EXHIBIT 10.1
EXECUTION COPY
$110,000,000
ALLIANCE LAUNDRY SYSTEMS LLC
ALLIANCE LAUNDRY CORPORATION
9.625% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
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April 29, 1998
▇▇▇▇▇▇ BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Alliance Laundry Systems LLC, a Delaware limited liability company
(the "Company"), and Alliance Laundry Corporation, a Delaware corporation ("ALC"
and, together with the Company, the "Issuers"), propose to issue and sell to you
(the "Initial Purchasers") $110.0 million in aggregate principal amount at
maturity of its 9.625% Senior Subordinated Notes due 2008 (the "Initial Notes")
to be issued pursuant to the terms of an Indenture (the "Indenture") among the
Issuers, Alliance Laundry Holdings LLC, a Delaware limited liability company
formerly known as Raytheon Commercial Laundry LLC ("Parent") and United States
Trust Company of New York, as trustee (the "Trustee"), relating to the Initial
Notes. The Notes are being offered in connection with the recapitalization of
Parent through the merger of RCL Acquisition, L.L.C. ("MergeCo") with and into
Parent pursuant to which Bain/RCL, L.L.C., a Delaware limited liability company
("Bain LLC"), ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Co., L.P. and certain of its
affiliates, and certain management investors will acquire 93% of the common
equity of Parent. MergeCo is a direct subsidiary of Bain LLC, a limited
liability company formed at the direction of ▇▇▇▇ Capital, Inc. (the "Sponsor").
The Initial Purchasers propose to purchase the respective aggregate principal
amount of Initial Notes set forth opposite their name on Schedule 1 hereto.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture.
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Payment of principal of, premium, liquidated damages, if any, and
interest on the Notes (as defined) will be unconditionally guaranteed, jointly
and severally, on a senior subordinated basis by Parent (the "Guarantee,"
together with the Notes, the "Securities") and any newly acquired or created
Domestic Subsidiary.
The Initial Notes will be offered and sold to you pursuant to
exemptions from the registration requirements under the Securities Act of 1933,
as amended (the "Securities Act"). The Issuers have prepared a preliminary
offering memorandum, dated April 16, 1998 (the "Preliminary Offering
Memorandum"), and a final offering memorandum (the "Offering Memorandum"), dated
April 29, 1998, relating to the Issuers and the Initial Notes. As described in
the Offering Memorandum, the Company will use the net proceeds from the offering
of the Initial Notes to finance the Merger (as defined in the Offering
Memorandum) and to pay related fees and expenses.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the
Initial Notes (and all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISION OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE ISSUERS THAT (A) SUCH
SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1) (a)
TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 UNDER THE
SECURITIES ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE ISSUERS SO REQUEST), (2) TO THE ISSUERS OR
(3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE,
IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
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LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED
HEREBY OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
You have advised the Issuers that you will make offers (the "Exempt
Resales") of the Initial Notes purchased by you hereunder on the terms set forth
in the Offering Memorandum, as amended or supplemented, solely to (i) persons
whom you reasonably believe to be "qualified institutional buyers," as defined
in Rule 144A under the Securities Act ("QIBs"), and (ii) to persons other than
U.S. Persons in offshore transactions meeting the requirements of Rule 903 and
904 of Regulation S (such persons specified in clauses (i) and (ii) being
referred to herein as the "Eligible Purchasers"). As used herein, the terms
"offshore transaction" and "U.S. person" have the respective meanings given to
them in Regulation S. You will offer the Initial Notes to Eligible Purchasers
initially at a price equal to 100% of the principal amount thereof (or, with
respect to sales to Sankaty Partners, at a price equal to 97% of the principal
amount thereof). Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Initial Notes will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated May 5, 1998 (the "Closing Date"),
in the form of Exhibit A hereto, for so long as such Initial Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Issuers and
Parent, will agree to file with the Securities and Exchange Commission (the
"Commission") under the circumstances set forth therein, (i) a registration
statement under the Securities Act (the "Exchange Offer Registration Statement")
relating to the Issuers' 9.625% New Notes due 2008 (the "New Notes" and,
together with the Initial Notes, the "Notes") to be offered in exchange for the
Initial Notes (such offer to exchange being referred to collectively as the
"Exchange Offer") and (ii) a shelf registration statement pursuant to Rule 415
under the Securities Act (the "Shelf Registration Statement," and together with
the Exchange Offer Registration Statement, the "Registration Statements")
relating to the resale of the Initial Notes by certain holders of such Notes,
and to use their best efforts to cause such Registration Statements to be
declared effective. This Agreement, the Indenture and the Registration Rights
Agreement are hereinafter referred to collectively as the "Operative Documents."
1. Representations, Warranties and Agreements of the Sponsor and
MergeCo. Each of the Sponsor and MergeCo represents, warrants and agrees as
follows:
(a) The Preliminary Offering Memorandum and the Offering Memorandum
have been prepared by the Issuers and the Sponsor for use by the Initial
Purchasers in connection with the Exempt Resales. No order or decree preventing
the use of the Preliminary Offering Memorandum or the Offering Memorandum, or
any order asserting that the transactions contemplated by this Agreement are
subject to the registration requirements of the Securities Act, has been issued
and no proceeding for that purpose has commenced or
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is pending or, to the knowledge of the Issuers, Parent, the Sponsor or MergeCo
is contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum as
of their respective dates did not, and the Offering Memorandum as of the Closing
Date will not, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading, except
that this representation and warranty does not apply to statements in or
omissions from the Preliminary Offering Memorandum and the Offering Memorandum
relating to the Initial Purchasers and made in reliance upon and in conformity
with information furnished to the Issuers or Parent in writing by or on behalf
of the Initial Purchasers expressly for use therein.
(c) The market-related and industry-related data and estimates
included in the Preliminary Offering Memorandum and the Offering Memorandum are
based on or derived from sources which the Company, the Sponsor and MergeCo
believe to be reliable and accurate.
(d) Each of Parent and the Company and each of its subsidiaries is a
limited liability company or corporation, as the case may be, duly formed or
incorporated, as the case may be, and validly existing and in good standing
under the laws of Delaware with all requisite limited liability company or
corporate, as the case may be, power and authority to own, lease and operate its
properties and to conduct its business as described in the Preliminary Offering
Memorandum and the Offering Memorandum, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify or to be in good standing would not have a material adverse effect on
the financial condition, business, prospects, properties, net worth or results
of operations of the Company and its subsidiaries, taken as a whole (a "Material
Adverse Effect").
(e) Each of the Issuers, Parent, the Sponsor and MergeCo has all
requisite limited liability company or corporate, as the case may be, power and
authority to execute, deliver and perform its obligations under this Agreement,
the Indenture, the Securities and the Registration Rights Agreement, as
applicable.
(f) This Agreement has been duly and validly authorized, executed and
delivered by each of the Issuers, Parent, the Sponsor and MergeCo and assuming
due authorization, execution and delivery by the Initial Purchasers, constitutes
the valid and binding agreement of each of the Issuers, Parent, the Sponsor and
MergeCo, enforceable against the Issuers, Parent, the Sponsor and MergeCo in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law).
