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EXHIBIT 2.4
▇▇▇▇▇▇▇▇'▇, INC.
$125,000,000
8 1/8% Senior Notes due 2004
PURCHASE AGREEMENT
Dated as of May 15, 1997
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$125,000,000
▇▇▇▇▇▇▇▇'▇, INC.
(a Tennessee corporation)
8 1/8% Senior Notes due 2004
PURCHASE AGREEMENT
May 15, 1997
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
North Tower
World Financial Center
New York, New York 10281-1305
Ladies and Gentlemen:
▇▇▇▇▇▇▇▇'▇, Inc., a Tennessee corporation (the "Company") confirms its
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("Goldman") and ▇▇▇▇▇
▇▇▇▇▇▇ Inc. ("▇▇▇▇▇ ▇▇▇▇▇▇" and collectively with ▇▇▇▇▇▇▇ ▇▇▇▇▇ and Goldman,
the "Initial Purchasers", which term shall also include any initial purchaser
substituted as hereinafter provided in Section 12 hereof for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇
is acting as representative (in such capacity, the "Representative")) with
respect to the issue and sale by the Company (the "Offering") and the purchase
by the Initial Purchasers, acting severally and not jointly, of the respective
principal amounts set forth in Schedule A of $125,000,000 aggregate principal
amount of the Company's 8 1/8% Senior Notes due 2004 (the "Notes").
The Notes will be guaranteed (the "Guarantees" and, collectively with the
Notes, the "Securities"), on a senior basis by each of the Company's
subsidiaries set forth on Schedule B (the "Guarantors"). The Securities will
be issued pursuant to an indenture to be dated as of May 21, 1997 (the
"Indenture") among the Company, as issuer of the Notes, the Guarantors and The
First National Bank of Chicago, as trustee (the "Trustee"). The Company and
the Guarantors are hereinafter referred to collectively as the "Issuers" and
this agreement (this "Agreement" or the "Purchase Agreement"), the Indenture,
the Securities, the Exchange Securities (as defined below), the Private
Exchange Securities (as defined in the Registration Rights Agreement) and the
Registration Rights Agreement (as defined below) are referred to collectively
as the "Operative Documents."
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Capitalized terms used herein without definition have the respective
meanings specified in the Offering Memorandum referred to below.
The Securities will be offered and sold to the Initial Purchasers without
registration under the Securities Act of 1933, as amended (the "Act"), in
reliance upon an exemption from the registration requirements of the Act. The
Company has prepared and delivered to each Initial Purchaser copies of a
preliminary offering memorandum dated May 2, 1997 (the "Preliminary Offering
Memorandum") and has prepared and will deliver to each Initial Purchaser, on
the date hereof or the first day thereafter, copies of a final offering
memorandum dated May 15, 1997 (the "Final Offering Memorandum"), each to be
used by such Initial Purchaser in connection with its solicitation of purchases
of, or offering of, the Securities. "Offering Memorandum" means, with respect
to any date or time referred to in this Agreement, the most recent offering
memorandum (whether the Preliminary Offering Memorandum or the Final Offering
Memorandum, together with any amendment or supplement to either such document),
including exhibits thereto which have been prepared and delivered by the
Company to the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Securities. The Company hereby confirms that
it has authorized the use of the Preliminary Offering Memorandum and the
Offering Memorandum in connection with the offer and resale of the Securities
by the Initial Purchasers as set forth in the Offering Memorandum and Section 4
hereof.
The Company understands that the Initial Purchasers propose to make an
offering of the Securities to purchasers ("Subsequent Purchasers") only on the
terms and in the manner set forth in the Offering Memorandum and Section 4
hereof, as soon as the Initial Purchasers deem advisable after this Agreement
has been executed and delivered, (i) to persons in the United States whom the
Initial Purchasers reasonably believe to be qualified institutional buyers
("Qualified Institutional Buyers") as defined in Rule 144A under the Act, as
amended ("Rule 144A"), in transactions under Rule 144A, (ii) to a limited
number of other institutional "accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Act) that the Initial Purchasers
reasonably believe to be accredited investors ("Accredited Investors") in
private sales exempt from registration under the Act or (iii) pursuant to
offers and sales to non-U.S. persons that occur outside the United States
within the meaning of Regulation S under the Act ("Regulation S"), to whom the
Initial Purchasers reasonably believe offers and sales may be made pursuant to
Rule 904 of Regulation S.
The holders of Securities (including the Initial Purchasers and subsequent
transferees) will be entitled to the benefits of a registration rights
agreement, to be dated as of May 21, 1997 (the "Registration Rights
Agreement"), between the Issuers and the Initial Purchasers. Pursuant to the
Registration Rights Agreement, the Issuers will agree to file with the
Securities and Exchange Commission (the "Commission") under the circumstances
set forth therein either (i) a registration statement under the Act registering
the Exchange Securities (as defined in the Registration Rights Agreement) to be
offered in exchange for the Securities and to use their best efforts to cause
such registration statement to be declared effective and (ii) under certain
circumstances set forth therein, to file with the Commission a shelf
registration statement pursuant to Rule 415 under the Act relating to the
resale of the Securities by holders thereof or, if applicable, relating to the
resale of Private Exchange (as defined in the Registration Rights Agreement) by
the Initial Purchasers pursuant to an exchange of the Securities for Private
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Exchange Securities, and to use their best efforts to cause such shelf
registration statement to be declared effective.
SECTION 1. Representations and Warranties. (A) The Issuers, jointly and
severally, represent and warrant to each of the Initial Purchasers as of the
date hereof and as of the Closing Time (as defined in Section 3 hereof) that:
(i) As of their respective dates, neither the Preliminary Offering
Memorandum nor the Final Offering Memorandum, as amended or supplemented,
contained or will contain, as the case may be, an untrue statement of a
material fact or omitted or will omit, as the case may be, to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information described in Section 14 hereof furnished in writing by the
Initial Purchasers through the Representatives to the Company expressly
for use in the Offering Memorandum or any amendment or supplement
thereto.
(ii) When the Securities are issued and delivered pursuant to this
Agreement, such securities will not be of the same class (within the
meaning of Rule 144A) as securities of any of the Issuers which are
listed on a national securities exchange registered under Section 6 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
quoted in a U.S. automated inter-dealer quotation system. The Company
has been advised that the Securities have been designated PORTAL eligible
securities in accordance with the rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD").
(iii) None of the Issuers, nor any of their affiliates (as defined
in Rule 501(b) under the Act) has, directly or through any agent, sold,
offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Act) which is or will be
integrated with the sale of the Securities in a manner that would
require the registration of the Securities under the Act.
(iv) None of the Issuers or any of their respective affiliates (as
such term is defined in Rule 501(b) under the Act) or any person (other
than the Initial Purchasers, as to which the Issuers make no
representation) acting at the request of the Issuers has engaged, in
connection with the offering of the Securities, (A) in any form of
general solicitation or general advertising within the meaning of Rule
502(c) under the Act, (B) in any directed selling efforts within the
meaning of Rule 902 under the Act in the United States in connection with
the Securities being offered and sold pursuant to Regulation S under the
Act, (C) in any manner involving a public offering within the meaning of
Section 4(2) of the Act or (D) in any action which would require the
registration under the Act of the offering and sale of the Securities
pursuant to this Agreement or which would violate applicable state
securities or "blue sky" laws.
