EXECUTION COPY
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PURCHASE AGREEMENT
for
9% EXCHANGEABLE SUBORDINATED NOTES
DUE 2012 OF TXU ENERGY COMPANY LLC
By and Among
UXT HOLDINGS LLC,
UXT INTERMEDIARY LLC
AND
THE PURCHASERS (as listed
in the Schedule attached hereto as Exhibit A)
Dated as of December 19, 2002
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PURCHASE AGREEMENT, dated as of December 19, 2002 (the "Agreement"), by
and among UXT Holdings LLC and UXT Intermediary LLC, each a Delaware limited
liability company (each a "Seller" and collectively, the "Sellers"), and the
Purchasers listed in the Schedule attached hereto as Exhibit A (each a
"Purchaser" and collectively, the "Purchasers").
WHEREAS, the Sellers own $750 million aggregate principal amount of 9%
Exchangeable Subordinated Notes due 2012 of TXU Energy Company LLC (the
"Notes"), a form of which is attached hereto as Exhibit B; and
WHEREAS, the Sellers desire to sell, and the Purchasers desire to buy,
$250 million aggregate principal amount of the Notes.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Sellers and the Purchasers
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Action" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
"Affiliate" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"Agreement" shall have the meaning set forth in the Preamble.
"Business Day" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized by Law to be closed in the
States of New York or Texas.
"Closing" shall have the meaning set forth in Section 2.02.
"Closing Date" shall have the meaning set forth in Section 2.02.
"Company" means TXU Energy Company LLC, a Delaware limited liability
company.
"Encumbrance" means any security interest, pledge, hypothecation,
mortgage, lien (including, without limitation, environmental and tax liens),
violation, charge, lease, license, encumbrance, servient easement, adverse
claim, reversion, reverter, preferential arrangement, restrictive covenant,
condition or restriction of any kind, including, without
limitation, any restriction on the use, voting, transfer, receipt of income
or other exercise of any attributes of ownership.
"Entity" means any individual, partnership, corporation, limited
liability company, association, estate, trust, business trust, and
Governmental Authority.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agreement" means the Exchange Agreement, dated as of November
22, 2002, entered into by and between TXU Corp., TXU Energy Company LLC, and
the Sellers, pursuant to which the Notes may be exchanged for TXU Common
Stock.
"Governmental Authority" means any United States or non-United States
federal, national, supranational, state, provincial, local, or similar
government, governmental, regulatory or administrative authority, agency or
commission or any court, tribunal, or judicial or arbitral body, including
the Federal Energy Regulatory Commission, the Nuclear Regulatory Commission,
the SEC or the appropriate state public utilities commission.
"Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Law" means any United States or non-United States federal, national,
supranational, state, provincial, local or similar statute, law, ordinance,
regulation, rule, code, order, requirement or rule of law (including,
without limitation, common law).
"Liabilities" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable, including, without limitation, those arising
under any Law (including, without limitation, any Environmental Law), Action
or Governmental Order and those arising under any contract, agreement,
arrangement, commitment or undertaking.
"Notes" has the meaning set forth in the Recitals.
"Person" means any individual, partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization or other
entity, as well as any syndicate or group that would be deemed to be a
person under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
"Purchase Price" shall have the meaning set forth in Section 2.01.
"Purchased Notes" shall have the meaning set forth in Section 2.01.
"Purchaser" shall have the meaning set forth in the Preamble.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of November 22, 2002, entered into by and among the TXU
Corp. and the Sellers, as amended by Amendment No.1 to the Registration
Rights Agreement.
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"Restricted Period" shall have the meaning set forth in Section 5.04.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" shall have the meaning set forth in Section 5.04.
"TXU" means TXU Corp., a Texas corporation. ---
"TXU Common Stock" means the common stock, without par value, of TXU.
"Transfer" shall have the meaning set forth in the Notes.
ARTICLE II
PURCHASE AND SALE OF INTERESTS
SECTION 2.01 Purchase and Sale of Interests. On the date hereof, the
Sellers agree to sell to the Purchasers, and each Purchaser agrees to purchase
from the Sellers, the aggregate principal amount of the Notes set forth opposite
such Purchaser's name on Exhibit A hereto (such Notes purchased pursuant to this
Agreement, in the aggregate, the "Purchased Notes") for an aggregate purchase
price of $250 million (the "Purchase Price").