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(g) The Registration Rights Agreement has been duly and validly
authorized by each of the Issuers and Parent and, upon its execution and
delivery by each of the Issuers and Parent and, assuming due authorization,
execution and delivery by the Initial Purchasers, will constitute the valid and
binding agreement of each of the Issuers and Parent, enforceable against the
Issuers and Parent in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principals of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether in a proceeding in equity or at law).
(h) The Indenture has been duly and validly authorized by each of the
Issuers and Parent, and upon its execution and delivery by each of the Issuers
and Parent and, assuming due authorization, execution and delivery by the
Trustee, will constitute the valid and binding agreement of each of the Issuers
and Parent, enforceable against the Issuers and Parent in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or at law); no
qualification of the Indenture under the Trust Indenture Act of 1939 ("TIA") is
required in connection with the offer and sale of the Initial Notes and the
Guarantee (the "Initial Securities") contemplated hereby or in connection with
the Exempt Resales.
(i) The Guarantee has been duly and validly authorized by Parent, and
upon its execution and delivery by Parent, will constitute the valid and binding
agreement of Parent, enforceable against Parent in accordance with its terms
(subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or at law).
(j) The Initial Notes have been duly and validly authorized by the
Issuers and when duly executed by the Issuers in accordance with the terms of
the Indenture and, assuming due authentication of the Initial Notes by the
Trustee, upon delivery to the Initial Purchasers against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Issuers entitled to the
benefits of the Indenture, enforceable against the Issuers in accordance with
their terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principals of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether in a proceeding in equity or
at law).
(k) The New Notes have been duly and validly authorized by the Issuers
and if and when duly issued and authenticated in accordance with the terms of
the Indenture and, assuming due authentication of the New Notes by the Trustee,
upon delivery in
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accordance with the Exchange Offer provided for in the Registration Rights
Agreement, will constitute valid and binding obligations of the Issuers entitled
to the benefits of the Indenture, enforceable against the Issuers in accordance
with their terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors'
rights generally from time to time in effect and to general principals of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether in a proceeding in equity or
at law).
(l) The Senior Credit Facility, dated as of May 5, 1998, by and among
the Company, the Parent, the various lenders thereto, ▇▇▇▇▇▇ Brothers Inc., as
arranger, and ▇▇▇▇▇▇ Commercial Paper Inc., as syndication agent, providing for
up to $200 million of term loan borrowings and $75 million of revolving credit
borrowings, and any and all other agreements and instruments ancillary to or
entered into in connection with the transaction contemplated by the Senior
Credit Facility (the "Credit Documents"), were duly and validly authorized,
executed and delivered by the Company and, assuming due authorization, execution
and delivery by the other parties thereto, constitute the valid and binding
agreements of the Company, enforceable against the Company in accordance with
their respective terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law). As of the Closing Date, the Company will have
at least $74.0 million of borrowings available to it under the Senior Credit
Facility (giving effect to the covenants contained in the Senior Credit
Facility) after the Closing of the sale of the Initial Notes hereunder, the
receipt by the Company of the proceeds therefrom and the application of such
proceeds as described under the caption "Use of Proceeds" in the Offering
Memorandum.
(m) The Asset Backed Facility, dated as of May 5, 1998, by and among
the Company, a special purpose single-member limited liability company that is a
subsidiary of the Company (the "SPE") and ▇▇▇▇▇▇ Commercial Paper Inc., as
lender, providing for up to $250,000,000 for loans on eligible trade receivables
and eligible equipment loans, and any and all other agreements and instruments
ancillary to or entered into in connection with the transaction contemplated by
the Asset Backed Facility (the "Asset Backed Documents"), were duly and validly
authorized, executed and delivered by the Company and the SPE and, assuming due
authorization, execution and delivery by the other parties thereto, constitute
the valid and binding agreements of the Company and the SPE, enforceable against
the Company and the SPE in accordance with their respective terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or at law).
(n) All the limited liability company units of Parent and the Company
outstanding prior to the issuance of the Initial Notes have been duly authorized
and validly issued and are fully paid and nonassessable, and the authorized
capitalization of Parent and
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the Company conforms to the description thereof under the caption
"Capitalization" in the Offering Memorandum.
(o) Neither the Issuers nor any of their subsidiaries own capital
stock or other equity interests of any corporation or entity other than as
disclosed in the Offering Memorandum. Each of the subsidiaries is a corporation
duly incorporated and validly existing and in good standing under the laws of
its jurisdiction of its incorporation, with all requisite corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum, and is duly registered and qualified to
conduct its business and is in good standing in each jurisdiction or place where
the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure to so register or
qualify or be in good standing would not have a Material Adverse Effect. All
the outstanding shares of capital stock of each of the Company's subsidiaries
have been duly authorized and validly issued, are fully paid and nonassessable,
and are wholly owned by the Company directly, or indirectly through one of its
other subsidiaries, free and clear of any lien, adverse claim, security
interest, equity or other encumbrance, except as specifically described in the
Offering Memorandum.
(p) There are no legal or governmental proceedings pending or, to the
knowledge of Parent, the Issuers, the Sponsor, MergeCo or their subsidiaries,
threatened against Parent, the Issuers or any of their subsidiaries or to which
any of their respective properties is subject, that are not disclosed in the
Offering Memorandum and which, are reasonably likely to have a Material Adverse
Effect or to materially affect the issuance of the Securities or the
consummation of any of the other transactions contemplated by the Operative
Documents. The Offering Memorandum contains accurate summaries of all material
agreements, contracts, indentures, leases or other instruments. Neither the
Issuers nor any of their subsidiaries are involved in any strike, job action or
labor dispute with any group of employees, and, to the knowledge of the Issuers,
the Sponsor, MergeCo or any of their subsidiaries, no such action or dispute is
threatened.
(q) Except as described in the Offering Memorandum, no material
relationship, direct or indirect, exists between or among the Issuers or any of
their subsidiaries or Parent on the one hand, and the directors, officers,
stockholders, affiliates, customers or suppliers of the Issuers or any of their
subsidiaries or Parent on the other hand.
(r) The execution, delivery and performance of this Agreement and the
other Operative Documents and the issuance of the Initial Notes and the New
Notes and the consummation of the transactions contemplated hereby and thereby
will not conflict with, or result in a breach or violation of any of the terms
or provisions of, or (including with the giving of notice or the lapse of time
or both) constitute a default under (i) any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which Parent, the Issuers,
the Sponsor, MergeCo or any of their subsidiaries is a party or by which Parent,
the Issuers, the Sponsor, MergeCo or any of their subsidiaries is bound or to
which any of the properties or assets of Parent, the Issuers, the Sponsor,
MergeCo or any of their subsidiaries is subject, (ii) the provisions of the
charter, by-laws or other organizational documents of Parent, the Issuers, the
Sponsor, MergeCo or any of their subsidiaries or (iii)
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any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over Parent, the Issuers, the Sponsor, MergeCo or
any of their subsidiaries or any of their properties or assets, except in the
cases of clause (i) or (iii), such breaches, violations or defaults that in the
aggregate would not have a Material Adverse Effect, and no consent, approval,
authorization or order of, or filing or registration with, any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement and the other Operative Documents and the issuance
of the Initial Notes and the New Notes and the consummation of the transactions
contemplated hereby and thereby except as may be required by the securities or
"blue sky" laws of any state of the United States in connection with the sale of
the Initial Notes and the New Notes and except as contemplated by the
Registration Rights Agreement.
