Exhibit 1.1
BALL CORPORATION
$300,000,000
6 7/8% Senior Notes Due 2012
PURCHASE AGREEMENT
December 5, 2002
▇▇▇▇▇▇ BROTHERS INC.
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
BNP Paribas Securities Corp.
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇-Grantchester, Inc.
McDonald Investments Inc.
SunTrust Capital Markets, Inc.
▇▇▇▇▇ Fargo Brokerage Services, LLC
as representatives of the several initial purchasers
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ball Corporation, an Indiana corporation (the "Company"), proposes to
issue and sell to you (the "Initial Purchasers") $300.0 million in aggregate
principal amount at maturity of its 6 7/8 % Senior Notes due 2012 (the "Series
A Notes"). The Series A Notes will (i) have terms and provisions which are
summarized in the Offering Memorandum (as defined herein) dated as of the date
hereof and (ii) are to be issued pursuant to an Indenture (the "Indenture") to
be entered into between the Company, each of the Guarantors listed on Exhibit
A hereto (each a "Guarantor", and together, the "Guarantors") and The Bank of
New York, as trustee (the "Trustee"). The Company's obligations under the
Series A Notes and the Company's 6 7/8% Series B Senior Notes due 2012 (the
"Series B Notes", and together with the Series A Notes, the "Notes") to be
offered in exchange for the Series A Notes, including the due and punctual
payment of interest on the Notes, will be unconditionally guaranteed (the
"Guarantees") by each of the Guarantors. As used herein, the terms "Series A
Notes" and "Series B Notes" shall include the Guarantees thereof by the
Guarantors, unless the context otherwise requires.
The Company, Ball Pan-European Holdings, Inc., and ▇▇▇▇▇▇▇▇▇▇-Lubeca
Holding GmbH and AV Packaging GmbH (together with ▇▇▇▇▇▇▇▇▇▇-Lubeca Holding
GmbH, "▇▇▇▇▇▇▇▇▇▇-Lubeca") have entered into a Share Sale and Transfer
Agreement on August 29, 2002 (the "Acquisition Agreement"), pursuant to which
the Company will purchase 100% of the capital stock of ▇▇▇▇▇▇▇▇▇▇-Lubeca AG,
which will be converted into a GmbH prior to the closing of the Acquisition
("▇▇▇▇▇▇▇▇▇▇"), for approximately (euro)925.5 million, subject to certain
adjustments and the assumption of certain debt and liabilities (the
"Acquisition"). Concurrent with the closing of the Acquisition, the Company is
entering into a Tranche A Euro/Sterling Term Loan Facility, a Tranche B Euro
Term Loan Facility, a Tranche B Dollar Term Loan Facility and New Revolving
Credit Facilities under a credit agreement (the "Credit Facilities") pursuant
to which it will borrow up to $1,350 million to fund a portion of the purchase
price for ▇▇▇▇▇▇▇▇▇▇ and to refinance certain of the Company's existing debt.
The issue and sale of the Series A Notes, the acquisition of ▇▇▇▇▇▇▇▇▇▇, the
consummation of the Credit Facilities and the consent solicitation to amend
the Company's existing senior notes and senior subordinated notes and the
refinancing of certain of the Company's existing debt will take place
concurrently.
The closing of the Acquisition is a condition to the closing of the
offering. Such condition may be waived by the Company if the proceeds from the
issuance of the Series A Notes are placed into a secured proceeds account at
the Closing Date, in accordance with the provisions of this Agreement and the
Indenture.
As described in the Offering Memorandum, proceeds from the issuance
and sale of the Series A Notes, together with borrowings under the Credit
Facilities, will be used to consummate the Acquisition and related
transactions.
1. Preliminary Offering Memorandum and Offering Memorandum. The
Series A Notes will be offered and sold to you pursuant to exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"Securities Act"). The Company and the Guarantors have prepared a preliminary
offering memorandum, dated November 25, 2002 (the "Preliminary Offering
Memorandum"), and a final offering memorandum, dated December 5, 2002 (the
"Offering Memorandum"), relating to the Company, the Guarantors, the Series A
Notes, the Guarantees, the Series B Notes and the Series B Guarantees (as
defined herein). The Company and the Guarantors hereby confirm that they have
authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Series A Notes by
the Initial Purchasers.
It is understood and acknowledged that upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Securities Act, the Series A Notes (and all
securities issued in exchange therefor or in substitution thereof) shall bear
the following legend:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A
PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT,
(3) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES
ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (4) TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE BLUE SKY LAWS OF THE STATES OF THE
UNITED STATES."
You have represented and warranted to the Company that you will make
offers (the "Exempt Resales") of the Series A Notes purchased by you hereunder
on the terms set forth in the Offering Memorandum 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) certain persons outside
the United States in offshore transactions in reliance on Regulation S under
the Securities Act. Those persons specified in clauses (i) and (ii) are
referred to herein as the "Eligible Purchasers". You will offer the Series A
Notes to Eligible Purchasers initially at a price equal to 100% of the
principal amount thereof. Such price may be changed at any time without
notice.
Holders (including subsequent transferees) of the Series A Notes will
have the registration rights set forth in the registration rights agreement
(the "Registration Rights Agreement"), to be dated December 19, 2002 (the
"Closing Date") (which Registration Rights Agreement shall be in substantially
the form of that certain registration rights agreement dated August 10, 1998
among Ball Corporation, the subsidiary guarantors thereto, and the initial
purchasers thereto, with such changes as the parties may agree), for so long
as such Series A Notes constitute "Transfer Restricted Securities" (as defined
in the Registration Rights Agreement). Pursuant to the Registration Rights
Agreement, the Company and the Guarantors 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 Series B
Notes to be offered in exchange for the Series A Notes and the Guarantees
(such offer to exchange being referred to collectively as the "Exchange
Offer") or (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 each tranche of the Series A Notes by certain holders of such
Notes, and to use all commercially reasonable efforts to cause such
Registration Statements to be declared effective. This Agreement, the
Indenture, and the Registration Rights Agreement are hereinafter referred to
collectively as the "Operative Documents".
2. Representations, Warranties and Agreements of the Company and the
Guarantors. The Company and each of the Guarantors (as of the date hereof and
the Closing Date) represent, warrant and agree as follows (and all of such
representations and warranties shall be deemed to include ▇▇▇▇▇▇▇▇▇▇, and all
references to the Company in this Section shall assume that the Company has
acquired ▇▇▇▇▇▇▇▇▇▇ as of the date hereof):
(a) The Preliminary Offering Memorandum and Offering Memorandum have
been prepared by the Company for use by the Initial Purchasers in connection
with the Exempt Resales. No order or decree preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any order
asserting that the transactions contemplated by this Agreement are subject to
the registration requirements of the Securities Act, has been issued and no
proceeding for that purpose has commenced or is pending or, to the knowledge
of the Company, is contemplated.
(b) The Preliminary Offering Memorandum, the Offering Memorandum and
the Company's filings with the Commission pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") that are incorporated by reference therein as of their respective dates
did not, and the Offering Memorandum as of the Closing Date will not, contain
an untrue statement of a material fact or omit to state a material fact
necessary, in order to make the statements contained therein, in light of the
circumstances under which they were made, not misleading, provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of the Initial Purchasers expressly
for use therein.
(c) The market-related and industry data included in the Preliminary
Offering Memorandum and the Offering Memorandum are based upon estimates by
the Company derived from sources which the Company believes to be reliable and
accurate in all material respects.