SECTION 2.02 Closing. Subject to the terms and conditions of this
Agreement, the sale and purchase of the Purchased Notes contemplated by this
Agreement shall take place at a closing (the "Closing") to be held at or
directed from the offices of Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., Eastern Standard Time on December 19, 2002
or at such other place or at such other time or such other date as the
Purchasers and the Sellers shall mutually agree upon in writing (the date on
which the Closing takes place being the "Closing Date").
SECTION 2.03 Closing Deliveries by the Seller. At the Closing, the
Sellers shall deliver, or cause to be delivered, to the Purchasers, the
Purchased Notes, in such number and denomination as reasonably requested by the
Purchasers in accordance with Section 6.04 of the Notes.
SECTION 2.04 Closing Deliveries by the Purchaser. At the Closing, the
Purchasers shall deliver, or cause to be delivered, to the Sellers, the Purchase
Price by wire transfer in immediately available funds to an account designated
in writing by the Sellers to the Purchasers not later than one Business Day
prior to the Closing Date.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
As an inducement to the Purchasers to enter into this Agreement, the
Sellers hereby represent and warrant to the Purchasers as follows:
SECTION 3.01 Organization and Authority of the Sellers. The Sellers are
duly organized, validly existing and in good standing under the laws of the
jurisdiction of their organization and have all necessary power and authority to
enter into this Agreement, to carry out their obligations hereunder and to
consummate the transactions contemplated by this Agreement. The execution and
delivery by the Sellers of this Agreement, the performance by the Sellers of
their obligations hereunder and the consummation by the Sellers of the
transactions contemplated by this Agreement have been duly authorized by all
requisite action on the part of the Sellers. This Agreement has been duly
executed and delivered by the Sellers, and (assuming due authorization,
execution and delivery by the Purchasers) this Agreement constitutes legal,
valid and binding obligations of the Sellers, enforceable against the Sellers in
accordance with its terms.
SECTION 3.02 No Conflict. The execution, delivery and performance by
the Sellers of this Agreement does not and will not (a) violate, conflict with
or result in the breach of any provision of the organizational documents of the
Sellers, (b) conflict with or violate any Law or Governmental Order applicable
to the Sellers or (c) conflict with, or result in any breach of, constitute a
default (or event which with the giving of notice or lapse of time, or both,
would become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, any note, bond, mortgage or indenture, contract, agreement,
lease, sublease, license, permit, franchise or other instrument or arrangement
to which the Sellers are a party, which would adversely affect the ability of
the Sellers to carry out their obligations under, and to consummate the
transactions contemplated by, this Agreement.
SECTION 3.03 Governmental Consents. The execution, delivery and
performance of this Agreement by the Sellers does not and will not require any
consent, approval, authorization or other order of, action by, filing with or
notification to any Governmental Authority.
SECTION 3.04 Ownership. The Sellers are the legal and beneficial owners
of the Purchased Notes and have the right to transfer the Purchased Notes free
and clear of any and all Encumbrances. Upon the sale of the Purchased Notes to
the Purchasers pursuant hereto, the Purchasers will hold the Purchased Notes
free and clear of any and all Encumbrances arising through the Sellers or any of
their respective predecessors. There are no contracts, agreements or other
arrangements (other than this Agreement) obligating or requiring the Sellers to
assign, transfer or convey the Purchased Notes to any other Person.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
As an inducement to the Sellers to enter into this Agreement, the
Purchasers hereby represent and warrant to the Sellers as follows:
SECTION 4.01 Organization and Authority of the Purchasers. The
Purchasers are duly organized, validly existing and in good standing under the
laws of the jurisdiction of their organization and have all necessary power and
authority to enter into this Agreement, to carry out their obligations hereunder
and to consummate the transactions contemplated by this Agreement. The execution
and delivery by the Purchasers of this Agreement, the performance by the
Purchasers of their obligations hereunder and the consummation by the Purchasers
of the transactions contemplated by this Agreement have been duly authorized by
all requisite action on the part of the Purchasers. This Agreement has been duly
executed and delivered by the Purchasers, and (assuming due authorization,
execution and delivery by the Sellers) this Agreement constitutes legal, valid
and binding obligations of the Purchasers, enforceable against the Purchasers in
accordance with its terms.