(s) The accountants, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., who have certified
certain of the financial statements included as part of the Offering Memorandum,
are independent public accountants under Rule 101 of the Code of Professional
Conduct of the American Institute of Certified Public Accountants (the "AICPA"),
and its interpretation and rulings.
(t) The combined historical financial statements, together with the
related notes thereto, set forth in the Offering Memorandum comply as to form in
all material respects with the requirements of Regulation S-X under the
Securities Act applicable to registration statements on Form S-1 under the
Securities Act. Such historical financial statements fairly present the
financial position of the Company at the respective dates indicated and the
results of operations and cash flows for the respective periods indicated, in
each case in accordance with generally accepted accounting principles ("GAAP")
consistently applied throughout such periods. The pro forma financial
statements contained in the Offering Memorandum have been prepared on a basis
consistent with such historical statements, except for the pro forma adjustments
specified therein, include all material adjustments to the historical financial
data required by Rule 11-02 of Regulation S-X to reflect the Merger, the
Offering and other related Transactions (each as defined in the Offering
Memorandum), give effect to assumptions made on a reasonable basis and present
fairly in all material respects the historical and proposed transactions
contemplated by the Offering Memorandum and this Agreement. The other financial
information and data included in the Offering Memorandum are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(u) Except as disclosed in the Offering Memorandum, since the date of
the latest audited combined financial statements of the Company and its
subsidiaries included in the Offering Memorandum, neither the Company nor any of
its subsidiaries has incurred any liability or obligation, direct or contingent,
or entered into any transaction, in each case not in the ordinary course of
business, that is material to the Company and its subsidiaries, and there has
been no Material Adverse Effect, nor to the Company's knowledge, any development
or event involving a prospective Material Adverse Effect, and, except as
disclosed in or contemplated by the Offering Memorandum, since the date of the
latest audited consolidated financial statements of the Company included in the
Offering
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Memorandum, there has been no (i) dividend or distribution of any kind declared,
paid or made by the Company on any class of its units, (ii) issuance of
securities (other than the Initial Notes offered hereby) or (iii) material
increase in short-term or long-term debt of the Company.
(v) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of combined financial statements in conformity with GAAP and to maintain
accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(w) Each of the Issuers and each of their subsidiaries has good and
marketable title to all property (real and personal) described in the Offering
Memorandum as being owned by them, free and clear of all liens, claims, security
interests or other encumbrances except such as are described in the Offering
Memorandum or the Merger Agreement, and all the material property described in
the Offering Memorandum as being held under lease by the Issuers and their
subsidiaries is held by them under valid, subsisting and enforceable leases,
with only such exceptions as would not in the aggregate, have a Material Adverse
Effect. In addition, except as described in the Offering Memorandum, the
consummation of the transactions contemplated by this Agreement will not give
rise to any third party rights of first refusal under any Material Agreement (as
herein defined) as to which the Issuers and any of their subsidiaries or any of
their property or assets may be subject.
(x) Each of the Issuers and each of their subsidiaries owns or
possesses all patents, trademarks, trademark registration, service marks,
service mark registrations, trade names, copyrights, licenses, inventions, trade
secrets and rights described in the Offering Memorandum as being owned by any of
them or necessary for the conduct of their respective businesses, and the
Issuers are not aware of any claim to the contrary or any challenge by any other
person to the rights of the Issuers or any of their subsidiaries with respect to
such rights that, if determined adversely to the Issuers or any such subsidiary,
would in the aggregate have a Material Adverse Effect.
(y) Each of the Issuers and each of their subsidiaries has such
permits, licenses, franchises, certificates, consents, orders and other
approvals or authorizations of any governmental or regulatory authority
("Permits"), as are necessary under applicable law to own their respective
properties and to conduct their respective businesses in the manner described in
the Offering Memorandum, except to the extent that the failure to have such
Permits would not have a Material Adverse Effect. Each of the Issuers and each
of their subsidiaries has fulfilled and performed, in all material respects, all
their respective obligations with respect to the Permits, and, to the knowledge
of each of the Issuers and each of their subsidiaries, no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of
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the rights of the holders of any Permit, subject in each case to such
qualification as may be set forth in the Offering Memorandum and except to the
extent that any such revocation or termination would not have a Material Adverse
Effect.
(z) Neither the Issuers nor any of their subsidiaries nor, to the
knowledge of each of the Issuers and each of their subsidiaries, any director,
officer, agent, employee or other person associated with or acting on behalf of
the Issuers or any of their subsidiaries, have used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of any provision of the Foreign Corrupt Practices Act of 1977; or
made any bribe, rebate, payoff, influence payment, kickback or other unlawful
payment.
(aa) Neither the Issuers nor any of their subsidiaries are currently
or will be, upon sale of the Initial Notes in accordance herewith and the
application of the net proceeds therefrom as described in the Offering
Memorandum under the caption "Use of Proceeds," an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(bb) Neither the Issuers nor any affiliate (as defined in Rule 501(b)
of Regulation D ("Regulation D") under the Securities Act) of either Issuer has
directly, or through any agent (provided that no representation is made as to
the Initial Purchasers or any person acting on their behalf), (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or could be integrated with
the offering and sale of the Securities in a manner that would require the
registration of the Securities under the Securities Act or (ii) engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D, including, but not limited to, advertisements, articles, notices
or other communications published in any newspaper, magazine, or similar medium
or broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising) in
connection with the offering of the Securities. No securities of the same class
as the Initial Notes have been issued and sold by the Issuers within the six-
month period immediately prior to the date hereof.
(cc) Except as permitted by the Securities Act, the Issuers have not
distributed and, prior to the later to occur of the Closing Date and completion
of the distribution of the Initial Securities, will not distribute any offering
material in connection with the offering and sale of the Initial Securities
other than the Preliminary Offering Memorandum and Offering Memorandum.
(dd) When the Initial Securities are issued and delivered pursuant to
this Agreement, such Initial Securities will not be of the same class (within
the meaning of Rule 144A under the Securities Act) as securities of the Issuers
that are listed on a national securities exchange registered under Section 6 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") or that are
quoted in a United States automated inter-dealer quotation system.
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(ee) Assuming (i) that your representations and warranties in Section
2 are true, (ii) compliance by you with your covenants set forth in Section 2
and (iii) that each of the Eligible Purchasers is either (A) an entity that you
reasonably believe to be a QIB or (B) a person who is not a "U.S. person" and
who acquires the Initial Securities outside the United States in an "offshore
transaction" (within the meaning of Regulation S), the purchase of the Initial
Securities by you pursuant hereto and the resale of the Initial Securities
pursuant to the Exempt Resales is exempt from the registration requirements of
the Securities Act.
(ff) Each of the Issuers and each of their subsidiaries is in
compliance in all material respects with all presently applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), no "reportable
event" (as defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Issuers would have any liability; the Issuers
have not incurred and do not except to incur liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the "Code");
each "pension plan" for which the Issuers would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification; and the statements set
forth in the Offering Memorandum under the caption "Notice to Investors" do not
include any untrue statements of material facts and do not omit any material
facts necessary in order to make such statements, in light of the circumstances
under which they were made, not misleading.