(d) The Company is a corporation duly incorporated and validly
existing and in good standing under the laws of the state of Indiana with all
requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Preliminary
Offering Memorandum and the Offering Memorandum, and is duly qualified to
conduct its business and is in good standing as a foreign corporation in each
jurisdiction or place where the nature of its properties or the conduct of its
business requires such qualification, except where the failure to qualify or
to be in good standing would not reasonably be expected to have a material
adverse effect on the financial condition, business, prospects, properties or
results of operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(e) Each of the Company's subsidiaries is a corporation duly
incorporated and validly existing and in good standing under the laws of its
state of organization with full corporate power and authority to own, lease
and operate its properties and to conduct its business as presently conducted,
and is duly qualified to conduct its business and is in good standing as a
foreign corporation in each jurisdiction where the nature of its properties or
the conduct of its business requires such qualification, except where the
failure so to qualify or to be in good standing does not have a Material
Adverse Effect.
(f) The Company has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement and the Notes.
(g) Each Guarantor has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement and the Guarantees.
(h) This Agreement has been duly authorized, executed and delivered
by the Company and each Guarantor and, assuming due authorization, execution
and delivery by the Initial Purchasers, constitutes the valid and binding
agreement of the Company and each Guarantor, enforceable against the Company
and each Guarantor in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or
at law), (iii) an implied covenant of good faith and fair dealing and (iv)
except as rights to indemnity and contribution hereunder may be limited by
Federal or state securities laws or principles of public policy.
(i) The Registration Rights Agreement has been duly authorized by the
Company and each Guarantor and, upon its execution and delivery by the Company
and each Guarantor and, assuming due authorization, execution and delivery by
the Initial Purchasers, will constitute the valid and binding agreement of the
Company and each Guarantor, enforceable against the Company and each Guarantor
in accordance with its terms, subject to (i) the effects of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other
similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or
at law), (iii) an implied covenant of good faith and fair dealing and (iv)
except as rights to indemnity and contribution hereunder may be limited by
Federal or state securities laws or principles of public policy. The
Registration Rights Agreement will conform to the description thereof in the
Offering Memorandum in all material respects.
(j) The Indenture has been duly authorized by the Company and each
Guarantor, and upon its execution and delivery by the Company and each
Guarantor and, assuming due authorization, execution and delivery by the
Trustee, will constitute the valid and binding agreement of the Company and
each Guarantor, enforceable against the Company and each Guarantor in
accordance with its terms, subject to (i) the effects of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other
similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or
at law) and (iii) an implied covenant of good faith and fair dealing. No
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended (the "TIA"), is required in connection with the offer and sale of the
Series A Notes contemplated hereby or in connection with the Exempt Resales
other than in connection with the performance of the Company's obligations
under the Registration Rights Agreement. The Indenture will conform to the
description thereof in the Offering Memorandum in all material respects.
(k) The Series A Notes have been duly authorized by the Company and
when duly executed by the Company in accordance with the terms of the
Indenture and, assuming due authentication, execution and delivery of the
Series A Notes by the Trustee in accordance with the terms of the Indenture,
upon delivery to the Initial Purchasers against payment therefor in accordance
with the terms hereof, will have been validly issued and delivered, and will
constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in accordance with
their terms, subject to (i) the effects of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws
relating to or affecting creditors' rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law), (iii) an
implied covenant of good faith and fair dealing and (iv) except as rights to
indemnity and contribution hereunder may be limited by Federal or state
securities laws or principles of public policy. The Series A Notes will
conform to the description thereof in the Offering Memorandum in all material
respects.
(l) The Guarantees to be endorsed on the Series A Notes have been
duly authorized by each Guarantor and, if and when executed and delivered by
each Guarantor in accordance with the terms of the Indenture and, assuming due
authentication of the Series A Notes by the Trustee, upon delivery to the
Initial Purchasers against payment therefor in accordance with the terms
hereof, have been validly issued and delivered, and will constitute valid and
binding obligations of each of the Guarantors, entitled to the benefits of the
Indenture, enforceable against each of the Guarantors in accordance with their
terms, subject to (i) the effects of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally, (ii) general equitable principles
(whether enforcement is considered in a proceeding in equity or at law) and
(iii) an implied covenant of good faith and fair dealing. The Guarantees will
conform to the description thereof in the Offering Memorandum in all material
respects.
(m) The Series B Notes will have been duly authorized by the Company
on or before the Closing Date and, if and when duly issued and authenticated
in accordance with the terms of the Indenture and delivered 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 (i) the effects of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws
relating to or affecting creditors' rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law), (iii) an
implied covenant of good faith and fair dealing and (iv) except as rights to
indemnity and contribution hereunder may be limited by Federal or state
securities laws or principles of public policy. The Series B Notes will
conform to the description thereof in the Offering Memorandum in all material
respects.
(n) The guarantees to be endorsed on the Series B Notes (the "Series
B Guarantees") will have been duly authorized by each Guarantor on or before
the Closing Date and, if and when executed and delivered by each Guarantor, if
and when the Series B Notes are issued and authenticated in accordance with
the terms of the Registration Rights Agreement and the Indenture, the Series B
Guarantees to be endorsed on the Series B Notes will be the valid and binding
obligation of each Guarantor, enforceable against each Guarantor in accordance
with their terms, subject to (i) the effects of bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance and other similar laws
relating to or affecting creditors' rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at law) and (iii)
an implied covenant of good faith and fair dealing.
(o) The Company has all requisite corporate power and authority to
enter into the Credit Facilities and any and all other agreements and
instruments ancillary to or entered into in connection with the transactions
contemplated by the Credit Facilities (collectively, the "Credit Documents").
(p) Each of the Credit Documents was duly and validly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the other parties thereto, constitutes the valid and
binding agreement of the Company, enforceable against the Company in
accordance with its respective terms, subject to (i) the effects of
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity or
at law) and (iii) an implied covenant of good faith and fair dealing.
(q) Each of the Company and Ball Pan-European Holdings, Inc. has all
requisite corporate power and authority to enter into the Acquisition
Agreement and any and all other agreements, side letters and instruments
ancillary to or entered into in connection with the transactions contemplated
by the Acquisition Agreement.
(r) The Acquisition Agreement has been duly and validly authorized,
executed and delivered by the Company and Ball Pan-European Holdings, Inc.
and, assuming due authorization, execution and delivery by the other parties
thereto, constitutes the valid and binding agreement of each of the Company
and Ball Pan-European Holdings, Inc., enforceable against each of the Company
and Ball Pan-European Holdings, Inc. in accordance with its terms, subject to
(i) the effects of bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance and other similar laws relating to or affecting
creditors' rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant
of good faith and fair dealing.
(s) All the shares of capital stock, partnership, membership or other
equity interest of the Company and its Restricted Subsidiaries (as defined in
the Offering Memorandum) and other material subsidiaries outstanding prior to
the issuance of the Series A Notes have been duly authorized and validly
issued and are fully paid and nonassessable. All of the issued shares of the
capital stock, partnership, membership or other equity interest of each
subsidiary of the Company are owned directly or indirectly by the Company
(except for directors' qualifying shares), free and clear of all liens,
encumbrances, or claims, except for those liens, encumbrances or claims that
would not reasonably be expected to have a Material Adverse Effect.
(t) Other than as disclosed in the Offering Memorandum, the Company
does not own capital stock or other equity interests of any corporation or
entity which would be required by the Indenture to be a Guarantor thereunder.
All of the Company's domestic subsidiaries other than (i) Ball Corporation (a
Nevada corporation), Ball Glass Containers, Inc., Ball Metal Container
Corporation, Ball Technology Licensing Corporation, ▇▇▇▇▇▇ Can, Inc., Muncie &
Western Railroad Company, Ball Asia Services Limited, Ball Glass Container
Corporation, Ball Holdings Corp., Ball Technology Services Corporation, Laser
Communications International L.L.C., Space Operations International, L.L.C.
and any other Excluded Subsidiaries (as defined in the Offering Memorandum
(the "Excluded Subsidiaries") and (ii) Ball Asia Pacific, Ball Capital Corp.
and any other Unrestricted Subsidiaries (as defined in the Offering
Memorandum) (the "Unrestricted Subsidiaries") are Guarantors hereunder; and as
of the date hereof, the Excluded Subsidiaries have aggregate net sales of not
more than $10 million in any twelve-month period and aggregate assets,
including capitalization, of not more than $10 million.
