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Exhibit 10.1
$600,000,000
GLOBIX CORPORATION
12.50% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
January 28, 2000
▇▇▇▇▇▇ BROTHERS INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
ING BARINGS LLC
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Globix Corporation, a Delaware corporation (the "Issuer"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to ▇▇▇▇▇▇ Brothers Inc., Chase Securities Inc., Credit Suisse First Boston
Corporation, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc. and ING Barings LLC (each, an "Initial Purchaser", collectively, the
"Initial Purchasers") $600,000,000 in aggregate principal amount of its 12.50%
Senior Notes due 2010 (the "Initial Notes") to be issued under an indenture (the
"Indenture") between the Issuer and HSBC Bank USA, as Trustee (the "Trustee"),
relating to the Initial Notes.
The Initial Notes will be offered and sold to the Initial
Purchasers without being registered under the United States Securities Act of
1933, as amended (the "Securities Act"), in reliance upon one or more exemptions
therefrom. The Issuer has prepared a preliminary offering memorandum dated
January 12, 2000 (the "Preliminary Offering Memorandum") and will prepare an
offering memorandum dated the date hereof (the "Offering Memorandum") setting
forth information concerning the Issuer, the Initial Notes and the Registration
Rights Agreement (as defined below). Copies of the Preliminary Offering
Memorandum have been, and copies of the Offering Memorandum will be, delivered
by the Issuer to the Initial Purchasers pursuant to the terms of this Agreement.
Any reference herein to the Preliminary Offering Memorandum and the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted. The Issuer confirms that it has authorized the use of
the Preliminary Offering Memorandum and the Offering Memorandum in connection
with the offering and resale of the Initial Notes by the Initial Purchasers in
accordance with Section 3.
Upon original issuance thereof, and until such time as the
same is no longer
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required under the applicable requirements of the Securities Act, the Initial
Notes (and all securities issued in exchange therefor or in substitution
thereof) shall bear the following legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A)
IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION"
PURSUANT TO RULE 904 OF REGULATION S, (2) AGREES THAT IT WILL
NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO GLOBIX, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES 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 WITHIN
THE MEANING OF REGULATION S UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHICH THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED
THAT GLOBIX AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR
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OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN
EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION
OR TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S
UNDER THE SECURITIES ACT.
You have represented and warranted to the Issuer that you will
make offers (the "Exempt Resales") of the Initial Notes purchased by you
hereunder on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom you reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Securities Act
("QIBs"), and (ii) to persons other than U.S. Persons in offshore transactions
meeting the requirements of Rule 903 and 904 of Regulation S under the
Securities Act (such persons specified in clauses (i) and (ii) being referred to
herein as the "Eligible Purchasers"). As used herein, the terms "offshore
transaction" and "U.S. person" have the respective meanings given to them in
Regulation S. You will offer the Initial Notes to Eligible Purchasers initially
at a price equal to 100% of the principal amount thereof. Such price may be
changed at any time without notice.
Holders of the Initial Notes (including the Initial Purchasers
and their direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, dated the Closing Date (as defined in Section 3
below), among the Issuer and the Initial Purchasers, substantially in the form
attached hereto as Annex A (the "Registration Rights Agreement"). Pursuant to
the Registration Rights Agreement, the Issuer will agree to file with the
Securities and Exchange Commission (the "Commission") under the circumstances
set forth therein, (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") relating to the Company's 12.50% Series
B Notes due 2010 (the "New Notes" and, together with the Initial Notes, the
"Notes") to be offered in exchange for the Initial Notes (such offer to exchange
being referred to collectively as the "Exchange Offer") and (ii) a shelf
registration statement pursuant to Rule 415 under the Securities Act (the "Shelf
Registration Statement," and together with the Exchange Offer Registration
Statement, the "Registration Statements") relating to the resale of the Initial
Notes by certain holders of such notes, and to use its best efforts to cause
such Registration Statements to be declared effective. This Agreement, the
Indenture, the Initial Notes, the New Notes and the Registration Rights
Agreement are referred to herein collectively as the "Operative Documents."
1. Representations, Warranties and Agreements of the Issuer.
The Issuer represents, warrants to and agrees with, the Initial Purchasers that:
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(a) The Preliminary Offering Memorandum did not as of its date
and the Offering Memorandum, did not as of its date and will not as of the
Closing Date, contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided that the Issuer does not make any representation
or warranty as to information contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum in reliance upon and in
conformity with written information furnished to the Issuer by or on the behalf
of any Initial Purchaser through ▇▇▇▇▇▇ Brothers Inc. specifically for inclusion
therein.
(b) The Preliminary Offering Memorandum and the Offering
Memorandum have been prepared by the Issuer for use by the Initial Purchasers in
connection with the Exempt Resales. No order or decree preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any order
asserting that the transactions contemplated by this Agreement are subject to
the registration requirements of the Securities Act, has been issued and no
proceeding for that purpose has commenced or is pending or, to the knowledge of
the Issuer, is contemplated.
(c) Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 3 and their compliance
with the agreements set forth herein, it is not necessary, in connection with
the issuance and sale of the Initial Notes to the Initial Purchasers and the
offer, resale and delivery of the Initial Notes by the Initial Purchasers in the
manner contemplated by this Agreement and the Offering Memorandum, to register
the Initial Notes under the Securities Act or to qualify the Indenture under the
United States Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
(d) Each of the Issuer and its material subsidiaries has been
duly incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Offering Memorandum and
to own, lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the business, earnings,
prospects, financial condition or results of operations of the Issuer and its
subsidiaries, taken as a whole ("Material Adverse Effect"). The following list
constitutes the Issuer's only material subsidiaries: NAFT International Ltd.,
NAFT Computer Service Corp., ATC Merger Corp., PFM Communications, Inc., Globix
Limited, GLX Leasing Limited and Globix Holding U.K. Ltd.
(e) The Issuer has an authorized capitalization as set forth
in the Offering Memorandum, and all of the issued and outstanding shares of
capital stock of the Issuer have been duly and validly authorized and issued,
are fully paid and nonassessable and conform to the description thereof
contained in the Offering Memorandum. Except as otherwise disclosed in the
Offering Memorandum, all of the issued and outstanding shares of capital stock
owned directly or indirectly by the Issuer of each subsidiary of the Issuer have
been duly and validly authorized
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and issued and are fully paid and nonassessable and are owned directly or
indirectly by the Issuer, free and clear of all liens, encumbrances, equities or
claims (each, a "Lien"). Except as set forth in the Offering Memorandum, the
Issuer does not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other entity,
other than its subsidiaries and interests with a book value of less than $20.0
million and which do not require (by contract, law or otherwise) any additional
investments to be made. Complete and correct copies of the certificates of
incorporation and of the by-laws (or other organizational or constitutive
documents) of the Issuer and each of the material subsidiaries, and all
amendments thereto, have been delivered to the Initial Purchasers, and no
changes will be made between to the date hereof and the Closing Date.