(gg) Set forth on Exhibit B hereto is a list of each employee pension
or benefit plan with respect to which the Issuers or any entity considered an
affiliate of the Issuers within the meaning of Section 407(d)(7) of ERISA (an
"Affiliate") is a party in interest or a disqualified person. The execution and
delivery of this Agreement, the other Operative Documents and the sale of the
Initial Notes to be purchased by the Eligible Purchasers will not involve any
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code. The representation made by the Issuers in the preceding
sentence is made in reliance upon and subject to the accuracy of, and compliance
with, the representations and covenants made or deemed made by the Eligible
Purchasers as set forth in the Offering Memorandum under the section entitled
"Notice to Investors."
(hh) Except as described in the Offering Memorandum, there are no
contracts, agreements or understandings between the Issuers or any of their
subsidiaries and any person granting such person the right to require the
Issuers or any of their subsidiaries to file a registration statement under the
Securities Act with respect to any securities of the Issuers and their
subsidiaries owned or to be owned by such person or to require the Issuers or
any of their subsidiaries to include such securities in the securities
registered pursuant to the Registration Statements or in any securities being
registered pursuant to any other registration statement filed by the Issuers or
any of their subsidiaries under the Securities Act.
12
(ii) Each of the Issuers and each of their subsidiaries carries, or
are covered by, insurance in such amounts and covering such risks as is adequate
for the conduct of their businesses and the value of their properties and as is
customary for companies engaged in similar businesses in similar industries.
(jj) Each of the Issuers and each of their subsidiaries has filed all
Federal, state and local income and franchise tax returns required to be filed
through the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Issuers or any of their
subsidiaries nor do the Issuers or any of their subsidiaries have any knowledge
of any tax deficiency which, if determined adversely to the Issuers, would have
a Material Adverse Effect.
(kk) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, hazardous
wastes or hazardous substances by the Issuers or any of their subsidiaries (or,
to the knowledge of the Issuers, any of their predecessors in interest) at, upon
or from any of the property now or previously owned or leased by the Issuers or
any of their subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgement, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgement,
decree or permit, except for any violation or remedial action which would not
have, or could not be reasonably likely to have, singularly or in the aggregate,
a Material Adverse Effect; there has been no material spill, discharge, leak,
emission, injection, escape, dumping or release of any kind onto such property
or into the environment surrounding such property of any toxic wastes, medical
wastes, solid wastes, hazardous wastes or hazardous substances due to or caused
by the Issuers or any of their subsidiaries or with respect to which the Issuers
or any of their subsidiaries have knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the aggregate,
a Material Adverse Effect; and the terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(ll) None of the Issuers or any of their affiliates or any person
acting on their behalf has engaged or will engage during the applicable
restricted period in any directed selling efforts within the meaning of Rule
902(b) of Regulation S with respect to the Securities, and the Issuers and their
affiliates and all persons acting on their behalf have complied with and will
comply with the offering restriction requirements of Regulation S in connection
with the offering of the Securities outside the United States.
(mm) The sale of the Initial Securities pursuant to Regulation S are
"offshore transactions" and are not part of a plan or scheme to evade the
registration provisions of the Securities Act.
(nn) The Issuers are not required to deliver the information
specified in Rule 144A(d)(4) in connection with the Exempt Resales.
13
(oo) Neither the Issuers nor any of their subsidiaries has taken or
may take, directly or indirectly, any action designed to cause or result in, or
which has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Securities to facilitate the
sale or resale of the Securities.
(pp) 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 (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 probable 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 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 (iv) 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.
2. Representations, Warranties and Agreements of the Initial
Purchasers. Each Initial Purchaser represents, warrants and agrees with respect
to itself that:
(a) Such Initial Purchaser is a QIB with such knowledge and experience
in financial and business matters as are necessary in order to evaluate the
merits and risks of an investment in the Securities.
(b) Such Initial Purchaser (i) is not acquiring the Initial Securities
with a view to any distribution thereof or with any present intention of
offering or selling any of the Initial Securities in a transaction that would
violate the Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction; (ii) in connection with the Exempt
Resales, will solicit offers to buy the Securities only from and will offer to
sell the Securities only to, the Eligible Purchasers in accordance with this
Agreement and on the terms contemplated by the Offering Memorandum; and (iii)
will not offer or sell the Securities pursuant to, nor has it offered or sold
the Securities by, or otherwise engaged in, any form of general solicitation or
general advertising (within the meaning of Regulation D; including, but not
limited to, advertisements, articles, notices or other communications published
in any newspaper, magazine or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising).
14
(c) Such Initial Purchaser understands that the Issuers and, for
purposes of the opinions to be delivered to you pursuant to Section 7 hereof,
counsel to the Issuers and counsel to the Initial Purchasers, will rely upon the
accuracy and truth of the foregoing representations and you hereby consent to
such reliance.
The terms used in this Section 2 that have meanings assigned to them
in Regulation S are used herein as so defined.
Each Initial Purchaser further agrees that, in connection with the
Exempt Resales, it will solicit offers to buy the Initial Securities only from,
and will offer to sell the Initial Securities only to, the Eligible Purchasers
in Exempt Resales.
3. Purchase of the Securities by the Initial Purchasers. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Sponsor and MergeCo agree to cause
the Issuers to sell $110.0 million in aggregate principal amount of Initial
Notes to the Initial Purchasers and each of the Initial Purchasers, severally
and not jointly, agrees to purchase the aggregate principal amount of Initial
Notes set opposite that Initial Purchaser's name on Schedule 1 hereto. Each
Initial Purchaser will purchase such aggregate principal amount of Initial Notes
at an aggregate purchase price equal to 97.00% of the principal amount thereof
(the "Purchase Price").
The Issuers shall not be obligated to deliver any of the Initial
Securities to be delivered, except upon payment of all the Initial Securities to
be purchased on such Closing Date as provided herein.
4. Delivery of and Payment.
(a) Delivery to the Initial Purchasers of and payment for the Initial
Securities shall be made at 9:30 a.m., New York City time, on the Closing Date
at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such other place or time as you and the Issuers shall
designate.
(b) One or more Initial Notes in definitive form, registered in the
name of Cede & Co., as nominee of The Depository Trust Company ("DTC"), or such
other names as the Initial Purchasers may request upon at least one business
day's notice to the Issuers, having an aggregate principal amount at maturity
corresponding to the aggregate principal amount of Initial Notes sold pursuant
to Eligible Resales (collectively, the "Global Notes"), shall be delivered by
the Issuers to the Initial Purchasers, against payment by the Initial Purchasers
of the purchase price thereof by wire transfer of immediately available funds as
the Issuers may direct by written notice delivered to you one business day prior
to the Closing Date. The Global Notes in definitive form shall be made
available to you for inspection not later than 9:00 a.m. on the business day
immediately preceding the Closing Date.