(u) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or any of the Guarantors, expressly contemplated by,
or threatened, against the Company or any of the Guarantors or to which any of
its properties are subject, that are not disclosed in the Offering Memorandum
and are reasonably likely to have a Material Adverse Effect or to materially
and adversely affect the issuance of the Notes or the consummation of the
other transactions contemplated by the Operative Documents. Except as
disclosed in the Offering Memorandum, neither the Company nor any of the
Guarantors is involved in any strike, job action or labor dispute with any
group of employees that is reasonably likely to have a Material Adverse Effect
and, to the knowledge of the Company and each of the Guarantors, no such
action or dispute is threatened.
(v) No material relationship, direct or indirect, exists between or
among the Company or any of the Guarantors on the one hand, and the directors,
officers, shareholders, members, partners, customers or suppliers of the
Company on the other hand, that would be required to be described in the
Offering Memorandum pursuant to Regulation S-K of the Securities Act if
Regulation S-K were applicable to the Offering Memorandum, which is not so
described in the Offering Memorandum.
(w) Neither the Company nor any of its subsidiaries (i) is in
violation of its certificate of incorporation, bylaws or other organizational
documents, (ii) is in default in any material respect in the due performance
or observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, or other agreement or instrument to
which any of them is a party or by which any of them is bound or to which any
of their respective properties or assets is subject that is material to the
Company's consolidated financial condition or prospects (collectively, the
"Material Agreements") or (iii) is in violation in any material respect of any
law, statute or ordinance or any rule, regulation, injunction or decree of any
court or governmental agency to which their property or assets may be subject
or has failed to obtain any material license, permit, certificate, franchise,
or other governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business, except in the case of (i),
(ii) or (iii), as would not, individually or in the aggregate, have a Material
Adverse Effect.
(x) Except (i) as has been obtained or completed or (ii) to the
extent the failure to obtain any such consent, approval, authorization or
order or to make any such filing or registration would not, individually or in
the aggregate, have a Material Adverse Effect, none of (A) the issuance, offer
or sale of the Series A Notes, the execution, delivery, or performance by the
Company or any of its subsidiaries of this Agreement, the Guarantees or the
other Operative Documents, compliance by the Company and its subsidiaries with
the provisions hereof or thereof or the consummation by the Company or such
subsidiaries of the transactions contemplated hereby or thereby; (B) the
execution, delivery or performance by the Company of the Credit Facilities or
the other Credit Documents, compliance by the Company with the provisions
thereof or consummation by the Company of the transactions contemplated
thereby; and (C) the execution, delivery or performance by the Company and
Ball Pan-European Holdings, Inc. of the Acquisition Agreement, compliance by
each of the Company and Ball Pan-European Holdings, Inc. with the provisions
thereof, or consummation by the Company and Ball Pan-European Holdings, Inc.
of the transactions contemplated thereby (1) requires any consent, approval,
authorization or other order of, or registration or filing with, any court,
regulatory body, administrative agency, or other governmental body, agency or
official (except as such as may be required in connection with the
registration under the Securities Act of the Series B Notes in accordance with
the Registration Rights Agreement, under the TIA for the issuance of the
Series B Notes, the trading of the Series A Notes on PORTAL and under the
securities or "Blue Sky" laws of various jurisdictions in connection with the
sale of the Series A Notes), (2) or conflicts or will conflict with or
constitutes or will constitute a breach of, or a default under, the charter or
bylaws, or other organizational documents, of the Company or any of its
subsidiaries or (3) conflicts or will conflict with or constitutes or will
constitute a breach or violation of any of the terms or provisions of, or
(including with the giving of notice or the lapse of time or both) constitute
a default under, any Material Agreement or (4) violates in any material
respect any law, statute or ordinance, or any rule, regulation, injunction or
decree of any court or governmental agency to which the Company or any of its
subsidiaries or their property or assets may be subject or results in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company (except for liens arising under the Credit Documents and
the accounts receivables financing facility of ▇▇▇▇▇▇▇▇▇▇ and certain of its
subsidiaries entered into on June 27, 2002) pursuant to the terms of any
agreement or instrument to which it is a party or by which it may be bound or
to which any of its property or assets is subject.
(y) The accountants, PricewaterhouseCoopers, LLP and PwC Deutsche
Revision Aktiengesellschaft Wirtschaftsprufungsgesellschaft, who have
certified certain of the financial statements included as part of the Offering
Memorandum and who have delivered and will deliver the letters referred to in
Section 8(i) hereof, are and were independent public accountants as required
by the Securities Act and the rules and regulations thereunder during the
period covered by the financial statements on which they reported contained in
the Offering Memorandum.
(z) The consolidated and combined historical financial statements,
and pro forma financial information, together with the related notes thereto,
set forth in the Offering Memorandum comply as to form in all material
respects with the requirements of Regulation S-X under the Securities Act
applicable to registration statements on Form S-3 under the Securities Act.
Such historical financial statements fairly present in all material respects
the financial position of the Company at the respective dates indicated and
the results of operations and cash flows for the respective periods indicated,
subject, in the case of unaudited combined financial statements, to year-end
audit adjustments, in each case in accordance with generally accepted
accounting principles ("GAAP"), or International Accounting Standards ("IAS")
in the case of ▇▇▇▇▇▇▇▇▇▇, consistently applied throughout such periods. Such
pro forma financial information has been prepared on a basis consistent with
the historical and proposed transactions contemplated by the Offering
Memorandum and this Agreement. The other financial information and data
included in the Offering Memorandum, historical and pro forma, are, in all
material respects, accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company.
(aa) Except as disclosed in or specifically contemplated by the
Offering Memorandum, subsequent to the date as of which such information was
given, (i) neither the Company nor any of its subsidiaries has incurred any
liability or obligation, direct or contingent, or entered into any
transaction, in each case not in the ordinary course of business, that is
material to the Company or such subsidiary, (ii) there has been no Material
Adverse Effect, and (iii) except as disclosed in or contemplated by the
Offering Memorandum, since the date of the latest audited combined financial
statements of the Company included in the Offering Memorandum, there has been
no (A) dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock (other than the payment of regular
quarterly cash dividends), (B) issuance of securities (other than pursuant to
the Company's or such subsidiary's employee benefit plans and agreements and
the issuance of the Series A Notes offered hereby) or (C) material increase in
short-term or long-term debt of the Company or such subsidiary.
(bb) The Company and each of its subsidiaries will, on or prior to
the Closing Date, have good and valid title to all property owned by it, free
and clear of all liens, claims, security interests or other encumbrances and
defects except such as are described in the Offering Memorandum, granted
pursuant to the Credit Facilities, or such as would not reasonably be expected
to have a Material Adverse Effect; and all material real property and
buildings held under lease by the Company or any of its subsidiaries are held
under valid, subsisting and enforceable leases, with such exceptions as would
not have a Material Adverse Effect.
(cc) The Company and each of its subsidiaries will, on or prior to
the Closing Date, have such permits, licenses, franchises, certificates,
consents, orders and other approvals or authorizations of any governmental or
regulatory authority ("Permits") as are necessary under applicable law to own
its properties and to conduct its businesses in the manner described in the
Offering Memorandum, except to the extent that the failure to have such
Permits would not reasonably be expected to have a Material Adverse Effect.
