Exhibit 10.12
B&G FOODS, INC.
9 5/8% SENIOR SUBORDINATED NOTES DUE 2007
PURCHASE AGREEMENT
March 4, 2002
▇▇▇▇▇▇ BROTHERS INC.
FLEET SECURITIES, INC.
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
B&G Foods, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to you (the "Initial Purchasers") $100.0 million in aggregate principal
amount of its 9 5/8% Senior Subordinated Notes due 2007 (the "Notes"). The
payment of principal, premium, interest and Liquidated Damages (as defined
below) if any, on the Notes and the Company's 9 5/8% Senior Subordinated Notes
due 2007 to be issued in the Registered Exchange Offer referred to below (the
"Exchange Notes") will be unconditionally guaranteed (the "Subsidiary
Guarantees") on a senior subordinated basis by BGH Holdings, Inc., RWBV
Acquisition Corp., ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc., Polaner, Inc., Trappey's Fine
Foods, Inc., Maple Grove Farms of Vermont, Inc., Les Produits Alimentaires
Jacques et Fils, Inc., Heritage Acquisition Corp., and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Company
(collectively, the "Guarantors"), which are all of the Company's current
subsidiaries (the "Subsidiaries"). The Notes are to be issued pursuant to the
terms of an indenture to be dated as of March 7, 2002 (the "Closing Date")
between the Company, The Bank of New York as trustee (the "Trustee"), and the
Guarantors (the "Indenture").
The Notes will be offered and sold to you pursuant to an exemption from the
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company has prepared a preliminary offering memorandum (the
"Preliminary Offering Memorandum"), dated February 25, 2002 and a final offering
memorandum (the "Offering Memorandum"), dated March 4, 2002, relating to the
Company and the Notes. As described in the Offering Memorandum, the Company will
use all of the net proceeds from the offering of the Notes to refinance
approximately $169.0 million of outstanding senior debt under the Term Loan
Agreement, dated as of March 15, 1999, among the Company, B&G Foods Holdings
Corp. ("Holdings"), ▇▇▇▇▇▇ Brothers Inc., The Bank of New York, ▇▇▇▇▇▇
Financial, Inc., ▇▇▇▇▇▇ Commercial Paper Inc., and the several lenders from time
to time parties thereto, as amended (the "Term Loan Agreement") and to pay the
fees and expenses in connection therewith.
Upon original issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the Act, the Notes (and all
securities issued in exchange therefor or in substitution thereof) shall bear
the following legend:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED
INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL
APPLICABLE BLUE SKY LAWS OF THE UNITED STATES.
You have represented and warranted to the Company that you will make offers
(the "Exempt Resales") of the Notes purchased by you hereunder on the terms set
forth in the Offering Memorandum, as amended or supplemented, solely (i) to
persons whom you reasonably believe to be "qualified institutional buyers" as
defined in Rule 144A under the Act ("QIBs") and (ii) outside the United States
to persons other than U.S. Persons in offshore transactions meeting the
requirements of Rule 904 of Regulation S ("Regulations S") under the Act (such
persons specified in clauses (i) and (ii) being referred to herein as the
"Eligible Purchasers"). As used herein, the terms "offshore transaction,"
"United States" and "U.S. person" have the respective meanings given to them in
Regulation S. You will offer the Notes to Eligible Purchasers initially at a
price equal to 100% of the principal amount thereof. Such price may be changed
at any time without notice.
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated as of the Closing Date, in the
form of Exhibit A hereto, for so long as such Notes constitute "Transfer
Restricted Securities" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company will agree to file
with the Securities and Exchange Commission (the "Commission") under the
circumstances set forth therein, (i) a registration statement under the Act (the
"Exchange Offer Registration Statement") relating to the Exchange Notes to be
offered in exchange for the Notes and the Company's outstanding 9 5/8% Senior
Subordinated Notes due 2007 (the "Existing Notes"), (such offer to exchange
being referred to collectively as the "Registered Exchange Offer") and (ii) a
shelf registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement") relating to the resale by certain holders of the Notes,
and to use its 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." This is
to confirm the agreements concerning the purchase of the Notes from the Company
by you.
2
1. Representations, Warranties and Agreements of the Company and the
Guarantors. The Company and each Guarantor represents, warrants and agrees as
follows (all such representations, warranties and agreements, and all references
to the Company in this section shall be deemed to include the Subsidiaries):
(a) The Preliminary Offering Memorandum and Offering Memorandum have
been prepared by the Company 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 Act has been issued and no proceeding for
that purpose has commenced or is pending or, to the knowledge of the Company, is
contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum as
of their respective dates and the Offering Memorandum as of the Closing Date,
did not and will not at any time contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements, 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 Offering Memorandum made
in reliance upon and in conformity with information relating to the Initial
Purchasers furnished to the Company in writing by or on behalf of the Initial
Purchasers expressly for use therein.
(c) The market-related and customer-related data and estimates included
in the Preliminary Offering Memorandum and the Offering Memorandum are based on
or derived from sources which the Company believes to be reliable and accurate.