5. Further Agreements of the Sponsor and MergeCo. Each of the
Sponsor and ▇▇▇▇▇▇▇ agrees:
15
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, of (i) the issuance by any state securities commission of any
stop order suspending the qualification or exemption from qualification of any
Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purpose by the Commission or any state securities commission
or other regulatory authority, and (ii) the happening of any event that makes
any statement of a material fact made in the Preliminary Offering Memorandum or
the Offering Memorandum untrue or that requires the making of any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Sponsor and MergeCo shall use their best
efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of the Securities under any state securities or Blue
Sky laws and, if at any time any state securities commission shall issue any
stop order suspending the qualification or exemption of the Securities under any
state securities or Blue Sky laws, the Sponsor and MergeCo shall use every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(b) To furnish to you, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as you may reasonably request. The Sponsor and MergeCo
consent to the use of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments and supplements thereto required pursuant to this
Agreement, by you in connection with the Exempt Resales that are in compliance
with this Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to the
Closing Date or during the period referred to in (d) below unless you shall
previously have been advised of, and shall not have reasonably objected to, such
amendment or supplement within a reasonable time, but in any event not longer
than five days after being furnished a copy of such amendment or supplement.
If, in connection with any Exempt Resales or market making transactions after
the date of this Agreement and prior to the consummation of the Exchange Offer,
any event shall occur that, in the judgement of the Company or in the judgement
of counsel to you, makes any statement of a material fact in the Offering
Memorandum untrue or that requires the making of any additions to or changes in
the Offering Memorandum in order to make the statements in the Offering
Memorandum, in light of the circumstances at the time that the Offering
Memorandum is delivered to prospective Eligible Purchasers, not misleading, or
if it is necessary to amend or supplement the Offering Memorandum to comply with
any applicable laws, the Company shall promptly notify you of such event and
prepare an appropriate amendment or supplement to the Offering Memorandum so
that (i) the statements in the Offering Memorandum as amended or supplemented
will, in light of the circumstances at the time that the Offering Memorandum is
delivered to prospective Eligible Purchasers, not be misleading and (ii) the
Offering Memorandum will comply with applicable law.
(d) To cooperate with you and your counsel in connection with the
qualification of the Initial Securities for offer and sale by you and by dealers
under the state securities or Blue Sky laws of such jurisdictions as you may
request (provided, however, that
16
the Sponsor and MergeCo shall not be obligated to qualify as a foreign
corporation in any jurisdiction in which they are not now so qualified or to
take any action that would subject them to general consent to service of process
in any jurisdiction in which they are not now so subject). The Sponsor and
MergeCo shall continue such qualification in effect so long as required by law
for distribution of the Initial Securities and shall file such consents to
service of process or other documents as may be necessary in order to effect
such qualification.
(e) Prior to the Closing Date, to furnish to you, any internal
combined financial statements of the Company that have been prepared by the
Company for any period subsequent to the period covered by the financial
statements appearing in the Offering Memorandum.
(f) To use its reasonable best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or after
the Closing Date and to satisfy all conditions precedent on its part to the
delivery of the Initial Securities.
(g) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) that
would be integrated with the sale of the Initial Securities in a manner that
would require the registration under the Securities Act of the sale to you or
the Eligible Purchasers of the Initial Securities.
(h) For a period of 120 days from the date of the Offering Memorandum,
not to, directly or indirectly, sell, contract to sell, grant any option to
purchase, issue any instrument convertible into or exchangeable for, or
otherwise transfer or dispose of, any debt securities of the Issuers or any of
their subsidiaries having a maturity of more than one year from the date of
issue of such securities, except (i) for the New Notes in connection with the
Exchange Offer of (ii) with the prior consent of ▇▇▇▇▇▇ Brothers Inc.
(i) For the period that is two years after the Closing Date or for so
long as necessary to comply with Rule 144A in connection with resales by
registered holders or beneficial owners of Initial Notes, whichever is longer,
to make available to such registered holder or beneficial owner of Initial Notes
in connection with any sale thereof and any prospective purchaser of such
Initial Notes from such registered holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto).
(j) To comply with the agreements in the Registration Rights
Agreement, and all agreements set forth in the representation letters of the
Issuers' to DTC relating to the approval of the Securities by DTC for "book-
entry" transfer.
(k) To use its best efforts to effect the inclusion of the Notes in
the National Association of Securities Dealers, Inc. Automated Quotation System
- PORTAL ("PORTAL").
17
(l) To apply the net proceeds from the sale of the Initial Notes being
sold by the Issuers as set forth in the Offering Memorandum under the caption
"Use of Proceeds."
(m) During the period that is two years after the Closing Date, to
take such steps as shall be necessary to ensure that neither the Issuers nor
Parent becomes an "investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the Commission
thereunder.
6. Expenses. Each of the Sponsor and MergeCo agrees, jointly and
severally, that, whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, to pay all
costs, expenses, fees and taxes incident to and in connection with: (i) the
preparation, printing, filing and distribution of the Preliminary Offering
Memorandum and the Offering Memorandum (including, without limitation, financial
statements) and all amendments and supplements thereto (but not, however, legal
fees and expenses of your counsel incurred in connection therewith), (ii) the
preparation, printing (including, without limitation, word processing and
duplication costs) and delivery of this Agreement, the Indenture, any Blue Sky
Memoranda and any other agreements, memoranda, correspondence and other
documents printed and delivered in connection herewith and with the Exempt
Resales, (iii) the issuance and delivery by the Issuers of the Securities, (iv)
the qualification of the Securities for offer and sale under the securities or
Blue Sky laws of the several states (including, without limitation, the
reasonable fees and disbursements of your counsel relating to such registration
or qualification), (v) furnishing such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and supplements
thereto, as may be reasonably requested by the Initial Purchasers for use in
connection with the initial Exempt Resales, (vi) the preparation of certificates
for the Securities including, without limitation, printing and engraving, (vii)
the fees, disbursements and expenses of the Issuers' counsel and accountants,
(viii) all expenses and listing fees in connection with the application for
quotation of the Initial Notes in PORTAL, (ix) all fees and expenses (including
fees and expenses of counsel) of the Issuers in connection with the approval of
the Securities by DTC for "book-entry" transfer and (x) the performance by the
Sponsor and MergeCo of their other obligations under this Agreement to the
extent not provided for above.
7. Conditions of Initial Purchasers' Obligations. The respective
obligations of the Initial Purchasers hereunder are subject to the accuracy,
when made and again on the Closing Date (as if made again on and as of such
date), of the representations and warranties of the Sponsor and MergeCo
contained herein, to the performance by the Sponsor and MergeCo of their
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Offering Memorandum shall have been printed and copies made
available to you not later than 6:00 p.m., New York City time, on the day
following the date of this Agreement, or at such later date and time as you may
approve in writing.
18
(b) No Initial Purchaser shall have discovered and disclosed to the
Issuers on or prior to such Closing Date that the Offering Memorandum or the
most recent amendment or supplement thereto contains an untrue statement of a
fact which, in the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Initial Purchasers, is material or omits to state a fact which, in the opinion
of such counsel, is material and is necessary to make the statements, in light
of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the other Operative
Documents, the Merger Agreement, the Offering Memorandum, the Transactions and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material respects to
counsel for the Initial Purchasers, and the Issuers, the Sponsor and MergeCo
shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ shall have furnished to the Initial Purchasers,
its written opinion, as counsel to the Issuers and Parent, addressed to the
Initial Purchasers and dated as of the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers and their counsel, to the
effect that:
(i) Each of the Issuers is a limited liability company or
corporation, as the case may be, duly formed or incorporated, as the case may
be. Each of the Issuers and Parent is validly existing and in good standing
under the laws of the state of its formation or incorporation, as the case may
be. Each of the Company and Parent is qualified to do business and is in good
standing in each jurisdiction or place where the nature of its properties or the
conduct of its business requires such qualification.