(v) Assuming that the representations and warranties of the Initial
Purchasers contained in Section 4 are true, correct and complete, and
assuming compliance by the
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Initial Purchasers with their covenants in Section 4, and assuming that
the representations and warranties contained in each Transferee Letter of
Representations (each, a "Transferee Letter") (substantially in the form
of Appendix A to the Offering Memorandum) have been completed by
Accredited Investors purchasing Securities, are true and correct as of
the date hereof and the Closing Time, and assuming compliance by such
Accredited Investors, as the case may be, with the agreements in the
Transferee Letters, it is not necessary in connection with the offer,
sale and delivery of the Securities to the Initial Purchasers in the
manner contemplated by, or in connection with the initial resale of such
Securities by the Initial Purchasers in accordance with, this Agreement
to register the Securities under the Act or to qualify the Indenture in
respect of the Securities under the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
(vi) The only subsidiaries of the Company as of the date hereof are
those listed on Schedule C hereto (also referred to herein as the
"Subsidiaries"). Each of the Company and the Subsidiaries has been duly
organized or incorporated, as the case may be, and is validly existing in
good standing under the laws of its jurisdiction of incorporation or
organization, with all requisite power and authority (corporate,
partnership or otherwise) under such laws, and all necessary
authorizations, approvals, orders, licenses, certificates and permits of
and from regulatory or governmental officials, bodies and tribunals, (a)
to own, lease and operate their respective properties and to conduct
their respective businesses as now conducted and as described in the
Offering Memorandum and (b) to enter into, deliver, incur and perform
their respective obligations under the Operative Documents, except, in
the case of the foregoing subclause (a) for authorizations, approvals,
orders, leases, certificates and permits, the failure of which to possess
could not reasonably be expected to have a Material Adverse Effect (as
defined below); and are all duly qualified to do business as foreign
corporations in good standing in all other jurisdictions where the
ownership or leasing of their respective properties or the conduct of
their respective businesses requires such qualification, except where the
failure to be so qualified could not reasonably be expected to have a
Material Adverse Effect (as defined below). As used herein, "Material
Adverse Effect" shall mean a material adverse effect on the business,
condition (financial or otherwise), results of operations, business
affairs or business prospects of the Company and the Subsidiaries taken
as a whole.
(vii) The Notes, the Exchange Securities and the Private Exchange
Securities have been duly authorized by the Company and the Company has
all requisite corporate power and authority to execute, issue and deliver
the Notes, the Exchange Securities and the Private Exchange Securities
and to incur and perform its respective obligations provided for therein;
the Guarantees have been duly authorized by each of the Guarantors and
each of the Guarantors has all requisite corporate power and authority to
execute, issue and deliver the Guarantees and to incur and perform their
respective obligations provided for therein.
(viii) The Notes, when executed, authenticated and issued in
accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee)
and when delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding obligations
of the
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Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with the terms thereof; and the
Guarantees, upon endorsement on the Notes by the Guarantors and upon
execution of the Notes by the Company and authentication thereof by the
Trustee (assuming the due authorization, execution and delivery of the
Indenture by the Trustee), issued thereof in accordance with the
Indenture and payment therefor in accordance with the terms of this
Agreement, will constitute valid and binding obligations of each of the
Guarantors, enforceable against the Guarantors in accordance with the
terms thereof; and the Exchange Securities and the Private Exchange
Securities, if any, when executed, authenticated, issued and delivered by
the Issuers in exchange for the Securities in accordance with the terms
of the Registration Rights Agreement, will constitute valid and binding
obligations of each of the Issuers, entitled to the benefits of the
Indenture and enforceable against each of the Issuers in accordance with
the terms thereof to the extent each is a party; subject, in the case of
each of the foregoing, to (a) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally, (b) general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law) and
(c) the discretion of the court before which any proceeding therefor may
be brought (clauses (a), (b) and (c) being referred to herein as the
"Enforceability Limitations").
(ix) This Agreement has been duly authorized, executed and delivered
by each of the Issuers.
(x) The Registration Rights Agreement has been duly authorized by
the Issuers and, when duly executed and delivered by the Issuers
(assuming the due execution and delivery thereof by the Initial
Purchasers), will constitute a valid and binding obligation of each of
the Issuers, enforceable against each of the Issuers in accordance with
the terms thereof, except as such enforceability may be limited by (a)
the Enforceability Limitations and (b) as to rights of indemnification
and contribution, by principles of public policy or federal or state
securities laws relating thereto.
(xi) The Indenture has been duly authorized by the Issuers and, when
duly executed and delivered by the Issuers (assuming the due execution
and delivery thereof by the Trustee), will constitute a valid and binding
obligation of each of the Issuers, enforceable against each of the
Issuers in accordance with the terms thereof, except as such
enforceability may be limited by the Enforceability Limitations.
(xii) No consent, waiver, authorization, approval, license,
qualification or order of, or filing or registration with, any court or
governmental or regulatory agency or body, domestic or foreign, is
required for the issuance and sale of the Securities, the Exchange
Securities, if any, or the issuance of the Guarantees by the Guarantors,
the performance by the Issuers of their obligations under the Operative
Documents, or for the consummation of any of the transactions
contemplated hereby or thereby, including, without limitation, the
issuance and sale of the Securities hereunder, except, such as may be
required (A) in connection with the registration under the Act of the
Exchange Securities or the Private Exchange Securities, if any, pursuant
to the Registration Rights Agreement (including any filings, if any, with
the NASD), (B) in connection with the registration under the Act of
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the Exchange Securities or the Private Exchange Securities pursuant to
the Registration Rights Agreement, the qualification of the Indenture
under the Trust Indenture Act or (C) by state securities or "blue sky"
laws in connection with the offer and sale of the Securities or the
registration thereof or of the Private Exchange Securities or the
Exchange Securities pursuant to the Registration Rights Agreement.
(xiii) The issuance, sale and delivery of the Securities, the
Exchange Securities and the Private Exchange Securities, if any, by the
Issuers, and the execution, delivery and performance by the Issuers of
this Agreement, the Registration Rights Agreement and the Indenture, the
consummation by the Issuers of the transactions contemplated hereby, and
in the Offering Memorandum and the compliance by the Issuers with the
terms of the foregoing agreements and instruments do not, and, at the
Closing Time will not, conflict with or constitute or result in a breach
or violation by the Company or any of the Subsidiaries of (A) any of the
terms or provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) by any of
the Company or the Subsidiaries or give rise to any right to accelerate
the maturity or require the prepayment of any indebtedness under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or the Subsidiaries under any
contract, indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement, authorization, permit, certificate
or other agreement or document to which any of the Issuers or the
Subsidiaries is a party or by which any of them may be bound, or to which
any of them or any of their respective assets or businesses is subject
which is material to the Company and its Subsidiaries, taken as a whole
(collectively, "Contracts"), (B) the articles or by-laws (or other
similar organizational document, as the case may be (each, an
"Organizational Document"), of each of the Company and the Subsidiaries
or (C) any law, statute, rule or regulation, or any judgment, decree or
order, in any such case, of any domestic or foreign court or governmental
or regulatory agency or other body having jurisdiction over the Company
or any of the Subsidiaries or any of their respective properties or
assets.
(xiv) The Securities, the Exchange Securities, the Registration
Rights Agreement and the Indenture will each conform in all material
respects to the descriptions thereof in the Offering Memorandum.
(xv) The audited consolidated financial statements included in the
Offering Memorandum, including the notes thereto, present fairly, in all
material respects, the financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statements of
operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods have been prepared in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved.
The selected financial data and the summary financial information
included in the Offering Memorandum present fairly, in all material
respects, the information shown therein and have been prepared on a basis
consistent with that of the financial statements included in the Offering
Memorandum. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. and ▇▇▇▇▇▇▇▇ & Touche LLP, which
have audited certain of such financial statements as set forth in their
reports included in the Offering Memorandum, are
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independent public accounting firms with respect to the Company and its
Subsidiaries within the meaning of Regulation S-X under the Act. The pro
forma financial information relating to the Company and its subsidiaries
and the related notes thereto included in the Offering Memorandum present
fairly in all material respects the information shown therein, have been
prepared in all material respects in accordance with the Commission's
rules and guidelines with respect to pro forma financial adjustments
(except with respect to "Other Financial Data" included in the Offering
Memorandum Summary) and have been properly computed on the bases
described therein, and the assumptions used in the preparation thereof
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(xvi) Since the respective dates as of which information is given
in the Offering Memorandum, except as otherwise specifically stated
therein, there has been no (A) material adverse change in the business,
condition (financial or otherwise), results of operations, business
affairs or business prospects of the Company and the Subsidiaries taken
as a whole, whether or not arising in the ordinary course of business (a
"Material Adverse Change"), (B) transaction entered into by the Company
or any of the Subsidiaries, other than in the ordinary course of
business, that is material to the Company and the Subsidiaries, taken as
a whole or (C) dividend or distribution of any kind declared, paid or
made by the Company on its capital stock.
