Exhibit 1.1
$800,000,000
PANAMSAT CORPORATION
8 1/2% SENIOR NOTES DUE 2012
PURCHASE AGREEMENT
January 25, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
ABN AMRO INCORPORATED
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. Introductory. PanAmSat Corporation, a Delaware corporation (the
"COMPANY"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"PURCHASERS") U.S.$800,000,000 principal amount of its Senior Notes due 2012
("OFFERED SECURITIES"), to be issued under an indenture dated as of the Closing
Date (as defined below) (the "INDENTURE") among the Company, the guarantors
named therein and The Bank of New York, as Trustee, and guaranteed (the
"GUARANTEES") by certain of the Company's subsidiaries as set forth on the
signature pages hereof (the "GUARANTORS," and together with the Company, the
"ISSUERS"). The United States Securities Act of 1933, as amended, is herein
referred to as the "SECURITIES ACT."
The holders of the Offered Securities will be entitled to the benefits
of a Registration Rights Agreement of even date herewith, among the Issuers and
the Purchasers (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to which the
Issuers agree to file a registration statement with the Securities and Exchange
Commission (the "COMMISSION") registering the resale of the Offered Securities
under the Securities Act.
The Issuers hereby agree with the several Purchasers as follows:
2. Representations and Warranties of the Issuers. The Issuers, jointly
and severally, represent and warrant to, and agree with, the several Purchasers
that:
(a) A preliminary confidential offering circular, dated
January 15, 2002 (the "PRELIMINARY OFFERING CIRCULAR"), and a
confidential offering circular, dated the date hereof (the "OFFERING
CIRCULAR") relating to the Offered Securities to be offered and resold
by the Purchasers have been prepared by the Issuers. Such Preliminary
Offering Circular and Offering Circular are hereinafter collectively
referred to as the "OFFERING DOCUMENT." Neither the Preliminary
Offering Circular as of the date thereof nor the Offering Circular as
of the date of this Agreement includes any untrue statement of a
material fact or omits to state any
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. The preceding sentence does not
apply to statements in or omissions from the Offering Document based
upon written information furnished to the Issuers by any Purchaser
through Credit Suisse First Boston Corporation ("CSFBC") specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with the requisite corporate power and authority to own its properties
and conduct its business as described in the Offering Document; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except to the extent that the failure to so qualify or
be in good standing would not have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole, or
would not materially and adversely affect the ability of the Company
and the Guarantors to perform their respective obligations under this
Agreement, the Registration Rights Agreement, the Escrow Agreement (as
defined below), the Indenture (as defined below), the Offered
Securities and the Guarantees (collectively, the "OPERATIVE DOCUMENTS")
(a "MATERIAL ADVERSE EFFECT").
(c) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with the requisite corporate power
and authority to own its properties and conduct its business as
described in the Offering Document; and each subsidiary of the Company
is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except to the extent that the failure to so qualify or be in good
standing would not have a Material Adverse Effect; all of the issued
and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects, other than as described in the Offering
Document.
(d) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered Securities
are delivered and paid for pursuant to this Agreement on the Closing
Date, the Indenture will have been duly executed and delivered, such
Offered Securities will have been duly executed, authenticated, issued
and delivered and will conform to the description thereof contained in
the Offering Document and the Indenture and such Offered Securities
will constitute valid and legally binding obligations of the Issuers,
enforceable in accordance with their terms, except to the extent
enforcement may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws, now or hereafter
in effect, relating to creditors' rights generally and general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law) (collectively, the "BANKRUPTCY AND
EQUITY EXCEPTIONS").
(e) There are no contracts, agreements or understandings
between the Issuers and any person that would give rise to a valid
claim against the Issuers or any Purchaser for a
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brokerage commission, finder's fee or other like payment, other than to
the Purchasers, in connection with any transaction contemplated by this
Agreement.
(f) Assuming the accuracy of the representations and
warranties of the Purchasers contained in Section 4 of this Agreement,
no consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
performance by the Issuers of their obligations under the Operative
Documents or in connection with the issuance and sale of the Offered
Securities by the Issuers, except as may be required under the
Securities Act and the Rules and Regulations of the Commission
thereunder with respect to the Registration Rights Agreement and the
transactions contemplated thereunder and such as have been obtained or
may be required by state securities or blue sky laws in connection with
the offer and sale of the Offered Securities or Exchange Securities by
the Issuers.