(ii) Each of the Issuers and Parent has all requisite limited
liability company or corporate, as the case may be, power to own and lease its
respective properties and to conduct its respective business as described in the
Offering Memorandum. Each of the Issuers and Parent has all requisite limited
liability company or corporate, as the case may be, power and authority to
execute, deliver and perform their respective obligations under this Agreement,
the Merger Agreement, the Indenture and the Registration Rights Agreement, and
to authorize, issue and sell the Securities as contemplated by this Agreement.
(iii) The Merger has been duly authorized by Parent and RCL
Acquisitions, L.L.C., a Delaware limited liability company, and has become
effective in accordance with the General Corporation Law of the State of
Delaware, and Parent is the surviving entity in the Merger.
(iv) This Agreement has been duly authorized, executed and delivered
by each of the Issuers and ▇▇▇▇▇▇.
19
(v) The Indenture has been duly authorized, executed and delivered
by each of the Issuers and Parent and constitutes a valid and binding obligation
of each of the Issuers and Parent, enforceable against the Issuers and Parent in
accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law).
(vi) The Registration Rights Agreement has been duly authorized,
executed and delivered by each of the Issuers and Parent and constitutes a valid
and binding obligation of each of the Issuers and Parent, enforceable against
the Issuers and Parent in accordance with its terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether in a proceeding in equity or at law).
(vii) The Notes have been duly authorized, executed and delivered by
each of the Issuers and, when paid for by the Initial Purchasers in accordance
with the terms of this Agreement (assuming the due authorization, execution and
delivery of the Indenture by the Trustee and due authentication and delivery of
the Notes by the Trustee in accordance with the Indenture), will constitute
Notes under the terms of the Indenture, will constitute the valid and binding
obligations of each of the Issuers entitled to the benefits of the Indenture,
and will be enforceable against each of the Issuers in accordance with their
terms. The New Notes have been duly authorized by the Issuers and when duly
executed and delivered and authenticated by the Issuers pursuant to the terms of
the Indenture and the Registration Rights Agreement (assuming the due
authorization, execution and delivery of the Indenture by the Trustee and due
authentication, execution and delivery of the New Notes by the Trustee in
accordance with the Indenture), will constitute New Notes under the terms of the
Indenture, will constitute the valid and binding obligations of each of the
Issuers entitled to the benefits of the Indenture, and will be enforceable
against each of the Issuers in accordance with their terms (subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether in a proceeding in equity or at law).
(viii) The Guarantee has been duly authorized by Parent, and when
executed and delivered by Parent in accordance with the terms of the Indenture,
will constitute a valid and binding obligation of Parent, enforceable against
Parent in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
in a proceeding in equity or at law).
20
(ix) Each of the Senior Credit Facility and the Asset Backed
Facility and the other Credit Documents and Asset Backed Documents has been duly
and validly authorized, executed and delivered by the Company and the SPE, as
the case may be, and, assuming due authorization, execution and delivery by the
other parties thereto, are valid and binding obligations of the Company and the
SPE, as the case may be, enforceable against the Company and the SPE, as the
case may be, in accordance with their respective terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect and to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing, regardless
of whether in a proceeding in equity or at law).
(x) All the limited liability company units or shares of capital
stock, as the case may be, of the Issuers outstanding prior to the issuance of
the Initial Notes have been duly authorized and validly issued and are fully
paid and nonassessable, and the authorized capitalization of Parent and the
Company conforms to the description thereof under the caption "Capitalization"
in the Offering Memorandum.
(xi) All the outstanding shares of capital stock of the Company's
subsidiaries listed on Schedule II to such opinion have been duly authorized and
validly issued, are fully paid and nonassessable, and are wholly owned by the
Company directly, or indirectly through one of the other subsidiaries, free and
clear of any lien, adverse claim or security interest.
(xii) The Issuers' and Parent's execution, delivery and performance
of their respective obligations under this Agreement, the Indenture, the
Registration Rights Agreement and the Merger Agreement and the Issuers' sale of
the Notes to the Initial Purchasers in accordance with this Agreement and
performance of their respective obligations under each do not (i) violate the
Company's or Parent's Certificate of Formation or Limited Liability Company
Agreement or ALC's Certificate of Incorporation or Bylaws or (ii) constitute a
violation by the Company, ALC or Parent of any applicable provision of any law,
statute or regulation (except that no opinion is expressed as to compliance with
any disclosure requirement or any prohibition against fraud or misrepresentation
or as to whether performance of the indemnification or contribution provisions
in this Agreement would be permitted) or any order or decree known to such
counsel of any court or government agency or (iii) breach, or result in a
default under, any existing obligation of the Company, ALC or Parent under any
of the agreements listed on Schedule II to such opinion (and which the Issuers
and Parent have represented lists all material agreements and instruments to
which the Issuers and Parent and their subsidiaries or by which the Issuers and
Parent and their subsidiaries are bound or by which their property or assets are
subject provided that no opinion is expressed as to compliance with any
financial test or cross-default provision in any such agreement).
(xiii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against the Issuers, or to which
any of their respective properties are subject, that has caused such counsel to
believe that such
21
proceedings would be required by Item 103 of Regulation S-K to be described in a
registration statement on Form S-1 that have not been so described in the
Offering Memorandum and, to the knowledge of such counsel, there is no contract
to which either Issuer is a party or to which any of their respective property
is subject that has caused such counsel to conclude that such contract is
required to be described in the Offering Memorandum but is not so described.
(xiv) The Issuers' were not required to obtain any consent,
approval, authorization or order of or registration or filing with, any court,
regulatory body, administrative agency or other governmental agency for the
issuance, delivery and sale of the Notes under this Agreement or the performance
by the Issuers and Parent of the Registration Rights Agreement and the Merger
Agreement except for (i) an order of the Commission declaring the registration
statement, to be filed pursuant to the Registration Rights Agreement, effective
and (ii) the order of the Secretary of State of Delaware declaring the Merger
effective.
(xv) Subject to compliance by the Initial Purchasers with the
procedures set forth in this Agreement, it is not necessary in connection with
the sale of the Notes to the Initial Purchasers in accordance with this
Agreement or in connection with the resale of the Notes contemplated by this
Agreement to register the Notes under the Securities Act or to qualify the
Indenture under the TIA.
(xvi) The Issuers are not and, upon sale of the Initial Notes to be
issued and sold in accordance with this Agreement and the application of the net
proceeds to the Company of such sale as described in the Offering Memorandum
under the caption "Use of Proceeds," will not be an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(xvii) When the Initial Securities are issued and delivered pursuant
to this Agreement, such Initial Securities will not be of the same class (within
the meaning of Rule 144A under the Securities Act) as securities of the Issuers
that are listed on a national securities exchange registered under Section 6 of
the Exchange Act or that are quoted in a United States automated inter-dealer
quotation system.
