securities that a defaulting Initial
Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Securities, then the Company shall have the right to require each
non-defaulting Initial Purchaser to purchase the principal amount of Securities
that such Initial Purchaser agreed to purchase hereunder plus such Initial
Purchaser's pro rata share (based on the principal amount of Securities that
such Initial Purchaser agreed to purchase hereunder) of the Securities of such
defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made.
(c) If, after giving effect to any arrangements for the purchase
of the Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company and the Guarantors as provided
in paragraph (a) above, the aggregate principal amount of such Securities that
remains unpurchased exceeds one-eleventh of the aggregate principal amount of
all the Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers, the Company or the
Guarantors, except that the Company and each of the Guarantors will continue to
be liable for the payment of expenses as set forth in Section 9 hereof and
except that the provisions of Section 6 hereof shall not terminate and shall
remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company, the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company and each of the Guarantors jointly and severally agree to pay or
cause to be paid all costs and expenses incident to the performance of their
respective obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Securities and any taxes payable in that connection; (ii) the costs incident to
the preparation and printing of the Preliminary Offering Memorandum and the
Offering Memorandum (including any amendment or supplement thereto) and the
distribution thereof; (iii) the costs of reproducing and distributing each of
the Transaction Documents; (iv) the fees and expenses of the Company's and the
Guarantors' counsel and independent accountants; (v) the fees and expenses
incurred in connection with the
registration or qualification and determination of eligibility for investment of
the Securities under the laws of such jurisdictions as the Representative may
designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Initial
Purchasers); (vi) any fees charged by rating agencies for rating the Securities;
(vii) the fees and expenses of the Trustee and any paying agent (including
related fees and expenses of any counsel to such parties); (viii) all expenses
and application fees incurred in connection with the application for the
inclusion of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; and (ix) all expenses incurred by the
Company in connection with any "road show" presentation to potential investors.
(b) If the Company for any reason fails to tender the Securities
for delivery to the Initial Purchasers (other than by reason of a breach of this
Agreement by any Initial Purchaser) or the Initial Purchasers decline to
purchase the Securities for any reason permitted under this Agreement, the
Company and each of the Guarantors jointly and severally agrees to reimburse the
Initial Purchasers for all out-of-pocket costs and expenses (including the
reasonable fees and expenses of their counsel) reasonably incurred by the
Initial Purchasers in connection with this Agreement and the offering
contemplated hereby.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Company, the Guarantors and any
controlling persons referred to herein, the Initial Purchasers, their respective
affiliates and any controlling persons referred to herein, and their respective
successors. Nothing in this Agreement is intended or shall be construed to give
any other person any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein. No purchaser of
Securities from any Initial Purchaser shall be deemed to be a successor merely
by reason of such purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Guarantors and
the Initial Purchasers contained in this Agreement or made by or on behalf of
the Company, the Guarantors or the Initial Purchasers 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 of this Agreement or any investigation made by or on behalf
of the Company, the Guarantors or the Initial Purchasers.
12. Initial Purchasers' Information. The Company, the Guarantors
and the Initial Purchasers acknowledge and agree that the only information
relating to any Initial Purchaser that has been furnished to the Company in
writing by any Initial Purchaser through the Representative expressly for use in
the Preliminary Offering Memorandum and the Offering Memorandum (or any
amendment or supplement thereto) consists of the following:
(a) the name of each Initial Purchaser on the cover page of the
Preliminary Offering Memorandum and the Offering Memorandum and
(b) in the section entitled "Plan of Distribution":
(i) the third paragraph;
(ii) the fifth and sixth sentences of the eighth
paragraph;
(iii) the tenth paragraph;
(iv) the first sentence of the eleventh paragraph stating
that ▇.▇. ▇▇▇▇▇▇ Securities Inc. is an affiliate of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Bank; and
(v) the second sentence of the eleventh paragraph stating
that First Union Securities, Inc. is an affiliate of Wachovia Bank,
N.A.