(g) The execution, delivery and performance of the Operative
Documents by the Issuers and the issuance and sale of the Offered
Securities by the Issuers and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, (i) any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties (including,
without limitation, the Communications Act of 1934, as amended, and the
rules and regulations of the Federal Communications Commission (the
"FCC"), the Department of Commerce, the National Telecommunications and
Information Administration and the International Telecommunications
Union), (ii) any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or (iii) the charter or by-laws of the
Company or any such subsidiary except as in the case of clauses (i) and
(ii) for such breaches, violations or defaults that would not,
individually or in the aggregate, have a Material Adverse Effect; and
the Company has the requisite corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by
this Agreement. The contracts listed on part II of Schedule B to
Schedule C hereto are the only contracts to which any Issuer is a party
that are material to the Company and its subsidiaries taken as a whole.
To the knowledge of the Company, the orders, judgments and decrees
listed on part I of Schedule B to Schedule C hereto are the only
orders, judgments and decrees of any court or other agency of
government binding on any Issuer.
(h) This Agreement has been duly authorized, executed and
delivered by the Issuers.
(i) On the Closing Date, the Registration Rights Agreement
will have been duly authorized, executed and delivered by the Issuers.
When the Registration Rights Agreement has been duly executed and
delivered, the Registration Rights Agreement will be a valid and
legally binding agreement of the Issuers, enforceable against each
Issuer in accordance with its terms, subject to the Bankruptcy and
Equity Exceptions. On the Closing Date, the Registration Rights
Agreement will conform in all material respects to the description
thereof in the Offering Document.
(j) On the Closing Date, the Escrow and Pledge Agreement by
and among The Bank of New York, as securities intermediary (in such
capacity, the "ESCROW AGENT"), The Bank of New York, as Trustee under
the Indenture (in such capacity, the "TRUSTEE"), and the
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Company (together with the securities account control agreement
described therein, the "ESCROW AGREEMENT"), will have been duly
authorized, executed and delivered by the Company and will constitute a
valid and legally binding agreement of the Company, enforceable against
the Company in accordance with its terms, subject to the Bankruptcy and
Equity Exceptions; and, upon the valid execution and delivery of the
Escrow Agreement by all parties thereto, the Trustee will have a valid
and perfected first priority security interest in the Escrow Account
(as defined in the Escrow Agreement) and all financial assets (as
defined in the Uniform Commercial Code of the State of New York) now or
hereafter placed or deposited in, or delivered to the Escrow Agent for
placement or deposit in the Escrow Account pursuant to the terms of the
Escrow Agreement.
(k) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good and marketable title to all real
properties and have good title to all other properties and assets owned
by them, in each case free from liens, encumbrances and defects that
would materially affect the value thereof or materially interfere with
the use made or to be made thereof by them; and except as disclosed in
the Offering Document, the Company and its subsidiaries hold any leased
real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(l) Except as described in the Offering Document, the Company
and each of its subsidiaries has obtained all necessary certificates,
authorities, orders, permits, licenses (including, without limitation,
all requisite FCC licenses), authorizations, consents and approvals of
and from, and has made all necessary filings with, all federal, state,
local, foreign supranational, national, regional and other governmental
authorities, all self-regulatory organizations, all courts and
tribunals and from other persons material to the conduct of its
business except to the extent that the failure to obtain such
certificates, authorities, orders, permits, licenses, authorizations,
consents and approvals or to make such filings would not, individually
or in the aggregate, have a Material Adverse Effect. Except as
described in the Offering Document, the Company or any of its
subsidiaries has not received any notice of proceedings relating to
revocation or modification of any such certificates, authorities,
orders, permits, licenses, authorizations, consents or approvals, nor
is any Issuer in violation of, or in default under, any federal, state,
local, foreign supranational, national or regional law, regulation,
rule, decree, order or judgment applicable to such Issuer the effect of
which would individually or in the aggregate have a Material Adverse
Effect.
(m) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(n) The Company and its subsidiaries own, possess, have the
right to use by license or otherwise, or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any
intellectual property rights that would individually or in the
aggregate have a Material Adverse Effect.
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(o) Neither the Company nor any of its subsidiaries is in
violation of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating
to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human
exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws,
or is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in
the aggregate have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a claim.
