EXHIBIT 1.1
▇▇▇▇ FOOD COMPANY, INC.
$475,000,000
8-7/8% SENIOR NOTES DUE 2011
PURCHASE AGREEMENT
March 17, 2003
DEUTSCHE BANK SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
SCOTIA CAPITAL (USA) INC.
FLEET SECURITIES, INC.
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Each of ▇▇▇▇ Food Company, Inc., a Delaware corporation (the
"Company"), and the guarantors listed on Schedule 5 hereof, the "Subsidiary
Guarantors" and, together with the Company, the "Issuers"), hereby confirms its
agreement with you (the "Initial Purchasers"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers (the
"Offering") $475,000,000 aggregate principal amount of its 8-7/8% Senior Notes
due 2011 (the "Notes"). The Notes are to be issued under an indenture (the
"Indenture") to be dated as of March 28, 2003 by and among the Company, the
Subsidiary Guarantors and ▇▇▇▇▇ Fargo Bank, National Association, as Trustee
(the "Trustee"). The Notes will be unconditionally guaranteed (the "Guarantees")
on a senior subordinated basis by each of the Subsidiary Guarantors and, unless
the context otherwise requires, any reference to the Notes shall include a
reference to the related Guarantees.
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has
prepared a preliminary offering memorandum dated March 5, 2003 (the "Preliminary
Memorandum") and a final offering memorandum dated March 17, 2003 (including the
information incorporated by reference therein, the "Final Memorandum"; the
Preliminary Memorandum and the Final Memorandum each herein being referred to as
a "Memorandum") setting forth or including a description of the terms of the
Notes, the terms of the offering of the Notes, a description of the Company and
any
material developments relating to the Company occurring after the date of the
most recent historical financial statements included therein.
The Notes are being sold in connection with the consummation
of a merger (the "Merger") of DHM Acquisition Company, Inc., a Delaware
corporation, with and into the Company pursuant to an Agreement and Plan of
Merger (the "Merger Agreement") dated as of December 18, 2002 among DHM
Acquisition Company, Inc., DHM Holding Company, Inc., a Delaware corporation
("Holdings"), ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Company.
In connection with the Merger, Holdings, the Company and
Solvest, Ltd. ("Solvest") will enter into a senior secured credit facility in
the amount of up to $1,125.0 million with Deutsche Bank AG New York, as
administrative agent, and the other lenders party thereto (the "Senior Credit
Facility").
The Initial Purchasers and their direct and indirect
transferees of the Notes will be entitled to the benefits of the Registration
Rights Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Company and the
Subsidiary Guarantors will agree, among other things, to file a registration
statement (the "Registration Statement") with the Securities and Exchange
Commission (the "Commission") registering the Notes or the Exchange Notes (as
defined in the Registration Rights Agreement) under the Act.
2. Representations and Warranties. The Issuers, jointly and
severally, represent and warrant to and agree with each of the Initial
Purchasers that:
(a) Neither the Preliminary Memorandum as of the date thereof
nor the Final Memorandum nor any amendment or supplement thereto as of the date
thereof and at all times subsequent thereto up to the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 2(a) do not apply to statements or omissions made in reliance upon and
in conformity with information relating to the Initial Purchasers furnished to
the Company in writing by the Initial Purchasers expressly for use in the
Preliminary Memorandum, the Final Memorandum or any amendment or supplement
thereto.
(b) The section titled "Executive Compensation" of the
Company's Annual Report on Form 10-K filed on March 29, 2002, as amended by the
Company's Annual Report on Form 10-K/A filed on February 7, 2003, which
incorporates by reference the section entitled "Compensation of Executive
Officers" from the Company's proxy statement for its 2002 annual meeting, when
such documents were filed with the Commission, conformed in all material
respects to the requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the Commission
thereunder, and when read together with the information in the Preliminary
Memorandum or the Final Memorandum, as the case may be, did not and will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
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(c) As of December 28, 2002, the Company had the authorized,
issued and outstanding capital stock and debt as set forth under the heading
"Actual" in the section of the Final Memorandum entitled "Capitalization"; all
of the subsidiaries of the Company are listed in Schedule 2 attached hereto
(each, a "Subsidiary" and collectively, the "Subsidiaries"); all of the
outstanding shares of capital stock of the Company and all of the capital stock,
general partnership interests, limited partnership interests, limited liability
company interests or limited liability partnership interests, as the case may
be, of each Subsidiary that are owned by the Company have been, and as of the
Closing Date will be, duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights; all of the outstanding shares of capital stock of the Company (except
shares of stock pledged to secure obligations under the Senior Credit Facility
to be entered into on the Closing Date) and of each of the Subsidiaries (except
as would not have, individually or in the aggregate, a Material Adverse Effect)
will be free and clear of all liens, encumbrances, equities and claims or
restrictions on transferability (other than those imposed by the Act, the
securities or "Blue Sky" laws of certain jurisdictions and any similar
applicable laws of any foreign jurisdictions) or voting; except as set forth or
contemplated in the Final Memorandum, there are no (i) options, warrants or
other rights to purchase, (ii) agreements or other obligations to issue or (iii)
other rights to convert any obligation into, or exchange any securities for,
shares of capital stock of or ownership interests in the Company or any of the
Subsidiaries outstanding.
(d) The Company is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation and has all
requisite power and authority (corporate and other) to own its properties and
conduct its business as now conducted and as described in the Final Memorandum;
each of the Subsidiaries is validly existing and in good standing under the laws
of its respective jurisdiction of incorporation, formation or organization, as
the case may be, and has all requisite power and authority (corporate and other)
to own its properties and conduct its business as now conducted and as described
in the Final Memorandum; each of the Company and the Subsidiaries is duly
qualified to do business as a foreign corporation partnership, limited
partnership, limited liability company or other applicable business entity in
good standing in all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, individually or in the
aggregate, be reasonably expected to have a material adverse effect on the
business, condition (financial or otherwise), prospects or results of operations
of the Company and its Subsidiaries, taken as a whole (a "Material Adverse
Effect").