(xvii) As of February 1, 1997, the Company had the authorized,
issued and outstanding capitalization set forth in the Offering
Memorandum under the subheading "Actual" under the caption
"Capitalization"; all of the outstanding capital stock of the Company has
been duly authorized and validly issued, is fully paid and nonassessable
and was not issued in violation of any preemptive or similar rights
(whether provided contractually or pursuant to any Organizational
Document). None of the Issuers owns, directly or indirectly, any
material amount of shares, or any other material amount of equity or
long-term debt securities or have any material equity interest in any
firm, partnership, joint venture or other entity other than the
Subsidiaries. No holder of any securities of the Company is entitled to
have such securities (other than the Securities, the Exchange Securities
and the Private Exchange Securities, if any) registered under any
registration statement contemplated by the Registration Rights Agreement.
All of the outstanding capital stock of each of the Subsidiaries has
been duly authorized and, to the knowledge of the Issuers, validly
issued, is fully paid and nonassessable and was not issued in violation
of any preemptive or similar rights (whether provided contractually or
pursuant to any Organizational Document).
(xviii) Neither of the Company nor any of the Subsidiaries is (A) in
violation of its respective Organizational Documents, (B) in default (or,
with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any Contract, or (C) in violation of any law,
statute, judgment, decree, order, rule or regulation of any domestic or
foreign court with jurisdiction over the Company or the Subsidiaries or
any of their respective assets or properties, or other governmental or
regulatory authority, agency or other body, other than, in the case of
clause (B) or (C), such defaults or violations which, individually or in
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the aggregate, could not reasonably be expected to have or result in a
Material Adverse Effect; and any real property and buildings held under
lease by the Company or the Subsidiaries which are material (individually
or in the aggregate) to the Company and the Subsidiaries, on a
consolidated basis, are held by the Company or such Subsidiary, as the
case may be, under valid, subsisting and enforceable leases, except where
the invalidity or unenforceability of any such lease would not,
individually or in the aggregate, be reasonably expected to have or
result in a Material Adverse Effect.
(xix) Each of the Company and the Subsidiaries own or possess, or
can acquire on reasonable terms, adequate licenses, trademarks, service
marks, trade names, copyrights and know-how (including trade secrets and
other proprietary or confidential information, systems or procedures)
(collectively, "intellectual property") necessary to conduct the business
now or proposed to be operated by each of them as described in the
Offering Memorandum, except where the failure to own, possess or have the
ability to acquire any such intellectual property could not, individually
or in the aggregate, be reasonably expected to have a Material Adverse
Effect; and none of the Issuers has received any notice of infringement
of or conflict with (and none of them knows of any such infringement of
or conflict with) asserted rights of others with respect to any of such
intellectual property.
(xx) Each of the Company and the Subsidiaries have obtained all
material consents, approvals, orders, certificates, licenses, permits,
franchises and other authorizations of and from, and has made all
material declarations and filings with, all governmental and regulatory
authorities, all self-regulatory organizations and all courts and other
tribunals necessary to own, lease, license and use their respective
properties and assets and to conduct their respective businesses in the
manner described in the Offering Memorandum, except where the failure to
so obtain or so declare or file would not be reasonably likely to have or
result in a Material Adverse Effect.
(xxi) There is no legal action, suit, proceeding inquiry or
investigation before or by any court or governmental body or agency,
domestic or foreign, now pending or, to the best knowledge of the
Issuers, threatened against the Company or any of the Subsidiaries or
affecting the Company or the Subsidiaries or any of their respective
properties which would be required to be disclosed in a registration
statement filed under the Act which would, individually or in the
aggregate, have a Material Adverse Effect. Except as set forth in the
Offering Memorandum, none of the Company or any of the Subsidiaries has
received any notice or claim of any default (or event, condition or
omission which with notice or lapse of time or both would result in a
default) under any of its respective Contracts or has knowledge of any
breach of any of such Contracts by the other party or parties thereto in
each case which would, individually or in the aggregate, have a Material
Adverse Effect.
(xxii) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns,
and has paid all taxes shown as due thereon; and there is no tax
deficiency that has been asserted against any of the Issuers or
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the Subsidiaries, in each case other than as would not individually or in
the aggregate have a Material Adverse Effect.
(xxiii) Each of the Company and the Subsidiaries has (i) good and
marketable title to all real property described in the Offering
Memorandum as being owned by it, (ii) good title to all personal property
described in the Offering Memorandum as being owned by it and (iii) good
title to the leasehold estate in the real and personal property described
in the Offering Memorandum as being leased by it, in each case, free and
clear of all liens, charges, encumbrances or restrictions, except as
provided in the related lease and to the extent the failure to have such
title or the existence of such liens, charges, encumbrances or
restrictions would not be reasonably expected to result in a Material
Adverse Effect.
(xxiv) Neither the Company nor any of the Subsidiaries is an
"investment company" or a company "controlled by" an "investment company"
as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(xxv) Neither the Company nor any of the Subsidiaries nor any of
their respective directors, officers or controlling persons has taken,
directly or indirectly, any action designed, or which might reasonably be
expected to cause or result, under the Exchange Act, in, or which has
constituted, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities, the
Exchange Securities or the Private Exchange Securities.
(xxvi) No strike, labor problem, dispute, slowdown, work stoppage
or disturbance with the employees of the Company or any of the
Subsidiaries exists or, to the knowledge of the Issuers, is threatened
which, individually or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
(xxvii) The Company has insurance in such amounts and covering such
risks and liabilities as are in accordance, in all material respects,
with normal industry practice.
(xxviii) Other than as disclosed in the Offering Memorandum, none of
the Company nor any Subsidiary has any profit sharing, deferred
compensation, stock option, stock purchase, phantom stock or similar
plans, including agreements evidencing rights to purchase securities or
to share in the profits of the Company or any Subsidiary which is
material to the Company and its Subsidiaries, taken as a whole.
(xxix) The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources which the
Company believes to be reliable and accurate in all material respects or
represent the Company's good faith estimates that are made on the basis
of data derived from such sources.
(xxx) The Issuers are, and immediately after the Closing Time will
be, Solvent. As used herein, the term "Solvent" means, with respect to
the Issuers on a particular date, that (after giving effect, in the case
of each of the Guarantors, to the limitations contained
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in such Guarantor's Guarantee) on such date (A) the fair market value of
the assets of each of the Issuers exceeds its respective liabilities
(including, without limitation, stated liabilities and identified
contingent liabilities), (B) the present fair salable value of the assets
of each of the Issuers will exceed its respective probable liabilities on
its debts (including, without limitation, stated liabilities and
identified contingent liabilities), (C) the fair market value of each of
the Issuers' total assets exceeds its total liabilities, including
identified contingent liabilities, by an amount at least equal to the
total par value of its common stock, both immediately prior to and after
the Offering, (D) each of the Issuers is and will be able to pay its
debts (including, without limitation, stated liabilities and identified
contingent liabilities) as such debts mature and (E) each of the Issuers
will not have unreasonably small capital with which to conduct its
present and anticipated business.
(xxxi) Except as described in the Offering Memorandum or as would
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect (A) each of the Company and the Subsidiaries is
in compliance with and not subject to any known liability under
applicable Environmental Laws (as defined below), (B) each of the Company
and the Subsidiaries has made all filings and provided all notices
required under any applicable Environmental Law, and has, and is in
compliance with, all permits required under any applicable Environmental
Laws and each of them is in full force and effect, (C) (x) there is no
pending civil, criminal or administrative action, or pending hearing or
suit, (y) neither the Company nor any other Issuer has received any
demand, claim, or notice of violation and (z) to the knowledge of the
Issuers, there is no investigation, proceeding, notice or demand letter
or request for information threatened against the Company or any of the
Subsidiaries in the case of (x), (y) and (z), under any Environmental
Law, (D) no lien, charge, encumbrance or restriction has been recorded
under any Environmental Law with respect to any assets, facility or
property owned, operated, leased or controlled by the Company or any
Subsidiary, (E) neither the Company nor any Subsidiary has received
notice that it has been identified as a potentially responsible party
under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or any comparable state
law, (F) no property or facility of the Company or any Subsidiary is (i)
listed or, to the knowledge of the Issuers proposed for listing on the
National Priorities List under CERCLA or is (ii) listed in the
Comprehensive Environmental Response, Compensation, Liability Information
System List promulgated pursuant to CERCLA, or on any comparable list
maintained by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means all
applicable federal, provincial, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated,
approved or entered thereunder, relating to pollution or protection of
public or employee health and safety or the environment, including,
without limitation, laws relating to (i) emissions, discharges, releases
or threatened releases of Hazardous Materials (as defined below) into the
environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata), (ii) the manufacture,
processing, distribution, use, generation, treatment, storage, disposal,
transport or handling of Hazardous Materials, and (iii) underground and
above ground storage tanks and related piping, and emissions, discharges,
releases or threatened
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releases therefrom. The term "Hazardous Material" means (a) any
"hazardous substance" as defined in the Comprehensive Environmental
Response, the Resource Conservation and Recovery Act, as amended, (b) any
"hazardous waste" as defined by the Resource Conservation and Recovery
Act, as amended, (c) any petroleum or petroleum product, (d) any
polychlorinated biphenyl and (e) any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance.