(f) The execution, delivery and performance of the Operative
Documents by the Issuer and the consummation of the transactions contemplated
hereby and thereby, including the issuance of the Initial Notes and the New
Notes, will not (w) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under (or with the giving of
notice or the passage of time or both would constitute a default under), any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Issuer or any of its subsidiaries is a party or by which
the Issuer or any of its subsidiaries is bound or to which any of the properties
or assets of the Issuer or any of its subsidiaries is subject, (x) result in any
violation of the provisions of the certificate of incorporation, by-laws or
other constitutive document of the Issuer or any of its subsidiaries, (y) result
in the suspension, termination or revocation of any Authorization (as defined
below) of the Issuer or any of its subsidiaries or any other impairment of the
rights of the holder of any such authorization or (z) result in any violation of
any statute or any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Issuer or any of its subsidiaries or any of
their properties or assets, except, with respect to clauses (w) and (z), to the
extent that any conflict, breach or violation thereof would not result in a
Material Adverse Effect; and no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of the Operative Documents
by the Issuer, and the consummation of the transactions contemplated hereby and
thereby except (i) with respect to the transactions contemplated by the
Registration Rights Agreement, as may be required under the Securities Act, the
Trust Indenture Act and the rules and regulations of the Commission thereunder
and (ii) as required by state securities laws.
(g) There are no legal or governmental actions, suits, claims,
arbitrations or proceedings pending or, to the best of Issuer's knowledge,
threatened to which the Issuer or any of its subsidiaries is or could reasonably
be expected to be a party or to which any of their respective property is or
could reasonably be expected to be subject that are required to be described in
the Offering Memorandum and are not so described; nor are there any statutes,
regulations, contracts or other documents that are required to be described in
the Offering Memorandum that are not so described as required.
(h) Neither the Issuer nor any of its subsidiaries has
violated any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively,
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"Environmental Laws"), any provisions of the Employee Retirement Income Security
Act of 1974, as amended, or any provisions of the Foreign Corrupt Practices Act
or the rules and regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a Material Adverse Effect.
(i) Each of the Issuer and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "Authorization") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a Material Adverse Effect. Each such
Authorization is valid and in full force and effect and each of the Issuer and
its subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including, without
limitation, the receipt of any notice from any authority or governing body)
which allows or, after notice or lapse of time or both, would allow, revocation,
suspension or termination of any such Authorization or results or, after notice
or lapse of time or both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations contain no
restrictions that are burdensome to the Issuer or any of its subsidiaries;
except where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(j) After due inquiry, the Issuer reasonably believes that
there are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
Authorization, any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate, have a
Material Adverse Effect.
(k) The Issuer has full power and authority to execute,
deliver and perform its obligations under this Agreement; this Agreement and the
transactions contemplated hereby have been duly authorized, executed and
delivered by the Issuer; the Issuer has taken, received or fulfilled all
actions, authorizations and conditions necessary in connection with this
Agreement and the transactions contemplated hereby; and this Agreement
constitutes the legal, valid and binding agreement of the Issuer, enforceable
against the Issuer in accordance with its terms, except as the enforceability
thereof may be limited by (i) applicable bankruptcy, insolvency, reorganization,
moratorium or other laws now or hereafter in effect relating to or affecting
creditors' rights generally and (ii) general principles of equity (regardless of
whether such enforcement is considered in a proceeding in equity or at law) and
except to the extent that rights to indemnification thereunder may be limited by
applicable federal or state securities laws or unenforceable as against public
policy.
(l) The Issuer has full power and authority to enter into the
Indenture; the Indenture has been duly authorized by the Issuer and, upon the
effectiveness of a ▇▇▇▇▇▇▇▇▇▇▇▇
▇
▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ qualified under the Trust Indenture Act; on the Closing Date,
the Indenture will have been duly executed and delivered by the Issuer and,
assuming due authorization, execution and delivery of the Indenture by the
Trustee, the Indenture will constitute a valid and legally binding obligation of
the Issuer, enforceable in accordance with its terms, except that the
enforcement thereof may be subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and that, to the extent the Indenture is described in
the Offering Memorandum, such description conforms in all material respects with
the terms and conditions of the Indenture.
(m) The Issuer has full corporate power and authority to issue
and sell the Initial Notes; the Initial Notes have been duly authorized by the
Issuer; when the Initial Notes are delivered and paid for pursuant to this
Agreement on the Closing Date, such Initial Notes will have been duly executed,
authenticated, issued and delivered in accordance with the provisions of the
Indenture and, assuming due authentication of the Initial Notes by the Trustee,
such Initial Notes will constitute valid and legally binding obligations of the
Issuer, entitled to the benefits of the Indenture and enforceable in accordance
with their terms, except that the enforcement thereof may be subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; and the Initial Notes
conform in all material respects to the description thereof contained in the
Offering Memorandum.
(n) The Issuer has full corporate power and authority to issue
the New Notes; the New Notes have been duly and validly authorized by the
Company and if and when duly issued and authenticated in accordance with the
terms of the Indenture and, assuming due authentication of the New Notes by the
Trustee, upon delivery in accordance with the Exchange Offer provided for in the
Registration Rights Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms (subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general
principals of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a
proceeding in equity or at law).
(o) The Issuer has full corporate power and authority to enter
into the Registration Rights Agreement; the Registration Rights Agreement and
the transactions contemplated thereby have been duly authorized by the Issuer;
when the Registration Rights Agreement is duly executed and delivered by the
Issuer (assuming due authorization, execution and delivery by the Initial
Purchasers), it will be a valid and legally binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms, except that the
enforcement thereof may be subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law) and an implied
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covenant of good faith and fair dealing, and except with respect to the rights
of indemnification and contribution thereunder, where enforcement thereof may be
limited by United States federal or state securities laws or the policies
underlying such laws; and the Registration Rights Agreement conforms in all
material respects to the description thereof contained in the Offering
Memorandum.
(p) Except for the Registration Rights Agreement, there are no
contracts, agreements or understandings involving the Issuer or any of the
subsidiaries, granting any person the right to require the Issuer to include any
securities in a registration statement filed with respect to the Initial Notes
pursuant to the Registration Rights Agreement.