SECTION 4.02 No Conflict. The execution, delivery and performance by
the Purchasers of this Agreement does not and will not (a) violate, conflict
with or result in the breach of any provision of the organizational documents of
the Purchasers, (b) conflict with or violate any Law or Governmental Order
applicable to the Purchasers or (c) conflict with, or result in any breach of,
constitute a default (or event which with the giving of notice or lapse of time,
or both, would become a default) under, require any consent under, or give to
others any rights of termination, amendment, acceleration, suspension,
revocation or cancellation of, any note, bond, mortgage or indenture, contract,
agreement, lease, sublease, license, permit, franchise or other instrument or
arrangement to which the Purchasers are a party, which would adversely affect
the ability of the Purchasers to carry out their obligations under, and to
consummate the transactions contemplated by, this Agreement.
SECTION 4.03 Governmental Consents. The execution, delivery and
performance of this Agreement by the Purchasers does not and will not require
any consent, approval, authorization or other order of, action by, filing with
or notification to any Governmental Authority.
SECTION 4.04 Private Placement. (a) Each Purchaser understands that the
offering and sale of the Notes by the Sellers is intended to be exempt from
registration under the Securities Act pursuant to Section 4(2) thereof.
(b) Each Purchaser is an "accredited investor" as such term is defined
in Rule 501(a) of Regulation D under the Securities Act.
(c) Each Purchaser is acquiring the Notes hereunder for its own account
(or for accounts over which it exercises investment authority), for investment
and not with a view to the public resale or distribution thereof, in violation
of any securities law.
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SECTION 4.05 Economic Risks. Each Purchaser is: (a) a sophisticated
Person with respect to the purchase of the Notes;
(b) is able to bear the economic risk associated with the purchase of
the Notes;
(c) is able to make informed decisions regarding the purchase of the
Notes;
(d) has such knowledge and experience, and has made investments of a
similar nature, so as to be aware of the risks and uncertainties inherent in the
purchase of the Notes as contemplated in this Agreement;
(e) has independently and without reliance upon the Sellers, and based
on such information as the Purchasers have deemed appropriate, made its own
analysis and decision to enter into this Agreement, except that the Purchasers
have relied upon the Sellers' express representations and warranties in this
Agreement. The Purchasers acknowledge that the Sellers have not given the
Purchasers any investment advice, credit information or opinion on whether the
purchase of the Notes is prudent.
SECTION 4.06 No Reliance. The Purchasers have not relied and will not
rely on the Sellers to furnish or make available any documents or other
information regarding the credit, affairs, financial condition or business of,
or any other matter concerning the Company or TXU, other than a true and
complete copy of that certain Purchase Agreement relating to the Notes, dated as
of November 18, 2002, by and among TXU, the Company, and UXT Holdings LLC,
which, together with a true and complete copy of the Registration Rights
Agreement and the Exchange Agreement, has been provided by the Sellers to the
Purchasers.
SECTION 4.07 Excluded Information. The Purchasers acknowledge that: (a)
the Sellers currently may have, and later may come into possession of,
information with respect to the Notes, the Company or TXU that is not known to
the Purchasers and that may be material to a decision to acquire the Notes (the
"Excluded Information");
(b) the Purchasers have determined to purchase the Purchased Notes
notwithstanding their lack of knowledge of the Excluded Information; and
(c) the Sellers shall have no liability to the Purchasers, and the
Purchasers waive and release any claims that they might have against the
Sellers, whether under applicable securities laws or otherwise, with respect to
the nondisclosure of the Excluded Information in connection with this Agreement;
provided however that the Excluded Information shall not and does not affect the
truth or accuracy of the Sellers representations or warranties in this
Agreement.
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SECTION 4.08 Non-Exempt Prohibited Transaction. The purchase and
holding of the Purchased Notes by the Purchasers will not result in a non-exempt
prohibited transaction within the meaning of Section 406 of the Employee
Retirement Income Security Act of 1974, as amended, or Section 4975 of the
Internal Revenue Code of 1986, as amended.
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Ownership and Control. The Purchasers represent and
warrant to the Sellers that they do not own and control, and agree that they
will not acquire ownership and control of, installed generation capacity within
the Electric Reliability Council of Texas ("ERCOT") in an amount that would
cause the Company or TXU (by virtue of Section 39.154(c) of the Texas Utility
Code) to be deemed to own and control more than 20% of the installed generation
capacity located in ERCOT in violation of Section 39.154 of the Texas Utility
Code and the Substantive Rules of the Public Utility Commission of Texas.
SECTION 5.02 Provisions in the Exchange Agreement and Registration
Rights Agreement. The Purchasers hereby agree to be bound by the provisions
contained in both Sections 9, 10(a) and 10(d) (ii) of the Exchange Agreement and
Sections 12, 15(a) and 15(e) (iii) of the Registration Rights Agreement.