(d) The Company is a corporation duly incorporated and validly existing
and in good standing under the laws of Delaware with full corporate power and
authority to own, lease and operate its properties and to conduct its business,
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 does not
have a material adverse effect on the condition (financial or other), business,
properties, net worth or results of operations of the Company and its
Subsidiaries, taken as a whole (a "Material Adverse Effect")
(e) Each Guarantor is a corporation duly incorporated and validly
existing and in good standing under the laws of the jurisdiction of its
incorporation with full corporate power and authority to own, lease and operate
its properties and to conduct its business, 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 does not have a Material Adverse Effect.
(f) The Company has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Indenture, the
Notes and the Registration Rights Agreement.
3
(g) Each Guarantor has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Indenture, the
Registration Rights Agreement and the Subsidiary Guarantees.
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company and each Guarantor and, assuming due authorization,
execution and delivery by the Initial Purchasers, constitutes the valid and
binding agreement of the Company and each Guarantor, enforceable against the
Company and each Guarantor in accordance with its terms, except as the
enforcement hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing and except as rights to indemnity and
contribution hereunder may be limited by Federal or state securities laws or
principles of public policy.
(i) The Registration Rights Agreement has been duly and validly
authorized by the Company and each Guarantor and, upon its execution and
delivery by the Company and each Guarantor and, assuming due authorization,
execution and delivery by the Initial Purchasers, will constitute the valid and
binding agreement of the Company and each Guarantor, enforceable against the
Company and each Guarantor in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing and except as rights to indemnity and
contribution thereunder may be limited by Federal or state securities laws or
principles of public policy.
(j) The Indenture has been duly and validly authorized by the Company
and each Guarantor, and upon its execution and delivery and, assuming due
authorization, execution and delivery by the Trustee, will constitute the valid
and binding agreement of the Company and each Guarantor, enforceable against the
Company and each Guarantor in accordance with its terms, except as the
enforcement hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing; no qualification of the Indenture under the 1939
Act is required in connection with the offer and sale of the Notes contemplated
hereby or in connection with the Exempt Resales other than in connection with
the performance of the Company's obligations under the Registration Rights
Agreement.
(k) The Notes have been duly and validly authorized by the Company and
when duly executed by the Company in accordance with the terms of the Indenture
and, assuming due authentication of the 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 Company entitled to the benefits of the
Indenture, enforceable against the Company in accordance with their terms,
except as the enforcement hereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting the enforcement of
4
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(l) The Subsidiary Guarantees to be endorsed on the Notes have been
duly and validly authorized by each Guarantor and when duly executed by each
Guarantor in accordance with the terms of the Indenture and, assuming due
authentication of the 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 each of the Guarantors, entitled to the benefits of the
Indenture, enforceable against each of the Guarantors in accordance with their
terms, except as the enforcement hereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(m) On or prior to the Closing Date, the Exchange Notes will have been
duly authorized and, if and when executed and delivered by the Company, and if
and when the Exchange Notes have been issued and authenticated in accordance
with the terms of the Registration Rights Agreement and the Indenture, the
Exchange Notes will be the legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing.
(n) On or prior to the Closing Date, the Subsidiary Guarantees to be
endorsed on the Exchange Notes will have been duly authorized and, if and when
executed and delivered by the Guarantors, and if and when the Exchange Notes
have been issued and authenticated in accordance with the terms of the
Registration Rights Agreement and the Indenture, the Subsidiary Guarantees to be
endorsed on the Exchange Notes will be the legally valid and binding obligation
of each Guarantor, enforceable against each Guarantor in accordance with its
terms, except as the enforcement hereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(o) The Company has all requisite corporate power and authority to
enter into the Second Amendment to the Term Loan Agreement and the Second
Amendment to the Revolving Credit Agreement, each dated as of March 5, 2002
(collectively, the "Second Amendments"), by and among the Company, Holdings,
▇▇▇▇▇▇ Brothers Inc., The Bank of New York, ▇▇▇▇▇▇ Financial, Inc., ▇▇▇▇▇▇
Commercial Paper Inc. and the several lenders from time to time parties thereto,
and (ii) any and all other agreements and instruments ancillary to or entered
into in connection with the transactions contemplated by the Second Amendments
(collectively, the "Credit Documents").
(p) (i) Each of the Second Amendments and the other Credit Documents
has been duty and validly authorized, executed and delivered by the Company and,
assuming due
5
authorization, execution and delivery by the other parties thereto, constitutes
the valid and binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as the enforcement hereof nay be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally,
general equitable principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; and (ii) all
representations and warranties made by the Company in Section 5 of the Second
Amendment to the Term Loan Agreement and Section 4 of the Second Amendment to
the Revolving Credit Agreement are true and correct in all material respects as
of the date hereof.
(q) All the shares of capital stock of the Company outstanding prior to
the issuance of the Notes have been duly authorized and validly issued and are
fully paid and nonassessable.