(q) Except as disclosed in the Offering Memorandum neither the
Issuer nor any of its subsidiaries has sustained, since the date of the latest
audited financial statements (which is November 18, 1999, and, with respect to
the matter discussed in the second paragraph of Note 12, December 30, 1999)
included in the Offering Memorandum, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, except for losses and interferences which do not, in the aggregate, have
a Material Adverse Effect; and, since such date, (i) there has not been any
change resulting in, or any development involving a prospective change which is
reasonably likely to result in, a Material Adverse Effect, (ii) there has not
been any material adverse change or any development involving a prospective
material decrease in the capital stock or increase in the long-term debt of the
Issuer or any of its subsidiaries, (iii) neither the Issuer nor any of its
subsidiaries has incurred any material liability or obligation, direct or
contingent, outside of the ordinary course of business and (iv) neither the
Issuer nor any of its subsidiaries has entered into any material transaction,
except transactions in the ordinary course of business.
(r) The consolidated financial statements included in the
Offering Memorandum (and any amendment or supplement thereto), together with
related schedules and notes, present fairly the consolidated financial position,
results of operations and changes in financial position of the Issuer and its
subsidiaries on the basis stated therein at the respective dates or for the
respective periods to which they apply; such statements and related schedules
and notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; the supporting schedules, if any, included in the Offering
Memorandum present fairly in accordance with generally accepted accounting
principles the information required to be stated therein; and the other
financial and statistical information and data set forth in the Offering
Memorandum (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Issuer.
(s) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, who has certified the consolidated
financial statements of the Issuer included in the Offering Memorandum, whose
report appears in the Offering Memorandum, are independent public accountants as
required by the Securities Act and the rules
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and regulations thereunder.
(t) The Issuer and each of its subsidiaries have good and
marketable title to all real property and good and marketable title to all
personal property owned by them, except to the extent that the failure to have
such title would not have a Material Adverse Effect, in each case free and clear
of all liens, encumbrances and defects except such as are described in the
Offering Memorandum or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be
made of such property by the Issuer and its subsidiaries; and all real property
and buildings held under lease by the Issuer and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Issuer and its subsidiaries, in each case
except as described in the Offering Memorandum.
(u) Except as otherwise set forth in the Preliminary Offering
Memorandum and the Offering Memorandum, the agreements to which the Issuer
and/or its subsidiaries are a party are legal, valid and binding agreements,
enforceable against the Issuer or such subsidiaries, as applicable, in
accordance with their terms, except as the enforceability thereof may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting creditors' rights generally or by general principles of
equity, and the Issuer is not in material breach or default under any of such
agreements and, to the best of the Issuer's knowledge, the other contracting
party or parties thereto are not in material breach or default under any of such
agreements, except to the extent as would not reasonably be expected to have a
Material Adverse Effect.
(v) The Issuer and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; and neither the Issuer nor any of its subsidiaries (i) has received
notice from any insurer or agent of such insurer that substantial capital
improvements or other material expenditures will have to be made in order to
continue such insurance or (ii) has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers at a cost that would not
have a Material Adverse Effect.
(w) No relationship, direct or indirect, exists between or
among the Issuer or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Issuer or any of its
subsidiaries on the other hand, which would be required to be disclosed in a
registration statement on Form S-1 under the Securities Act and is not so
disclosed.
(x) There is no (i) significant unfair labor practice
complaint, grievance or arbitration proceeding pending or, to the Issuer's best
knowledge, threatened against the Issuer or any of its subsidiaries before the
National Labor Relations Board or any state or local labor relations board, (ii)
strike, labor dispute, slowdown or stoppage pending or, to the Issuer's best
knowledge, threatened against the Issuer or any of its subsidiaries or (iii)
union representation question existing with respect to the employees of the
Issuer and its subsidiaries, except for such
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actions specified in clause (i), (ii) or (iii) above, which, singly or in the
aggregate, would not have a Material Adverse Effect. To the best of the Issuer's
knowledge, no collective bargaining organizing activities are taking place with
respect to the Issuer or any of its subsidiaries.
(y) The Issuer and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) All material tax returns required to be filed by the
Issuer and each of its subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and other
charges due pursuant to such returns or pursuant to any assessment received by
the Issuer or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(aa) The Issuer owns or has valid rights to use all patents,
trademarks, service marks, tradenames, domain names, software, databases,
technology, copyrights, franchises, formulae, licenses, inventions, trade
secrets, know-how and all other intellectual property rights ("Intellectual
Property") described in the Offering Memorandum as being owned by it or
necessary for the conduct of its business, as now conducted or (together with
the Intellectual Property as the Issuer reasonably expects it can obtain)
hereafter proposed to be conducted as described in the Offering Memorandum. The
Issuer is not aware of any infringement of or conflict with such rights or any
claims to the contrary or any challenge by any other person to the validity,
enforceability and/or rights of the Issuer with respect to the foregoing, except
as would not reasonably be expected to result in a Material Adverse Effect. The
Issuer's business as now conducted does not and as proposed to be conducted, to
the Issuer's knowledge will not infringe or conflict with in any material
respect with the Intellectual Property of any person. No claim, suit, action,
arbitration, proceeding, order, decree, judgment or settlement is outstanding or
pending or threatened against the Issuer alleging the infringement by the Issuer
of any Intellectual Property of any person or challenging the validity,
enforceability and/or ownership of any Intellectual Property owned or used by
the Issuer, except as would not reasonably be expected to result in a Material
Adverse Effect. There is no pending or threatened action, proceeding or claim by
the Issuer that any third party is infringing the Issuer's Intellectual
Property. The Issuer has duly and properly filed or caused to be filed with the
United States Patent and Trademark Office all United States patent applications
described in the Offering Memorandum as filed by it. The Issuer owns exclusively
its patent and patent applications described in the Offering Memorandum. The
Issuer takes all reasonable actions to protect and maintain its Intellectual
Property.
(bb) No event has occurred nor has any circumstance arisen
which, had the
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Initial Notes been issued on the Closing Date, would constitute a default or an
Event of Default (as such term is defined in the Indenture).
(cc) Neither the Issuer nor any of its subsidiaries is in
violation of its certificate of incorporation or by-laws or equivalent
constitutive documents; and neither the Issuer nor any of its subsidiaries is,
except as otherwise described in the Offering Memorandum (i) in default, and no
event has occurred which, with notice, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (ii) in violation in any respect of any law,
ordinance, governmental rule, regulation or court decree to which it or its
properties or assets may be subject except, in the case of both clause (i) and
(ii), defaults and violations which the Issuer reasonably believes will not, in
the aggregate, result in a Material Adverse Effect.