(e) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under the
Notes, the Exchange Notes and the Private Exchange Notes (as defined in the
Registration Rights Agreement). The Notes, when issued, will be in the form
contemplated by the Indenture. The Notes, the Exchange Notes and the Private
Exchange Notes have each been duly and validly authorized by the Company and,
when executed by the Company and authenticated by the Trustee in accordance with
the provisions of the Indenture and, in the case of the Notes, when delivered to
and paid for by the Initial Purchasers in accordance with the terms of this
Agreement (or issued by the Company in accordance with the Registration Rights
Agreement and the Indenture, in the case of the Exchange Notes and the Private
Exchange Notes), will constitute valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture, and enforceable against the
Company in accordance with their terms, except that the enforcement thereof may
be subject to (i) bankruptcy,
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insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, and
(ii) general principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(f) Each of the Subsidiary Guarantors has all requisite
corporate, partnership, limited liability company or other organizational power
and authority to execute, deliver and perform each of its obligations under the
Guarantees and the guarantees of the Exchange Notes and the Private Exchange
Notes. The Guarantees, and the guarantees of the Exchange Notes, when issued,
will be in the form contemplated by the Indenture. The Guarantees and the
guarantees of the Exchange Notes and the Private Exchange Notes have each been
duly and validly authorized by each of the Subsidiary Guarantors and, when the
Guarantees and the guarantees of the Exchange Notes are executed by each of the
Subsidiary Guarantors and when the Notes are duly executed and delivered against
payment therefor and are authenticated by the Trustee in accordance with the
provisions of the Indenture, such Guarantees and guarantees of the Exchange
Notes will have been duly executed, issued and delivered and will constitute
valid and legally binding obligations of the Subsidiary Guarantors, entitled to
the benefits of such Indenture and enforceable against the Subsidiary Guarantors
in accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(g) Each of the Issuers has all requisite corporate,
partnership, limited liability company or other organizational power and
authority to execute, deliver and perform its obligations under the Indenture.
At the Closing, the Indenture will be duly and validly authorized, executed and
delivered by each of the Issuers and (assuming the due authorization, execution
and delivery thereof by the Trustee) will constitute a valid and legally binding
agreement of each of the Issuers enforceable against each of the Issuers in
accordance with its terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought. The Indenture will meet the
requirements for qualification under the Trust Indenture Act of 1939, as amended
(the "TIA").
(h) Each of the Issuers has all requisite corporate,
partnership, limited liability company or other organizational power and
authority to execute, deliver and perform its obligations under the Registration
Rights Agreement. The Registration Rights Agreement has been duly and validly
authorized by each of the Issuers and, when executed and delivered by each of
the Issuers (assuming the due authorization, execution and delivery by the
Initial Purchasers), will constitute a valid and legally binding agreement of
each of the Issuers enforceable against each of the Issuers in accordance with
its terms, except that (A) the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws relating to creditors' rights generally, and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public policy
considerations.
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(i) Each of the Issuers has all requisite corporate,
partnership, limited liability company or other organizational power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. This Agreement and the
consummation by the Issuers of the transactions contemplated hereby have been
duly and validly authorized by each of the Issuers. This Agreement has been duly
executed and delivered by each of the Issuers.
(j) No consent, approval, authorization or order of any court
or governmental agency or body, or third party is required for the issuance and
sale by the Issuers of the Notes to the Initial Purchasers or the consummation
by the Issuers of the other transactions contemplated hereby, including the
Merger (except as set forth in the schedules to the Merger Agreement), except
such as have been obtained and such as may be required under state securities or
"Blue Sky" laws in connection with the purchase and resale of the Notes by the
Initial Purchasers and except where the failure to obtain such consent,
approval, authorization or order would not, individually or in the aggregate,
have a Material Adverse Effect. None of the Company or the Subsidiaries is (i)
in violation of its certificate of incorporation or bylaws (or similar
organizational document), (ii) in breach or violation of any statute, judgment,
decree, order, rule or regulation applicable to any of them or any of their
respective properties or assets, except for any such breach or violation that
would not, individually or in the aggregate, have a Material Adverse Effect, or
(iii) in breach of or default under (nor has any event occurred that, with
notice or passage of time or both, would constitute a default under) or in
violation of any of the terms or provisions of any indenture, mortgage, deed of
trust, loan agreement, note, lease, license, franchise agreement, permit,
certificate, contract or other agreement or instrument to which any of them is a
party or to which any of them or their respective properties or assets is
subject (collectively, "Contracts"), except for any such breach, default,
violation or event that would not, individually or in the aggregate, have a
Material Adverse Effect.
(k) The execution, delivery and performance by the Company of
this Agreement, the Indenture, the Registration Rights Agreement; the execution,
delivery and performance by the Subsidiary Guarantors of this Agreement, the
Indenture and the Registration Rights Agreement and the consummation by the
Issuers of the transactions contemplated hereby and thereby (including, without
limitation, the issuance and sale of the Notes to the Initial Purchasers) will
not conflict with or constitute or result in a breach of or a default under (or
an event that with notice or passage of time or both would constitute a default
under) or violation of any of (i) the terms or provisions of any Contract,
except for any such conflict, breach, violation, default or event that would
not, individually or in the aggregate, have a Material Adverse Effect, (ii) the
certificate of incorporation or bylaws (or similar organizational document) of
the Company or any of the Subsidiaries or (iii) (assuming compliance with all
applicable state securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchasers in Section 8 hereof)
any statute, judgment, decree, order, rule or regulation applicable to the
Company or any of the Subsidiaries or any of their respective properties or
assets, except for any such conflict, breach or violation that would not,
individually or in the aggregate, have a Material Adverse Effect.
(l) The audited consolidated financial statements of the
Company and the Subsidiaries included in the Final Memorandum present fairly in
all material respects the financial position, results of operations and cash
flows of the Company and the Subsidiaries at the
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dates and for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis, except as otherwise stated therein. The summary and selected financial
and statistical data in the Final Memorandum present fairly in all material
respects the information shown therein and have been prepared and compiled on a
basis consistent with the audited financial statements included therein, except
as otherwise stated therein. Deloitte & Touche LLP (the "Independent
Accountants") is an independent public accounting firm within the meaning of the
Act and the rules and regulations promulgated thereunder.