(p) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
which are otherwise material in the context of the sale of the Offered
Securities; and no such actions, suits or proceedings are, to the
Company's knowledge, threatened or contemplated.
(q) The financial statements included in the Offering Document
present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as
otherwise disclosed in the Offering Document, such financial statements
have been prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent basis; and the
assumptions used in preparing the pro forma and as adjusted financial
information included in the Offering Document provide a reasonable
basis for presenting the significant effects directly attributable to
the transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(r) Except as disclosed in the Offering Document, since the
date of the latest financial statements included in the Offering
Circular there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole.
(s) The Company is not an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the United States
Investment Company Act of 1940 (the "INVESTMENT COMPANY ACT"); and the
Company is not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Offering Document, will not be an "INVESTMENT COMPANY"
required to register under the Investment Company Act.
(t) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Securities Exchange Act of 1934 (the "EXCHANGE ACT") or quoted
in a U.S. automated inter-dealer quotation system.
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(u) Assuming the accuracy of the representations and
warranties of the Purchasers in Section 4 of this Agreement, the offer
and sale of the Offered Securities by the Company to the Purchasers in
the manner contemplated by this Agreement and the Offering Circular
will be exempt from the registration requirements of the Securities Act
by reason of Section 4(2) thereof, and it is not necessary to qualify
an indenture in respect of the Offered Securities under the United
States Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT").
(v) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf (i) has, within the six-month
period prior to the date hereof, offered or sold in the United States
or to any U.S. person (as such terms are defined in Regulation S under
the Securities Act) the Offered Securities or any security of the same
class or series as the Offered Securities or (ii) has offered or will
offer or sell the Offered Securities (A) in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with respect to
any such securities sold in reliance on Rule 903 of Regulation S
("REGULATION S") under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(c) of Regulation S. The
Company, its affiliates and any person acting on its or their behalf
have complied and will comply in all material respects with the
offering restrictions requirement of Regulation S. The Company has not
entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for this
Agreement.
(w) There is no "substantial U.S. market interest" as defined
in Rule 902(j) of Regulation S in the Company's debt securities.
(x) Except as described in the Offering Document, the Company
and each of its subsidiaries carries, or is covered by, and will
maintain, insurance in such amounts and covering such risks as is
adequate for the conduct of their respective businesses and the value
of their respective properties and as is prudent and customary for
companies engaged in similar businesses in similar industries; the
Company is insured by third-party insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the business in which they are engaged; and
neither the Company 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 as may be necessary to continue its business at a cost that
would not, individually or in the aggregate, have a Material Adverse
Effect, except as described in or contemplated by the Offering
Document.
(y) The Company 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 in the United States 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.
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(z) On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act, and
the rules and regulations of the Commission applicable to an indenture
which is qualified thereunder.
(aa) The Exchange Securities (as defined in the Registration
Rights Agreement) have been duly authorized by the Company; and when
the Exchange Securities are issued, executed and authenticated in
accordance with the terms of the Registered Exchange Offer (as defined
in the Registration Rights Agreement) and the Indenture, the Exchange
Securities will be entitled to the benefits of the Indenture and will
be the valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to the Bankruptcy
and Equity Exceptions.
(bb) The Guarantee to be endorsed on the Offered Securities by
each Guarantor has been duly authorized by such Guarantor, and, on the
Closing Date, will have been duly executed and delivered by each such
Guarantor and will conform in all material respects to the description
thereof contained in the Offering Document. When the Offered Securities
have been issued, executed and authenticated in accordance with the
Indenture and delivered to and paid for by the Purchasers in accordance
with the terms of this Agreement, the Guarantee of each Guarantor
endorsed thereon will constitute the valid and legally binding
obligation of such Guarantor, enforceable in accordance with its terms,
subject to the Bankruptcy and Equity Exceptions.
(cc) The guarantee to be endorsed on the Exchange Securities
by each Guarantor has been duly authorized by such Guarantor; and, when
issued, will have been duly executed and delivered by each such
Guarantor and will conform in all material respects to the description
thereof contained in the Offering Document. When the Exchange
Securities have been issued, executed and authenticated in accordance
with the terms of the Registered Exchange Offer and the Indenture, the
guarantee of each Guarantor endorsed thereon will constitute a valid
and legally binding obligation of such Guarantor, enforceable in
accordance with its terms, subject to the Bankruptcy and Equity
Exceptions.