(dd) Each certificate signed by any officer of the Issuer and
delivered to the Initial Purchasers or counsel for the Initial Purchasers shall
be deemed to be a representation and warranty by the Issuer to the Initial
Purchasers as to the matters covered thereby.
(ee) The Issuer has timely and properly filed with the
Commission all reports and other documents required to have been filed by it
with the Commission pursuant to the Securities Act, the Exchange Act and the
rules and regulations under each of such Acts. True and complete copies of all
such reports and other documents have been delivered or made available to you or
your counsel.
(ff) Neither the Issuer nor any of its subsidiaries has at any
time during the last five (5) years (i) made any unlawful contribution to any
candidate for foreign office or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any federal or state governmental
officer or official, or other person charged with similar public or quasi-public
duties, other than payments required or permitted by the laws of the United
States or any jurisdiction thereof.
(gg) The Issuer is not and, after giving effect to the
offering and sale of the Initial Notes and the applicable proceeds thereof as
described in the Offering Memorandum, will not be an "investment company" within
the meaning of and subject to regulation under the Investment Company Act of
1940, as amended (the "Investment Company Act").
(hh) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Notes are listed on any
national securities exchange, registered under Section 6 of the Exchange Act or
quoted on an automated inter-dealer quotation system.
(ii) Neither the Issuer nor any of its affiliates (as defined
in Rule 501(b) of Regulation D promulgated under the Securities Act ("Regulation
D")), nor any agent acting on its or their behalf (other than the Initial
Purchasers, about which no representation is made by the Issuer), has offered or
will offer or sell the Notes by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities Act
or in any manner
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involving a public offering within the meaning of Section 4(2) of the Securities
Act; the Issuer has not entered into any contractual arrangement with respect to
the distribution of the Notes except for this Agreement and the Issuer will not
enter into any such arrangement.
(jj) Neither of Issuer, nor any of its affiliates (as defined
in Rule 501(b) of Regulation D) nor any person acting on behalf of any such
person (other than the Initial Purchasers, about which no representation is made
by the Issuer), has, directly or through any agent, sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any "security"
(as defined in the Securities Act) which is or will be integrated with the sale
of the Notes in a manner that would require the registration under the
Securities Act of the Notes.
(kk) Neither of the Issuer nor any of its subsidiaries has
taken, directly or indirectly, any action which is designed to or which has
constituted or which might reasonably have been expected to cause or result in
stabilization or manipulation of the price of any security of the Issuer in
connection with the offering of the Notes.
(ll) The Issuer has not distributed and will not distribute
prior to the later of (i) the Closing Date and (ii) completion of the
distribution of the Initial Notes, any offering material in connection with the
offering and sale of the Notes other than the Preliminary Offering Memorandum
and the Offering Memorandum.
(mm) Assuming (i) that your representations and warranties in
Section 2 hereof are true, (ii) compliance by you with your covenants set forth
in Section 2 hereof and (iii) that each of the Eligible Purchasers is either (A)
an entity that you reasonably believe to be a QIB or (B) a person who is not a
"U.S. person" and who acquires the Initial Securities outside the United States
in an "offshore transaction" (within the meaning of Regulation S), the purchase
of the Initial Notes by you pursuant hereto and the resale of the Initial Notes
pursuant to the Exempt Resales is exempt from the registration requirements of
the Securities Act.
(nn) The Issuer has been advised by the Private Offerings,
Resale and Trading through Automated Linkages Market of The National Stock
Market, Inc. (the "Portal Market") that the Initial Notes have been designated
PORTAL-eligible securities in accordance with the rules and regulation of the
National Association of Securities Dealers, Inc.
(oo) Neither the Issuer nor any of its affiliates or any
person acting on its or their behalf has engaged or will engage during the
applicable restricted period in any directed selling efforts within the meaning
of Rule 902(b) of Regulation S with respect to the Notes, and the Issuer and its
affiliates and all persons acting on their behalf have complied with and will
comply with the offering restriction requirements of Regulation S in connection
with the offering of the Notes outside the United States; provided that no
representation is made hereby as to the Initial Purchasers or any person, acting
on their behalf.
(pp) The sale of the Initial Notes pursuant to Regulation S
are "offshore
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transactions" and are not part of a plan or scheme to evade the registration
provisions of the Securities Act.
(qq) The Issuer is not required to deliver the information
specified in Rule 144A(d)(4) under the Securities Act in connection with the
Exempt Resales.
2. Representations, Warranties and Agreements of the Initial
Purchasers. Each Initial Purchaser represents, warrants to and agrees with, the
Issuer that:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Initial Notes.
(b) Such Initial Purchaser (i) is not acquiring the Initial
Notes with a view to any distribution thereof or with any present intention of
offering or selling any of the Initial Notes in a transaction that would violate
the Securities Act or the securities laws of any State of the United States or
any other applicable jurisdiction; (ii) will solicit offers to buy the Initial
Notes only from and will offer to sell the Initial Notes only to, the Eligible
Purchasers in accordance with this Agreement and on the terms contemplated by
the Offering Memorandum; and (iii) will not offer or sell the Initial Notes
pursuant to, nor has it offered or sold the Initial Notes by, or otherwise
engaged in, any form of general solicitation or general advertising (within the
meaning of Regulation D; including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising).
(c) Such Initial Purchaser represents that it has not offered,
sold or delivered the Initial Notes, and will not offer, sell or deliver the
Initial Notes (i) as part of its distribution at any time or (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, within the United States or to, or for the account or benefit of
U.S. persons, except in accordance with Rule 144A under the Act. Accordingly,
such Initial Purchaser represents and agrees that neither it, its affiliates nor
any persons acting on its or their behalf has engaged or will engage in any
directed selling efforts within the meaning of Rule 902(b) of Regulation S with
respect to the Initial Notes, and it, its affiliates and all persons acting on
its behalf have complied and will comply with the offering restrictions
requirements of Regulation S.
(d) Such Initial Purchaser further represents and agrees that
(i) it has not offered or sold and will not offer or sell any Initial Notes to
persons in the United Kingdom prior to the expiry of the period of six months
from the issue date of the Initial Notes, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ with respect to
anything done by it in relation to the Initial Notes in, from or otherwise
involving the United Kingdom, and (iii) it has only issued or passed on and will
only issue or pass on in the
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▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ any document received by it in connection with the issuance of
the Initial Notes to a person who is a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment advertisements) (Exemptions) Order 1995
or is a person to whom the document may otherwise lawfully be issued or passed
on.
(e) Such Initial Purchaser agrees not to cause any
advertisement of the Initial Notes to be published in any newspaper or
periodical or posted in any public place and not to issue any circular relating
to the Initial Notes, except such advertisements as may be permitted by law.