13. Certain Defined Terms. For purposes of this Agreement, (a)
except where otherwise expressly provided, the term "affiliate" has the meaning
set forth in Rule 405 under the Securities Act; (b) the term "business day"
means any day other than a day on which banks are permitted or required to be
closed in New York City; (c) the term "Exchange Act" means the Securities
Exchange Act of 1934, as amended; and (d) the term "subsidiary" has the meaning
set forth in Rule 405 under the Securities Act.
14. Miscellaneous. (a) Authority of the Representative. Any action
by the Initial Purchasers hereunder may be taken by ▇.▇. ▇▇▇▇▇▇ Securities Inc.
on behalf of the Initial Purchasers, and any such action taken by ▇.▇. ▇▇▇▇▇▇
Securities Inc. shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted and confirmed by any standard form of telecommunication. Notices to
the Initial Purchasers shall be given to the Representative c/o ▇.▇. ▇▇▇▇▇▇
Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax:(▇▇▇) ▇▇▇-▇▇▇▇);
Attention: ▇▇▇▇▇▇ ▇▇▇▇. Notices to the Company and the Guarantors shall be given
to them at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
(fax:(▇▇▇) ▇▇▇-▇▇▇▇); Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts
(which may include counterparts delivered by any standard form of
telecommunication), each of which shall be an original and all of which together
shall constitute one and the same instrument.
(e) Amendments or Waivers. 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.
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
▇▇▇▇▇▇▇ CORPORATION
By
---------------------------------
Title:
CROSS CREEK HOLDINGS, INC.
By
---------------------------------
Title:
CROSS CREEK APPAREL, LLC
By
---------------------------------
Title:
DESOTO ▇▇▇▇▇, INC.
By
---------------------------------
Title:
JERZEES APPAREL, LLC
By
---------------------------------
Title:
MOSSY OAK APPAREL COMPANY
By
---------------------------------
Title:
RINTEL PROPERTIES, INC.
By
---------------------------------
Title:
▇▇▇▇▇▇▇ CO-OP, LLC
By
---------------------------------
Title:
▇▇▇▇▇▇▇ APPAREL, LLC
By
---------------------------------
Title:
▇▇▇▇▇▇▇ ASSET MANAGEMENT, INC.
By
---------------------------------
Title:
▇▇▇▇▇▇▇ ATHLETIC, INC.
By
---------------------------------
Title:
▇▇▇▇▇▇▇ ATHLETIC WEST, INC.
By
---------------------------------
Title:
▇▇▇▇▇▇▇ FINANCIAL SERVICES, INC.
By
---------------------------------
Title:
▇▇▇▇▇▇▇ YARN LLC
By
---------------------------------
Title:
Accepted: April __, 2002
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers listed
in Schedule 1 hereto.
By
-------------------------------
Authorized Signatory
Schedule 1
Initial Purchaser Principal Amount
----------------- ----------------
▇.▇. ▇▇▇▇▇▇ Securities Inc. $155,000,000
First Union Securities, Inc. 28,750,000
Fleet Securities, Inc. 28,750,000
SunTrust Capital Markets, Inc. 25,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,500,000
Total $250,000,000
Schedule 2
Guarantors
Cross Creek Holdings, Inc.
Cross Creek Apparel, LLC
DeSoto ▇▇▇▇▇, Inc.
Jerzees Apparel, LLC
Mossy Oak Apparel Company
RINTEL Properties, Inc.
▇▇▇▇▇▇▇ Co-Op, LLC
▇▇▇▇▇▇▇ Apparel, LLC
▇▇▇▇▇▇▇ Asset Management, Inc.
▇▇▇▇▇▇▇ Athletic, Inc.
▇▇▇▇▇▇▇ Athletic West, Inc.
▇▇▇▇▇▇▇ Financial Services, Inc.
▇▇▇▇▇▇▇ Yarn LLC
Schedule 3
SUBSIDIARIES
1. Domestic
Alexander City Flying Service, Inc.
Cross Creek Apparel, LLC
Cross Creek Holdings, Inc.
DeSoto ▇▇▇▇▇, Inc.