(xxxii) Except as described in the Offering Memorandum, neither the
Company nor any of the Subsidiaries has incurred any liability for any
prohibited transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or other
plan which is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), to which the Company or the Subsidiaries
makes or ever has made a contribution and in which any employee of the
Company or any such Subsidiary is or has ever been a participant, which
in the aggregate would reasonably be expected to have a Material Adverse
Effect. With respect to such plans, each of the Company and the
Subsidiaries is in compliance in all respects with all applicable
provisions of ERISA, except where the failure to so comply would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(b) Any certificate signed by any officer of any of the Issuers and
delivered to the Initial Purchasers or to counsel for the Initial Purchasers
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Issuers to the Initial Purchasers as to the matters covered
thereby.
SECTION 2. Purchase and Sale of the Securities. The Company agrees
to sell to the Initial Purchasers and, subject to the terms and conditions and
in reliance upon the representations and warranties of the Issuers herein set
forth, each of the Initial Purchasers agrees, severally, to purchase from the
Company, at a purchase price of 97.427% of the principal amount thereof, the
respective principal amount of Securities set forth in Schedule A attached
hereto opposite the name of such Initial Purchaser.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 9:00 A.M., New York City time, on May 21, 1997, or
such later date and time not more than ten (10) business days thereafter as the
Representative and the Company shall agree (such date and time of delivery and
payment for the Securities being herein called the "Closing Time"). Delivery
of the Securities shall be made to the Initial Purchasers against payment by
the Initial Purchasers of the purchase price thereof by wire transfer of funds
immediately available to the order of the Company or as the Company may
direct. Delivery of the Securities in definitive form shall be made at the
offices of ▇▇▇▇▇▇ & Bird, One Atlantic Center, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at such location as the Representative shall
reasonably designate in advance of the Closing Time and payment for the
Securities shall be made in funds immediately available for the account of the
Company or at such other account or accounts designated by the Company. It is
understood that each Initial Purchaser has authorized the Representative, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. ▇▇▇▇▇▇▇
▇▇▇▇▇, individually and not as Representative of the Initial Purchasers, may
(but shall not
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be obligated to) make payment of the purchase price for the Securities to be
purchased by any Initial Purchaser whose funds have not been received by the
Closing Time, but such payment shall not relieve such Initial Purchaser from
its obligations hereunder. Certificates for the Securities shall be registered
in such names and in such denominations ($1,000 or integral multiples thereof)
as the Representative may request not less than one full business day in
advance of the Closing Time.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Initial Purchasers in New York, New York, not
later than 10:00 A.M. on the business day prior to the Closing Time.
SECTION 4. Resale of the Securities. (A) The Initial Purchasers have
advised the Issuers that they propose to offer the Securities for resale upon
the terms and conditions set forth in this Agreement and in the Offering
Memorandum. Each Initial Purchaser hereby represents and warrants (as to
itself only) to, and agrees with, the Issuers that it is purchasing the
Securities for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "Qualified
Institutional Buyer" and is aware that the sale to it is being made in reliance
on Rule 144A under the Act or an Accredited Investor.
(b) Each Initial Purchaser acknowledges that the Securities have not been
registered under the Act and that offers and sales of the Securities will be
made only by the Initial Purchasers or Affiliates thereof qualified to do so in
the jurisdictions in which such offers or sales are made. Each Initial
Purchaser agrees that each such offer or sale shall only be made (i) to persons
whom the offeror or seller reasonably believes to be Qualified Institutional
Buyers that purchase such Securities for their own accounts or for the account
of a Qualified Institutional Buyer to whom notice is given that the transfer is
being made in reliance on Rule 144A, (ii) to persons whom the offeror or seller
reasonably believes to be Accredited Investors that acquire such Securities for
their own accounts or for the account of an Accredited Investor that, prior to
such transfer, furnishes to the Trustee a signed letter containing certain
representations and agreements (the form of which letter can be obtained from
the Trustee), and is acquiring Securities having an aggregate principal amount
of not less than $250,000 or (iii) to non-U.S. Persons outside the United
States to whom the offeror or seller reasonably believes offers and sales of
the Securities may be made in reliance upon Regulation S under the Act.
(c) Each Initial Purchaser will take all reasonable steps to inform, and
cause each of its U.S. affiliates to take all reasonable steps to inform,
persons acquiring Securities from such Initial Purchaser or affiliate, as the
case may be, in the United States that the Securities (i) have not been and
will not be registered under the Act, (ii) are being sold to them without
registration under the Securities Act in reliance on Rule 144A or in accordance
with another exemption from registration under the Act, as the case may be, and
(iii) may not be offered, sold or otherwise transferred except (A) to the
Company or its Subsidiaries, (B) inside the United States to an Accredited
Investor that is acquiring such Securities for its own account or for the
account of an Accredited Investor for investment purposes and not with a view
to, or for offer or sale in connection with, and distribution in violation of
the Act and that, prior to such transfer, furnishes to the Trustee a signed
letter containing certain representations and agreements (the form of which a
letter can be obtained from the Trustee), and is acquiring Securities, and is
acquiring
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Securities having an aggregate principal amount of not less than $250,000, (C)
for so long as such Securities are eligible for resale pursuant to Rule 144A,
to a person it reasonably believes is a Qualified Institutional Buyer that
purchases such Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the transfer is being made in
reliance on Rule 144A, (D) pursuant to offers and sales to non-U.S. Persons
that occur outside the United States pursuant to Rule 904 of Regulation S, (E)
pursuant to an effective registration statement under the Act or (F) pursuant
to another available exemption from the registration requirements of the Act.
(d) Each Initial Purchaser (i) understands that all of the Securities
will bear a legend substantially similar to that set forth in the Indenture,
unless otherwise agreed by the Company and the Trustee; (ii) acknowledges that
none of the Trustee, Transfer Agent or Registrar will be required to accept for
registration of transfer any Securities acquired by it, except upon
presentation of evidence satisfactory to the Company and the Trustee, Transfer
Agent or Registrar, as the case may be, that the restrictions set forth herein
have been complied with; and (iii) acknowledges that the Issuers, the Trustee,
and others will rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements and agrees that if any of the
acknowledgments, representations or agreements deemed to have been made by its
purchase of the Securities are no longer accurate, it shall promptly notify the
Issuers and the Trustee. If it is acquiring the Securities as a fiduciary or
agent for one or more investor accounts, each Initial Purchaser represents that
it has sole investment discretion with respect to each such account and it has
full power to make the foregoing acknowledgments, representations and
agreements on behalf of each account, and that such acknowledgments,
representations and agreements are true and complete with respect to each such
account.
(e) No sale of the Securities to any one purchaser will be for less
than $250,000 principal amount. If any Subsequent Purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom it is acting must
purchase at least $250,000 principal amount of the Securities.
SECTION 5. Covenants of the Issuers. Each of the Issuers covenant with
the Initial Purchasers as follows:
(a) The Issuers will furnish to the Initial Purchasers and counsel
for the Initial Purchasers, without charge, such number of copies of the
Preliminary Offering Memorandum and the Final Offering Memorandum and any
amendments or supplements thereto as the Initial Purchasers and their
counsel may reasonably request.