(f) Such Initial Purchaser understands that the Issuer and,
for purposes of the opinions to be delivered to you pursuant to Section 6
hereof, counsel to the Issuer and counsel to the Initial Purchasers, will rely
upon the accuracy and truth of the foregoing representations and you hereby
consent to such reliance.
The terms used in this Section 2 that have meanings assigned
to them in Regulation S are used herein as so defined.
3. Purchase, Sale and Delivery of Notes.
(a) Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Issuer agrees to sell
to each Initial Purchaser, and each Initial Purchaser agrees, severally and not
jointly, to purchase from the Issuer, the principal amount of Initial Notes set
forth opposite such Initial Purchaser's name in Schedule I hereto, at a purchase
price equal to 97% of their principal amount, plus accrued interest, if any (the
"purchase price").
Delivery of and payment for the Initial Notes shall be made at
9:00 a.m., New York time, on February 8, 2000, or such later date as the Initial
Purchasers shall designate, which date and time may be postponed by agreement
between the Initial Purchasers and the Issuer or as provided in Section 9 (such
date and time of delivery and payment for the Initial Notes being herein called
the "Closing Date"). Delivery of the Initial Notes shall be made to the Initial
Purchasers against payment of the purchase price in US dollars (after the
deduction of costs and expenses incurred pursuant to Section 5) by the Initial
Purchasers through the Initial Purchasers. Payment for the Initial Notes shall
be effected either by wire transfer of immediately available funds to an account
with a bank in The City of New York, the account number and the ABA number for
such bank to be provided by the Issuer to the Initial Purchasers at least two
business days in advance of the Closing Date, or by such other manner of payment
as may be agreed by the Issuer and the Initial Purchasers.
(b) The Issuer will deliver against payment of the purchase
price the Initial Notes in the form of one or more permanent global certificates
(the "Global Notes"), deposited with DTC or its nominee. Beneficial interests in
the Notes will be shown on, and transfers thereof will be effected only through,
records maintained in book-entry form by DTC and its participants.
4. Further Agreements of the Issuer. The Issuer agrees:
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(a) The Issuer will advise the Initial Purchasers promptly of
any proposal to amend or supplement the Offering Memorandum and will not effect
such amendment or supplementation to which the Initial Purchasers reasonably
object. If, at any time prior to completion of the resale of the Initial Notes
by the Initial Purchasers (such time not to exceed two years from the Closing
Date), any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Offering Memorandum in order that 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, the Issuer shall promptly notify the Initial
Purchasers of such event or occurrence and shall promptly prepare, subject to
the first sentence of this Section 4(a), such amendment or supplement as may be
necessary to correct such untrue statement or omission. Neither the Initial
Purchasers' consent to, nor their delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the conditions set
forth in Section 6.
(b) The Issuer will furnish to the Initial Purchasers and to
counsel for the Initial Purchasers copies of the Preliminary Offering Memorandum
and the Offering Memorandum (and all amendments and supplements thereto) in each
case as soon as available and in such quantities as the Initial Purchasers
reasonably requests for internal use and for distribution to prospective
purchasers. The Issuer will pay the expenses of printing and distributing to the
Initial Purchasers all such documents.
(c) Promptly from time to time the Issuer will use its
reasonable efforts to take such action as the Initial Purchasers may reasonably
request, in cooperation with the Initial Purchasers, to qualify the Initial
Notes for offering and sale under the securities laws of such jurisdictions as
the Initial Purchasers may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions in the
United States or Canada for as long as may be necessary to complete the resale
of the Initial Notes; provided that in connection therewith the Issuer shall not
be required to qualify as a foreign corporation or otherwise subject itself to
taxation in any jurisdiction in which it is not otherwise so qualified or
subject.
(d) The Issuer will apply the proceeds from the sale of the
Initial Notes as set forth under "Use of Proceeds" in the Offering Memorandum.
(e) Until the second anniversary of the last Closing Date, the
Issuer will, upon request, furnish to the Initial Purchasers and any holder of
Transfer Restricted Securities (as defined in the Registration Rights
Agreement), a copy of the restrictions on transfer which the Issuer believes are
applicable to the Transfer Restricted Securities; provided, however, that
nothing contained herein shall obligate the Issuer to track or trace particular
Transfer Restricted Securities held by anyone other than the Issuer or any of
its affiliates (as defined in Rule 144 under the Securities Act).
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(f) In connection with the offering of the Initial Notes,
until the Initial Purchasers shall have notified the Issuer of the completion of
the resale of the Initial Notes, none of the Issuer, or any of its affiliates
has or will, either alone or with one or more other persons, take any action,
directly or indirectly, which is designed to or which has constituted or which
might reasonably have been expected to cause or result in stabilization or
manipulation of the price of any security of the Issuer in connection with the
offering of the Initial Notes.
(g) For a period of 90 days after the date hereof, the Issuer,
its direct or indirect subsidiaries and its affiliates will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
debt securities issued or guaranteed by the Issuer or any of its affiliates and
subsidiaries (except the New Notes in connection with the Exchange Offer),
without the prior written consent of ▇▇▇▇▇▇ Brothers Inc. Neither the Issuer nor
any of its direct or indirect subsidiaries will at any time offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the Securities
Act to cease to be applicable to the offer and sale of the Initial Notes.
(h) So long as any of the Initial Notes are "restricted
securities" within the meaning of Rule 144 (a) (3) under the Securities Act, the
Issuer will provide to any holder of the Initial Notes or to any prospective
purchaser of the Initial Notes designated by any holder, upon request of such
holder or prospective purchaser, information required to be provided by Rule
144A (d) (4) or Rule 144(c) of the Securities Act if, at the time of such
request, the Issuer is not subject to the reporting requirements under Section
13 or 15 (d) of the Exchange Act.
(i) Each of the Initial Notes will bear, to the extent
applicable, the applicable legend contained in "Notice to Investors" in the
Offering Memorandum for the time period and upon the other terms stated therein,
except after the Initial Notes are resold pursuant to a registration statement
effective under the Securities Act.
(j) The Issuer will take such steps as shall be necessary to
ensure that it shall not become an "investment company" within the meaning of
such term under the Investment Company Act, and the rules and regulations of the
Commission thereunder.
(k) The Issuer will use its best efforts to arrange for the
Notes to be accepted for clearance and settlement through DTC. In addition, the
Issuer will use its best efforts to cause the Initial Notes to be eligible for
inclusion in the Portal Market.
(l) The Issuer will cause all Notes to be listed on each
securities exchange or automated quotation system on which similar securities
issued by the Issuer are then listed prior to the effectiveness of the
Registration Statement.