(xviii) To the knowledge of such counsel, except as disclosed in the
Offering Memorandum, there are no contracts, agreements or understandings
between the Issuers or any of their subsidiaries and any person granting such
person the right to require the Issuers or any of their subsidiaries to file a
registration statement under the Securities Act with respect to any securities
of the Issuers owned or to be owned by such person or to require the Issuers or
any of their subsidiaries to include such securities in all the securities
registered pursuant to the Registration Statements or in any securities being
registered pursuant to any other registration statement filed by the Issuers or
any of their subsidiaries under the Securities Act.
(xix) The information in the Offering Memorandum under the heading
"Description of the Notes and "Certain United States Federal Income Tax
Considerations" to
22
the extent that it summarizes laws, governmental rules or regulations or
documents is correct is all material respects.
In addition, such counsel shall also state that such counsel has
participated in conferences with officers of the Issuers and with the
independent public accountants for the Issuers concerning the preparation of the
Offering Memorandum and, although such counsel has made certain inquiries and
investigations in connection with the preparation of the Offering Memorandum, it
is not passing upon and does not assume any responsibility for the accuracy or
completeness of the statements contained in the Offering Memorandum and on the
basis of the foregoing such counsel's work in connection with this matter did
not disclose any information that gave such counsel reason to believe that the
Offering Memorandum, as of its date or as of the Closing Date, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such counsel need express no belief or opinion with respect to the
financial statements and other financial data included therein).
The opinion of such counsel may be limited to the laws of the state of
New York, the General Corporation Law and Limited Liability Company Act of the
State of Delaware, and the Federal laws of the United States.
(e) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or opinions, dated as
of the Closing Date, with respect to the issuance and sale of the Initial
Securities, the Offering Memorandum and other related matters as the Initial
Purchasers may reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of enabling
them to pass upon such matters.
(f) The Issuers, Parent and the Trustee shall have entered into the
Indenture and the Initial Purchasers shall have received counterparts, conformed
as executed, thereof.
(g) The Issuers, Parent and the Initial Purchasers shall have entered
into the Registration Rights Agreement and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof.
(h) Bain LLC, MergeCo, Raytheon and Parent shall have entered into
the Merger Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(i) With respect to the letter of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. delivered
to the Initial Purchasers concurrently with the execution of this Agreement (the
"initial letter"), the Issuers shall have furnished to the Initial Purchasers a
letter (as used in this paragraph, the "bring-down letter") of such accountant,
addressed to the Initial Purchasers and dated such Closing Date (i) confirming
that it is an independent public accountant under the guidelines of the American
Institute of Certified Public Accountant, (ii) stating, as of the date of the
bring-down letter (or, with respect to matters involving changes or developments
since the
23
respective dates as of which specified financial information is given in the
Offering Memorandum, as of a date not more than two days prior to the date of
the bring-down letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and findings set forth
in the initial letter.
(j) Each of the Issuers shall have furnished to the Initial
Purchasers a certificate, dated as of the Closing Date, of its Chief Executive
Officer or President and its Chief Financial Officer or Treasurer stating that:
(i) The representations, warranties and agreements of the
Issuers and Parent in Section 1 are true and correct as of such Closing Date and
after giving effect to the consummation of the transactions contemplated by this
Agreement; the Issuers and Parent have complied with all their agreements
contained herein, and the condition set forth in Section 7(k) has been
fulfilled; and
(ii) They have carefully examined the Preliminary Offering
Memorandum and the Offering Memorandum and, in their opinion (i) as of their
respective dates and as of the Closing Date, the Preliminary Offering Memorandum
and the Offering Memorandum 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 to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (ii) 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.
(k) Neither the Issuers nor any of their subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Memorandum (i) any loss or interference with their business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Memorandum or (ii)
any change in the units or long-term debt of the Issuers or any of their
subsidiaries or any change, or any development involving a prospective change,
that would have a Material Adverse Effect, otherwise than as set forth or
contemplated in the Offering Memorandum, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Initial Purchasers,
so material and adverse as to make it impracticable or inadvisable to proceed
with the payment for and delivery of the Initial Notes being delivered on such
Closing Date on the terms and in the manner contemplated in the Offering
Memorandum.
(l) There shall exist at and as of the Closing Date no conditions
that would constitute a default (or an event that with notice or the lapse of
time, or both, would constitute a default) under the Senior Credit Facility or
the Asset Backed Facility. On the Closing Date, the Senior Credit Facility and
the Asset Backed Facility shall be in full force and effect, shall conform in
all material respects to the description thereof contained in the Offering
Memorandum (after giving effect to the amendment described therein) and shall
not have been modified.
24
(m) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ shall have been furnished with such
other documents and opinions, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Agreement and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(n) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Issuers' debt
securities by any "nationally recognized statistical rating organization," as
that 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, with possible negative implications, its
rating of any of the Issuers' debt securities.
(o) 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 New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Issuers on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Initial Purchasers, impracticable or
inadvisable to proceed with the public offering or delivery of the Securities
being delivered on such Closing Date on the terms and in the manner contemplated
in the Offering Memorandum.
(p) The Initial Notes shall have been approved by the National
Association of Securities Dealers, Inc. for trading in the PORTAL market.
(q) Each of the Issuers and Parent shall have duly authorized,
executed and delivered this Agreement, and assumed all obligations hereunder, in
accordance with Section 18 hereof.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel of the Initial Purchasers.
25
8. Indemnification and Contribution.
(a) Each of the Sponsor and MergeCo hereby jointly and severally
agrees to indemnify and hold harmless each Initial Purchaser, its officers and
employees and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Securities), to which that Initial Purchaser, officer,
employee or controlling person may become subject, under the Securities Act 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 any Preliminary Offering Memorandum or the Offering
Memorandum (in each case as amended or supplemented), (ii) the omission or
alleged omission to state in any Preliminary Offering Memorandum or the Offering
Memorandum (in each case as amended or supplemented) any material fact required
to be stated therein or necessary to make the statements therein not misleading
or (iii) any act or failure to act or any alleged act or failure to act by any
Initial Purchaser in connection with, or relating in any manner to, the
Securities or the offering contemplated hereby, and which is included as part of
or referred to in any loss, claim, damage, liability or action arising out of or
based upon matters covered by clauses (i) or (ii) above (provided that the
Sponsor and MergeCo shall not be liable under this clause (iii) to the extent
that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by such Initial
Purchaser through its gross negligence or willful misconduct); and shall
reimburse each Initial Purchaser and each such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by that Initial Purchaser, officer, employee or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Sponsor and MergeCo 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, any untrue statement or alleged untrue statement or omission
or alleged omission made in any Preliminary Offering Memorandum or the Offering
Memorandum (in each case as amended or supplemented) in reliance upon and in
conformity with written information provided by such Initial Purchaser
specifically for inclusion therein. The foregoing indemnity agreement is in
addition to any liability which the Issuers and their subsidiaries, Parent, the
Sponsor and MergeCo may otherwise have to any Initial Purchaser or to any
officer, employee or controlling person of that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Sponsor and MergeCo, their officers and
employees, each of their directors, and each person, if any, who controls the
Sponsor or MergeCo within the meaning of the Securities Act, from and against
any loss, claim, damage or liability, joint or several, or any action in respect
thereof, to which the Sponsor or MergeCo or any such director, officer or
controlling person may become subject, under the Securities Act 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 any Preliminary Offering
26
Memorandum or the Offering Memorandum (in each case as amended or supplemented)
or (ii) the omission or alleged omission to state in any Preliminary Offering
Memorandum or the Offering Memorandum (in each case as amended or supplemented)
any material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that the
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning such
Initial Purchaser furnished to the Sponsor or MergeCo by or on behalf of that
Initial Purchaser specifically for inclusion therein, and shall reimburse the
Sponsor and MergeCo and any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Sponsor or MergeCo or any
such director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Initial Purchaser may otherwise have to the
Sponsor or MergeCo or any such director, officer, employee or controlling
person.