(m) The pro forma financial statements (including the notes
thereto) and the other pro forma financial information included in the Final
Memorandum (i) comply as to form in all material respects with the applicable
requirements of Regulation S-X promulgated under the Exchange Act, (ii) have
been prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements and (iii) have been properly computed
on the bases described therein; the assumptions used in the preparation of the
pro forma financial data and other pro forma financial information included in
the Final Memorandum are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(n) Except as disclosed in the Final Memorandum, there is not
pending or, to the knowledge of the Company or any of the Subsidiaries,
threatened any action, suit, proceeding, inquiry or investigation to which the
Company or any of the Subsidiaries is a party, or to which the property or
assets of the Company or any of the Subsidiaries are subject, before or brought
by any court, arbitrator or governmental agency or body that, if determined
adversely to the Company or any of the Subsidiaries, would, individually or in
the aggregate, have a Material Adverse Effect or that seeks to restrain, enjoin,
prevent the consummation of or otherwise challenge the issuance or sale of the
Notes to be sold hereunder or the consummation of the other transactions
described in the Final Memorandum.
(o) Each of the Company and the Subsidiaries possesses or will
possess or can acquire on reasonable terms all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has made all
declarations and filings with, all federal, state, local and other governmental
authorities, all self-regulatory organizations and all courts and other
tribunals, presently required or necessary to own or lease, as the case may be,
and to operate its respective properties and to carry on its respective
businesses as now or proposed to be conducted as set forth in the Final
Memorandum ("Permits"), except where the failure to obtain such Permits would
not, individually or in the aggregate, have a Material Adverse Effect; each of
the Company and the Subsidiaries has fulfilled and performed all of its
respective obligations with respect to such Permits and no event has occurred
that 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; and none of the Company or the Subsidiaries has
received any notice of any proceeding relating to revocation or modification of
any such Permit, except as described in the Final Memorandum and except where
such failure to fulfill or perform or such revocation or modification would not,
individually or in the aggregate, have a Material Adverse Effect.
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(p) Since the date of the most recent financial statements
appearing in the Final Memorandum, except as described therein, (i) none of the
Company or the Subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into or agreed to enter into any transactions or
contracts (written or oral) not in the ordinary course of business, which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, have a Material Adverse Effect, (ii) none of the Company or the
Subsidiaries has purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its capital
stock except as publicly disclosed (other than with respect to any of such
Subsidiaries, the purchase of, or dividend or distribution on, capital stock
owned by the Company) and (iii) there shall not have been any material change in
the capital stock or long-term indebtedness of the Company or the Subsidiaries.
(q) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns, except
where the failure to so file such returns would not, individually or in the
aggregate, have a Material Adverse Effect, and has paid all taxes shown as due
thereon; and other than tax deficiencies that the Company or any Subsidiary is
contesting in good faith and for which the Company or such Subsidiary has
provided adequate reserves, there is no tax deficiency that has been asserted
against the Company or any of the Subsidiaries that would have, individually or
in the aggregate, a Material Adverse Effect.
(r) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources that the Company and the
Subsidiaries believe to be reliable and accurate.
(s) None of the Company, the Subsidiaries or any agent acting
on their behalf has taken or will take any action that might cause this
Agreement or the sale of the Notes to violate Regulation T, U or X of the Board
of Governors of the Federal Reserve System, in each case as in effect, or as the
same may hereafter be in effect, on the Closing Date.
(t) Each of the Company and the Subsidiaries has good and
marketable title to all real property and good title to all personal property
described in the Final Memorandum as being owned by it and good and marketable
title to a leasehold estate in the real and personal property described in the
Final Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Final Memorandum or to
the extent the failure to have such title or the existence of such liens,
charges, encumbrances or restrictions would not, individually or in the
aggregate, have a Material Adverse Effect. All leases, contracts and agreements
to which the Company or any of the Subsidiaries is a party or by which any of
them is bound are valid and enforceable against the Company or such Subsidiary,
and are valid and enforceable against the other party or parties thereto and are
in full force and effect with only such exceptions as would not, individually or
in the aggregate, have a Material Adverse Effect.
(u) The Company and the Subsidiaries own or possess adequate
licenses or other rights to use all patents, patent rights, inventions,
trademarks, service marks, trade names, copyrights and know-how that are
necessary to conduct their respective businesses now or proposed to be operated
by them as described in the Final Memorandum, except where the failure to own or
possess such licenses or other rights would not, individually or in the
aggregate, have a
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Material Adverse Effect and none of the Company or the Subsidiaries has received
any written notice of infringement of or conflict with (or knows of any such
infringement or conflict with) asserted rights of others with respect to any
patents, patent rights, inventions, trademarks, service marks, trade names,
copyrights or know-how that, if such assertion of infringement or conflict were
sustained, would reasonably be expected to result in a Material Adverse Effect.
(v) There are no legal or governmental proceedings now pending
or threatened in writing against or involving the Company or any Subsidiary or
any of their respective properties or assets that would be required to be
described in a prospectus delivered pursuant to the Act that are not described
in the Final Memorandum, nor are there any material contracts or other documents
that would be required to be described in a prospectus delivered pursuant to the
Act that are not described in the Final Memorandum.
(w) Except as would not, individually or in the aggregate,
have a Material Adverse Effect or as disclosed in the Final Memorandum (A) each
of the Company and the Subsidiaries is in compliance with and not subject to
liability under applicable Environmental Laws (as defined below), (B) each of
the Company and the Subsidiaries has made all filings and provided all notices
required under any applicable Environmental Law, and has and is in compliance
with all Permits required under any applicable Environmental Laws and each of
them is in full force and effect and (C) there is no civil, criminal or
administrative action, suit, demand, claim, hearing, notice of violation,
investigation, proceeding, notice or demand letter or request for information
pending or, to the knowledge of the Company or any of the Subsidiaries,
threatened against the Company or any of the Subsidiaries under any
Environmental Law.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(x) Except as disclosed in the Final Memorandum, there is no
strike, labor dispute, slowdown or work stoppage with the employees of the
Company or any of the Subsidiaries that is pending or, to the knowledge of the
Company, threatened that would have a Material Adverse Effect.
(y) None of the Company or the Subsidiaries has any material
liability for any prohibited transaction or funding deficiency or any complete
or partial withdrawal liability with respect to any pension, profit sharing or
other plan that is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), to which the Company or any of the Subsidiaries
makes or ever has made a contribution and in which any employee of the Company
or of any Subsidiary is or has ever been a participant which would have,
individually or in the
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aggregate, a Material Adverse Effect. With respect to such plans, the Company
and each Subsidiary is in compliance in all material respects with all
applicable provisions of ERISA.