5. Expenses. The Issuer agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Notes, and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and distribution of the Preliminary Offering Memorandum, the Offering Memorandum
and any amendment or supplement to the Offering Memorandum, all
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as provided in this Agreement; (c) the costs of producing and distributing the
Operative Documents; (d) the fees and expenses of qualifying the Notes under the
securities laws of the several jurisdictions as provided in Section 4(c) and of
preparing, printing and distributing a Blue Sky Memorandum (including reasonable
related fees and expenses of counsel to the Initial Purchasers); (e) all costs
and expenses incident to (i) the preparation of the "road show" presentation
materials and (ii) the road show travelling expenses of the Issuer; (f) the
costs of preparing the Global Notes; (g) all expenses and fees in connection
with the application for inclusion of the Initial Notes in the PORTAL Market,
and the inclusion of the Notes on each securities exchange or automated
quotation system on which similar securities issued by the Issuer are listed;
(h) the fees and expenses (including fees and disbursements of counsel) of the
Trustee; (i) the cost and charges of any transfer agent or registrar; (j) all
stamp or other issuance or transfer taxes or governmental duties, if any,
payable by the Initial Purchasers in connection with the offer and sale of the
Initial Notes to the Initial Purchasers and by the Initial Purchasers to the
initial purchasers thereof; and (k) all other costs and expenses incident to the
performance of the obligations of the Issuer under this Agreement not otherwise
specifically provided for in this Section including, without limitation, the
fees and expenses of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Issuer's independent accountants,
and the fees and expenses of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsels to the Issuer, but not
including the fees of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇, counsel to the Initial
Purchasers.
6. Conditions of the Initial Purchasers' Obligations. The
several obligations of the Initial Purchasers hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Issuer contained herein, to the performance by the Issuer of
its obligations hereunder, and to each of the following additional terms and
conditions:
(a) No Initial Purchaser shall have discovered and disclosed
to the Issuer on or prior to the Closing Date that the Offering Memorandum or
any amendment or supplement thereto contains any untrue statement of a fact
which, in the opinion of counsel to the Initial Purchasers, is material or omits
to state any fact which is material and is required to be stated therein or is
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(b) All corporate proceedings and other legal matters incident
to the authorization, form and validity of the Operative Documents and the
Offering Memorandum or any amendment or supplement thereto, and all other legal
matters relating to the Operative Documents and the transactions contemplated
thereby shall be satisfactory in all material respects to counsel to the Initial
Purchasers, and the Issuer shall have furnished to such counsel all documents
and information that they may reasonably request to enable them to pass upon
such matters.
(c) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have
furnished to the Initial Purchasers their written opinion, as counsel to the
Issuer, addressed to the Initial Purchasers and dated the Closing Date,
substantially in the form set forth in Exhibit A.
(d) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP shall have
furnished to the Initial Purchasers their written opinion, as counsel to the
Issuer, addressed to the Initial Purchasers and
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dated the Closing Date, in form and substance satisfactory to the Initial
Purchasers, to the effect set forth in Exhibit B.
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Garret shall have furnished to the
Initial Purchasers their written opinion, as counsel to the Issuer, addressed to
the Initial Purchasers and dated the Closing Date, substantially in the form set
forth in Exhibit C.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have furnished to the Initial
Purchasers their written opinion, as counsel to the Issuer, addressed to the
Initial Purchasers and dated the Closing Date, substantially in the form set
forth in Exhibit D.
(g) The Initial Purchasers shall have received from ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Initial Purchasers, such opinion or
opinions, dated as of the Closing Date, with respect to the issuance and sale of
the Initial Notes, the Offering Memorandum and other related matters as the
Initial Purchasers may reasonably require, and the Issuer shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(h) The Trustee shall have furnished to the Initial Purchasers
an officer's certificate, dated such Delivery Date, in form and substance
satisfactory to the Initial Purchasers, to the effect that (i) the Indenture has
been duly authorized, executed and delivered by the Trustee, (ii) each person
who, on behalf of the Trustee, executed and delivered the Indenture was at the
date thereof and is now duly elected, appointed or authorized, qualified and
acting as an officer or authorized signatory of the Trustee and duly authorized
to perform such acts at the respective times of such acts and the signatures of
such persons appearing on such document are their genuine signatures and (iii)
such other matters reasonably requested by the Initial Purchasers to be included
in such officer's certificate. Attached to the officer's certificate shall be an
extract of the Bylaws of the Trustee, duly adopted by its Board of Directors,
respecting the signing authority of the persons mentioned in clause (ii) above
and a letter from an officer of the Trustee authorizing, pursuant to such
Bylaws, such signing authority, which Bylaws and letter at the Closing Date are
in full force and effect.
(i) With respect to the letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
delivered to the Initial Purchasers concurrently with the execution of this
Agreement (the "initial letter"), the Issuer shall have furnished to the Initial
Purchasers a letter (the "bring-down letter") of such accountants, addressed to
the Initial Purchasers and dated the Closing Date (i) confirming that it is an
independent public accountant within the meaning of the Securities Act and is in
compliance with the applicable rules relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii) stating,
as of the date of the bring-down letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Offering Memorandum, as of a date not more
than three days prior to the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial information and other
matters covered by the initial letter and (iii) confirming in all material
respects the conclusions and findings set forth in the initial letter.
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(j) The Issuer shall have furnished to the Initial Purchasers
a certificate, dated the Closing Date, of its Chief Executive Officer, President
or Vice President and Chief Financial Officer in form and to the effect that:
(i) The representations, warranties and agreements of the
Issuer in Section 1 are true and correct as of the Closing Date; the
Issuer has complied in all material respects with all its agreements
contained herein to be performed on or prior to the Closing Date, and
the conditions set forth in Section 6 have been fulfilled;
(ii)(A) Except as disclosed in the Offering Memorandum,
neither the Issuer nor any of its subsidiaries has sustained, since the
date of the latest audited financial statements included in the
Offering Memorandum, any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labour dispute or court or governmental action,
order or decree, except for losses and interferences which do not, in
the aggregate, have a Material Adverse Effect; and (B) since such date,
there has not been any change resulting in, or any development
involving a prospective change which is likely to result in, a Material
Adverse Effect, other than as set forth or contemplated in the Offering
Memorandum;
(iii) They have carefully examined the Offering Memorandum
and, in their opinion (A) the Offering Memorandum, as of the Closing
Date, did not include any untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (B) since
the date of the Offering Memorandum, no event has occurred which would
have been required to be set forth in a supplement or amendment to the
Offering Memorandum had the Offering Memorandum been filed as part of
the Registration Statement on Form S-1 under the Securities Act.