SECTION 5.03 Demand Registration. (a) The Purchasers hereby waive any
and all rights they may have to request a Demand Registration (as defined in the
Registration Rights Agreement) as provided for in Section 3 of the Registration
Rights Agreement and agree that only the Sellers or their Affiliates may request
a Demand Registration, until such time (if any) as the Sellers, together with
their Affiliates, are no longer permitted to exercise such rights under the
Registration Rights Agreement (including as the result of any sale or other
Transfer of Notes or Shares to any other party), at which point such waiver
shall be of no further force and effect and the Purchasers shall have all rights
of a Holder under Section 3 of such agreement. Except as set forth in the
preceding sentence and in Section 9(a) of the Assignment Agreement, the
Purchasers shall be entitled to all rights, and subject to all obligations, of a
Holder (as defined in the Registration Rights Agreement) under the Registration
Rights Agreement, including without limitation all rights of a Participating
Demand Holder and a Participating Piggy-Back Holder (as defined in the
Registration Rights Agreement), and a Purchaser under the Exchange Agreement.
(b) The Purchasers acknowledge that pursuant to Section 2.04 of the
Notes, at the option of the Company, the Notes may be exchanged for preferred
equity interests in the Company on substantially identical economic and other
terms. The Purchasers agree that the Sellers shall have the right to consent to
the terms of any such preferred equity interests as long as the economic terms
remain substantially identical to the Notes, provided, that the Purchasers shall
also have the right to consent to the terms of any such preferred equity
interests if the Sellers are no longer permitted to exercise such consent right
(including as the result of any sale or other Transfer of Notes or Shares to any
other party).
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(c) The Sellers hereby agree not to enter into any agreement which
provides any rights to any purchaser of Notes or Shares with respect to the
preferred equity consent rights under the Notes which are more favorable to such
purchaser than the rights granted to the Purchasers under this Section 5.03.
SECTION 5.04 Transfer of Notes or Shares. (a) Notwithstanding anything
in this Agreement including the provisions contained in Section 5.03 above, from
the date hereof until the first anniversary of the Closing Date (such period,
the "Restricted Period"), the Purchasers shall not Transfer all or any portion
of the Notes or any shares of TXU Common Stock ("Shares") issuable upon exchange
of the Notes pursuant to the Exchange Agreement without the prior written
consent of the Sellers, except that the Purchasers may Transfer the Notes or
such Shares (i) to any Affiliate that agrees to be bound by the provisions of
this Agreement, and (ii) to any Person, to the extent necessary so that,
following such Transfer, the Purchasers own, or would own, upon conversion of
the Notes owned by them at the time, in the aggregate, less than 5% of the
outstanding Shares, but only if one or more of the Purchasers concludes, after
consultation with counsel, that it or any of its Affiliates could reasonably be
determined to be an affiliate of the Company and/or TXU for purposes of Section
39.154 of the Texas Utility Code or any related provisions of Texas law;
provided, however, that the ability of the Purchasers to Transfer the Notes
pursuant to Section 3.10 of the Notes shall not be prohibited.
(b) In the event any of the Purchasers or their Affiliates propose to
Transfer any Notes or shares pursuant to Section 5.04(a)(ii) hereof during the
Restricted Period (the "Offered Securities"), they shall provide written notice
of such Transfer (the "Notice") to the Sellers which Notice shall constitute an
offer to sell the Offered Securities to the Sellers at a purchase price equal to
the principal amount of the Notes, in the case of a Transfer of Notes, or the
Note Exercise Price per share, in the case of a Transfer of Shares. The Sellers
shall have thirty (30) days from the date of receipt of the Notice (the "Notice
Period") to deliver written notice to the Purchasers stating its desire to
purchase the Offered Securities. If the option to purchase is not exercised
within the Notice Period then the Purchasers may Transfer the Offered Securities
to a third party, provided that such Transfer must occur within 60 days after
the expiration of the applicable Notice Period.