Jerzees Apparel, LLC
Mossy Oak Apparel Company
RINTEL Properties, Inc.
▇▇▇▇▇▇▇ Apparel LLC
▇▇▇▇▇▇▇ Asset Management, Inc.
▇▇▇▇▇▇▇ Athletic, Inc.
▇▇▇▇▇▇▇ Athletic West, Inc.
▇▇▇▇▇▇▇ Financial Services, Inc.
▇▇▇▇▇▇▇ Servicing Co., Inc.
▇▇▇▇▇▇▇ Corporation (Delaware)
▇▇▇▇▇▇▇ Yarn, LLC
2. Foreign
Athletic ▇▇ ▇▇▇▇▇▇▇, ▇.▇. de C.V.
Citygate Textiles Limited
Cross Creek de Honduras, S.A. de C.V.
Cross Creek ▇▇ ▇▇▇▇▇▇▇, ▇.▇. de C.V.
Eagle R Holdings Limited
JERZEES Campeche, S.A. de C.V.
JERZEES Chloma, S.A.
JERZEES de Buena Vista, S.A.
JERZEES de Honduras, S.A. de C.V.
JERZEES Yucatan, S.A. de C.V.
RUServicios, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Co-Op, LLC
▇▇▇▇▇▇▇ Corp. Australia Pty Ltd
▇▇▇▇▇▇▇ Corp. Bangladesh Limited
▇▇▇▇▇▇▇ Corp. Canada Ltd.
▇▇▇▇▇▇▇ Corp. Far East, Limited
▇▇▇▇▇▇▇ CZ s.r.o.
▇▇▇▇▇▇▇ do Brasil Ltda.
▇▇▇▇▇▇▇ Europe Limited
▇▇▇▇▇▇▇ Foreign Sales, Ltd.
▇▇▇▇▇▇▇ France, S.A.R.L.
▇▇▇▇▇▇▇ Germany GmbH
▇▇▇▇▇▇▇ Holdings Europe B.V.
▇▇▇▇▇▇▇ Italy Srl
▇▇▇▇▇▇▇ Japan ▇▇
▇▇▇▇▇▇▇ Mexico, S.A. de ▇.▇.
▇▇▇▇▇▇▇ Spain, S.L.
Servicios ▇▇▇▇▇▇▇, ▇.▇. de C.V.
Schedule 4
- Page 69 - correction to the number of shares of common stock
outstanding.
- Pages 69 and 70 - correction to beneficial ownership percentages.
- Corrections to non-guarantor subsidiary information for Net Sales,
EBIT, Net Income (Loss), and EBITDA.
Schedule 5
▇▇▇▇▇▇▇ Athletic, Inc. in Tennessee for failure to file an annual report.
ANNEX A
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the United
States:
(a) Each Initial Purchaser acknowledges that 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) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the
Securities, and will offer and sell the Securities, (A) as part of
their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering of the Securities and the
Closing Date, only in accordance with Regulation S under the Securities
Act ("Regulation S") or Rule 144A or any other available exemption from
registration under the Securities Act.
(ii) None of such Initial Purchaser or 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.
(iii) At or prior to the confirmation of sale of any
Securities sold in reliance on Regulation S, such Initial Purchaser
will have sent to each distributor, dealer or other person receiving a
selling concession, fee or other remuneration that purchase Securities
from it during the distribution compliance period a confirmation or
notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise until
40 days after the later of the commencement of the offering of
the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule
144A or any other available exemption from registration under
the Securities Act. Terms used above have the meanings given
to them by Regulation S."
(iv) Such Initial Purchaser 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 paragraph (a) and this paragraph (b) and not otherwise defined in
this Agreement have the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, 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.
(d) Each Initial Purchaser acknowledges that no action has been or
will be taken by the Company that would permit a public offering of the
Securities, or possession or distribution of the Preliminary Offering
Memorandum, the Offering Memorandum or any other offering or publicity material
relating to the Securities, in any country or jurisdiction where action for that
purpose is required.