(k) (i) Neither the Issuer nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included in the Offering Memorandum any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering Memorandum
or (ii) since such date there shall not have been any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the Issuer
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Offering Memorandum, the effect of which, in any such case
described in clause (i) or (ii), is, in the reasonable judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or the delivery of the Initial Notes being delivered on
the Closing Date on the terms and in the manner contemplated in the Offering
Memorandum.
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(l) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the Issuer's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
rating of any of the Issuer's debt securities.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market System,
or trading in any securities of the Issuer on any exchange shall have been
suspended or minimum prices shall have been established on any such exchange by
the Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium on commercial banking
activities in New York shall have been declared by United States federal or
state authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States, or there shall have been a declaration of a national emergency or
war by the United States, or (iv) there shall have occurred any change in
financial markets or any calamity or crisis that in the sole judgment of the
Initial Purchasers is material and adverse, and in the case of any of the events
specified in clauses (i) through (iv), such event singly or together with any
other such event makes it, in the judgment of the Initial Purchasers,
impracticable to market the Initial Notes on the terms and in the manner
contemplated in the Offering Memorandum.
(n) The Indenture shall have been duly executed and delivered
by the Issuer and the Trustee and the Initial Notes shall have been duly
executed and delivered by the Issuer and duly authenticated by the Trustee.
(o) The Issuer and the Initial Purchasers shall have executed
and delivered the Registration Rights Agreement (in form and substance
satisfactory to the Initial Purchasers) and the Registration Rights Agreement
shall be in full force and effect.
(p) The NASD shall have accepted the Initial Notes for trading
on PORTAL and the Notes shall have been accepted for clearance and settlement
through DTC.
(q) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal of any rule or
regulation under the Securities Act or the Exchange Act by the Commission or any
amendment thereof by the Commission which in the judgment of the Initial
Purchasers would materially impair the ability of the Initial Purchasers to
purchase, hold or effect resales of the Initial Notes as contemplated hereby.
(r) A supplemental indenture to the Indenture dated April 30,
1998, relating to the Issuer's 13% Senior Notes due 2005 shall have been
executed by the Issuer and HSBC Bank USA and delivered to the Initial Purchasers
in form and substance reasonably satisfactory to the Issuer and the Initial
Purchasers.
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(s) The Issuer shall have furnished to the Initial Purchasers
and their counsel such further information, certificates and documents as the
Initial Purchasers may reasonably request to evidence compliance with the
conditions set forth in this Section 6.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance satisfactory to
counsel to the Initial Purchasers.
7. Indemnification and Contribution.
(a) The Issuer shall indemnify and hold harmless each Initial
Purchaser, its officers and employees and each person, if any, who controls any
Initial Purchaser within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of the Notes), to which that Initial
Purchaser, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Memorandum or the Offering Memorandum, or in any amendment or supplement
thereto, or in any blue sky application or other document prepared or executed
by the Issuer (or based upon any written information furnished by the Issuer)
specifically for the purpose of qualifying any or all of the Notes under the
securities laws of any state or other jurisdiction (such application, document
or information being hereinafter called a "Blue Sky Application") or (ii) the
omission or alleged omission to state in any Preliminary Offering Memorandum or
the Offering Memorandum, or in any amendment or supplement thereto, or in any
Blue Sky Application or in any material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse
each Initial Purchaser and each such officer, employee and controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that
Initial Purchaser, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Issuer shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Offering Memorandum or the Offering Memorandum, or in
any such amendment or supplement, or in any Blue Sky Application in reliance
upon and in conformity with the written information furnished to the Issuer by
any Initial Purchaser specifically for inclusion therein and described in
Section 7(e). The foregoing indemnity agreement is in addition to any liability
which the Issuer may otherwise have to any Initial Purchaser or to any officer,
employee or controlling person of that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Issuer, each of its respective officers and
directors, and each person, if any, who controls the Issuer within the meaning
of the Securities Act from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Issuer or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon,
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(i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto, or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state therein any material fact
required to be stated in any Preliminary Offering Memorandum or the Offering
Memorandum, or in any Blue Sky Application, or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the written information furnished to the
Issuer through the Initial Purchasers specifically for inclusion therein and
described in Section 7(e), and shall reimburse the Issuer and any such director,
officer or controlling person for any legal or other expenses reasonably
incurred by the Issuer or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any Initial
Purchaser may otherwise have to the Issuer or any such director, officer or
controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure and, provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
any indemnified party shall have the right to employ separate counsel in any
such action and to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying party in
writing, (ii) such indemnified party shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party and in the
reasonable judgment of such counsel it is advisable for such indemnified party
to employ separate counsel or (iii) the indemnifying party has failed to assume
the defense of such action and employ counsel reasonably satisfactory to the
indemnified party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such action on behalf of such indemnified party,
it being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or
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circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to local counsel, if necessary) at any
time for all such indemnified parties, which firm shall be designated in writing
by ▇▇▇▇▇▇ Brothers Inc., if the indemnified parties under this Section 7 consist
of any Initial Purchasers or any of their respective officers, employees or
controlling persons, or by the Issuer, if the indemnified parties under this
Section consist of the Issuer or any of its directors, officers, employees or
controlling persons. Each indemnified party, as a condition of the indemnity
agreements contained in Sections 7(a) and 7(b), shall use its best efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld) settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (a) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (b) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with its written consent or if there be a final
judgment of the plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and against any loss of
liability by reason of such settlement or judgment. Notwithstanding the
foregoing, 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 contemplated by this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein, then
each indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Issuer on the one hand and the Initial Purchasers on the other
from the offering of the Notes or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Issuer on the one hand and the Initial Purchasers
on the other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by the
Issuer on the one hand and the Initial Purchasers on the other with respect to
such offering shall be deemed to be in the same
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proportion as the total net proceeds from the offering of the Notes purchased
under this Agreement (before deducting expenses) received by the Issuer on the
one hand, and the total discounts and commissions received by the Initial
Purchasers with respect to the Notes purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the Notes
under this Agreement, in each case as set forth in the table on the cover page
of the Offering Memorandum. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
the Issuer or the Initial Purchasers, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Issuer and the Initial Purchasers agree that it
would not be just and equitable if contributions pursuant to this Section 7(d)
were to be determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 7(d) shall be deemed to include, for purposes
of this Section 7(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute as provided in this Section 7(d) are
several in proportion to their respective purchase obligations and not joint.