(z) Each of the Company and the Subsidiaries (i) makes and
keeps accurate books and records and (ii) maintains internal accounting controls
that provide reasonable assurance that (A) transactions are executed in
accordance with management's authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to maintain
accountability for its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported accountability
for its assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any difference.
(aa) The Company and each of the Subsidiaries, taken as a
whole, are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the
business in which it is engaged as such business is currently constituted; all
material policies of insurance and fidelity or surety bonds insuring the
Company, each of the Subsidiaries and their respective business, assets,
employees, officers and directors are in full force and effect; the Company and
each of the Subsidiaries is in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the Company or
any Subsidiary under any such policy or instrument as to which any insurance
company is denying liability or defending under a reservation of rights clause;
the Company and each of the Subsidiaries has not been refused any material
insurance coverage sought or applied for that they have not been able to procure
from another insurer on reasonable terms; and the Company and each of the
Subsidiaries has no reason to believe that it will not be able to obtain
insurance coverage as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect, except as set forth in or contemplated
in the Final Memorandum (exclusive of any amendment or supplement thereto).
(bb) Except as would not adversely affect the interests of the
holders of the Notes, none of the wholly-owned Subsidiaries of the Company is or
on the Closing Date will be, prohibited, directly or indirectly, from paying any
dividends to its corporate parent that is a direct or indirect Subsidiary of the
Company, from making any other distribution on such Subsidiary's capital stock,
from repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or assets to the
Company or any other Subsidiary of the Company, except as may be prescribed by
applicable law or as described in or contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(cc) None of the Company or the Subsidiaries are, or after the
issuance and sale of the Notes as herein contemplated and the application of the
net proceeds therefrom as described in the Final Memorandum will be, required to
register as an "investment company" or "promoter" or "principal underwriter" for
an "investment company," as such terms are defined in the Investment Company Act
of 1940, as amended, and the rules and regulations thereunder.
(dd) The Notes, the Indenture and the Registration Rights
Agreement will conform in all material respects to the descriptions thereof in
the Final Memorandum.
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(ee) No holder of securities of the Company or any Subsidiary
will be entitled to have such securities registered under the registration
statements required to be filed by the Company pursuant to the Registration
Rights Agreement other than as expressly permitted thereby. Other than as set
forth in the Final Memorandum, no holder of securities of the Company has any
other rights to have any securities registered by the Company under the Act.
(ff) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable value
of the assets of the Company and the Subsidiaries (on a consolidated basis) will
exceed the sum of its stated liabilities and identified contingent liabilities;
the Company and the Subsidiaries (on a consolidated basis) are not, nor will the
Company or the Subsidiaries (on a consolidated basis) be, after giving effect to
the execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, (a) left with unreasonably small
capital with which to carry on their business as it is proposed to be conducted,
(b) unable to pay their debts (contingent or otherwise) to third parties as they
mature or (c) otherwise insolvent.
(gg) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the Act)
has directly, or through any agent (other than the Initial Purchasers, as to
whom the Company and its Subsidiaries make no representation), (i) sold, offered
for sale, solicited offers to buy or otherwise negotiated in respect of, any
"security" (as defined in the Act) that is or could be integrated with the sale
of the Notes in a manner that would require the registration under the Act of
the Notes or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a public
offering within the meaning of Section 4(2) of the Act. Assuming the accuracy of
the representations and warranties and the due performance of the agreements of
the Initial Purchasers in Section 8 hereof (including, without limitation, the
transfer restrictions referred to therein), the offer, sale and delivery of the
Notes to the Initial Purchasers in the manner contemplated by this Agreement and
the Final Memorandum and the initial resale of the Notes by the Initial
Purchasers in the manner contemplated in the Final Memorandum and this
Agreement, it is not necessary in connection with the offer, sale and delivery
of the Notes to the Initial Purchasers in the manner contemplated by this
Agreement to register any of the Notes under the Act or to qualify the Indenture
under the TIA. The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Act.
(hh) No securities of the Company or any Subsidiary are of the
same class (within the meaning of Rule 144A under the Act) as the Notes and
listed on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S. automated inter-dealer quotation system.
(ii) Neither the Company nor the Subsidiaries have taken, nor
will any of them take, directly or indirectly, any action designed to, or that
might be reasonably expected to, cause or result in stabilization or
manipulation of the price of the Notes.
(jj) None of the Company, the Subsidiaries, any of their
respective Affiliates or any person acting on its or their behalf (other than
the Initial Purchasers) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Act ("Regulation S"))
-10-
with respect to the Notes; the Company, the Subsidiaries and their respective
Affiliates and any person acting on its or their behalf (other than the Initial
Purchasers) have complied with the offering restrictions requirement of
Regulation S.
(kk) Except as will be disclosed in the Memorandum, there are
no business relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission and each business
relationship or related party transaction described therein is in all material
respects a fair and accurate description of the relationships and transactions
so described.
(ll) The Company has been advised by the NASD's Portal Market
(as defined herein) that the Notes have been designated Portal-eligible
securities in accordance with the rules and regulations of the NASD.
Any certificate signed by any officer of the Company or any
Subsidiary Guarantor and delivered to any Initial Purchaser or to counsel for
the Initial Purchasers in connection with this Agreement shall be deemed a joint
and several representation and warranty by the Company and each of the
Subsidiary Guarantors to each Initial Purchaser as to the matters covered
thereby.