(r) Neither the Company nor its direct parent, Holdings, nor any of the
Subsidiaries owns capital stock of any corporation or entity other than the
Subsidiaries. All the outstanding shares of capital stock of each of the
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 the other Subsidiaries, free and clear of any lien, adverse
claim, security interest, equity or other encumbrance, except pursuant to the
Term Loan Agreement and the Revolving Credit Agreement, dated as of March 15,
1999, among the Company, Holdings, ▇▇▇▇▇▇ Brothers Inc., The Bank of New York,
▇▇▇▇▇▇ Financial, Inc., ▇▇▇▇▇▇ Commercial Paper Inc. and the several lenders
from time to time parties thereto, as amended (the "Revolving Credit
Agreement").
(s) There are no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person the right to
require the Company or any Guarantor to file a registration statement under the
Act with respect to any securities of the Company or any Guarantor owned or to
be owned by such person or to require the Company or any Guarantor to include
such securities in the securities registered pursuant to the Exchange Offer
Registration Statement, the Shelf Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the
Company or any Guarantor under the Act, other than the Registration Rights
Agreement, dated as of August 11, 1997, among the Company, certain subsidiaries
of the Company, ▇▇▇▇▇▇ Brothers Inc. and Lazard Freres & Co. LLC.
(t) Since the date as of which information is given in the Offering
Memorandum through the date hereof, and except as may otherwise be disclosed in
the Offering Memorandum, neither the Company nor any Guarantor has (i) issued or
granted any securities, (ii) entered into any transaction not in the ordinary
course of business or (iii) declared or paid any dividend on its capital stock.
(u) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or any of the Guarantors, threatened against the
Company or any of the Guarantors or to which any of their respective properties
is subject that are not disclosed in the Offering Memorandum and which, if
adversely decided, are reasonably likely to cause a Material Adverse Effect or
to materially affect the issuance of the Notes or the consummation of
6
the other transactions contemplated by the Operative Documents. Neither the
Company nor any of the Guarantors is involved in any strike, job action or labor
dispute with any group of employees, and, to the Company's knowledge, no such
action or dispute is imminent which could reasonably be expected to have a
Material Adverse Effect.
(v) No material relationship, direct or indirect, exists between or
among the Company or any of the Guarantors on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of the
Guarantors on the other hand which is required to be described in the Offering
Memorandum, which is not so described pursuant to Regulation S-K of the
Commission (assuming Regulation S-K is applicable to the Offering Memorandum).
(w) Neither the Company nor any of its Subsidiaries (i) is in violation
of its certificate of incorporation, by-laws or other organizational documents,
(ii) is in default in any material respect in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which any of them is a
party or by which any of them is bound or to which any of their respective
properties or assets is subject that is material to the Company's consolidated
financial condition or prospects (collectively, the "Material Agreements") and
(iii) is in violation in any material respect of any law, statute or ordinance,
or any rule, regulation, injunction or decree of any court or governmental
agency to which their respective property or assets may be subject or has failed
to obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business, except in the case of (i), (ii) or (iii), as
would not, individually, or in the aggregate, have a Material Adverse Effect.
(x) Except to the extent the failure to obtain any such consent,
approval, authorization or order or to make any such filing or registration
would not individually or in the aggregate, have a Material Adverse Effect, none
of the issuance, offer or sale of the Notes, the execution, delivery or
performance by the Company or any Subsidiary of this Agreement, the Subsidiary
Guarantees or the other Operative Documents, compliance by the Company or such
Subsidiaries with the provisions hereof or thereof nor consummation by the
Company or such Subsidiaries of the transactions contemplated hereby or thereby;
and except to the extent the failure to obtain any such consent, approval,
authorization or order or to make any such filing or registration would not
individually or in the aggregate, have a Material Adverse Effect, none of the
execution, delivery or performance by the Company of the Second Amendments or
the other Credit Documents, compliance by the Company with the provisions
thereof nor consummation by the Company of the transactions contemplated thereby
(i) requires any consent, approval, authorization or other order of, or
registration or filing with, any court, regulatory body, administrative agency
or other governmental body, agency or official (except such as may be required
in connection with the registration under the Act of the Exchange Notes in
accordance with the Registration Rights Agreement, qualification of the
Indenture under the 1939 Act and compliance with the securities or Blue Sky laws
of various jurisdictions and except as required by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Antitrust Improvements Act of 1976, as amended), or conflicts or will conflict
with or constitutes or will constitute a breach of, or a default under, the
certificate of incorporation or bylaws, or other organizational documents, of
the Company or (ii) conflicts or will conflict with or constitutes or will
constitute a breach of, or a default under any Material
7
Agreement or will violate any law, statute, ordinance or any rule, regulation,
injunction or decree of any court or governmental agency to which it or its
property or assets may be subject or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
(except for liens arising under the Term Loan Agreement and the Revolving Credit
Agreement) pursuant to the terms of any agreement or instrument to which it is a
party or by which it may be bound or to which any of its property or assets is
subject.
(y) The accountants, KPMG LLP, who have certified certain of the
financial statements included as part of the Offering Memorandum, are
independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its interpretation and rulings during the periods
covered by the financial statements on which they reported contained in the
Offering Memorandum.