(e) The Initial Purchasers severally confirm that the
statements with respect to the offering of the Initial Notes set forth in the
fourth, sixth, seventh and eighth paragraphs under the caption "Plan of
Distribution" in the Offering Memorandum are correct and constitute the only
information furnished in writing to the Issuer by or on behalf of the Initial
Purchasers specifically for inclusion in the Offering Memorandum.
8. Defaulting Initial Purchasers.
If, on the Closing Date, any Initial Purchaser defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Initial Purchasers shall be obligated to purchase the aggregate
principal amount of Initial Notes which the defaulting Initial Purchaser agreed
but failed to purchase on the Closing Date in the respective proportions which
the total aggregate principal amount of Initial Notes set opposite the name of
each remaining non-defaulting Initial Purchaser in Schedule 1 hereto bears to
the total aggregate principal amount of Notes set opposite the names of all the
remaining non-defaulting Initial Purchasers in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Initial Purchasers shall not be
obligated to purchase any Initial Notes on the Closing Date if the total
aggregate principal amount of Initial Notes which the defaulting Initial
Purchasers agreed but failed to purchase on such date exceeds 9.09% of the total
aggregate principal amount at maturity of Initial Notes to be purchased on the
Closing Date, and any remaining non-defaulting Initial Purchaser shall not be
obligated to purchase more than 110% of the aggregate principal amount at
maturity of Initial Notes which it agreed to purchase on the Closing Date
pursuant to the terms of Section 3. If the foregoing maximums are exceeded, the
remaining non-defaulting Initial Purchasers, or those
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other underwriters satisfactory to the Initial Purchasers who so agree, shall
have the right, but shall not be obligated, to purchase on the Closing Date, in
such proportion as may be agreed upon among them, the total aggregate principal
amount of Initial Notes to be purchased on the Closing Date. If the remaining
Initial Purchasers or other underwriters satisfactory to the Initial Purchasers
do not elect to purchase on the Closing Date the aggregate principal amount of
Initial Notes which the defaulting Initial Purchasers agreed but failed to
purchase, this Agreement shall terminate without liability on the part of any
non-defaulting Initial Purchasers and the Issuer, except that the Issuer will
continue to be liable for the payment of expenses to the extent set forth in
Sections 5 and 10. As used in this Agreement, the term "Initial Purchaser"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 8, purchases Initial Notes which a defaulting Initial Purchaser agreed
but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Issuer for damages caused by its
default. If other underwriters are obligated or agree to purchase the Initial
Notes of a defaulting or withdrawing Initial Purchaser, either the remaining
non-defaulting Initial Purchasers or the Issuer may postpone the Closing Date
for up to seven full business days in order to effect any changes that in the
opinion of counsel to the Issuer or counsel to the Initial Purchasers may be
necessary in the Offering Memorandum or in any other document or arrangement.
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9. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers by notice given to and
received by the Issuer prior to delivery of and payment for the Initial Notes
if, prior to that time, any of the events described in Sections 6(l) and (m)
shall have occurred or if the Initial Purchasers shall decline to purchase the
Initial Notes for any reason permitted under this Agreement.
10. Reimbursement of Initial Purchasers' Expenses. If this
Agreement shall be terminated pursuant to Section 9, then the Issuer shall
reimburse the Initial Purchasers for fees and expenses of their counsels and for
such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of the Initial Notes,
and upon demand the Issuer shall pay the full amount thereof to the Initial
Purchasers and the Issuer shall have no further liability to the Initial
Purchasers except as provided in Sections 5 and 7.
11. Notices, etc. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
first-class mail (registered or certified, return receipt requested),
telecopier, or air courier guaranteeing overnight delivery to the persons and
addresses set forth below or to such other persons or addresses as may be
designated by notice to the other parties by like notice.
(a) if to the Company:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇
Bershad ▇▇▇▇▇ & Lerach LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Initial Purchasers:
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
New York, New York 10285
Attention: Syndicate Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇.
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With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Issuer and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
the representations, warranties, indemnities and agreements of the Issuer
contained in this Agreement shall also be deemed to be for the benefit of the
officers and employees of each Initial Purchaser and the person or persons, if
any, who control each Initial Purchaser within the meaning of Section 15 of the
Securities Act and any indemnity agreement of the Initial Purchasers contained
in Section 7(b) of this Agreement shall be deemed to be for the benefit of
directors, officers and employees of the Issuer, and any person controlling the
Issuer within the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 12, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
13. Survival. The respective indemnities, representations,
warranties and agreements of the Issuer and the Initial Purchasers contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Initial Notes and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any person controlling any of them.
14. Definition of the Terms "Business Day", "Subsidiary" and
"Material Subsidiary". For purposes of this Agreement, the term "business day"
means any day other than a Saturday or Sunday or any federal holiday in the
United States, the term "subsidiary" has the meaning set forth in Rule 405 of
the Rules and Regulations and the term "material subsidiary" means (i) any
"significant subsidiary" as defined in Rule 405 of the Rules and Regulations,
(ii) any subsidiary whose assets equal or exceed $1.0 million and (iii) any
subsidiary with respect to which the Issuer is required by contract, law or
otherwise to make additional capital contributions.
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15. Governing Law. THIS AGREEMENT AND THE RIGHTS AND DUTIES OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF NEW YORK.
16. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing correctly sets forth the agreement among the
Issuer and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
GLOBIX CORPORATION
By_______________________________
Name:
Title:
Accepted and agreed by:
▇▇▇▇▇▇ BROTHERS INC.
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
ING BARINGS LLC
By: ▇▇▇▇▇▇ BROTHERS INC.
By_______________________________________
Authorized Representative
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SCHEDULE 1
Principal Amount
Initial Purchasers of Initial Notes
------------------ ----------------
▇▇▇▇▇▇ Brothers Inc............................................ $ 320,000,000
Chase Securities Inc........................................... $ 60,000,000
Credit Suisse First Boston Corporation......................... $ 60,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated................................................... $ 60,000,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc....................................... $ 60,000,000
ING Barings LLC................................................ $ 40,000,000
-------------
Total................................................. $ 600,000,000
=============
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EXHIBIT A
Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
32
EXHIBIT B
Form of Opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
(i) The Initial Notes and the Indenture conform in all material respects to the
descriptions thereof contained in the Offering Memorandum;
(ii) the statements made in the Offering Memorandum under the caption "Certain
U.S. Federal Income Tax Consequences to Non-U.S. Persons insofar as they purport
to constitute summaries of matters of United States federal tax law and
regulations or legal conclusions with respect thereto, constitute accurate
summaries of the matters described therein in all material respects.
33
EXHIBIT C
Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Garret
34
EXHIBIT D
Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
35
ANNEX A
FORM OF REGISTRATION RIGHTS AGREEMENT