(dd) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or by-laws or (ii) in default in
the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound, except in the case of clause (ii) for
such violations and defaults that would not, individually or in the
aggregate, have a Material Adverse Effect.
(ee) No holder of securities of the Company or any subsidiary
will be entitled to have such securities registered under the
registration statement required to be filed by the Issuers pursuant to
the Registration Rights Agreement.
(ff) Neither the Company nor any of its subsidiaries nor any
agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance
or sale of the Offered Securities to violate Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve
System.
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(gg) Since January 1, 2002, and other than as set forth on
Schedule B hereto, no "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act (i) has imposed (or has informed the Company
that it is considering imposing) any condition (financial or otherwise)
on the Company retaining any rating assigned to any debt securities of
the Company or (ii) has indicated to the Company that it is considering
(a) the downgrading, suspension, or withdrawal of, or any review for a
possible change that does not indicate the direction of the possible
change in, any rating so assigned or (b) any change in the outlook for
any rating on the debt securities of such Issuer.
The Company acknowledges that each of the Purchasers and, for purposes
of the opinions to be delivered to the Purchasers pursuant to Section 6 hereof,
counsel to the Company and counsel to the Purchasers, will rely upon the
accuracy and truth of the foregoing representations and hereby consents to such
reliance.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Issuers agree to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Issuers, at a purchase price of 98.25% of the principal amount thereof
the respective principal amounts of the Offered Securities set forth opposite
the names of the several Purchasers in Schedule A hereto. Notwithstanding the
foregoing, on the Closing Date, in exchange for the Offered Securities, the
Purchasers shall, severally and not jointly, and the Company hereby instructs
the Purchasers to, deposit with the Escrow Agent an amount equal to 100% of the
respective principal amounts of the Offered Securities set forth opposite the
names of the several Purchasers in Schedule A hereto. Pursuant to the terms of
the Escrow Agreement, upon satisfaction of the conditions giving rise to the
release of funds to the Company under the Escrow Agreement, namely, the
Company's entering into the new credit facility as contemplated by the Offering
Circular within 60 days of the Closing Date, the Escrow Agent shall forthwith
distribute from the escrow account (i) to the Purchasers, 1.75% of the principal
amount of the Offered Securities (in proportion to the respective amounts so
purchased by the several Purchasers) and (ii) to the Company, the balance
remaining in the Escrow Account, less any fees and expenses of the Escrow Agent
that are to be paid by the Company. If, on the other hand, the conditions giving
rise to the release of funds to the Company under the Escrow Agreement are not
satisfied within 60 days after the Closing Date and, pursuant to Section 6(c) of
the Notes, the Company is required to redeem all of the outstanding Offered
Securities at 100% of their principal amount plus accrued interest to the date
of redemption, then no payment shall be owing to the Purchasers from the Escrow
Agent or the Issuers as a result of the transactions contemplated hereunder.
The Company will deliver against payment of the purchase price the
Offered Securities to be offered and sold by the Purchasers in reliance on
Regulation S (the "REGULATION S SECURITIES") in the form of one or more
temporary global securities in registered form without interest coupons (the
"REGULATION S GLOBAL SECURITIES"), which will be deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") for the respective accounts
of the DTC participants for ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System ("EUROCLEAR"), and Clearstream
Banking, societe anonyme ("CLEARSTREAM, LUXEMBOURG"), and registered in the name
of Cede & Co., as nominee for DTC. The Company will deliver against payment of
the purchase price the Offered Securities to be purchased by each Purchaser
hereunder and to be offered and sold by each Purchaser in reliance on Rule 144A
under the Securities Act (the "144A SECURITIES") in the form of one permanent
global security in registered form without interest coupons (the "RESTRICTED
GLOBAL SECURITIES") deposited with the Trustee as custodian for DTC and
registered in
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the name of Cede & Co., as nominee for DTC. The Regulation S Global Securities
and the Restricted Global Securities shall be assigned separate CUSIP numbers.
The Restricted Global Securities shall include the legend regarding restrictions
on transfer set forth under "TRANSFER RESTRICTIONS" in the Offering Document.