(b) The Issuers will not at any time make any amendment or
supplement to the Preliminary Offering Memorandum or the Offering
Memorandum without the prior written consent of the Initial Purchasers,
which consent will not be unreasonably withheld or delayed. Neither the
consent of the Initial Purchasers, nor the Initial Purchasers' delivery
of any such amendment or supplement, shall, in and of itself, constitute
a waiver of any of the conditions set forth in Section 7 hereof.
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(c) The Company will immediately notify each Initial Purchaser and
confirm such notice in writing of (x) any filing made by any Issuer
relating to the offering of the Securities with any securities exchange
or any other regulatory body in the United States or any other
jurisdiction and (y) prior to the completion of the placement of the
Securities by the Initial Purchasers as evidenced by a notice in writing
from the Initial Purchasers to the Company, any material changes in or
affecting the earnings, business affairs or business prospects of the
Company and its Subsidiaries which (i) make any statement in the Offering
Memorandum materially false or misleading or (ii) are not disclosed in
the Offering Memorandum and are required to be so disclosed. In such
event or if at any time prior to completion of the placement of the
Securities by the Initial Purchasers to purchasers who are not its
affiliates (as determined by the Initial Purchasers) any other event
shall occur or condition shall exist as a result of which it is
reasonably necessary, in the opinion of the Company, counsel for the
Company, the Initial Purchasers or counsel for the Initial Purchasers, to
amend or supplement the Offering Memorandum in order that the Offering
Memorandum, as then amended or supplemented, will not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances existing at the time it is delivered to a purchaser, not
misleading or if in the opinion of the Company, counsel for the Company,
the Initial Purchasers or counsel for the Initial Purchasers, such
amendment or supplement is necessary to comply with applicable law, the
Issuers will, subject to paragraph (b) of this Section 5, promptly
prepare, at their own expense, such amendment or supplement as may be
necessary to correct such untrue statement or omission or to effect such
compliance (in form and substance reasonably satisfactory to the
Representative and counsel to the Initial Purchasers and whose consent
thereto shall not be unreasonably withheld or delayed), so that as so
amended or supplemented, the statements in the Offering Memorandum will
not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading or so that such Offering Memorandum as so
amended or supplemented will comply with applicable law, as the case may
be, and furnish to the Initial Purchasers such number of copies of such
amendment or supplement as the Initial Purchasers may reasonably request.
Each of the Issuers agrees to notify the Initial Purchasers in writing
to suspend use of the Offering Memorandum as promptly as practicable
after the occurrence of an event specified in this paragraph (c), and the
Initial Purchasers hereby agree upon receipt of such notice from the
Issuers to suspend use of the Offering Memorandum until the Issuers have
amended or supplemented the Offering Memorandum to correct such
misstatement or omission or to effect such compliance.
(d) None of the Issuers nor any of their affiliates (as defined in
Rule 501(b) under the Act ("Affiliates")) will solicit any offer to buy
or offer to sell the Securities, the Exchange Securities or the Private
Exchange Securities, if any, by means of any form of general solicitation
or general advertising (as such terms are used in Regulation D under the
Act), or by means of any directed selling efforts (as defined in Rule 902
under the Act) in the United States in connection with the Securities
being offered and sold pursuant to Regulation S or in any manner
involving a public offering (within the meaning of
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Section 4(2) of the Act) and not exempt under Regulation S, in each case
prior to the effectiveness of a registration statement with respect to
the Securities, the Exchange Securities or the Private Exchange
Securities, as applicable.
(e) None of the Issuers nor any of their affiliates (as defined in
Rule 501(b) under the Act) will offer, sell or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
which could be integrated with the sale of the Securities in a manner
that would require the registration of the Securities under the Act.
(f) The Company will, so long as the Securities are outstanding,
furnish to the Trustee on a timely basis, pursuant to the Indenture,
whether or not the Company has a class of securities registered under the
Exchange Act (i) audited year-end consolidated financial statements of
the Company (including a balance sheet, income statement and statement of
changes of cash flow) prepared in accordance with GAAP and substantially
in the form required under Regulation S-X under the Act and the
information described in Item 303 of Regulation S-K under the Act with
respect to such period and (ii) unaudited quarterly consolidated
financial statements of the Company (including a balance sheet, income
statement and statement of cash flows) prepared in accordance with GAAP
and substantially in the form required by Regulation S-X under the Act
and the information described in Item 303 of Regulation S-K under the Act
with respect to such period and will furnish to the Initial Purchasers
copies of all such reports and information, together with such other
documents, reports and information as shall be furnished by the Company
to the holders of the Securities or to the Trustee. In the event the
Company is not subject to Section 13 or 15(d) of the Exchange Act, the
Company will furnish to holders of Securities and prospective purchasers
of Securities designated by such holders, upon request of such holders or
such prospective purchasers, the information required to be delivered
pursuant to Rule 144A(d)(4) under the Act to permit compliance with Rule
144A in connection with resales of the Securities.
(g) Each of the Issuers will use its reasonable best efforts in
cooperation with the Initial Purchasers to (i) permit the Securities to
be eligible for clearance and settlement through The Depository Trust
Company and (ii) permit the Securities to be designated as PORTAL
securities in accordance with the rules and regulations of the NASD.
(h) Prior to the Closing Time, the Company, will furnish on a
confidential basis to the Initial Purchasers, if and promptly after they
have been prepared, a copy of any unaudited interim consolidated
financial statements of the Company for any period subsequent to the
period covered by the most recent financial statements of the Company
appearing in the Offering Memorandum which have been prepared in the
ordinary course of business.
(i) The Issuers will arrange for the registration and qualification
of the Securities for offering and sale under the applicable securities
or "blue sky" laws of such states and other jurisdictions as the Initial
Purchasers may reasonably designate in connection with the resale of the
Securities as contemplated by this Agreement and the Offering Memorandum
and will continue such qualifications in effect for as long as may be
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necessary to complete the placement of the Securities by the Initial
Purchasers; provided that in no event shall any of the Issuers be
obligated to (i) qualify as a foreign corporation or as a broker or
dealer in securities in any jurisdiction where it would not otherwise be
required to so qualify but for this Section 5(i), (ii) file any general
consent to service of process in any jurisdiction where it is not at the
Closing Time then so subject or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject. The Issuers will file such
statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above
provided. The Issuers shall promptly advise the Initial Purchasers of
the receipt by any of the Issuers of any notification with respect to the
suspension of the qualification or exemption from qualification of the
Securities for offering or sale in any jurisdiction or the institution,
threatening or contemplation of any proceeding for such purpose.
(j) The Company will use the proceeds received from the sale of the
Securities in the manner specified in the Offering Memorandum under the
heading "Use of Proceeds."
(k) The Issuers shall not, for a period of 90 days from the date of
the Offering Memorandum, without the prior written consent of the Initial
Purchasers, directly or indirectly, offer, sell, grant any option to
purchase or otherwise dispose of any debt securities of the Company or
any of the Subsidiaries or securities that are convertible into debt
securities (other than the Exchange Securities and the Private Exchange
Securities, if any). The foregoing shall not include any asset backed
securities or interests therein related to accounts receivables of the
Company and/or any Subsidiary.
(l) Until the expiration of two years after the original issuance of
the Securities, the Company will not, and will cause its Subsidiaries not
to, purchase or agree to purchase or otherwise acquire any Securities
which are "restricted securities" (as such term is defined under Rule
144(a)(3) under the 1933 Act), whether as beneficial owner or otherwise
(except as agent acting as a securities broker on behalf of and for the
account of customers in the ordinary course of business in unsolicited
broker's transactions) unless, upon any such purchase, the Company or any
such affiliate shall submit such Securities to the Trustee for
cancellation.