The Company and each of its subsidiaries is in compliance in all material
respects with all its material obligations with respect to the Permits, and,
to the knowledge of the Company, no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination thereof or
results in any other material impairment of the rights of the holder of any
such Permit, subject in each case to such qualification as may be set forth in
the Offering Memorandum and except to the extent that any such revocation,
termination or impairment would not reasonably be expected to have a Material
Adverse Effect.
(dd) The Company is not currently, nor will it be upon sale of the
Series A Notes in accordance herewith and the application of the net proceeds
therefrom as described in the Offering Memorandum under the caption "Use of
Proceeds," an "investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(ee) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("Regulation D") under the Securities Act) of the Company has
directly, or through any agent, (i) 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 could be integrated with the offering and sale of
the Series A Notes in a manner that would require the registration of the
Series A Notes under the Securities Act or (ii) engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with the offering of the Series A Notes in the United States,
provided that no representation or warranty is made with respect to the
Initial Purchasers and their affiliates in such respect. No securities of the
same class as the Series A Notes have been issued and sold by the Company
within the six-month period immediately prior to the date hereof.
(ff) Except as permitted by the Securities Act, the Company has not
distributed and, prior to the Closing Date will not distribute, any offering
material in connection with the offering and sale of the Series A Notes other
than the Preliminary Offering Memorandum and Offering Memorandum.
(gg) When the Series A Notes are issued and delivered pursuant to
this Agreement, such Series A Notes will not be of the same class (within the
meaning of Rule 144A under the Securities Act) as securities of the Company
that are listed on a national securities exchange registered under Section 6
of the Exchange Act, or that are quoted in a United States automated
inter-dealer quotation system.
(hh) Assuming (i) that the Series A Notes are issued, sold and
delivered under the circumstances contemplated by the Offering Memorandum and
this Agreement, (ii) that your representations and warranties in Section 3 are
true, (iii) compliance by you with your covenants set forth in Section 3 and
(iv) 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 Series A Notes outside the United States in an "offshore
transaction" (within the meaning of Regulation S), the purchase of the Series
A Notes by you pursuant hereto and the initial resale of the Series A Notes
pursuant to the Exempt Resales are not required to be registered under the
Securities Act.
(ii) To the knowledge of the Company, the execution and delivery of
this Agreement, the other Operative Documents and the sale of the Series A
Notes to be purchased by the Eligible Purchasers will not involve any
prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code, except as would not, individually or in the aggregate, have
a Material Adverse Effect. The representation made by the Company in the
preceding sentence is made in reliance upon and subject to the accuracy of,
and compliance with, the representations and covenants made or deemed made by
the Eligible Purchasers as set forth in the Offering Memorandum under the
section entitled "Notice to Investors".
(jj) Except as described in the Offering Memorandum, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statements or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
(kk) The Company and each of its subsidiaries together maintain or
are entitled to the benefits of insurance covering their properties,
operations, personnel and businesses. Such insurance insures against such
losses and risks as are reasonably adequate in accordance with customary
industry practice to protect the Company and its subsidiaries and their
businesses taken as a whole.
(ll) The Company has filed all Federal, state and local income and
franchise tax returns required to be filed through the date hereof (other than
those the nonfiling of which would not have a Material Adverse Effect) and has
paid all taxes due thereon, other than those being contested in good faith and
for which reserves have been provided in accordance with GAAP, or IAS in the
case of ▇▇▇▇▇▇▇▇▇▇, currently payable without penalty or interest, or the
nonpayment of which would not have a Material Adverse Effect. No tax
deficiency has been determined adversely to the Company nor does the Company
have any knowledge of any tax deficiency which, if determined adversely to the
Company, would have a Material Adverse Effect.
(mm) Except as set forth in the Offering Memorandum, there has been
no storage, disposal, generation, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances by the
Company (or, to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned or
leased by the Company in violation of any applicable law, ordinance, rule,
regulation or order, or which would require remedial action under any
applicable law, ordinance, rule, regulation or order, except for any violation
or remedial action which would not be reasonably likely to have, singularly or
in the aggregate, a Material Adverse Effect; except as set forth in, or
specifically contemplated by, the Offering Memorandum there has been no
material spill, discharge, leak, emission, injection, escape, dumping or
release of any kind onto such property or into the environment surrounding
such property of any toxic wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or with respect to which the
Company has knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not be reasonably likely to
have, singularly or in the aggregate, a Material Adverse Effect; and the terms
"hazardous wastes," "medical wastes," "toxic wastes," and "hazardous
substances" shall have the meanings specified in any applicable local, state,
federal and foreign laws or regulations with respect to environmental
protection.
(nn) None of the Company or 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(c) of Regulation S with respect to the Series A Notes, and the Company and
its affiliates and all persons acting on its or their behalf have complied
with and will comply with the offering restrictions requirements of Regulation
S in connection with any offering of the Series A Notes outside of the United
States; provided, that no representation is made by the Company or the
Guarantors as to the Initial Purchasers or any person acting on their behalf.
(oo) The sale of the Series A Notes pursuant to Regulation S are
"offshore transactions" and are not part of a plan or scheme to evade the
registration provisions of the Securities Act.
(pp) Prior to the date hereof, neither the Company nor any of its
subsidiaries has taken any action which is designed to or which has
constituted or which reasonably would have been expected to cause or result in
stabilization or manipulation of the price of any debt security of the Company
or its subsidiaries in connection with the offering of the Series A Notes.
3. Representations, Warranties and Agreements of the Initial
Purchasers.
(a) Each of the Initial Purchasers hereby represents and warrants to
the Company and the Guarantors that it will offer the Series A Notes for sale
upon the terms and conditions set forth in this Agreement and in the Offering
Memorandum. Each of the Initial Purchasers hereby represents and warrants to,
and agrees with, the Company and the Guarantors that such Initial Purchaser
(i) 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 Series A Notes; (ii) is purchasing the Series A Notes
pursuant to a private sale exempt from registration under the Securities Act;
(iii) in connection with the Exempt Resales, will solicit offers to buy the
Series A Notes only from, and will offer to sell the Series A Notes only to,
the Eligible Purchasers in accordance with this Agreement and on the terms
contemplated by the Offering Memorandum; and (iv) will not offer or sell the
Series A Notes, nor has it offered or sold the Series A 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) or in any manner involving a public
offering (within the meaning of Section 4(2) of the Securities Act) of the
Series A Notes.
(b) Each of the Initial Purchasers understands that the Series A
Notes have not been and will not be 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 pursuant to an exemption from the
registration requirements of the Securities Act or outside the U.S. in
accordance with Regulation S or to, or for the account or benefit of, non-U.S.
persons in accordance with Regulation S. Each of the Initial Purchasers
represents and agrees that it has not offered, sold or delivered the Series A
Notes, and will not offer, sell or deliver the Series A 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 or such longer period
as may then be applicable under Regulation S (such period, the "Restricted
Period"), within the United States or to, or for the account or benefit of,
U.S. persons, except in accordance with Rule l44A under the Securities Act or
another applicable exemption. Accordingly, each of the Initial Purchasers
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
Series A Notes, and it, its affiliates and all persons acting on its behalf
have complied and will comply with the offering restriction requirements of
Regulation S.
(c) Each of the Initial Purchasers agrees that at or prior to
confirmation of all sales of the Series A Notes pursuant to Regulation S, it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Series A Notes from it
during the Restricted Period a confirmation or notice substantially to the
following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any
time or (ii) otherwise until 40 days after the later of the
commencement of the offering or the closing date, except in either
case in accordance with Regulation S or Rule 144A if available under
the Securities Act. Terms used above have the meanings assigned to
them in Regulation S."
Each of the Initial Purchasers further agrees that it has not entered
and will not enter into any contractual arrangement with respect to
the distribution or delivery of the Series A Notes, except with its
affiliates or with the prior written consent of the Company.