Until the termination of the restricted period (as defined in Regulation S) with
respect to the offering of the Offered Securities, interests in the Regulation S
Global Securities may only be held by the DTC participants for Euroclear and
Clearstream, Luxembourg. Interests in any permanent global securities will be
held only in book-entry form through Euroclear, Clearstream, Luxembourg or DTC,
as the case may be, except in the limited circumstances described in the
Offering Document.
Payment for the Regulation S Securities and the 144A Securities shall
be made by the Purchasers in Federal (same day) funds by wire transfer to an
account previously designated by the Escrow Agent, at the office of ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ at 9:00 A.M. (New York time), on February 1, 2002, or at such
other time not later than seven full business days thereafter as CSFBC and the
Company determine, such time being herein referred to as the "CLOSING DATE,"
against delivery to the Trustee as custodian for DTC of (i) the Regulation S
Global Securities representing all of the Regulation S Securities for the
respective accounts of the DTC participants for Euroclear and Clearstream,
Luxembourg and (ii) the Restricted Global Securities representing all of the
Offered 144A Securities. The Regulation S Global Securities and the Restricted
Global Securities will be made available for checking at the above office of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ at least one business day prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D under
the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption from
the registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities (i) as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the commencement
of the offering and the Closing Date, only in accordance with Rule 903 or Rule
144A. Accordingly, neither such Purchaser nor its affiliates, nor any persons
acting on its or their behalf, have engaged or will engage in any directed
selling efforts with respect to the Offered Securities, and such Purchaser, its
affiliates and all persons acting on its or their behalf have complied and will
comply with the offering restrictions requirements of Regulation S. Each
Purchaser severally agrees that, at or prior to confirmation of sale of the
Offered Securities, other than a sale pursuant to Rule 144A, such Purchaser
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases the Offered Securities
from it during the restricted period a confirmation or notice to substantially
the following effect: "The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "SECURITIES ACT") and may not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the date of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms used
above have the meanings given to them by Regulation S."
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Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities, except for any such
arrangements with the other Purchasers or affiliates of the other Purchasers or
with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of
issue of the Offered Securities will not offer or sell any Offered Securities
to persons in the United Kingdom except to persons whose ordinary activities
involves 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 Offered Securities in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and
will only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is of a
kind described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document
may otherwise lawfully be issued or passed on.
Such Purchaser acknowledges that the Issuers and, for purposes of the
opinions to be delivered to the Purchasers pursuant to Section 6 hereof, counsel
to the Company and counsel to the Purchasers, will rely upon the accuracy and
truth of the foregoing representations and such Purchaser hereby consents to
such reliance.
5. Certain Agreements of the Issuers. The Issuers agree with the
several Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Offering Circular and will not effect such
amendment or supplementation without CSFBC's consent, which will not be
unreasonably withheld or delayed. If, at any time prior to the
completion of the initial resale of the Offered Securities by the
Purchasers, any event occurs as a result of which the Offering Circular
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any such
time to amend or supplement the Offering Circular to comply with any
applicable law, the Company promptly will notify
-10-
CSFBC of such event and promptly will prepare, at its own expense, an
amendment or supplement which will correct such statement or omission
or effect such compliance. Neither CSFBC's consent to, nor the
Purchasers' 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 Company will furnish to CSFBC copies of the Offering
Circular and all amendments and supplements thereto as soon as
available and in such quantities as CSFBC reasonably requests, and the
Company will furnish to CSFBC on the date hereof three copies of the
Offering Document signed by a duly authorized officer of the Company.
At any time when both (i) the Company is not subject to Section 13 or
15(d) of the Exchange Act and (ii) the Offered Securities continue to
be "restricted securities" within the meaning of Rule 144 under the
Securities Act, the Company will promptly furnish or cause to be
furnished to CSFBC (and, upon request, to each of the other Purchasers)
and, upon request of holders and prospective purchasers of the Offered
Securities, to such holders and purchasers, copies of the information
required to be delivered to holders and prospective purchasers of the
Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) in order to permit compliance with
Rule 144A in connection with resales by such holders of the Offered
Securities. The Company will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Company, in cooperation with the Purchasers and their
counsel, will arrange for the qualification of the Offered Securities
for sale and the determination of their eligibility for investment
under the laws of such jurisdictions in the United States and Canada as
CSFBC designates and will continue such qualifications in effect so
long as required for the resale of the Offered Securities by the
Purchasers, provided that the Issuers will not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any such jurisdiction.