3. Purchase, Sale and Delivery of the Notes. On the basis of
the representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers, acting
severally and not jointly, agree to purchase the Notes in the respective amounts
set forth on Schedule 1 hereto from the Company at 97.0% of their principal
amount. One or more certificates in definitive form for the Notes that the
Initial Purchasers have agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as the Initial Purchasers
request upon notice to the Company at least 36 hours prior to the Closing Date,
shall be delivered by or on behalf of the Company to the Initial Purchasers,
against payment by or on behalf of the Initial Purchasers of the purchase price
therefor by wire transfer (same day funds), 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. Such delivery of and payment for
the Notes shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 9:00 A.M., New York time, on March 28, 2003, or at
such other place, time or date as the Initial Purchasers, on the one hand, and
the Company, on the other hand, may agree upon, such time and date of delivery
against payment being herein referred to as the "Closing Date." The Company will
make such certificate or certificates for the Notes available for checking and
packaging by the Initial Purchasers at the offices of Deutsche Bank Securities
Inc. in New York, New York, or at such other place as Deutsche Bank Securities
Inc. may designate, at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers
propose to make an offering of the Notes at the price and upon the terms set
forth in the Final Memorandum as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
-11-
5. Covenants of the Company. The Issuers, jointly and
severally, covenant and agree with each of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement and as
to which the Initial Purchasers shall not have given their consent, which
consent shall not be unreasonably withheld or delayed more than five business
days. The Issuers will promptly, upon the reasonable request of the Initial
Purchasers or counsel for the Initial Purchasers, make any amendments or
supplements to the Preliminary Memorandum or the Final Memorandum that may be
necessary or advisable in connection with the resale of the Notes by the Initial
Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of which jurisdictions as the Initial Purchasers
may reasonably request and will continue such qualifications in effect for as
long as required by law to complete the resale of the Notes; provided, however,
that in connection therewith, the Issuers shall not be required to qualify as a
foreign corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Notes or the Private Exchange
Notes, any event occurs or information becomes known as a result of which the
Final Memorandum as then amended or supplemented would include any untrue
statement of a material fact, or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Final Memorandum to comply with applicable law, the
Company will promptly notify the Initial Purchasers thereof and will prepare, at
the expense of the Company, an amendment or supplement to the Final Memorandum
that corrects such statement or omission or effects such compliance.
(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchasers may reasonably request.
(e) The Company will apply the net proceeds from the sale of
the Notes as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Notes remain outstanding, the
Company will furnish to the Initial Purchasers, at their request, copies of all
reports and other communications (financial or otherwise) furnished by the
Company to the Trustee or to the holders of the Notes and, as soon as available,
copies of any reports or financial statements furnished to or filed by the
Issuers with the Commission or any national securities exchange on which any
class of securities of the Company may be listed.
-12-
(g) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers at their request, as soon as they have been prepared, a copy
of any unaudited interim quarterly financial statements of the Company for any
period subsequent to the period covered by the most recent financial statements
appearing in the Final Memorandum.
(h) None of the Company or any of its Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) that could be integrated with the sale of the
Notes in a manner which would require the registration under the Act of the
Notes.
(i) The Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a public
offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the Act, the
Company will make available at its expense, upon request, to any holder of such
Notes and any prospective purchasers thereof the information specified in Rule
144A(d)(4) under the Act, unless the Company is then subject to Section 13 or
15(d) of the Exchange Act.
(k) The Company will use its reasonable best efforts to (i)
permit the Notes to be designated as PORTAL-eligible securities in accordance
with the rules and regulations adopted by the NASD relating to trading in the
Private Offering, Resales and Trading Through Automated Linkages Market (the
"Portal Market") and (ii) permit the Notes to be eligible for clearance and
settlement through The Depository Trust Company.
(l) In connection with Notes offered and sold in an off shore
transaction (as defined in Regulation S) the Issuers will not register any
transfer of such Notes not made in accordance with the provisions of Regulation
S and will not, except in accordance with the provisions of Regulation S, if
applicable, issue any such Notes in the form of definitive securities.
6. Expenses. The Issuers, jointly and severally, agree to pay
all costs and expenses incident to the performance of their obligations under
this Agreement, whether or not the transactions contemplated herein are
consummated or this Agreement is terminated pursuant to Section 11 hereof,
including all costs and expenses incident to (i) the printing, word processing
or other production of documents with respect to the transactions contemplated
hereby, including any costs of printing the Preliminary Memorandum and the Final
Memorandum and any amendment or supplement thereto, and any "Blue Sky"
memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Issuers, (iv) preparation (including printing), issuance and
delivery to the Initial Purchasers of the Notes, (v) the qualification of the
Notes under state securities and "Blue Sky" laws, including filing fees and fees
and disbursements of counsel for the Initial Purchasers relating thereto, (vi)
expenses in connection with the "roadshow" and any other meetings with
prospective investors in the Notes, (vii) fees and expenses of the Trustee,
including fees and expenses of counsel for the Trustee, (viii) all expenses and
listing fees incurred in connection with the application for
-13-
quotation of the Notes on the PORTAL Market, (ix) any fees charged by investment
rating agencies for the rating of the Notes, (x) the cost of any advertising
approved by the Initial Purchasers and the Company in connection with the Notes,
and (xi) all other costs and expenses incident to the performance by the Issuers
of their respective obligations hereunder. If the sale of the Notes provided for
herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 7 hereof is not satisfied, because this
Agreement is terminated or because of any failure, refusal or inability on the
part of the Issuers to perform all obligations and satisfy all conditions on
their part to be performed or satisfied hereunder (unless there has been a
default by the Initial Purchasers of their obligations hereunder after all
conditions hereunder have been satisfied in accordance herewith), the Issuers,
jointly and severally, agree to promptly reimburse the Initial Purchasers upon
demand for all out-of-pocket expenses (including the reasonable fees,
disbursements and charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial
Purchasers) that shall have been incurred by the Initial Purchasers in
connection with the proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The
obligation of the Initial Purchasers to purchase and pay for the Notes shall, in
their sole discretion, be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have
received the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Company,
in form and substance reasonably satisfactory to counsel for the Initial
Purchasers, to the effect that:
(i) The Company is duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation, and
has all requisite corporate power and authority to own its properties
and to conduct its business as described in the Final Memorandum. Each
of the Subsidiaries listed on Schedule 3 hereto (such subsidiaries, the
"Significant Subsidiaries") is validly existing and in good standing
under the laws of its respective jurisdiction of incorporation,
formation or organization, as the case may be, and has all requisite
power and authority (corporate and other) to own its properties and
conduct its business as now conducted and as described in the Final
Memorandum.
(ii) Each of the Company and the Significant Subsidiaries is
duly qualified to do business and is in good standing in each
jurisdiction listed on a schedule to such opinion.
(iii) The Company and each Significant Subsidiary, as
applicable, has all requisite corporate, partnership, limited liability
company or other organizational power and authority to execute, deliver
and perform each of its obligations under the Indenture, the Notes, the
Exchange Notes and the Private Exchange Notes; the Indenture meets the
requirements for qualification under the TIA; the Indenture has been
duly and validly authorized by the Company and each Significant
Subsidiary and, when duly executed and delivered by each of the Issuers
(assuming the due authorization, execution and delivery thereof by the
Trustee), will constitute the valid and binding agreement of each of
the Company and each Significant Subsidiary, enforceable against the
Company and each of the Significant Subsidiaries in accordance with its
terms, except that the enforcement
-14-
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance and transfer, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought including, without
limitation, standards of materiality, good faith and reasonableness in
the interpretation and enforcement of contracts, and the application of
such principles to limit the availability of equitable remedies such as
specific performance.