(z) The consolidated historical financial statements, together with
related notes, set forth in the Offering Memorandum comply as to form in all
material respects with the requirements of Regulation S-X under the Act
applicable to registration statements on Form S-1 under the 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 accordance with GAAP consistently applied
throughout such periods. The other financial and statistical 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.
(aa) Except as disclosed in, or specifically contemplated by, the
Offering Memorandum, subsequent to the date of the latest audited financial
statements included in the Offering Memorandum, neither the Company nor any
Guarantor 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 or such Guarantor, as the case may be,
and there has not been any material change in the capital stock, or material
increase in the short-term or long-term debt, of the Company or such Guarantor
or any material adverse change, or any development involving or which would
reasonably be expected to involve a prospective material adverse change, in the
condition (financial or other), business, properties, net worth, results of
operations or prospects of the Company or such Guarantor.
(bb) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles 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.
(aa) The Company and each Guarantor has good and marketable title to
all property (real and personal) described in the Offering Memorandum as being
owned by it, free and clear of all liens, claims, security interests or other
encumbrances except for liens arising under the Term Loan Agreement and the
Revolving Credit Agreement and except such as are
8
described in the Offering Memorandum or as do not materially affect the value of
such property and do not materially interfere with the use made of such property
by the Company or any Guarantor and all the material property described in the
Offering Memorandum as being held under lease by the Company or any Guarantor is
held by it under valid, subsisting and enforceable leases, with only such
exceptions as in the aggregate are not materially burdensome and do not
interfere with the conduct of the business of the Company or any Guarantor.
(ab) The Company and each Guarantor owns or possesses, free and clear
of all Liens (other than Permitted Liens), defects, restrictions or equities of
any kind whatsoever, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by it in connection with its respective business
now operated by it, except where the failure to own or possess or have the
ability to acquire such Intellectual Property would not, singly or in the
aggregate, result in a Material Adverse Effect. The use of such Intellectual
Property in connection with the business and operations of the Company and the
Guarantors does not, to the Company's knowledge, infringe on the rights or
claimed rights of any person. Neither the Company nor any of the Subsidiaries
has received any notice of infringement of or conflict with assessed rights of
others with respect to any Intellectual Property which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or finding, might
have a Material Adverse Effect.
(ac) The Company and each Guarantor has such permits, licenses,
franchises, certificates of need and other approvals or authorizations of
governmental or regulatory authorities ("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; the Company and each Guarantor has fulfilled and performed in
all material respects, all their respective material obligations with respect to
the Permits, and 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 the rights of the holder of any such 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; and, except as described in the Offering Memorandum,
none of the Permits contains any restriction that is materially burdensome to
the Company or any Guarantor.
(ad) Except as set forth in the Offering Memorandum, there has been no
storage, disposal, generation, manufacture, refinement, transportation, handling
or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any Guarantor (or, to the knowledge of the Company
or any Guarantor, any of their predecessors in interest) at, upon or from any of
the property now or previously owned or leased by the Company or any Guarantor
in violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, 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 with all such
violations and remedial actions, a Material Adverse Effect; except as set forth
in the Offering Memorandum, there has been no material spill, discharge, leak,
9
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 Company or any Guarantor or with respect to which the Company or any
Guarantor has knowledge, except for any such spill, discharge, leak, mission,
injection, escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and releases, 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.
(ae) The Company 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 Company
would have any liability; the Company has not incurred and does not reasonably
expect 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" other
than a multiemployer plan, as defined in ERISA, for which the Company 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 to the knowledge of the Company,
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(af) The Company and each of its Subsidiaries maintain insurance
covering their properties, operations, personnel and businesses. Such Insurance
insures against such losses and risks as are reasonably adequate in accordance
with customary industry practice to protect the Company and its Subsidiaries and
their businesses. Neither the Company nor any of its Subsidiaries has received
written notice from any insurer or agent of such insurer that substantial
capital improvements or other expenditures will have to be made in order to
continue such insurance. All such insurance is outstanding and duly in force on
the date hereof and will be outstanding and duly in force through the Closing
Date.
(ag) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has paid,
or made adequate reserve or provision for, all taxes due thereon, and no tax
deficiency has been determined adversely to the Company which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company, might have) a material adverse effect on the
consolidated financial position, stockholders' equity, results of operations,
business or prospects of the Company.
(ah) Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any Guarantor, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; has made any direct or indirect unlawful payment to any
foreign or domestic government official, or employee from corporate funds; has
10
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or has made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(ai) The Company is not and, upon sale of the Notes to be issued and
sold thereby in accordance herewith 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.
(aj) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("Regulation D") under the Act) of the Company has directly, or
through any agent (provided that no representation is made as to the Initial
Purchasers or any person acting on its behalf), (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Act) which is or could be integrated with the offering and sale
of the Notes in a manner that would require the registration of the Notes under
the 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
Notes. No securities of the same class as the Notes have been issued and sold by
the Company within the six-month period immediately prior to the date hereof.