(d) During the period of three years hereafter, the Company
will furnish to CSFBC and, upon request, to each of the other
Purchasers, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year if any such
report is prepared and circulated; and the Company will furnish to
CSFBC and, upon request, to each of the other Purchasers, as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Exchange Act or mailed
to stockholders.
(e) During the period of two years after the Closing Date, the
Issuers will, upon request, furnish to CSFBC, each of the other
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the
Issuers will not, and will not permit any of their affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the
Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, no
Issuer will be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
-11-
(h) The Issuers will pay all expenses incidental to the
performance of their respective obligations under the Operative
Documents, including (i) the fees and expenses of the Trustee and the
Escrow Agent and their respective professional advisers; (ii) all
expenses in connection with the execution, issue, authentication,
packaging and initial delivery of the Offered Securities and, as
applicable, the Exchange Securities, the preparation and printing of
this Agreement, the Indenture, the Registration Rights Agreement, the
Escrow Agreement, the Offered Securities, the Offering Document and
amendments and supplements thereto, and any other document relating to
the issuance, offer, sale and delivery of the Offered Securities and,
as applicable, the Exchange Securities; (iii) the cost of listing the
Offered Securities and qualifying the Offered Securities for trading in
The Portal(SM) Market ("PORTAL") and any expenses incidental thereto;
(iv) the cost of any advertising approved by the Issuers in connection
with the issuance of the Offered Securities; (v) any expenses
(including fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities or the Exchange Securities
for sale under the laws of such jurisdictions in the United States and
Canada as CSFBC designates and the printing of memoranda relating
thereto; (vi) any fees charged by investment rating agencies for the
rating of the Offered Securities or the Exchange Securities; and (vii)
expenses incurred in distributing the Offering Document (including any
amendments and supplements thereto) to the Purchasers. The Issuers will
also pay or reimburse the Purchasers (to the extent incurred by them)
for all costs of chartering any aircraft in connection with attending
or hosting meetings with prospective purchasers of the Offered
Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, none of the Issuers or any of their
respective affiliates has or will, either alone or with one or more
other persons, bid for or purchase for any account in which it or any
of its affiliates has a beneficial interest in any Offered Securities
or attempt to induce any person to purchase any Offered Securities; and
neither it nor any of its affiliates will make bids or purchases for
the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Offered Securities.
(j) For a period of 180 days after the date hereof, the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Securities Act relating to, any debt
securities issued or guaranteed by the Company and having a maturity of
more than one year from the date of issue, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFBC. The Company will not 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 or the safe harbor of
Regulation S thereunder to cease to be applicable to the offer and sale
of the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Issuers herein in all material respects, except to the extent such
representations and warranties are already qualified by materiality in Section 2
herein, to the accuracy of the statements of officers of the Company made
pursuant to the provisions hereof, to the performance by each of the Issuers of
its obligations hereunder in all material respects and to the following
additional conditions precedent:
-12-
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of Deloitte & Touche LLP, confirming that they
are independent public accountants within the meaning of the Securities
Act and the applicable published rules and regulations thereunder
("RULES AND REGULATIONS") and to the effect that:
(i) in their opinion the financial statements
examined by them and included in the Offering Document comply
as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Offering Document;
(iii) on the basis of the review referred to in clause
(ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Offering Document do not comply as to
form in all material respects with the applicable
accounting requirements of the Securities Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) the unaudited consolidated net sales,
net operating income, net income and net income per
share amounts for the nine-month period ended
September 30, 2001 included in the Offering Document
do not agree with the amounts set forth in the
unaudited consolidated financial statements for that
same period or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited statements of
income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Offering Document; or
(D) for the period from the closing date of
the latest income statement included in the Offering
Document to the closing date of the latest available
income statement read by such accountants there were
any decreases, as compared with the corresponding
period of the previous year in
-13-
consolidated net sales, net operating income,
consolidated net income or in the ratio of earnings
to fixed charges;
except in all cases set forth in clauses C and D above for
changes, increases or decreases which the Offering Document
discloses have occurred or may occur or which are described in
such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document (in
each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a
reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in
such letter.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Purchasers, is material and
adverse and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt securities
of the Company by any nationally recognized statistical rating
organization, or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating) or any announcement that the Company has been placed on
negative outlook; (iii) any change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Purchasers, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities, whether
in the primary market or in respect of dealings in the secondary
market; (iv) any material suspension or material limitation of trading
in securities generally on the New York Stock Exchange or The Nasdaq
Stock Market, or any setting of minimum prices for trading on such
exchanges, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (v) any
banking moratorium declared by U.S. Federal or New York authorities;
(vi) any major disruption of settlements of securities; or (vii) any
attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the
judgment of a majority in interest of the Purchasers, the effect of any
such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Issuers,
substantially to the effect of Schedule C hereto.