(d) Each of the Initial Purchasers agrees not to cause any
advertisement of the Series A Notes to be published in any newspaper or
periodical or posted in any public place and not to issue any circular
relating to the Series A Notes, except such advertisements as may be permitted
by Regulation S.
(e) The sales of the Series A Notes pursuant to Regulation S are
"offshore transactions" and are not part of a plan or scheme to evade the
registration provisions of the Securities Act.
(f) Each of the Initial Purchasers understands that the Company and,
for purposes of the opinions to be delivered to you pursuant to Section 7
hereof, counsel to the Company and counsel to the Initial Purchasers, will
rely upon the accuracy and truth of the foregoing representations and you
hereby consent to such reliance.
(g) Each of the Initial Purchasers understands that the Company and
the Guarantors and, for purposes of the opinions to be delivered to the
Initial Purchasers pursuant to Sections 8(d) and 8(e) hereof, counsel to the
Company and counsel to the Initial Purchasers, will rely upon the accuracy and
truth of the foregoing representations, warranties and agreements and the
Initial Purchasers hereby consents to such reliance.
(h) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold, and prior to the date which is six months after the issue
date of the Series A Notes will not offer or sell, any Series A Notes to
persons in the United Kingdom, except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or as agent) for the purposes of their businesses or otherwise in
circumstances which do not constitute an offer to the public in the United
Kingdom for the purposes of the of the Public Offers of Securities Regulations
1995 ("POSR"); (ii) it has complied and will comply with all applicable
provisions of the Financial Services and Markets Act 2000 (the "FSMA") with
respect to anything done by it in relation to the Series A Notes in, from or
otherwise involving the United Kingdom; and (iii) it has only communicated or
caused to communicated and will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity (within the
meaning of section 21 of the FSMA) received by it in connection with the issue
or sale of any Series A Notes in circumstances in which section 21(1) of the
FSMA does not apply to the Company.
The terms used in this Section 3 that have meanings assigned to them
in Regulation S are used herein as so defined.
4. Purchase and Resale of the Notes by the Initial Purchasers. The
Company and the Guarantors hereby agree, on the basis of the representations,
warranties and agreements of the Initial Purchasers contained herein and
subject to all the terms and conditions set forth herein, to issue and sell to
the Initial Purchasers and, upon the basis of the representations, warranties
and agreements of the Company and the Guarantors herein contained and subject
to all the terms and conditions set forth herein, each Initial Purchaser
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 98.5% of the principal amount thereof, the principal amount of Notes
set forth opposite the name of such Initial Purchaser in Schedule I hereto.
The Company and the Guarantors shall not be obligated to deliver any of the
securities to be delivered hereunder except upon payment for all of the Series
A Notes to be purchased as provided herein.
5. Delivery and Payment. Delivery to the Initial Purchasers of and
payment for the Series A Notes shall be made at the office of Skadden, Arps,
Slate, Meager & ▇▇▇▇ (Illinois), ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at
7:00 A.M., Chicago time, on the Closing Date, or such other place or time as
you and the Company shall designate. The Series A Notes will be delivered to
the Initial Purchasers against payment by or on behalf of the Initial
Purchasers of the purchase price therefor by wire transfer to such account or
accounts as the Company shall specify prior to the Closing Date or by such
means as the parties hereto shall agree prior to the Closing Date in
immediately available funds, by causing The Depository Trust Company ("DTC")
to credit the Series A Notes to the account of the Initial Purchasers at DTC.
The Series A Notes will be evidenced by one or more global securities in
definitive form (the "Global Notes") and/or by additional definitive
securities, and will be registered, in the case of the Global Notes, in the
name of Cede & Co. as nominee of DTC, and in the other cases, in such names
and in such denominations as the Initial Purchasers shall request prior to
9:30 A.M., New York City time, on the second business day preceding the
Closing Date. The Series A Notes to be delivered to the Initial Purchasers
shall be made available to the Initial Purchasers in New York City for
inspection and packaging not later than 9:30 A.M., New York City time, on the
business day next preceding the Closing Date.
6. Agreements of the Company and the Guarantors. The Company and each
of the Guarantors agrees:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, of (i) the issuance by any state securities commission of
any stop order suspending the qualification or exemption from qualification of
the Series A Notes for offering or sale in any jurisdiction, or the initiation
of any proceeding for such purpose by the Commission or any state securities
commission or other regulatory authority, and (ii) the happening of any event
that makes any statement of a material fact made in the Offering Memorandum
untrue or that requires the making of any additions to or changes in the
Offering Memorandum in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company and each
Guarantor shall use its reasonable efforts to prevent the issuance of any stop
order or order suspending the qualification or exemption of the Series A Notes
under any state securities or Blue Sky laws and, if at any time any state
securities commission shall issue any stop order suspending the qualification
or exemption of the Series A Notes under any state securities or Blue Sky
laws, the Company and each Guarantor shall use all commercially reasonable
efforts to obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish to you, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as you may reasonably request. The Company
and each Guarantor consents to the use of the Preliminary Offering Memorandum
and the Offering Memorandum, and any amendments and supplements thereto
required pursuant to this Agreement, by you in connection with the Exempt
Resales that are in compliance with this Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to the
Closing Date unless you shall previously have been advised of, and shall not
have reasonably objected to, such amendment or supplement within a reasonable
time, but in any event not longer than five days after being furnished a copy
of such amendment or supplement. The Company shall reasonably promptly
prepare, upon any reasonable request by you, any amendment or supplement to
the Offering Memorandum that may be necessary or advisable in connection with
Exempt Resales. If, in connection with any Exempt Resales or market-making
transactions after the date of this Agreement and prior to the consummation of
the Exchange Offer, any event shall occur that, in the judgment of the Company
or in the judgment of counsel to you, makes any statement of a material fact
in the Offering Memorandum untrue or that requires the making of any additions
to or changes in the Offering Memorandum in order to make the statements in
the Offering Memorandum, in light of the circumstances at the time that the
Offering Memorandum is delivered to prospective Eligible Purchasers, not
misleading, or if it is necessary to amend or supplement the Offering
Memorandum to comply in all material respects with any applicable laws, the
Company shall promptly notify you of such event and prepare an appropriate
amendment or supplement to the Offering Memorandum so that (i) the statements
in the Offering Memorandum as amended or supplemented will, in light of the
circumstances at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not be misleading and (ii) the Offering
Memorandum will comply in all material respects with applicable law.
(d) To cooperate with you and your counsel in connection with the
qualification of the Series A Notes for offer and sale by you and by dealers
under the state securities or Blue Sky laws of such jurisdictions as you may
reasonably request (provided, however, that the Company shall not be obligated
to qualify as a foreign corporation in any jurisdiction in which it is not now
so qualified or to take any action that would subject it to general consent to
service of process in any jurisdiction in which it is not now so subject or
subject itself to taxation in excess of a nominal amount in any such
jurisdiction where it is not then so subject). Subject to the provisions in
the first sentence of this Section 6(d), the Company shall continue such
qualification in effect so long as required by law for distribution of the
Series A Notes.
(e) Prior to the Closing Date, to furnish to you, as soon as they
have been prepared, any internal combined financial statements of the Company
that have been prepared by the Company for any period subsequent to the period
covered by the financial statements appearing in the Offering Memorandum.
(f) To use all commercially reasonable efforts to do and perform all
things required to be done and performed under this Agreement by it prior to
or after the Closing Date and to satisfy all conditions precedent on its part
to the delivery of the Series A Notes.
(g) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) that
would be integrated with the sale of the Series A Notes in a manner that would
require the registration under the Securities Act of the sale to you or the
Eligible Purchasers of the Series A Notes.