(ak) Except as permitted by the Act, the Company has not distributed
and, prior to the later to occur of the Closing Date and completion of the
distribution of the Notes, will not distribute any offering material in
connection with the offering and sale of the Notes other than the Preliminary
Offering Memorandum and Offering Memorandum.
(al) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the meaning of Rule
144A under the Act) as securities of the Company 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, other than the Existing Notes.
(am) Assuming (i) that the Notes are issued, sold and delivered under
the circumstances contemplated by the Offering Memorandum and this Agreement,
(ii) that your representations and warranties in Section 2 are true, (iii)
compliance by you with your covenants set forth in Section 2 and (iv) that each
of the Eligible Purchasers is a QIB or a person who is not a "U.S. person" who
acquires the Notes outside the United States in an "offshore transaction"
(within the meaning of Rule 904 of Regulation S), the purchase of the Notes by
you pursuant hereto and the initial resale of the Notes pursuant hereto pursuant
to the Exempt Resales is exempt from the registration requirements of the Act.
(an) None of the Company or any of its affiliates or any person acting
on its or their behalf has engaged or will engage in any directed selling
efforts within the meaning of Rule 902(b) of Regulation S with respect to the
Notes, and the Company and its affiliates and all persons acting on its of their
behalf have complied with and will comply with the offering
11
restrictions requirements of Regulation S in connection with the offering of the
Notes outside of the United States; provided that no representation is made as
to the Initial Purchasers or any person, acting on their behalf.
(ao) The sale of the Notes pursuant to Regulation S are "offshore
transactions" and are not part of a plan or scheme to evade the registration
provision of the Act.
2. Representations, Warranties and Agreements of the Initial Purchasers.
Each Initial Purchaser represents and warrants 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 Notes.
(b) Such Initial Purchaser (i) is not acquiring the Notes with a view
to any distribution thereof or with any present intention of offering or selling
any of the Notes in a transaction that would violate the 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 Notes
only from, and will offer to sell the Notes 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 Notes by, nor has it offered or
sold the Notes 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) in connection with the offering of
the Notes.
(c) The Notes have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the Act or pursuant to an exemption from the registration requirements of the
Act. The Initial Purchasers represent that they have not offered, sold or
delivered the Notes, and will not offer, sell or deliver the Notes (i) as part
of its distribution at any time or (ii) otherwise until 40 days after the later
of the commencement of the offering and the Closing Date (such period, the
"Restricted Period"), within the United States or to, or for the account or
benefit of U.S. persons, except in accordance with Rule 144A under the Act.
Accordingly, each Initial Purchaser represents and agrees that neither it, its
affiliates nor any persons acting on its or their behalf has engaged or will
engage in any directed selling efforts within the meaning of Rule 902(b) of
Regulation S with respect to the Notes, and it, its affiliates and all persons
acting on its behalf have complied and will comply with the offering
restrictions requirements of Regulation S.
(d) Such Initial Purchaser agrees that, at or prior to confirmation of
a sale of Notes (other than a sale pursuant to Rule 144A), it will have sent to
each distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases Notes from it during the Restricted Period a
confirmation or notice substantially to the following effect:
12
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Act") and may not be offered and sold
within the United States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering or
the closing date, except in either case in accordance with Regulation S
(or Rule 144A if available) under the Act. Terms used above have the
meanings assigned to them in Regulation S."
Such Initial Purchaser further agrees that it has not entered and will not
enter into any contractual arrangement with respect to the distribution or
delivery of the Notes, except with its affiliates or with the prior written
consent of the Company.
(e) Such Initial Purchaser further represents and agrees that (i) it
has not offered or sold and will not offer or sell any Notes to persons in the
United Kingdom prior to the expiry of the period of six months from the issue
date of the Notes, except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (ii) it
has complied and will comply with all applicable provisions of the Financial
Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to the Notes
in, from or otherwise involving the United Kingdom, and (iii) it has only issued
or passed on and will only issue or pass on in the United Kingdom any document
received by it in connection with the issuance of the Notes to a person who is
of a kind described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇
(Investment Advertisements) (Exemptions) Order 1995 or is a person to whom the
document may otherwise lawfully be issued or passed on.
(f) Such Initial Purchaser agrees not to cause any advertisement of the
Notes to be published in any newspaper or periodical or posted in any public
place and not to issue any circular relating to the Notes, except such
advertisements as may be permitted by Regulation S.
(g) The sale of the Notes pursuant to Regulation S are "offshore
transactions" and are not part of a plan or scheme to evade the registration
provision of the Act.
(h) Such Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to you pursuant to Section 7 hereof,
counsel to the Company, General Counsel to the Company 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 Notes only from, and will offer to
sell the Notes only to, the Eligible Purchasers in Exempt Resales.