(iv) The Notes are substantially in the form attached to the
Indenture. The Notes have each been duly and validly authorized by the
Company and, when duly executed and delivered by the Company and paid
for by the Initial Purchasers in accordance with the terms of this
Agreement (assuming the due authorization, execution and delivery of
the Indenture by the Trustee and due authentication and delivery of the
Notes by the Trustee in accordance with the Indenture), will constitute
the valid and legally binding obligations of the Company, entitled to
the benefits of the Indenture, and enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance and transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought including, without
limitation, standards of materiality, good faith and reasonableness in
the interpretation and enforcement of contracts, and the application of
such principles to limit the availability of equitable remedies such as
specific performance.
(v) The Exchange Notes and the Private Exchange Notes have
been duly and validly authorized by the Company, and when the Exchange
Notes and the Private Exchange Notes are duly executed and delivered by
the Company in accordance with the terms of the Registration Rights
Agreement and the Indenture (assuming the due authorization, execution
and delivery of the Indenture by the Trustee and due authentication and
delivery of the Exchange Notes and the Private Exchange Notes by the
Trustee in accordance with the Indenture), will constitute the valid
and legally binding obligations of the Company, entitled to the
benefits of the Indenture, and enforceable against the Company in
accordance with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance and transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought including, without
limitation, standards of materiality, good faith and reasonableness in
the interpretation and enforcement of contracts, and the application of
such principles to limit the availability of equitable remedies such as
specific performance.
(vi) The Guarantees are substantially in the form attached to
the Indenture. The Guarantees and the guarantees of the Exchange Notes
and the Private Exchange Notes have been duly and validly authorized by
each Significant Subsidiary and, when executed by each of the
Subsidiary Guarantors and when the Notes are duly executed and
delivered against payment therefor and are authenticated by the Trustee
in accordance with the provisions of the Indenture, such Guarantees and
such guarantees of the
-15-
Exchange Notes will have been duly executed, issued and delivered and
will constitute valid and legally binding obligations of each
Significant Subsidiary, entitled to the benefits of the Indenture and
enforceable against the Subsidiary Guarantors in accordance with their
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance and
transfer, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, and (ii) general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought including, without limitation, standards of
materiality, good faith and reasonableness in the interpretation and
enforcement of contracts, and the application of such principles to
limit the availability of equitable remedies such as specific
performance.
(vii) Each of the Company and the Significant Subsidiaries has
all requisite corporate, partnership, limited liability company or
other organizational power and authority to execute, deliver and
perform its obligations under the Registration Rights Agreement; the
Registration Rights Agreement has been duly and validly authorized by
the Company and, when duly executed and delivered by each of the
Issuers (assuming due authorization, execution and delivery thereof by
the Initial Purchasers), will constitute the valid and legally binding
agreement of each of the Company and each Significant Subsidiary,
enforceable against the Company and each Significant Subsidiary in
accordance with its terms, except that (A) the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance and transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought and (B) any rights to
indemnity or contribution thereunder may be limited by federal and
state securities laws and public policy considerations including,
without limitation, standards of materiality, good faith and
reasonableness in the interpretation and enforcement of contracts, and
the application of such principles to limit the availability of
equitable remedies such as specific performance.
(viii) Each of the Company and the Significant Subsidiaries
has all requisite corporate, partnership, limited liability company or
other organizational power and authority to execute, deliver and
perform its obligations under this Agreement and to consummate the
transactions contemplated hereby; this Agreement and the consummation
by the Company and each of the Significant Subsidiaries of the
transactions contemplated hereby have been duly and validly authorized
by the Company and each of the Significant Subsidiaries. This Agreement
has been duly executed and delivered by the Company and each of the
Significant Subsidiaries.
(ix) The Indenture, the Notes, the Guarantees and the
Registration Rights Agreement conform in all material respects to the
descriptions thereof contained in the Final Memorandum.
(x) The execution, delivery and performance of this Agreement,
the Indenture, the Registration Rights Agreement and the consummation
of the transactions contemplated hereby and thereby (including, without
limitation, the issuance and sale of the Notes to the Initial
Purchasers) will not conflict with or constitute or result in a breach
or a default under (or an event that with notice or passage of time or
both would constitute a
-16-
default under) or violation of any of (i) the terms or provisions of
any Material Contract, except for any such conflict, breach, violation,
default or event that would not, individually or in the aggregate, have
a Material Adverse Effect, (ii) the certificate of incorporation or
bylaws (or similar organizational document) of the Company or any of
the Significant Subsidiaries, or (iii) (assuming compliance with all
applicable state securities or "Blue Sky" laws and assuming the
accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof) any U.S. federal, New York or
California State or Delaware General Corporation Law statute, judgment,
decree, order, rule or regulation known to such counsel to be
applicable to the Company or any of the Significant Subsidiaries or any
of their respective properties or assets, except for any such conflict,
breach or violation that would not, individually or in the aggregate,
have a Material Adverse Effect. For purposes hereof, a "Material
Contract" means the agreements and instruments listed on a schedule to
such opinion.
(xi) No consent, approval, authorization or order of any U.S.
federal or New York or California State governmental authority is
required for the issuance and sale by the Company of the Notes to the
Initial Purchasers or the consummation by the Company of the other
transactions contemplated hereby, except such as may be required under
Blue Sky laws, as to which such counsel need express no opinion, and
those which have previously been obtained.
(xii) None of the Company or any Significant Subsidiary is,
and immediately following the consummation of the transactions
contemplated by this Agreement and the application of the net proceeds
from the sale of the Notes pursuant to this Agreement (as described in
the Final Memorandum under the caption "Use of Proceeds") will be, an
"investment company" required to be registered under the Investment
Company Act of 1940, as amended.