(h) For a period of 90 days from the date of the Offering Memorandum,
not to, directly or indirectly, sell, contract to sell, grant any option to
purchase, issue any instrument convertible into or exchangeable for, or
otherwise transfer or dispose of, any debt securities of the Company in a
public or private offering for cash having a maturity of more than one year
from the date of issue of such securities, except (i) for the Series B Notes
in connection with the Exchange Offer or (ii) with the prior consent of each
of the Initial Purchasers, which consent shall not be unreasonably withheld.
(i) During any period that the Company is not subject to Section 13
or Section 15(d) of the Exchange Act, for the period that is two years after
the Closing Date or for so long as necessary to comply with Rule l44A in
connection with resales by registered holders or beneficial owners of the
Notes, whichever is longer, to make available to such registered holder or
beneficial owner of the Notes in connection with any sale thereof and any
prospective purchaser of the Notes from such registered holder or beneficial
owner, the information required by Rule 144A(d) (4) under the Securities Act
(or any successor provision thereto).
(j) To comply with its agreements in the Registration Rights
Agreements, and all agreements set forth in the representation letters of the
Company to DTC relating to the approval of the Notes by DTC for "book-entry"
transfer.
(k) To use all commercially reasonable efforts to permit the Series A
Notes to be designated Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market securities in accordance with the rules
and regulations adopted by the National Association of Securities Dealers,
Inc. relating to trading in the PORTAL Market and to permit the Series A Notes
to be eligible for clearance and settlement through DTC.
(l) To apply the net proceeds from the sale of the Series A Notes
being sold by the Company as set forth in the Offering Memorandum under the
caption "Use of Proceeds".
(m) During the period that is two years after the Closing Date, to
take such steps as shall be necessary to ensure that the Company does not
become an "investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations of the Commission
thereunder.
(n) To not take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Notes to facilitate the sale or resale of the
Notes. Except as permitted by the Securities Act, the Company and its
subsidiaries will not distribute any offering material in connection with the
Exempt Resales.
7. Expenses. The Company and the Guarantors agree, whether or not the
transactions contemplated by this Agreement are consummated or this Agreement
becomes effective or is terminated, to pay all costs, expenses, fees and taxes
incident to and in connection with: (i) the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum and the Offering
Memorandum (including, without limitation, financial statements and exhibits)
and all amendments and supplements thereto, and furnishing sufficient copies
of such documents as may be reasonably requested by the Initial Purchasers for
use in connection with the Exempt Resales, (ii) the preparation, printing
(including, without limitation, word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Registration Rights Agreement,
all Blue Sky Memoranda and all other agreements, memoranda, correspondence and
other documents printed and delivered in connection herewith and with the
Exempt Resales (but not, however, legal fees and expenses of counsel to the
Initial Purchasers incurred in connection with any of the foregoing other than
reasonable fees of such counsel plus reasonable disbursements incurred in
connection with the preparation, printing and delivery of such Blue Sky
Memoranda), (iii) the issuance and delivery by the Company of the Series A
Notes and by the Guarantors of the Guarantees and any taxes payable in
connection with the issuance and delivery thereof by the Company and the
Guarantors, (iv) the qualification of the Series A Notes and Series B Notes
for offer and sale under the securities or Blue Sky laws of the several states
(including, without limitation, the reasonable fees and disbursements of
counsel to the Initial Purchasers relating to such registration or
qualification), (v) the preparation of certificates for the Series A Notes
including, without limitation, printing and engraving, (vi) the fees,
disbursements and expenses of the Company's counsel and accountants, (vii) all
expenses and listing fees in connection with the application for quotation of
the Notes in PORTAL, (viii) all fees and expenses (including fees and expenses
of counsel) of the Company in connection with approval of the Notes by DTC for
"book-entry" transfer, (ix) the Trustee, any agent of the Trustee and the
counsel for the Trustee in connection with the Indenture, the Series A Notes,
the Guarantees, the Series B Notes, and the Series B Guarantees and (x) the
performance by the Company of its other obligations under this Agreement to
the extent not provided for above. It is understood, however, that except as
provided in this Section 7 and Sections 10 and 12, the Initial Purchasers will
pay all of their own costs and expenses, including the fees of their counsel,
transfer taxes on the resale of any of the Series A Notes by them, and any
advertising expenses, if any, incurred by them in connection with the
Offering.
8. Conditions of the Initial Purchasers' Obligations. The obligations
of the Initial Purchasers hereunder are subject to the accuracy, when made and
again on the Closing Date as if made again on and as of such date, of the
representations and warranties of the Company and the Guarantors contained
herein, to the performance by the Company and the Guarantors of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Offering Memorandum shall have been printed and copies made
available to you not later than 5:00 p.m., New York City time, on the business
day following the date of this Agreement, or at such later date and time as
you may approve in writing.
(b) No Initial Purchaser shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Offering Memorandum or any
amendment or supplement thereto contains an untrue statement of a fact which,
in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, is
material or omits to state a fact which, in the opinion of such counsel, is
material and necessary to make the statements contained in the Offering
Memorandum, in the light of the circumstances under which they were made, not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Series A Notes, the
Guarantees, the Registration Rights Agreement, the Indenture and the Offering
Memorandum, and all other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be reasonably satisfactory in all
material respects to counsel for the Initial Purchasers, and the Company shall
have furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(d) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois), special counsel
to the Company, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel of the Company, each
shall have furnished to the Initial Purchasers their written opinions
addressed to the Initial Purchasers and dated the Closing Date, in the form
provided separately to the Initial Purchasers on the date hereof, with such
changes, if any, as may be mutually agreed by the parties.
(e) The Initial Purchasers shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
such opinion or opinions, dated the Closing Date, with respect to the issuance
and sale of the Series A Notes, the Offering Memorandum and other related
matters as the Initial Purchasers may reasonably require.
(f) The Company shall have entered into the Credit Facilities and
other Credit Documents and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof, and the Company shall have
borrowed such amounts thereunder as contemplated in the Offering Memorandum;
provided, that if the proceeds from the issuance of the Series A Notes are to
be placed into a secured proceeds account at the Closing Date, then such
Credit Facility and other Credit Documents may be entered into on or prior to
the closing of the Acquisition.
(g) The Company and the Trustee shall have entered into the Indenture
and the Initial Purchasers shall have received counterparts, conformed as
executed, thereof.
(h) The Company and the Initial Purchasers shall have entered into
the Registration Rights Agreement and the Initial Purchasers shall have
received counterparts, conformed as executed, thereof.
(i) The Initial Purchasers shall have received from each of
PricewaterhouseCoopers, LLP and PwC Deutsche Revision Aktiengesellschaft
Wirtschaftsprufungsgesellschaft, independent certified public accountants,
letters addressed to the Company or ▇▇▇▇▇▇▇▇▇▇-Lubeca, as applicable, and
▇▇▇▇▇▇ Brothers Inc., Deutsche Bank Securities Inc., Banc of America
Securities LLC, Bank One Capital Markets, Inc., BNP Paribas Securities Corp.,
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇-Grantchester, Inc., McDonald Investments Inc.,
SunTrust Capital Markets, Inc. and ▇▇▇▇▇ Fargo Brokerage Services, LLC,
substantially in the form heretofore approved by ▇▇▇▇▇▇ Brothers Inc., and
dated the date hereof and the Closing Date, (i) confirming that they are
independent accountants as required by the Securities Act and its Rules and
Regulations or under the rules of the American Institute of Certified Public
Accountants, as applicable, (ii) stating, as of the date of each 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 five Business Days prior to the date of
each letter), the procedures and findings of such firm with respect to the
financial information and other matters covered by the letter delivered
concurrently with this Agreement and (iii) with respect to the letter
delivered on the Closing Date, confirming the procedures and findings set
forth in the letter delivered concurrently with this Agreement; such letters
shall be reasonably satisfactory to ▇▇▇▇▇▇ Brothers Inc.