SECTION 6. Payment of Expenses. (a) Whether or not any sale of the
Securities is consummated, the Issuers agree, jointly and severally, to pay and
bear all costs and expenses incident to the performance of all of the Issuers'
obligations under this Agreement, including (i) the Issuers' preparation and
printing of the Preliminary Offering Memorandum, the Offering Memorandum and
any amendments or supplements thereto and the cost of furnishing copies thereof
to the Initial Purchasers, (ii) the preparation, issuance and printing of the
Securities, the Exchange Securities, the Private Exchange Securities, if any,
and any survey of state securities or "blue sky" laws or legal investment
memoranda, (iii) the delivery to the Initial Purchasers of the Securities, the
Exchange Securities or the Private Exchange Securities, (iv) the fees and
disbursements of the Issuers' counsel and accountants, (v) the qualification,
if required, of the Securities under the applicable state securities or "blue
sky" laws in accordance with the provisions of Section 5(i) hereof and any
filing for review of the offering, if required, with the
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NASD, including filing fees and reasonable fees and disbursements of counsel to
the Initial Purchasers in connection therewith and in connection with the
preparation of any survey of state securities or "blue sky" laws or legal
investment memoranda, (vi) any fees charged by rating agencies for rating the
Securities, the Exchange Securities and the Private Exchange Securities, if
any, (vii) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, (viii) all expenses (including travel
expenses) of the Issuers in connection with any meetings with prospective
investors in the Securities, (ix) one-half of the expenses related to the
charter or use of any aircraft used in connection with any meetings with
prospective investors in the Securities, and (x) all expenses and listing fees
in connection with the application for designation of the Securities as PORTAL
securities and to permit the Securities, the Exchange Securities and the
Private Exchange Securities, as applicable, to be eligible for clearance
through The Depository Trust Company. It being understood that, except as
otherwise expressly provided in this Section 6, the Initial Purchasers shall
pay all other costs and expenses of the Initial Purchasers (including, without
limitation, travel, legal fees and expenses and one-half of the expenses
related to the charter or use of any aircraft used in connection with any
meetings with prospective investors in the Securities).
(b) If the sale of the Securities provided for herein is not
consummated because the Issuers shall have breached any representation,
warranty or covenant or because of any failure, refusal or inability on the
part of any of the Issuers to perform all obligations and satisfy all
conditions on their part to be performed or satisfied hereunder; provided, that
the Initial Purchasers are not at such time in breach or default of their
obligations hereunder and the Initial Purchasers have given notice to the
Company that they are otherwise willing to close the transactions contemplated
hereby at the Closing Time, then the Issuers agree, jointly and severally, to
reimburse the Initial Purchasers promptly upon demand for all reasonable out-
of-pocket expenses (including reasonable fees and disbursements of their
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Securities.
SECTION 7. Conditions of the Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the Securities
are subject to the continued accuracy, as of the Closing Time, of the
representations and warranties of the Issuers herein contained, to the accuracy
of the statements of the Issuers and officers of the Issuers made in any
certificate pursuant to the provisions hereof, to the performance by the
Issuers of their respective obligations hereunder, and to the following further
conditions:
(a) At the Closing Time, the Initial Purchasers shall have received
the opinions of each of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President of Law
and General Counsel of the Company, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PC, and ▇▇▇▇▇▇ &
Bird LLP, each dated as of the Closing Time, which, collectively, are in
the form set forth below and otherwise reasonably satisfactory to the
Initial Purchasers and counsel for the Initial Purchasers, to the effect
that:
(1) The Company and each of the Guarantors has been duly
organized or incorporated, as the case may be, and is validly
existing under the laws of its respective state of incorporation,
with corporate power and authority to own, lease and operate its
assets and properties and conduct its business as described in the
Offering Memorandum and to enter into and perform its obligations
under this
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Agreement and each of the other Operative Documents; the Company
and each of the Guarantors is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which it conducts its business (based on
certificates of officers of the Company) and such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect;
(2) Each of the Issuers has the requisite corporate or
partnership power and authority to own, lease and operate its
assets and properties and to conduct its business as described in
the Offering Memorandum. Each of the Issuers has the requisite
corporate or partnership power and authority to execute, deliver
and perform its obligations under the Operative Documents to which
it is or is to be a party. Each of the Operative Documents has
been duly authorized by each Issuer which is a party thereto;
(3) No consent, waiver, approval, authorization, license,
qualification or order of or filing or registration with, any court
or governmental or regulatory agency or body is required for the
execution and delivery by the Issuers of this Agreement, the
Registration Rights Agreement or the Indenture or for the issue and
sale of the Securities, the Exchange Securities or the Private
Exchange Securities (other than with respect to the delivery in
book-entry form), if any, or the issuance of the Guarantees by the
Guarantors, the performance by the Issuers of their obligations
under the Operative Documents, or for the consummation of any of
the transactions contemplated hereby or thereby, except, such as
may be required (A) in connection with the registration under the
Act of the Exchange Securities or the Private Exchange Securities,
if any, pursuant to the Registration Rights Agreement (including
any filing with the NASD), (B) in connection with the registration
under the Act of the Exchange Securities or the Private Exchange
Securities pursuant to the Registration Rights Agreement, the
qualification of the Indenture under the Trust Indenture Act and
(C) under the "blue sky" laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the Initial
Purchasers (as to which such counsel need express no opinion);
(4) The issuance, sale and delivery of the Securities, the
Exchange Securities and the Private Exchange Securities (other than
with respect to the delivery in book-entry form), if any, the
execution, delivery and performance by the Issuers of this
Agreement, the Registration Rights Agreement and the Indenture (in
each case assuming due authorization and execution by each party
other than the Company), and the consummation by the Issuers of the
transactions contemplated hereby and thereby and the compliance by
the Issuers with the terms of the foregoing do not, and, at the
Closing Time, will not conflict with or constitute or result in a
breach or violation by the Company or any of the Guarantors of (A)
any provision of the Certificate of Incorporation or By-laws of the
Company or such Guarantors, (B) any of the terms or provisions of,
or constitute a default (or an event which, with notice or lapse of
time or both, would
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constitute a default) by the Issuers, or give rise to any right to
accelerate the maturity or require the prepayment of any
indebtedness under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the
Issuers under any material Contract known to such counsel or (C)
any law, statute, rule, or regulation or any order, decree or
judgment known to such counsel to be applicable to the Issuers, of
any court or governmental or regulatory agency or body or
arbitrator known to such counsel to have jurisdiction over the
Issuers or any of their respective properties or assets;
(5) The Purchase Agreement has been duly authorized, executed
and delivered by the Company and each of the Guarantors;
(6) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and each of the
Guarantors and assuming the due execution and delivery thereof by
the Initial Purchasers, constitutes a valid and binding obligation
of each of the Issuers;
(7) The Indenture has been duly authorized, executed and
delivered by the Company and each of the Guarantors and, assuming
the due execution and delivery thereof by the Trustee, constitutes
a valid and binding obligation of each of the Issuers;
(8) The Notes have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions
of the Indenture and delivered and paid for in accordance with the
terms of this Agreement, and the Exchange Securities and the
Private Exchange Securities (other than with respect to the
delivery in book-entry form), if any, when executed, authenticated
and delivered in exchange for the Securities in accordance with the
terms of the Registration Rights Agreement, will be entitled to the
benefits of the Indenture and will constitute valid and binding
obligations of the Company;
(9) the Guarantees have been duly authorized by the Guarantors
and when executed and delivered by the Guarantors in accordance
with the provisions of the Indenture (assuming the due
authentication of the Notes by the Trustee) will be entitled to the
benefits of the Indenture and will be valid and binding obligations
of each of the Guarantors;
(10) To the knowledge of such counsel, other than as described
in the Offering Memorandum, no legal, regulatory or governmental
proceedings are pending or threatened to which the Company or any
of the Subsidiaries is a party or to which the property or assets
of the Company or any of the Subsidiaries are subject which in the
judgment of the Company could reasonably be expected to have a
Material Adverse Effect;
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(11) The descriptions of the Notes, the Guarantees, the
Indenture and the Registration Rights Agreement contained in the
Offering Memorandum fairly describe or summarize such documents in
all material respects;
(12) Neither the Company nor any of the Subsidiaries is in
violation of its respective Organizational Documents; provided,
that with respect to the business purpose clauses of the charter of
the Company and its Subsidiaries, such opinion may be limited to
the knowledge of such counsel after due inquiry; to the knowledge
of such counsel, no default by the Company or any of the Guarantors
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
Contract; and to the knowledge of such counsel, none of the Issuers
is in breach or violation of any law, statute, rule or regulation,
or any judgment, decree or order or governmental or regulatory
agency or other body having jurisdiction over the Company or any of
the Guarantors or any of their respective properties or assets;
(13) Assuming that the representations and warranties of the
Initial Purchasers contained in Section 4 of this Agreement are
true, correct and complete, and assuming compliance by the Initial
Purchasers with their covenants in Section 4 hereof, and assuming
that the representations and warranties contained in the Transferee
Letter (substantially in the form of Appendix A to the Offering
Memorandum) completed by Accredited Investors purchasing Securities
from the Initial Purchasers are true and correct as of the Closing
Time, and assuming compliance by such Accredited Investors with the
agreements in the Transferee Letter, it is not necessary in
connection with the offer, sale and delivery of the Securities to
the Initial Purchasers under, or in connection with the initial
resale of such Securities by the Initial Purchasers in accordance
with, this Agreement to register the Securities under the Act or
to qualify the Indenture under the Trust Indenture Act;
(14) None of the Issuers is an "investment company" or a
company "controlled by" or required to register as an investment
company as such terms are defined in the Investment Company Act of
1940, as amended, and the rules and regulations thereunder;
(15) When the Securities are issued and delivered pursuant to
this Agreement, such Securities will not be of the same class
(within the meaning of Rule 144A) as securities of any of the
Issuers which are listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system; and
(16) Neither the consummation of the transactions contemplated
hereby nor the sale, issuance, execution or delivery of the
Securities will violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
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22
In addition such counsel shall state that such counsel has
participated in conferences with representatives of the Initial
Purchasers, officers and other representatives of the Issuers and
representatives of the independent certified accountants of the Issuers,
at which conferences the contents of the Offering Memorandum and the
business and affairs of the Company and its Subsidiaries were discussed,
and although such counsel has not verified and does not pass upon or
assume any responsibility for the accuracy, completeness or fairness of
the statements contained in the Offering Memorandum (except and only to
the extent set forth in subclause (11) above), on the basis of the
foregoing, no facts have come to the attention of such counsel which lead
such counsel to believe that the Offering Memorandum at the date thereof
or as of the Closing Time, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need not express any comment with respect to the financial
statements, including the notes thereto and supporting schedules, or any
other financial data set forth or referred to in the Offering
Memorandum).