3. Purchase of the Notes 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 Company agrees to sell $100.0 million in
aggregate principal amount of the
13
Notes to the Initial Purchasers, and each of the Initial Purchasers, severally
and not jointly, agrees to purchase the aggregate principal amount of the Notes
set forth opposite that Initial Purchaser's name in Schedule I hereto. Each
Initial Purchaser will purchase such aggregate principal amount of the Notes at
an aggregate purchase price equal to 98.76% of the principal amount thereof (the
"Purchase Price").
The Company shall not be obligated to deliver any of the Notes to be
delivered, except upon payment for all the Notes 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 Notes
shall be made at 9:00 a.m., New York City time, on the Closing Date at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such
other time or place as you and the Company shall designate.
(b) One or more of the 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 days'
notice to the Company, having an aggregate principal amount corresponding to the
aggregate principal amount of the Notes sold pursuant to Eligible Resales
(collectively, the "Global Note"), shall be delivered by the Company to the
Initial Purchasers, against payment by the Initial Purchasers of the purchase
price thereof by wire transfer of immediately available funds as the Company may
direct by written notice delivered to you two business days prior to the Closing
Date. The Global Note in definitive form shall be made available to you for
inspection not later than 9:30 a.m. on the business day immediately preceding
the Closing Date.
(c) Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Initial Purchaser hereunder.
5. Further Agreements of the Company and the Guarantors.
The Company and each of the Guarantors agrees:
(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
Notes 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 which 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 Company and each Guarantor shall use its
best efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of the Notes under any state securities or Blue Sky
14
laws and, if at any time any state securities commission shall issue any stop
order suspending the qualification or exemption of the Notes under any state
securities or Blue Sky laws, the Company and each Guarantor 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 Company and each
Guarantor consents 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. The
Company shall reasonably promptly prepare, upon any reasonable request by you,
any amendment or supplement to the Offering Memorandum that may be necessary or
advisable in connection with Exempt Resales.
(d) 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 judgment of the Company
or in the judgment of your counsel, 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
all 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) such statements or omissions will be corrected and (ii) the Offering
Memorandum will comply with applicable law.
(e) To cooperate with you and your counsel in connection with the
qualification of the Notes 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 the Company shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not now so qualified or
to take any action that would subject it to general consent to service of
process in any jurisdiction in which it is not now so subject). The Company
shall continue such qualification in effect so long as required by law for
distribution of the Notes and shall file such consents to service of process or
other documents as may be necessary in order to effect such qualification.
(f) To the extent it lawfully may do so, not to voluntarily claim, and
to actively resist any attempts to claim, the benefit of any usury laws against
the holders of the Notes.
(g) Prior to the Closing Date, to furnish to you, as soon as they have
been prepared, a copy of any internal consolidated financial statements of the
Company for any period
15
subsequent to the period covered by the financial statements appearing in the
Offering Memorandum.
(h) 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 set forth in Section 7 hereof.
(i) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Notes in a manner that would require the
registration under the Act of the sale to you or the Eligible Purchasers of the
Notes.
(j) For so long as any of the Notes remain outstanding and are
Restricted Securities within the meaning of Rule 144(a)(3) under the Act and
during any period in which the Company is not subject to Section 13 or 15(d) of
the Exchange Act, to make available to any registered holder or beneficial owner
of the Notes in connection with any sale thereof and any prospective purchaser
of such Notes from such registered holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act.
(k) To comply with its agreements in the Registration Rights Agreement,
and all agreements set forth in the representation letters of the Company to DTC
relating to the approval of the Notes by DTC for "book-entry" transfer.
(l) To use its reasonable best efforts to effect the inclusion of the
Notes in the National Association of Securities Dealers, Inc. Automated
Quotation System - Private Offerings, Resales and Trading through Automated
Linkages Market ("PORTAL").
(m) To apply the net proceeds from the sale of the Notes being sold by
the Company as set forth in the Offering Memorandum under the caption "Use of
Proceeds."
(n) To take such steps as shall be necessary to ensure that the Company
shall not become 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. The Company agrees 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 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 (including, without limitation, word
processing and duplication costs) and delivery of all Blue Sky Memoranda and all
other agreements, memoranda, correspondence and other documents printed and
delivered in connection herewith and with the Exempt Resales (but not, however,
legal fees and expenses of your counsel incurred in connection with any of the
foregoing other than fees of such counsel plus reasonable disbursements incurred
in connection with the preparation, printing and delivery of such Blue Sky
Memoranda), (iii) the issuance and delivery by the Company of the Notes, (iv)
the issuance and delivery by the Guarantors of the Subsidiary Guarantees, (v)
the qualification of the Notes
16
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), (vi) furnishing such
copies of the Preliminary Offering Memorandum and the Offering Memorandum, and
all amendments and supplements thereto, as may be reasonably requested for use
in connection with the Exempt Resales, (vii) the preparation of certificates for
the Notes and Subsidiary Guarantees (including, without limitation, printing and
engraving thereof), (viii) the fees, disbursements and expenses of the Company's
counsel and accountants, (ix) all expenses and listing fees in connection with
the application for quotation of the Notes in PORTAL, (x) all fees and expenses
of the Company in connection with approval of the Notes by DTC for "book-entry"
transfer and (xi) the performance by the Company and the Guarantors of their
other obligations under this Agreement; provided that, except as provided in
Section 6(ii) and Section 10, the Initial Purchasers shall pay their own costs
and expenses of their counsel.