-14-
(d) The Purchasers shall have received an opinion, dated the
Closing Date, of Goldberg, Godles, Wiener & ▇▇▇▇▇▇, special FCC counsel
for the Issuers, substantially to the effect of Schedule D hereto.
(e) The Purchasers shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Purchasers, such opinion or opinions, dated
the Closing Date, with respect to the validity of the Offered
Securities, the exemption from registration for the offer and sale of
the Offered Securities by the Issuers to the Purchasers and the resales
by the Purchasers as contemplated hereby and other related matters as
CSFBC may require, and the Issuers shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters.
(f) The Purchasers shall have received a certificate, dated
the Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable investigation
and in their capacity as such officers, on behalf of the Company, shall
state that the representations and warranties of the Issuers in this
Agreement are true and correct, that each Issuer has complied in all
material respects with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the
dates of the most recent financial statements in the Offering Document,
there has been no material adverse change, nor any development or event
that has resulted in, or could reasonably be expected to result in, a
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole except as set forth in or contemplated by
the Offering Document or as described in such certificate.
(g) The Purchasers shall have received a letter, dated the
Closing Date, of Deloitte & Touche LLP which meets the requirements of
subsection (a) of this Section except that the specified date referred
to in such subsection will be a date not more than three days prior to
the Closing Date for the purposes of this subsection.
The Issuers will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder.
7. Indemnification and Contribution. (a) Each of the Issuers will
indemnify and hold harmless each Purchaser, its partners, directors and officers
and each person, if any, who controls such Purchaser within the meaning of
Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Purchaser may become subject, under
the Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein 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, including any losses, claims, damages or liabilities
arising out of or based upon the Company's failure to perform its obligations
under Section 5(a) of this Agreement, and will reimburse each Purchaser for any
legal or other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss,
-15-
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Issuers will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC specifically
for use therein, it being understood and agreed that the only such information
consists of the information described as such in subsection (b) below; provided,
further, however, that the Issuers will not be liable to any Purchaser or any
person controlling such Purchaser with respect to any such untrue statement or
alleged untrue statement or omission or alleged omission made in the Preliminary
Offering Circular that is corrected in the Offering Circular (or any amendment
or supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Offered Securities from such Purchaser but was not sent or
given a copy of the Offering Circular (as amended or supplemented), unless such
failure to deliver the Offering Circular (as amended or supplemented) was a
result of noncompliance by the Company with Section 5(b) hereof.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Issuers, their respective directors and officers and each person,
if any, who controls any Issuer within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages or liabilities to which any
Issuer may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein 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, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company by such Purchaser through CSFBC specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Issuers in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Purchaser consists
of the following information in the Offering Document furnished on behalf of
each Purchaser: under the caption "Plan of Distribution," paragraphs three,
six, nine and ten.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission to so notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to
the extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any liability which it may have to any indemnified
party otherwise than under subsection (a) or (b) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation.