(xiii) No registration under the Act of the Notes is required
in connection with the sale of the Notes to the Initial Purchasers as
contemplated by this Agreement and the Final Memorandum or in
connection with the initial resale of the Notes by the Initial
Purchasers in accordance with Section 8 of this Agreement, and prior to
the commencement of the Exchange Offer (as defined in the Registration
Rights Agreement) or the effectiveness of the Shelf Registration
Statement (as defined in the Registration Rights Agreement), the
Indenture is not required to be qualified under the TIA, in each case
assuming (i) (A) that the purchasers who buy such Notes in the initial
resale thereof are qualified institutional buyers as defined in Rule
144A promulgated under the Act ("QIBs") or (B) that the offer or sale
of the Notes is made in an offshore transaction as defined in
Regulation S, (ii) the accuracy of the Initial Purchasers'
representations in Section 8 and those of the Company contained in this
Agreement regarding the absence of a general solicitation in connection
with the sale of such Notes to the Initial Purchasers and the initial
resale thereof and (iii) the due performance by the Initial Purchasers
of the agreements set forth in Section 8 hereof.
At the time the foregoing opinion is delivered, Paul,
Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall additionally state that it has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
-17-
Company, representatives of the Initial Purchasers and counsel for the Initial
Purchasers, at which conferences the contents of the Final Memorandum and
related matters were discussed, and, although it has not independently verified
and is not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Final Memorandum
(except to the extent specified in subsection 7(a)(ix)), on the basis of the
foregoing (relying as to materiality to a certain extent upon the opinions of
officers and other representatives of the Company and its Subsidiaries) no facts
have come to its attention which lead it to believe that the Final Memorandum,
on the date thereof or at the Closing Date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading (it being understood
that such firm need make no statement with respect to the financial statements
and related notes thereto and the other financial and accounting data derived
from the Company's books and records included in the Final Memorandum).
The opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP described
in this Section shall be rendered to the Initial Purchasers at the request of
the Company and shall so state therein.
References to the Final Memorandum in this subsection (a)
shall include any amendment or supplement thereto prepared in accordance with
the provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall have
received the opinion, in form and substance satisfactory to the Initial
Purchasers, dated as of the Closing Date and addressed to the Initial
Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Initial Purchasers, with
respect to certain legal matters relating to this Agreement and such other
related matters as the Initial Purchasers may reasonably require. In rendering
such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ shall have received and may rely upon such
certificates and other documents and information as it may reasonably request to
pass upon such matters.
(c) The Initial Purchasers shall have received from the
Independent Accountants a comfort letter or letters dated the date hereof and
the Closing Date, in form and substance reasonably satisfactory to counsel for
the Initial Purchasers.
(d) The representations and warranties of the Issuers
contained in this Agreement shall be true and correct or true and correct in all
material respects where such representations and warranties are not qualified by
materiality or Material Adverse Effect, on the date of this Agreement and, in
each case after giving effect to the transactions contemplated hereby, on the
Closing Date, except that if a representation and warranty is made as of a
specific date, and such date is expressly referred to therein, such
representation and warranty shall be true and correct (or true and correct in
all material respects, as applicable) as of such date; the Issuers shall have
performed or complied with all covenants and agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to
the Closing Date; and, except as described in the Final Memorandum (exclusive of
any amendment or supplement thereto after the date hereof), subsequent to the
date of the most recent financial statements in such Final Memorandum, there
shall have been no event or development, and no information shall have
-18-
become known to the Company, that, individually or in the aggregate, has or
would be reasonably likely to have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), none of the Company or any of the Subsidiaries
shall have sustained any loss or interference with respect to its business or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any strike, labor dispute, slow down or work
stoppage or from any legal or governmental proceeding, order or decree, which
loss or interference, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate
from each of the Company and the Subsidiary Guarantors, dated the Closing Date,
signed by two authorized officers on behalf of the Company or the Subsidiary
Guarantors by their respective Chairman of the Board, President or any Vice
President and the Chief Financial Officer, to the effect that:
(i) The representations and warranties of the Company
contained in this Agreement are true and correct or true and correct in
all material respects where such representations and warranties are not
qualified by materiality or Material Adverse Effect, on the date of
this Agreement and, in each case after giving effect to the
transactions contemplated hereby, on the Closing Date, except that if a
representation and warranty is made as of a specific date, and such
date is expressly referred to therein, such representation and warranty
shall be true and correct (or true and correct in all material
respects, as applicable) as of such date;
(ii) At the Closing Date, since the date hereof or since the
date of the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date
hereof), no event or development has occurred, and no information has
become known to the Company, that, individually or in the aggregate,
has or would be reasonably likely to have a Material Adverse Effect;
and
(iii) The sale of the Notes hereunder has not been enjoined
(temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement executed by the Company and such
agreement shall be in full force and effect at all times from and after the
Closing Date.
(i) On the Closing Date, Holdings, the Company and Solvest
shall have entered into the Senior Credit Facility in form and substance
reasonably satisfactory to the Initial Purchasers.
(j) The Merger shall be consummated substantially
simultaneously with the Offering on the Closing Date on the terms and conditions
set forth in the Merger Agreement in the form previously delivered to the
Initial Purchasers.
-19-
(k) On the Closing Date, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Holdings, the
Company, Solvest, LTD and Deutsche Bank AG New York, as administrative agent,
shall have entered into the Capital Call Agreement (as defined in the Indenture)
in form and substance reasonably satisfactory to the Initial Purchasers.
(l) On the Closing Date, the Company shall have received a
common equity investment of not less than $563.5 million (at least $125.0
million of which shall be in cash and the remainder of which shall be in
rollover equity of the Company) from ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and his affiliates.
(m) Concurrently with the Closing, the Company shall have
amended the Existing Notes Indenture (as defined in the Indenture) governing the
Company's existing 7.25% Senior Notes due 2009 (the "2009 Notes") and 7.875%
Debentures due 2013 (the "2013 Debentures") to provide for substantially the
same provisions and senior subordinated guarantees as provided for the Notes and
to provide for interest per annum on the 2009 Notes and 2013 Debentures of
8.625% and 8.75%, respectively.