(j) The Company shall have furnished to the Initial Purchasers a
certificate, dated as of the Closing Date, of a Vice President and its Chief
Financial Officer or Treasurer stating that (i) the representations,
warranties and agreements of the Company (after giving effect to all
materiality qualifiers therein) and the Guarantors in Section 2 are true and
correct as of such Closing Date and giving effect to the consummation of the
transactions contemplated by the Acquisition Agreement, the Credit Documents
and this Agreement; (ii) the Company and each Guarantor has complied in all
material respects with all its agreements contained herein; and (iii) the
conditions set forth in Sections 8(k) and 8(l) have been fulfilled.
(k) None of the Company or any of its subsidiaries shall have
sustained, since the date of the latest audited financial statements included
in the Offering Memorandum, (i) any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Offering Memorandum
or (ii) since such date, there shall not have been any change in the capital
stock or long-term debt of the Company, any Material Adverse Effect 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, good faith judgment of the Initial Purchasers, so material and
adverse as to make it impracticable or inadvisable to proceed with the payment
for and delivery of the Series A Notes being delivered on such Closing Date on
the terms and in the manner contemplated in the Offering Memorandum.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under
the 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 Company's debt securities.
(m) The Series A Notes shall have been designated for trading on the
PORTAL Market; provided that the failure of the Series A Notes to be so listed
shall not be due to any action taken or failure to act by the Initial
Purchasers.
(n) If the proceeds from the issuance of the Series A Notes are to be
placed into a secured proceeds account at the Closing Date, the Company shall
have entered into a pledge, security and control agreement in a form
reasonably satisfactory to ▇▇▇▇▇▇ Brothers. If such agreement is entered into,
then on the Closing Date, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois),
special counsel to the Company, shall have furnished to the Initial Purchasers
its written opinion addressed to the Initial Purchasers as to the validity and
perfection of the security interest created pursuant to such agreement and
such other matters as the parties may mutually agree, such opinion to be in
form and substance reasonably satisfactory to the Initial Purchasers.
(o) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on
any exchange or in the over-the-counter market, shall have been suspended or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction; (ii) a banking moratorium shall
have been declared by federal or state authorities; (iii) the United States
shall have become directly engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been
a declaration of a national emergency or war by the United States; or (iv)
there shall have occurred such a material adverse change in general economic,
political or financial conditions (or the effect of international conditions
on the financial markets in the United States shall be such), in each case, as
to make it, in the judgment of the Initial Purchasers, impracticable or
inadvisable to proceed with offering or delivery of the Series A Notes being
delivered on the Closing Date on the terms and in the manner contemplated in
the Offering Memorandum.
(p) At the Closing Date, the Company's existing credit facilities
dated August 10, 1998 (the "Existing Credit Facilities") shall be repaid in
full, or, if not, then either (1) the Company shall have secured an amendment,
consent or waiver under the Existing Credit Facilities such that the issuance
of the Series A Notes and the transactions contemplated hereby will not cause
a breach of, or default under, the Existing Credit Facilities or (2) the
Initial Purchasers shall have received an opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ (Illinois) stating that the issuance of the Series A Notes and
the transactions contemplated hereby will not cause a breach of, or default
under, the Existing Credit Facilities, such opinion to be in form and
substance reasonably satisfactory to the Initial Purchasers. At the Closing
Date, the Company shall provide to the Initial Purchasers evidence reasonably
satisfactory to them of the repayment of or amendment, consent or waiver under
the Existing Credit Facilities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
9. Conditions of the Company's and the Guarantors' Obligations. Other
than with respect to Section 7, 10 and 12 hereof, the obligations of the
Company and the Guarantors hereunder are subject to the condition that the
Acquisition shall have been consummated on substantially the terms provided
for in the Acquisition Agreement as entered into on August 29, 2002. The
closing of the offering is conditioned upon such consummation unless, at the
Company's option, the proceeds of the offering are placed in a secured
proceeds account pending consummation of the Acquisition. If the special
mandatory redemption of the Series A Notes occurs in accordance with the
Indenture, this Agreement may be terminated by the Company and the Guarantors;
provided that the provisions of Sections 7, 10 and 12 hereof shall survive
such termination.
10. Indemnification and Contribution.
(a) The Company and each Guarantor, jointly and severally, shall
indemnify and hold harmless each Initial Purchaser, its directors, 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 Notes), to which that Initial Purchaser,
director, 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 (A) in the
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto or (B) in any blue sky application or other document
prepared or executed by the Company or any Guarantor (or based upon any
written information furnished by the Company or any Guarantor) specifically
for the purpose of qualifying any or all of the Notes under the securities
laws of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application") or (ii) the
omission or alleged omission to state in the Preliminary Offering Memorandum
or the Offering Memorandum or in any amendment or supplement thereto or in any
Blue Sky Application any material fact or necessary to make the statements
therein in light of the circumstances under which they were made not
misleading, and shall reimburse each Initial Purchaser and each such director,
officer, employee or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Initial Purchaser, director,
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
Company and the Guarantors 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 the Preliminary Offering Memorandum or in any
amendment or supplement thereto, the Registration Statement or the Offering
Memorandum or in any amendment or supplement thereto or in any Blue Sky
Application, in reliance upon and in conformity with written information
concerning such Initial Purchaser furnished to the Company through the Initial
Purchasers by or on behalf of any Initial Purchaser specifically for inclusion
therein; provided further, that the Company and each of the Guarantors shall
not be liable to any Initial Purchaser under the indemnity agreement in this
Section 10(a) to the extent, but only to the extent, that (x) such loss,
claim, damage, or liability of such Initial Purchaser results from an untrue
statement of a material fact or an omission of a material fact contained in
the Preliminary Offering Memorandum, which untrue statement or omission was
completely corrected in the Offering Memorandum and (y) the Company and each
of the Guarantors had previously furnished sufficient quantities of the
Offering Memorandum to the Initial Purchasers within a reasonable amount of
time prior to such sale, and (z) such Initial Purchaser failed to deliver the
Offering Memorandum. The foregoing indemnity agreement is in addition to any
liability which the Company or the Guarantors may otherwise have to any
Initial Purchaser or to any director, officer, employee or controlling person
of that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, each Guarantor, and each of their
respective directors, officers and employees, and each person, if any, who
controls the Company or any Guarantor 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 Company or any such director,
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 (A) in any Preliminary Offering
Memorandum or the Offering Memorandum or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Offering Memorandum or the Offering
Memorandum, or in any amendment or supplement thereto, or in any Blue Sky
Application, any material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Initial Purchaser
furnished to the Company by or on behalf of that Initial Purchaser
specifically for inclusion therein, and shall reimburse the Company, any
Guarantor and any such director, officer or controlling person for any legal
or other expenses reasonably incurred by the Company, any Guarantor 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 Company, any Guarantor or any such director, officer,
employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
10 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 10, 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 10 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 10. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party,
to assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The Initial Purchasers shall have the right to employ
separate counsel in any such action and participate in the defense thereof,
but the reasonable fees and expenses of such counsel shall be at the expense
of such Initial Purchaser unless (i) the employment of such counsel shall have
been specifically authorized in writing by the Company, (ii) the Company shall
have failed to assume the defense and employ counsel, (iii) counsel which has
been provided by the Company reasonably determines that its representation of
such Initial Purchaser would present it with a conflict of interest or (iv)
the named parties to any such action (including any impleaded parties) include
both such Initial Purchaser and the Company, and such Initial Purchaser 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 Company (in which case the Company shall not have the right to assume the
defense of such action on behalf of such Initial Purchaser, it being
understood, however, that the Company 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
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all such
Initial Purchasers, which firm shall be designated in writing by ▇▇▇▇▇▇
Brothers Inc. and that all such reasonable fees and expenses shall be
reimbursed as they are incurred). 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
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent
of the indemnifying party or if there be a final judgment of the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a) or 10(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 Company and the Guarantors on the one hand and the Initial
Purchasers on the other from the offering of the Series A Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Guarantors, on the one hand, and the Initial Purchasers, on the other,
with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers, on
the other, with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Series A Notes
purchased under this Agreement (before deducting expenses) received by the
Company and the Guarantors, on the one hand, and the total discounts and
commissions received by the Initial Purchasers with respect to the Series A
Notes purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the Series A Notes under this Agreement,
in each case as set forth 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 Company, the
Guarantors or the Initial Purchasers, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Guarantors and the
Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 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 10 shall be
deemed to include, for purposes of this Section 10(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10(d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at
which the Series A Notes purchased by it and resold to Eligible Purchasers
exceeds the amount of any damages which such Initial Purchaser has otherwise
paid or become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 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 10(d) are several in proportion to
their respective underwriting obligations and not joint.