SECTION 5.05 Amendments of Other Agreements. The Sellers hereby agree,
for themselves and each of their respective successors and assigns, that they
will not consent to any amendment to the Notes, the Registration Rights
Agreement, or the Exchange Agreement that would adversely affect the rights of
any of the Purchasers thereunder differently from any other Holder of Notes or
Shares.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Amendment; Waiver. This Agreement may not be amended,
supplemented, modified or restated except by an instrument in writing signed by,
or on behalf of, the parties hereto or by a waiver in accordance with this
Section 6.01. Any party to this Agreement may (a) extend the time for the
performance of any of the obligations or other
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acts of any other party, (b) waive any inaccuracies in the representations and
warranties of any other party contained herein or in any document delivered by
any other party pursuant hereto or (c) waive compliance with any of the
agreements of any other party or conditions to such party's obligations
contained herein. Any such extension or waiver shall be valid only if set forth
in an instrument in writing signed by the party to be bound thereby. Any waiver
of any term or condition shall not be construed as a waiver of any subsequent
breach or a subsequent waiver of the same term or condition, or a waiver of any
other term or condition of this Agreement. The failure of any party to assert
any of its rights hereunder shall not constitute a waiver of any of such rights.
All rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
SECTION 6.02 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, by an internationally recognized overnight courier service, by telecopy,
facsimile or registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 6.02):
if to the Sellers:
c/o DLJ Merchant Banking III, Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, Esq.
with a copy to:
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
if to the Purchasers:
each Purchaser
c/o Berkshire Hathaway Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
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▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-1560
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇, Esq.
SECTION 6.03 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any Law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect for so long as the economic or
legal substance of the transactions contemplated by this Agreement is not
affected in any manner materially adverse to any party. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated by
this Agreement are consummated as originally contemplated to the greatest extent
possible.
SECTION 6.04 Assignment. This Agreement may not be assigned by
operation of law or otherwise without the express written consent of the Sellers
or the Purchasers (which consent may be granted or withheld in the sole
discretion of the Sellers or the Purchasers); provided, however, that the
Purchasers may assign this Agreement or any of their rights and obligations
hereunder to another Purchaser or to one or more wholly-owned subsidiaries of
the Purchasers without the consent of the Sellers.
SECTION 6.05 Third Party Beneficiaries and Transfers. This Agreement
shall be binding upon and inure solely to the benefit of the parties hereto and
their permitted assigns and nothing herein, express or implied, is intended to
or shall confer upon any other Person, any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 6.06 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York. The parties hereto hereby (a) submit to the exclusive jurisdiction of
any state or federal court sitting in the Borough of Manhattan of The City of
New York for the purpose of any action arising out of or relating to this
Agreement brought by any party hereto, and (b) irrevocably waive, and agree not
to assert by way of motion, defense, or otherwise, in any such action, any claim
that it is not subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution, that the
action is brought in an inconvenient forum, that the venue of the action is
improper, or that this Agreement or the transactions contemplated by this
Agreement may not be enforced in or by any of the above-named courts.
SECTION 6.07 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF, UNDER OR IN
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CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
SECTION 6.08 Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersede all prior agreements and undertakings, both written and oral, among
the Sellers and the Purchasers with respect to the subject matter hereof.
SECTION 6.09 Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 6.10 Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original, but all of which taken together shall
constitute one and the same agreement.
SECTION 6.11 Public Announcements. Subject to its legal obligations
(including requirements of stock exchanges and other similar regulatory bodies
and other than as may be required pursuant to the Exchange Act), no party shall
make any public announcement regarding the entering into of this Agreement or
the Closing without the prior consent of the other party, which shall not be
unreasonably withheld. Notwithstanding the foregoing, upon the Closing the
parties shall cooperate with each other to make a public announcement of the
transaction and shall agree as to the timing and contents of any such
announcement.
[Signatures appear on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers or other representatives thereunto duly
authorized, as of the date first above written.
UXT HOLDINGS LLC
By: DLJ Merchant Banking III, Inc.,
its managing member
By:
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Name:
Title:
UXT INTERMEDIARY LLC
By: UXT AIV, L.P.
its managing member
By: DLJ Merchant Banking III, Inc.
as managing general partner
By:
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Name:
Title:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ PENSION
By:
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Name:
Title:
THE BUFFALO NEWS OFFICE PENSION PLAN
By:
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Name:
Title:
THE BUFFALO NEWS EDITORIAL PENSION PLAN
By:
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Name:
Title:
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CORNHUSKER CASUALTY COMPANY
By:
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Name:
Title:
FLIGHTSAFETY INTERNATIONAL INC.