(c) Promptly after receipt by an indemnified party under this Section
8 of the notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, 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 8 except to the extent it has
been materially prejudiced by such failure and, provided, however, 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 8.
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 8 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
the Initial Purchasers shall have the right to employ one separate counsel (in
addition to local counsel, if necessary) to represent jointly the Initial
Purchasers and their respective officers, employees and controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Initial Purchasers against the Sponsor, MergeCo
and their subsidiaries under this Section 8 if, in the reasonable judgment of
the Initial Purchasers, it is advisable for the Initial Purchasers, officers,
employees and controlling persons to be jointly represented by separate counsel,
and in that event the fees and expenses of such separate counsel shall be paid
by the Sponsor, MergeCo and their subsidiaries. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or
27
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) 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
the consent of the indemnifying party or if there be a final judgment of 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.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the 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 Sponsor and MergeCo on the one hand and the Initial Purchasers
on the other from the offering of the Initial 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 Sponsor and
MergeCo on the one hand and the Initial Purchasers on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Sponsor and MergeCo on
the one hand and the Initial Purchasers on the other with respect to such
offerings shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Initial Securities purchased under this Agreement
(before deducting expenses) received by the Sponsor and MergeCo on the one hand,
and the total discounts and commissions received by the Initial Purchasers with
respect to the Initial Securities purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the Initial
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 whether the untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Sponsor and MergeCo or the Initial Purchasers, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Sponsor and
MergeCo and the Initial Purchasers agree that it would not be just and equitable
if contributions pursuant to this Section 8(d) were to be 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 which 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 shall be deemed to
include, for purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Initial Securities
purchased by it were resold to Eligible Purchasers exceeds the
28
amount of any damages which such 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. The Initial Purchasers' obligations to contribute as provided
in this Section 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Initial Purchasers severally confirm and the Sponsor and
MergeCo acknowledge that the last paragraph on the cover page, the stabilization
legend on page iii, and the second, third, ninth, tenth and eleventh paragraphs
of the section entitled "Plan of Distribution" constitute the only information
concerning such Initial Purchasers furnished in writing to the Issuers by or on
behalf of the Initial Purchasers specifically for inclusion in the Preliminary
Offering Memorandum or the Offering Memorandum.
9. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by ▇▇▇▇▇▇ Brothers Inc. by notice given to the Sponsor or
MergeCo prior to delivery of and payment for the Initial Securities if, prior to
that time, any of the events described in Sections 7(k), 7(n) or 7(o) shall have
occurred or if the Initial Purchasers shall decline to purchase the Initial
Securities for any reason permitted under this Agreement.
10. Reimbursement of Initial Purchasers' Expenses. If the Issuers
shall fail to tender the Initial Notes for delivery to the Initial Purchasers by
reason of any failure, refusal or inability on the part of the Sponsor or
MergeCo to perform any agreement on their part to be performed, or because any
other condition of the Initial Purchasers' obligations hereunder required to be
fulfilled by the Sponsor or MergeCo is not fulfilled, the Sponsor and MergeCo
will reimburse the Initial Purchasers for all reasonable out-of-pocket expenses
(including the customary fees and disbursements of their counsel) incurred by
the Initial Purchasers in connection with this Agreement and the proposed
purchase of the Initial Securities, and upon demand the Sponsor and MergeCo
shall pay the full amount thereof to ▇▇▇▇▇▇ Brothers Inc.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) If to the Initial Purchasers, shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World Financial
Center, New York, New York 10285, Attention: Syndicate Department (Fax: 212-
▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Rise ▇. ▇▇▇▇▇▇, Esq. (Fax: ▇▇▇-▇▇▇-▇▇▇▇); and
(b) If to Issuers, Parent, the Sponsor or MergeCo, shall be delivered
or sent by mail, telex or facsimile transmission to Alliance Laundry Systems
LLC, ▇▇▇▇▇▇▇ Street, Ripon, Wisconsin 54971, Attention: Chief Financial Officer
(Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Citicorp Center, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq. (Fax 212-
▇▇▇-▇▇▇▇).
29
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Issuers, the Sponsor and MergeCo shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Initial Purchasers by ▇▇▇▇▇▇ Brothers Inc. Any notice of
a change of address or facsimile transmission number must be given by the
Issuers, the Sponsor or MergeCo or by the Initial Purchasers, as the case may
be, in writing, at least three days in advance of such change.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, their
personal representatives and successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements of the Sponsor and
MergeCo contained in this Agreement shall also be deemed to be for the benefit
of the person or persons, if any, who control any Initial Purchaser within the
meaning of Section 15 of the Securities Act.
13. Survival. The respective indemnities, representations,
warranties and agreements of the Initial Purchasers and the Sponsor and MergeCo
contained in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Securities and shall remain in full force and effect, regardless of any
investigation made by on behalf of any of them or any person controlling any of
them.
14. Definition of the Terms "Business Day." For purposes of this
Agreement "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York without regard to principles of
conflicts of laws thereof.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. 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.
18. Effect of Execution. For all purposes hereunder, the
representations, warranties and agreements given and made by the Sponsor and
MergeCo under this Agreement shall be deemed to be given and made by the Issuers
and Parent upon consummation of the Merger and, upon their executing a
counterpart hereof, each of such agreements hereunder shall be enforceable
against each of the Issuers and Parent as if given and made by each of them as
of the date hereof. Simultaneously therewith, the Sponsor shall
30
be released from all obligations and benefits hereunder, and shall not be deemed
to be a signatory hereunder.
[signature page follows]
31
If the foregoing correctly sets forth the agreement between the Initial
Purchasers, the Sponsor and MergeCo, please indicate your acceptance in the
space provided for the purpose below.
Very truly yours,
▇▇▇▇ CAPITAL, INC.
By:
-------------------------------
Name:
Title:
RCL ACQUISITIONS, L.L.C.
By:
-------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.,
on behalf of the Initial Purchasers
By:
-------------------------------
Name:
Title:
Each of the following parties hereby agrees to be bound by the
foregoing agreement and to assume all obligations hereunder in accordance with
Section 18 hereof.
Very truly yours,
ALLIANCE LAUNDRY SYSTEMS LLC
By:
-------------------------------
Name:
Title:
ALLIANCE LAUNDRY CORPORATION
By:
-------------------------------
Name:
Title:
ALLIANCE LAUNDRY HOLDINGS LLC
By:
-------------------------------
Name:
Title:
SCHEDULE 1
Initial Purchasers Principal Amount of Notes
------------------ -------------------------
▇▇▇▇▇▇ Brothers Inc. $ 88,000,000
Credit Suisse First Boston
Corporation $ 22,000,000
------------
Total $110,000,000
============
EXHIBIT A
Registration Rights Agreement