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 Company and the Guarantors contained
herein, to the performance by the Company and the Guarantors of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Offering Memorandum shall have been printed and copies
distributed to you not later than 11:00 a.m., New York City time, on March 6,
2002, or at such later date and time as you may approve in writing.
(b) No Initial Purchaser shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Offering Memorandum or any
amendment or supplement thereto contains an untrue statement of a fact which, in
the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, is material
or omits to state a fact which, in the opinion of such counsel, is material or
is necessary to make the statements, in the 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 Credit Documents, the Offering Memorandum, 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 Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(d) Dechert shall have furnished to the Initial Purchasers its written
opinion, as counsel to the Company and the Guarantors, addressed to the Initial
Purchasers and dated as of the Closing Date, substantially in the form attached
hereto as Exhibit B. The opinion of such counsel may be limited to the laws of
the state of New York, the General Corporation Law 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 such Closing
Date, with
17
respect to the issuance and sale of the Notes, 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 Initial Purchasers shall have received letters addressed to the
Initial Purchasers, and dated the date hereof and the Closing Date from KPMG
LLP, independent certified public accountants, substantially in the forms
heretofore approved by the Initial Purchasers.
(g) The Company and the Guarantors shall have furnished to the Initial
Purchasers a certificate, dated such Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, its
President and Chief Executive Officer and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, its Executive Vice
President and Chief Financial Officer, stating that:
(i) The representations, warranties and agreements of the Company
(after giving effect to all materiality qualifiers therein) and the Guarantors
in Section 1 are true and correct as of such date and giving effect to the
consummation of the transactions contemplated by the Credit Documents and this
Agreement; the Company and each Guarantor has complied with all its agreements
contained herein; and the conditions set forth in Sections 7(h), 7(i) and 7(l)
have 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 not misleading, and (ii) since the date
of the Offering Memorandum, no event his occurred which should have been set
forth in a supplement or amendment to the Offering Memorandum.
(h) (i) The Company and each Guarantor shall not have sustained since
the date of the latest audited financial statements included in the Offering
Memorandum any loss or interference with its 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) since such date there
shall not have been any change in the capital stock or long-tem debt of the
Company or any Guarantor or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company or any
Guarantor, 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 public offering or
the delivery of the Notes being delivered on such Closing Date on the terms and
in the manner contemplated in the Offering Memorandum.
(i) Prior to or simultaneously with the closing of the transactions
contemplated by the Operative Documents, the Company shall have closed the
transactions contemplated by the Second Amendments.
18
(j) Simultaneously with the closing of the transactions contemplated by
the Operative Documents, the Company shall repay a portion of the outstanding
term loan indebtedness outstanding under the Term Loan Agreement in accordance
with the Use of Proceeds section of the Offering Memorandum.
(k) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have been furnished with executed copies,
certified by the Secretary of the Company, of the Second Amendments and 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.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's 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
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 Company's debt securities.
(m) 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 Company 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 Notes being
delivered on such Closing Date on the terms and in the manner contemplated in
the Offering Memorandum.
(n) The Company shall have furnished to the Initial Purchasers a
certificate, dated as of the Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, its Executive
Vice President and Chief Financial Officer, stating that the Company has at
least $60.0 million of borrowings available to it under the Revolving Credit
Agreement.
(o) Dechert shall have furnished a letter to the Initial Purchasers, in
form and substance reasonably satisfactory to the Initial Purchasers, the
Company and their respective counsel, permitting the Initial Purchasers to rely
on certain provisions of Dechert's opinion, if any, rendered pursuant to the
Second Amendments.
19
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 for the Initial Purchasers.
8. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and severally, shall
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 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
Notes), to which that Initial Purchaser, officer, employee or controlling person
may become subject, under the 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 (A) in the
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto or (B) in any blue sky application or other document
prepared or executed by the Company specifically for the purpose of qualifying
any or all of the Notes under the securities laws of any state or other
jurisdiction (any such application or document being hereafter called a "Blue
Sky Application"), (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto, or in any Blue Sky Application, 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 Notes 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 clause (i) or (ii) above (provided that neither
the Company nor the Guarantors shall 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 neither the Company nor any of the Guarantors
shall 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 or in any such
amendment or supplement, or in any Blue Sky Application, in reliance upon and in
conformity with written information concerning such Initial Purchaser furnished
to the Company by or on behalf of any Initial Purchaser specifically for
inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company or any Guarantor 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 Company, the Guarantors, their officers and employees,
each of their directors, and each person, if any, who controls the Company or
any Guarantor within the meaning of the Act
20
or the Exchange Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company or any
such Guarantor, director, officer or controlling person may become subject,
under the 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 (A) in any Preliminary Offering
Memorandum or the Offering Memorandum or in any amendment or supplement thereto,
or (B) in any Blue Sky Application or (ii) the omission or alleged omission to
state in any Preliminary Offering Memorandum or the Offering Memorandum, or in
any amendment or supplement thereto, or in any Blue Sky Application, 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 Company by or on behalf of that Initial
Purchaser specifically for inclusion therein, and shall reimburse the Company,
the Guarantors, and any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Company, the Guarantors, 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 that any Initial Purchaser
may otherwise have to the Company or any such director, officer, employee or
controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this 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 further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 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 counsel 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
Company 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
Company. 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
21
parties are actual or 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) 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 Company on
the one hand and the Initial Purchasers on the other from the offering of the
Notes or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company 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 Company on the one hand
and the Initial Purchasers on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Notes purchased under this Agreement (before deducting expenses) received
by the Company, on the one hand, and the total discounts and commissions
received by the Initial Purchasers with respect to the Notes purchased under
this Agreement, on the other hand, bear to the total gross proceeds from the
offering of the Notes under this Agreement, in each case as set forth in the
table under the heading "Plan of Distribution" contained in 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 Company
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 Company 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 Notes purchased by it were resold to Eligible
Purchasers exceeds the amount of any damages that 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 Act) shall be
entitled to contribution from any person who was not guilty of such
22
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 confirm and the Company acknowledges that
the last paragraph on the cover page and the stabilization legend on page ii and
the information set forth in the 1st through the 7th and the 11th paragraphs
under the caption "Plan of Distribution" in the Offering Memorandum constitute
the only information concerning such Initial Purchasers furnished in writing to
the Company by or on behalf of the Initial Purchasers specifically for inclusion
in the Offering Memorandum.
9. Termination. The obligations of the Initial Purchasers hereunder may be
terminated by ▇▇▇▇▇▇ Brothers Inc. by notice given to the Company prior to
delivery of and payment for the Notes if, prior to that time, any of the events
described in Sections 7(h) or 7(n) shall have occurred or if the Initial
Purchasers shall decline to purchase the Notes for any reason permitted under
this Agreement. If, on the Closing Date, the Initial Purchasers shall default in
the performance of their obligations under this Agreement, this Agreement shall
terminate without liability on the part of the Company or the Guarantors, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Section 6 and except that the provisions of Section 8 shall
not terminate and shall remain in full force and effect.
10. Reimbursement of Initial Purchasers' Expenses. If the Company shall fail
to tender the Notes for delivery to the Initial Purchasers by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Initial Purchasers' obligations hereunder required to be fulfilled by the
Company is not fulfilled, the Company will reimburse the Initial Purchasers for
all reasonable out-of-pocket expenses (including the fees and disbursements of
its counsel) incurred by the Initial Purchasers in connection with this
Agreement and the proposed purchase of the Notes, and upon demand the Company
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., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate Department (Fax: (▇▇▇) ▇▇▇-▇▇▇▇),
with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇) and, in the case of any
notice pursuant to Section 8, to the Director of Litigation, Office of the
General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
and
(b) if to the Company or any Guarantor, shall be delivered or sent by
mail, telex or facsimile transmission to B&G Foods, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer
(Fax: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to Dechert, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Glyndwr ▇. ▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇).
23
Any such statements, requests, notices or agreements shall take effect at
the time of receipt thereof. The Company shall be entitled to act and rely upon
any request, consent, notice or agreement given or made on behalf of the Initial
Purchasers by ▇▇▇▇▇▇ Brothers Inc.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to
the benefit of and be binding upon the Initial Purchasers, the Company, and
their respective personal representatives and successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (i) the representations, warranties, indemnities and agreements of
the Company and the Guarantors 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 Act and (ii) the
representations, warranties, indemnities and agreements of the Initial
Purchasers contained in this Agreement shall be deemed to be for the benefit of
directors of each of the Company or the Guarantors, officers of each of the
Company and the Guarantors and any person controlling the Company within the
meaning of Section 15 of the Act. Nothing in this Agreement is intended or shall
be construed to give any person, other than the persons referred to in this
Section 12, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations, warranties and
agreements of the Company, the Guarantors and the Initial Purchasers contained
in this Agreement or made by or on behalf on them, respectively, pursuant to
this Agreement, shall survive the delivery of and payment for the Notes and
shall remain in full force and effect, regardless of any investigation made by
or on behalf of any of them or any person controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary." For purposes of
this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
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.
[Signature Pages Follow]
24
If the foregoing correctly sets forth the agreement between the Company and
the Initial Purchasers, please indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
B&G FOODS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
BGH HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
RWBV ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
POLANER, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇▇▇' S FINE FOODS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
MAPLE GROVE FARMS OF VERMONT, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
LES PRODUITS ALIMENTAIRES JACQUES ET FILS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Executive Vice President
HERITAGE ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
FLEET SECURITIES, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
SCHEDULE 1
Initial Purchaser Principal Amount of Notes
----------------- -------------------------
▇▇▇▇▇▇ BROTHERS INC. $95,000,000
FLEET SECURITIES, INC. $5,000,000
-------------
Total........................... $100,000,000
2