-16-
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes (i) an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to or an admission of fault, culpability or
failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Issuers on the one hand and the Purchasers on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuers on the one hand and the
Purchasers on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers on the one hand and the Purchasers on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Issuers bear to the total discounts and
commissions received by the Purchasers from the Issuers under this Agreement.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers or the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discount, fees and commissions received by such Purchaser
exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(e) The obligations of the Issuers under this Section 7 shall be in
addition to any liability which the Issuers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Issuer within the meaning of the Securities Act or the Exchange
Act; and the obligations of the Purchasers under this Section 7 shall be in
addition to any liability which the respective Purchasers may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls the Issuers within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder on the Closing Date
and the aggregate principal amount of the Offered Securities that such
defaulting Purchaser or Purchasers agreed but failed to purchase does not exceed
10% of the total principal amount of Offered Securities, CSFBC may make
arrangements sat-
-17-
isfactory to the Company for the purchase of such Offered Securities by other
persons, including any of the Purchasers, but if no such arrangements are made
by the Closing Date, the non-defaulting Purchasers shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of the
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total principal amount of Offered Securities and arrangements
satisfactory to CSFBC and the Company for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 9. As
used in this Agreement, the term "Purchaser" includes any person substituted for
a Purchaser under this Section 8. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Issuers or their respective officers and of the several Purchasers set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of any Purchaser, the Issuers or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Issuers shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Issuers and the Purchasers
pursuant to Section 7 shall remain in effect. If the purchase of the Offered
Securities by the Purchasers is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv), (v) or (vi) of Section
6(b), the Issuers will reimburse the Purchasers for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Issuers, will be mailed,
delivered or telegraphed and confirmed to it at PanAmSat Corporation, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel; provided,
however, that any notice to a Purchaser pursuant to Section 7 will be mailed,
delivered or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Issuers as if such
holders were parties thereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you will be binding upon all the Purchasers.
-18-
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
Each Issuer hereby submits to the non-exclusive jurisdiction of the
federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
-19-
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement among the Issuers and the
Purchasers in accordance with its terms.
Very truly yours,
PANAMSAT CORPORATION
By:
----------------------------------------
Name:
Title:
NET/36, INC.
PANAMSAT COMMUNICATIONS CARRIER SERVICES, INC.
PANAMSAT COMMUNICATIONS JAPAN, INC.
PANAMSAT COMMUNICATIONS SERVICES, INC.
PANAMSAT INTERNATIONAL HOLDINGS, INC.
USHI, INC.
PANAMSAT MARKETING CORPORATION
PANAMSAT INTERNATIONAL SYSTEMS, INC. (PISI)
PANAMSAT ASIA CARRIER SERVICES, INC.
PANAMSAT CAPITAL CORPORATION
PANAMSAT CARRIER SERVICES, INC.
PANAMSAT INDIA, INC.
PANAMSAT INDIA, MARKETING, LLC
PAS INTERNATIONAL EMPLOYMENT, INC.
PANAMSAT LICENSEE CORP.
PANAMSAT INTERNATIONAL SALES, INC.
PANAMSAT INTERNATIONAL SYSTEMS, LLC
PANAMSAT INTERNATIONAL SYSTEMS MARKETING, LLC
SERVICE AND EQUIPMENT CORPORATION
SOUTHERN SATELLITE CORP.
SOUTHERN SATELLITE LICENSEE CORPORATION
By:
----------------------------------------
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
-20-
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANC ALEX. ▇▇▇▇▇ INC.
ABN AMRO INCORPORATED
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
--------------------------------------
Name:
Title:
-21-
SCHEDULE A
Principal Amount of
Purchaser Offered Securities
--------- ------------------
Credit Suisse First Boston Corporation ................ $405,803,000
Deutsche Banc Alex. ▇▇▇▇▇ Inc. ........................ 315,625,000
ABN AMRO Incorporated ................................. 39,286,000
▇▇ ▇▇▇▇▇ Securities Corporation ....................... 39,286,000
------------
Total $800,000,000
============
SCHEDULE B
RATINGS INFORMATION
STANDARD & POOR'S
On or about January 15, 2002, Standard & Poor's ("S&P") assigned a
rating of "BB" to the Company's proposed new credit facility and a rating of "B"
to the Offered Securities, and it then placed those ratings on CreditWatch
negative. At the same time, S&P raised the rating on the $750 million senior
unsecured notes (the "1998 NOTES") issued by the Company under the Indenture
dated as of January 16, 1998 to "BB" from "BB-". In addition, S&P announced that
all other ratings on the Company remain on CreditWatch negative.
▇▇▇▇▇'▇ INVESTORS SERVICE, INC.
On or about January 16, 2002, ▇▇▇▇▇'▇ Investors Service, Inc.
("MOODY'S") assigned a rating of "Ba2" to the Company's proposed new credit
facility, "Ba3" to the Offered Securities and "Ba2" to the 1998 Notes. At the
same time, Moody's placed those ratings on watch for possible downgrade.
SCHEDULE C
FORM OF OPINION OF ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
SCHEDULE D
FORM OF OPINION OF GOLDBERG, GODLES, WIENER & ▇▇▇▇▇▇