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other
than the Federal law of the United States, the General Corporation Law of
the State of Delaware and the laws of the States of Georgia and Indiana
and (B) may rely, as to matters of fact, to the extent they deem proper
on representations or certificates of responsible officers of the Issuers
and certificates of public officials.
References to the Offering Memorandum in this subsection (a) include
any supplements thereto at or prior to the Closing Time.
(b) The Initial Purchasers shall have received the opinion, dated as
of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial
Purchasers, with respect to certain matters set forth in clauses (6),
(7), (8), (9), (11) and (13) of subsection (a) of this Section 7;
provided, however, that for purposes of the opinions expressed in clauses
(6) through (9), such counsel shall additionally opine on the enforcement
of such documents and agreements.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other
than the Federal laws of the United States, the General Corporation Law
of the State of Delaware and the laws of the State of New York and (B)
may rely, as to matters of fact, to the extent they deem proper on
representations or certificates of responsible officers of the Company
and certificates of public officials.
In addition, such counsel shall additionally state that such counsel
has participated in conferences with officers and other representatives
of the Issuers and representatives of the independent accountants for the
Issuers at which conferences the contents of the Offering Memorandum and
related matters were discussed, and although such counsel has not
verified and does not pass upon and does not assume any responsibility
for the
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accuracy, completeness or fairness of the statements contained in the
Offering Memorandum, on the basis of the foregoing (relying as to
materiality to the extent such counsel deems appropriate upon the
representations and opinions of officers and other representatives of the
Issuers), no facts have come to the attention of such counsel which lead
such counsel to believe that the Offering Memorandum, at the date thereof
or as of the Closing Time, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such
counsel need express no comment with respect to the financial statements,
including the notes thereto, or any other financial or statistical data
found in or derived from the internal accounting or other records of the
Company and its subsidiaries set forth or referred to in the Offering
Memorandum).
(c) The following conditions contained in clauses (i) and (ii) of
this subsection (c) shall have been satisfied at and as of the Closing
Time and the Company shall have furnished to the Initial Purchasers a
certificate, signed by the Chairman of the Board or the President or the
principal financial or accounting officer of the Company, dated as of the
Closing Time, to the effect that the signer of such certificate has
carefully examined the Offering Memorandum, any amendment or supplement
to the Offering Memorandum, and this Agreement and that:
(i) the representations and warranties of the Issuers in this
Agreement are true and correct in all material respects on and as
of the Closing Time with the same effect as if made at the Closing
Time and the Issuers have complied with all the agreements and
satisfied all the conditions under this Agreement on its part to be
performed or satisfied in all material respects at or prior to the
Closing Time;
(ii) since the date of the most recent financial statements
included in the Offering Memorandum (exclusive of any amendment or
supplement thereto), there has been no Material Adverse Change,
whether or not arising in the ordinary course of business. As
used in this subparagraph, the term "Offering Memorandum" means the
Offering Memorandum in the form first used to confirm sales of the
Securities; and
(iii) the sale of the Securities has not been enjoined
(temporarily or permanently).
(d) At the time that this Agreement is signed and at the Closing
Time, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. shall have furnished to the Initial
Purchasers a letter or letters, dated respectively as of the date of this
Agreement and as of the Closing Time, in form and substance satisfactory
to the Initial Purchasers, confirming that they are independent certified
public accountants within the meaning of the Act and the applicable
published rules and regulations thereunder and containing statements and
information of the type ordinarily included in accountants' "comfort
letters" to Initial Purchasers with respect to financial statements and
certain financial information contained in the Offering
-22-
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Memorandum, in form and substance reasonably satisfactory to counsel for
the Initial Purchasers.
(e) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Offering Memorandum (exclusive of any
amendment or supplement thereto) and prior to the Closing Time, there
shall not have been any Material Adverse Change, or any development
involving a prospective Material Adverse Change, in or affecting the
business or properties of the Issuers.
(f) At the Closing Time, counsel for the Initial Purchasers shall
have been furnished with such information, certificates and documents as
they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as contemplated herein and
related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all opinions and certificates mentioned
above or elsewhere in this Agreement shall be reasonably satisfactory in
form and substance to the Initial Purchasers and counsel for the Initial
Purchasers.
(g) The Issuers and the Trustee shall have entered into the
Indenture.
(h) The Issuers and the Initial Purchasers shall have entered into
the Registration Rights Agreement.
(i) At the Closing Time, the Securities shall be rated at least Ba2
by ▇▇▇▇▇'▇ Investor's Service Inc. and BB by Standard & Poor's Ratings
Group, and the Representative shall have received evidence satisfactory
to the Representative, confirming that the Securities have such ratings;
and since the date of this Agreement, there shall not have occurred a
downgrading in the rating assigned to the Securities or any of the
Company's other debt securities by any nationally recognized securities
rating agency, and no such securities rating agency shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of the Securities or any of the
Company's other debt securities.
If any condition specified in this Section 7 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Initial Purchasers by notice to the Issuers, and such
termination shall be without liability of any party to any other party except
as provided in Section 6. Notwithstanding any such termination, the provisions
of Sections 1, 8, 9, 13 and 16 shall remain in effect. Notice of such
cancellation shall be given to the Issuers in writing or by telephone,
facsimile transmission or telegraph confirmed in writing. The Issuers shall
furnish to the Initial Purchasers such conformed copies of such opinions,
certificates, letters and documents in such quantities as the Initial
Purchasers and counsel for the Initial Purchasers shall reasonably request.
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SECTION 8. Indemnification.
(a) The Issuers agree, jointly and severally, to indemnify and hold
harmless the Initial Purchasers, their respective Affiliates, and each person,
if any, who controls any Initial Purchaser or their respective affiliates
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum or the Final Offering Memorandum (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided that
(subject to Sections 8(c) and 8(d) below) any such settlement is effected
with the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of one counsel chosen by
▇▇▇▇▇▇▇ ▇▇▇▇▇ (in addition to any local counsel)), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of any Initial Purchaser through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Preliminary Offering Memorandum or the Final Offering Memorandum (or any
amendment or supplement thereto).