RETIREMENT INCOME PLAN
By:
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Name:
Title:
FRUIT OF THE LOOM PENSION TRUST
By:
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Name:
Title:
GEICO CORPORATION PENSION PLAN TRUST
By:
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Name:
Title:
GOVERNMENT EMPLOYEES INSURANCE COMPANY
By:
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Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION MASTER
PENSION TRUST
By:
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Name:
Title:
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▇▇▇▇▇▇ ▇▇▇▇▇▇, INC. UNION PENSION PLAN
AND ▇▇▇▇▇▇ BRANDS, INC.
PENSION PLAN & TRUST
By:
----------------------------------
Name:
Title:
ACME BRICK COMPANY PENSION TRUST
By:
----------------------------------
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇▇ COMPANY COLLECTIVE
INVESTMENT TRUST
By:
----------------------------------
Name:
Title:
14
Exhibit A
----------------------------------------------------------- -------------------------------- -------------------------
THE PURCHASERS PRINCIPAL AMOUNT PURCHASE
OF PRICE
NOTES PURCHASED
----------------------------------------------------------- -------------------------------- -------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Pension 15,900,000 15,900,000
----------------------------------------------------------- -------------------------------- -------------------------
The Buffalo News Office Pension Plan 4,200,000 4,200,000
----------------------------------------------------------- -------------------------------- -------------------------
The Buffalo News Editorial Pension Plan 6,400,000 6,400,000
----------------------------------------------------------- -------------------------------- -------------------------
Cornhusker Casualty Company 25,000,000 25,000,000
----------------------------------------------------------- -------------------------------- -------------------------
FlightSafety International Inc. Retirement 7,400,000 7,400,000
Income Plan
----------------------------------------------------------- -------------------------------- -------------------------
Fruit of the Loom Pension Trust 13,500,000 13,500,000
----------------------------------------------------------- -------------------------------- -------------------------
GEICO Corporation Pension Plan Trust 57,000,000 57,000,000
----------------------------------------------------------- -------------------------------- -------------------------
Government Employees Insurance Company 29,000,000 29,000,000
----------------------------------------------------------- -------------------------------- -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation Master Pension 70,000,000 70,000,000
Trust
----------------------------------------------------------- -------------------------------- -------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Union Pension Plan and 4,300,000 4,300,000
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. Pension Plan & Trust
----------------------------------------------------------- -------------------------------- -------------------------
Acme Brick Company Pension Trust 10,300,000 10,300,000
----------------------------------------------------------- -------------------------------- -------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Company Collective Investment Trust 7,000,000 7,000,000
----------------------------------------------------------- -------------------------------- -------------------------
15
Exhibit B
FORM OF NOTE
16
Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions....................................................1
ARTICLE II
PURCHASE AND SALE OF INTERESTS
SECTION 2.01 Purchase and Sale of Interests.................................3
SECTION 2.02 Closing........................................................3
SECTION 2.03 Closing Deliveries by the Seller...............................3
SECTION 2.04 Closing Deliveries by the Purchaser............................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLERS
SECTION 3.01 Organization and Authority of the Sellers......................4
SECTION 3.02 No Conflict....................................................4
SECTION 3.03 Governmental Consents..........................................4
SECTION 3.04 Ownership......................................................4
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
SECTION 4.01 Organization and Authority of the Purchasers...................5
SECTION 4.02 No Conflict....................................................5
SECTION 4.03 Governmental Consents..........................................5
SECTION 4.04 Private Placement..............................................5
SECTION 4.05 Economic Risks.................................................6
SECTION 4.06 No Reliance....................................................6
SECTION 4.07 Excluded Information...........................................6
SECTION 4.08 Non-Exempt Prohibited Transaction..............................7
ARTICLE V
ADDITIONAL AGREEMENTS
SECTION 5.01 Ownership and Control..........................................7
SECTION 5.02 Provisions in the Exchange Agreement and Registration Rights
Agreement......................................................7
SECTION 5.03 Demand Registration............................................7
SECTION 5.04 Transfer of Notes or Shares....................................8
SECTION 5.05 Amendments of Other Agreements.................................8
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Amendment; Waiver..............................................8
SECTION 6.02 Notices........................................................9
SECTION 6.03 Severability..................................................10
SECTION 6.04 Assignment....................................................10
SECTION 6.05 Third Party Beneficiaries and Transfers.......................10
SECTION 6.06 Governing Law; Consent to Jurisdiction........................10
SECTION 6.07 Waiver of Jury Trial..........................................10
SECTION 6.08 Entire Agreement..............................................11
SECTION 6.09 Headings......................................................11
SECTION 6.10 Counterparts..................................................11
SECTION 6.11 Public Announcements..........................................11
ii