(e) The Initial Purchasers severally confirm and the Company and
Guarantors acknowledge that the statements with respect to the offering of the
Series A Notes by the Initial Purchasers set forth in the last paragraph on
the cover page, the stabilization legend on pages ii and iii, and the
information contained in the fifth, sixth, eleventh, twelfth and thirteenth
paragraphs of the section entitled "Plan of Distribution" in the Offering
Memorandum are correct and constitute the only information concerning such
Initial Purchasers furnished in writing to the Company by or on behalf of the
Initial Purchasers specifically for inclusion in the Offering Memorandum.
11. Termination.
(a) The obligations of the Initial Purchasers hereunder may be
terminated by the Initial Purchasers by notice given to the Company prior to
delivery of and payment for the Series A Notes if, prior to that time, any of
the events described in Section 8(k), (l) or (o) shall have occurred or if the
Initial Purchasers shall decline to purchase the Series A Notes for any reason
permitted under this Agreement.
(b) The obligations of the Company and the Guarantors hereunder may
be terminated by the Company and the Guarantors if the Acquisition shall not
have been consummated prior to or concurrently with the Closing of the
Offering unless, at the Company's option, the proceeds of the offering are
placed in a secured proceeds account at Closing; provided that the provisions
of Sections 7, 10 and 12 hereof shall survive such termination. The Company
and Guarantors may terminate their obligations under this Agreement if the
Acquisition shall not have been consummated on substantially the terms
provided for in the Acquisition Agreement on or prior to 30 days after the
Closing of the offering or the Acquisition Agreement is terminated prior to 30
days after the Closing of the offering; provided that the provisions of
Sections 7, 10 and 12 hereof shall survive such termination.
12. Reimbursement of Initial Purchasers' Expenses. If the Company and
the Guarantors shall fail to tender the Series A Notes and Guarantees for
delivery to the Initial Purchasers by reason of any failure, refusal or
inability on the part of the Company or any Guarantor to perform any agreement
on its part to be performed, or because any other condition of the Initial
Purchasers' obligations hereunder required to be fulfilled by the Company or
any Guarantor is not fulfilled, the Company and the Guarantors will reimburse
the Initial Purchasers for all reasonable out-of-pocket expenses (including
the reasonable fees and disbursements of its counsel) (accompanied by
documentation) incurred by the Initial Purchasers in connection with this
Agreement and the proposed purchase of the Series A Notes, and upon demand the
Company and the Guarantors shall pay the full amount thereof to the Initial
Purchasers.
13. Notices, Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail
or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy,
in the case of any notice pursuant to Section 9(c), to the Director of
Litigation, Office of the General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
(b) if to the Company or the Guarantors, shall be delivered or sent
by mail or facsimile transmission to Ball Corporation, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Fax: (303)
▇▇▇-▇▇▇▇), with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇ (Fax:
(▇▇▇) ▇▇▇-▇▇▇▇);
provided, however, that any notice to an Initial Purchaser pursuant
to Section 9(c) shall be delivered or sent by mail or facsimile transmission
to such Initial Purchaser at its address set forth in its acceptance telex to
▇▇▇▇▇▇ Brothers Inc., which address will be supplied to any other party hereto
by ▇▇▇▇▇▇ Brothers Inc. upon request. Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof. The Company
shall be entitled to act and rely upon any request, consent, notice or
agreement given or made on behalf of the Initial Purchasers by ▇▇▇▇▇▇ Brothers
Inc. as if the request, consent, notice or agreement was given by all of the
Initial Purchasers.
14. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the
Company, the Guarantors and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those
persons, except that (i) the representations, warranties, indemnities and
agreements of the Company and the Guarantors contained in this Agreement shall
also be deemed to be for the benefit of the persons, if any, who control any
Initial Purchaser within the meaning of Section 15 of the Securities Act and
(ii) the representations, warranties, indemnities and agreements of the
Initial Purchasers contained in this Agreement shall be deemed to be for the
benefit of directors, officers and employees of each of the Company and the
Guarantors and any person controlling the Company and the Guarantors 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 14, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
15. Survival. The respective indemnities, representations, warranties
and agreements of the Initial Purchasers, the Company and the Guarantors
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Series A Notes and shall remain in full force and effect, regardless of any
investigation made by or on behalf of any of them or any person controlling
any of them.
16. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
18. 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.
19. 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.
If the foregoing correctly sets forth the agreement among the
Company, the Guarantors, and the Initial Purchasers, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
BALL CORPORATION.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
BALL AEROSPACE AND TECHNOLOGIES CORP.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Chief Executive Officer
BALL METAL BEVERAGE CONTAINER CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
BALL METAL FOOD CONTAINER CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary
BALL METAL PACKAGING SALES CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
BALL PACKAGING CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
BALL PLASTIC CONTAINER CORP.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
BALL TECHNOLOGIES HOLDINGS CORP.
By /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary
LATAS DE ALUMINIO BALL, INC.
By /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Secretary
BALL PAN-EUROPEAN HOLDINGS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
BG HOLDINGS I, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
BG HOLDINGS II, INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
EFRATOM HOLDING INC.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
This Purchase Agreement is accepted
as of the date first written above.
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BANC ONE CAPITAL MARKETS, INC.
BNP PARIBAS SECURITIES CORP.
DRESDNER KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇-GRANTCHESTER, INC.
MCDONALD INVESTMENTS INC.
SUNTRUST CAPITAL MARKETS, INC.
▇▇▇▇▇ FARGO BROKERAGE SERVICES, LLC
By ▇▇▇▇▇▇ BROTHERS INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
SCHEDULE I
Principal
Amount of
Notes
to be
Initial Purchasers Purchased
▇▇▇▇▇▇ Brothers Inc.......................................... $120,000,000
Deutsche Bank Securities Inc................................. 84,000,000
Banc of America Securities LLC............................... 30,000,000
Bank One Capital Markets, Inc................................ 15,000,000
BNP Paribas Securities Corp. 15,000,000
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇-Grantchester, Inc. 9,000,000
McDonald Investments Inc. 9,000,000
SunTrust Capital Markets, Inc. 9,000,000
▇▇▇▇▇ Fargo Brokerage Services, LLC 9,000,000
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Total................................................... $300,000,000
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Exhibit A
Guarantors
1. Ball Aerospace and Technologies Corp., a Delaware corporation
2. Ball Metal Beverage Container Corp., a Colorado corporation
3. Ball Metal Food Container Corp., a Delaware corporation
4. Ball Metal Packaging Sales Corp., a Colorado corporation
5. Ball Packaging Corp., a Colorado corporation
6. Ball Plastic Container Corp., a Colorado corporation
7. Ball Technologies Holdings Corp., a Colorado corporation
8. Latas de Aluminio Ball, Inc., a Delaware corporation
9. Ball Pan-European Holdings, Inc., a Delaware corporation
10. BG Holdings I, a Delaware corporation
11. BG Holdings II, a Delaware corporation
12. Efratom Holding Inc., a Colorado corporation