The foregoing indemnity with respect to any untrue statement
contained in or any omission from the Preliminary Offering Memorandum shall not
inure to the benefit of any Initial Purchaser (or any Affiliate or person who
controls such Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) from whom the person asserting any such loss,
liability, claim, damage or expense purchased any of the Securities that are
the subject thereof if such person was not sent or given a copy of the Final
Offering Memorandum (or any amendment or supplement thereto), if the Company
shall have previously furnished copies thereof to the Initial Purchasers in
accordance with this Agreement, at or prior to the written confirmation of the
sale of such Securities to such person and the untrue statement contained in or
the omission
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from the Preliminary Offering Memorandum was corrected in the Final Offering
Memorandum (or any amendment or supplement thereto).
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, their respective directors and each
person, if any, who controls the Issuers within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a) of this Section 8, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Preliminary Offering Memorandum or Final Offering Memorandum (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Issuers by such Initial Purchaser through ▇▇▇▇▇▇▇
▇▇▇▇▇ expressly for use in the Preliminary Offering Memorandum or Final
Offering Memorandum (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, enclosing a copy of all
papers properly served on such indemnified party, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 8(a) above, one counsel to all the indemnified
parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties
indemnified pursuant to Section 8(b) above, counsel to all the indemnified
parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
that counsel to the indemnifying party shall not (except with the consent of
the indemnified party) also be counsel to the indemnified party.
Notwithstanding the foregoing, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying parties
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 8 or Section 9 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes a full and unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and the offer and sale
-25-
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of any Securities and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as to which such indemnified party is liable pursuant to Section 8(a),
(b) or (c), as the case may be, then such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by Section
8(a)(ii) effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 9. Contribution. If the indemnification provided for in Section
8 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuers on the one hand and the
Initial Purchasers on the other hand from the offering of the Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Issuers on the one hand and of the Initial Purchasers
on the other hand in connection with the statements or omissions which resulted
in such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Issuers on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Initial
Purchasers, bear to the aggregate initial offering price of the Securities.
The relative fault of the Issuers on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such 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 Issuers or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuers and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 9. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 9 shall be deemed
to include any legal or
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other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased by it were offered to subsequent
purchasers exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each director of any of the Issuers, each executive officer of
any of the Issuers and each person, if any, who controls any of the Issuers
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Issuers. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 9 are
several in proportion to the principal amount of Securities set forth opposite
their respective names in Schedule A hereto and not joint.
SECTION 10. Representations, Warranties and Agreements To Survive
Delivery. All representations, warranties, indemnities, agreements and other
statements of the Issuers and their respective officers and of the Initial
Purchasers contained in or made pursuant to this Agreement shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Initial Purchaser or controlling person, or by or on behalf
of the Issuers, and shall survive delivery of the Securities to the Initial
Purchasers and the payment therefor by the Initial Purchasers.
SECTION 11. Termination of Agreement.
(a) Termination: General. (a) The Representative may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Time if (i) there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Offering
Memorandum and on or prior to the Closing Time, any Material Adverse Change
whether or not arising in the ordinary course of business, or (ii) since the
date of this Agreement and on or prior to the Closing Time, (A) there has
occurred any material adverse change in the financial markets in the United
States, any outbreak of hostilities or escalation of existing hostilities or
other national or international calamity or crisis or any change or development
involving a prospective change in national or international political,
financial or economic conditions, in each case the effect of which is such as
to make it, in the judgment of the Representative, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (B)
trading in any securities of the Company has been suspended or limited by the
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Commission or the Nasdaq National Market System, or trading generally on the
New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market System has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities generally
have been required, by any such exchange or by order of the Commission, the
NASD or any other governmental authority or (C) a general banking moratorium
has been declared by either Federal or New York authorities. As used in this
Section 11(a), the term "Offering Memorandum" means the Offering Memorandum in
the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section 11, such
termination shall be without liability of any party to any other party except
as provided in Section 6 hereof, and provided further that Sections 1, 8, 9, 13
and 16 shall survive such termination and remain in full force and effect.
(c) This Agreement may also terminate pursuant to the provisions of
Section 7, with the effect stated in such Section.
SECTION 12. Default By One of the Initial Purchasers. If one of the
Initial Purchasers shall fail at the Closing Time to purchase the Securities
which it is obligated to purchase under this Agreement (the "Defaulted
Securities"), the other Initial Purchasers shall have the right, but not the
obligation, within 24 hours thereafter, to make arrangements for the
nondefaulting Initial Purchasers, or any other Initial Purchasers reasonably
satisfactory to the Company, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the other Initial Purchasers shall not have
completed such arrangements within such 24-hour period, then this Agreement
shall terminate without liability on the part of any nondefaulting Initial
Purchaser.
No action pursuant to this Section shall relieve any defaulting Initial
Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the non-defaulting Initial Purchasers or an Issuer shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Offering Memorandum or in
any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section 12.
SECTION 13. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Initial Purchasers c/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, North Tower, World
Financial Center, New York, New York 10281-1305, attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Managing Director; and notices to the Issuers shall be directed to ▇▇▇▇▇▇▇▇'▇
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇.
▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ & Bird LLP, One Atlantic Center, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention: ▇. ▇▇▇▇▇▇ ▇▇▇ and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, III, and to ▇▇▇▇▇▇ & Barnard, PC,
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4000 Bank One Tower, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 14. Information Supplied by the Initial Purchasers. The
statements set forth in the last paragraph on the front cover page and in the
third, fifth and sixth paragraphs under the heading "Plan of Distribution" in
the Offering Memorandum (to the extent such statements relate to the Initial
Purchasers) constitute the only information furnished by the Initial Purchasers
to the Company for the purposes of Sections 1 and 8 hereof.
SECTION 15. Parties. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers and the Issuers and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchasers and the Issuers and their respective successors and the
controlling persons and officers and directors referred to in Sections 8 and 9
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under, by virtue of or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Initial Purchasers and
the Issuers and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any Initial Purchaser shall be deemed to be a successor by reason merely
of such purchase.
SECTION 16. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. Specified times
of day refer to New York time.
SECTION 17. Counterparts. This Agreement may be executed in one or more
counterparts and, when each party has executed a counterpart, all such
counterparts taken together shall constitute one and the same agreement.
[Remainder of Page Intentionally Left Blank]
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement by and among the Initial Purchasers, the Company and the Guarantors
in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇▇'▇, INC.
By:
------------------------------------
Name:
Title:
▇.▇.
▇▇▇▇▇▇▇▇▇'▇, INC.
By:
------------------------------------
Name:
Title:
PARISIAN, INC.
By:
------------------------------------
Name:
Title:
▇▇▇▇▇'▇, INC.
By:
------------------------------------
Name:
Title:
▇▇▇▇▇'▇ STORES PARTNERSHIP
By:
------------------------------------
▇▇▇▇▇'▇, Inc., as managing general
partner
-30-
32
By:
---------------------------------------
Name:
Title:
▇▇▇▇▇'▇ OF ALABAMA, INC.
By:
---------------------------------------
Name:
Title:
Confirmed and accepted as of the date
first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
By:
----------------------------
Name:
Title:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By:
----------------------------
(▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.)
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
---------------------------
Name:
Title:
-31-
33
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Securities
-------------------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated. $ 68,750,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co................................ 28,125,000
▇▇▇▇▇ ▇▇▇▇▇▇ Inc................................... 28,125,000
------------
Total............................................. $125,000,000
34
SCHEDULE B
Guarantors
▇.▇. ▇▇▇▇▇▇▇▇▇'▇, Inc. Delaware
▇▇▇▇▇'▇, Inc. Mississippi
▇▇▇▇▇'▇ of Alabama, Inc. Alabama
▇▇▇▇▇'▇ Stores Partnership Mississippi
Parisian, Inc. Alabama
35
SCHEDULE C
Subsidiaries of the Company
Organized and
Name of Entity Under Laws of
-------------- -------------
▇.▇. ▇▇▇▇▇▇▇▇▇'▇, Inc. Delaware
▇▇▇▇▇'▇, Inc. Mississippi
▇▇▇▇▇'▇ of Alambama, Inc. Alabama
▇▇▇▇▇'▇ Stores Partnership Mississippi
Parisian, Inc. Alabama
▇▇▇▇▇▇▇'▇ Credit Corporation Nevada
Yonkers Credit Corporation Delaware