(n) Concurrently with the Closing, the Company shall have (i)
delivered to the Trustee to be mailed to all holders of the Company's
outstanding 6-3/8% Notes due 2005 (the "2005 Notes") a notice of redemption for
the 2005 Notes in accordance with Article 11 of the Indenture, dated July 15,
1993 between the Company and Chemical Trust Company of California, as trustee,
relating to the 2005 Notes (the "2005 Notes Indenture"), (ii) deposited with the
trustee sufficient funds (which may include proceeds from the sale of the Notes)
to satisfy its discharge obligations under Article 4 of the 2005 Notes Indenture
and to redeem the 2005 Notes pursuant to Article 11 of the 2005 Notes Indenture
and (iii) deposited with the trustee sufficient funds (which may include
proceeds from the sale of the Notes) to satisfy its discharge obligations and
repay all amounts due on the Company's outstanding 7% Notes due 2003 (the "2003
Notes") at May 15, 2003 pursuant to Article 4 of the Indenture dated April 15,
1993 between the Company and Chemical Trust Company of California, as trustee,
relating to the 2003 Notes.
(o) The Notes shall be eligible for clearance and settlement
through the Depository Trust Company.
(p) The Notes shall be designated Portal-eligible securities
in accordance with the rules and regulations of the NASD.
On or before the Closing Date, the Initial Purchasers and
counsel for the Initial Purchasers shall have received such further documents,
opinions, certificates, letters and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have heretofore reasonably requested from the
Company.
All such documents, opinions, certificates, letters, schedules
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchasers and counsel for the Initial Purchasers. Each
of the Issuers shall furnish to the Initial Purchasers such conformed copies of
such documents, opinions, certificates, letters, schedules and instruments in
such quantities as the Initial Purchasers shall reasonably request.
-20-
8. Offering of Notes; Restrictions on Transfer. (a) Each of
the Initial Purchasers agrees with the Company (as to itself only) that (i) it
has not and will not solicit offers for, or offer or sell, the Notes by any form
of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act; and (ii) it has and will solicit offers
for the Notes only from, and will offer the Notes only to (A) in the case of
offers inside the United States, persons whom the Initial Purchasers reasonably
believe to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to the Initial Purchasers that each such
account is a QIB, to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, and, in each case, in transactions under
Rule 144A and (B) in the case of offers outside the United States, to persons
other than U.S. persons ("non-U.S. purchasers," which term shall include dealers
or other professional fiduciaries in the United States acting on a discretionary
basis for non-U.S. beneficial owners (other than an estate or trust)); provided,
however, that, in the case of this clause (B), in purchasing such Notes such
persons are deemed to have represented and agreed as provided under the caption
"Transfer Restrictions" contained in the Final Memorandum (or, if the Final
Memorandum is not in existence, in the most recent Memorandum).
(b) Each of the Initial Purchasers represents and warrants (as
to itself only) with respect to offers and sales outside the United States that
(i) it has and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Notes or has in its
possession or distributes any Memorandum or any such other material, in all
cases at its own expense; (ii) the Notes have not been and will not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S under the Act or pursuant to an
exemption from the registration requirements of the Act; and (iii) it has
offered the Notes and will offer and sell the Notes (A) as part of its
distribution at any time and (B) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in accordance with Rule
903 of Regulation S and, accordingly, neither it nor any persons acting on its
behalf have engaged or will engage in any directed selling efforts (within the
meaning of Regulation S) with respect to the Notes, and any such persons have
complied and will comply with the offering restrictions requirement of
Regulation S.
Terms used in this Section 8 and not defined in this Agreement
have the meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) The Issuers, jointly
and severally, agree to indemnify and hold harmless each Initial Purchaser and
each person, if any, who controls any Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which any Initial Purchaser or such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a
material fact made by the Company in Section 2 hereof;
-21-
(ii) any untrue statement or alleged untrue statement of any
material fact contained in any Memorandum or any amendment or
supplement thereto; or
(iii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements
therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, the Issuers
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any Memorandum
or any amendment or supplement thereto in reliance upon and in conformity with
written information concerning the Initial Purchasers furnished to the Company
by the Initial Purchasers through Deutsche Bank Securities Inc. specifically for
use therein; provided that this indemnity shall not apply to the Preliminary
Memorandum or any amendment or supplement thereto to the extent that any such
loss, claim, damage or liability results from the fact that any Initial
Purchaser sold Notes to a person as to whom it shall be established that there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Final Memorandum or any amendment or supplement thereto and the
loss, claim, damage or liability of such Initial Purchaser results from an
untrue statement or omission of a material fact contained in the Preliminary
Memorandum which was corrected in the Final Memorandum or any amendment or
supplement thereto and such correction would have cured the defect giving rise
to such loss, claim, damage or liability, unless such failure to deliver the
Final Memorandum or any amendment or supplement thereto was a result of
noncompliance by the Issuers with Section 5 hereof. The indemnity provided for
in this Section 9 will be in addition to any liability that the Issuers may
otherwise have to the indemnified parties. Each of the Issuers shall not be
liable under this Section 9 for any settlement of any claim or action effected
without its prior written consent, which shall not be unreasonably withheld.
(b) Each Initial Purchaser, severally and not jointly, agrees
to indemnify and hold harmless the Issuers, their respective directors, officers
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act against any losses, claims,
damages or liabilities to which the Company or any such director, officer or
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Memorandum or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in any Memorandum or any
amendment or supplement thereto, or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Initial Purchaser, furnished to the Company by the Initial Purchasers through
Deutsche Bank Securities Inc. specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Issuers or any such
director, officer or controlling person in connection
-22-
with investigating or defending against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action in respect
thereof. The indemnity provided for in this Section 9 will be in addition to any
liability that the Initial Purchasers may otherwise have to the indemnified
parties. The Initial Purchasers shall not be liable under this Section 9 for any
settlement of any claim or action effected without their consent, which shall
not be unreasonably withheld. Each of the Issuers shall not, without the prior
written consent of the Initial Purchasers, effect any settlement or compromise
of any pending or threatened proceeding in respect of which any Initial
Purchaser is or could have been a party, or indemnity could have been sought
hereunder by any Initial Purchaser, unless such settlement (A) includes an
unconditional written release of the Initial Purchasers, in form and substance
reasonably satisfactory to the Initial Purchasers, from all liability on claims
that are the subject matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure to act by or on
behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent it has been materially prejudiced by such failure or such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any liability to any indemnified party other than the indemnification
obligation provided in paragraphs (a) and (b) above. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have been advised by counsel that there may be
one or more legal defenses available to it and/or other indemnified parties that
are different from or additional to those available to the indemnifying party,
or (iii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after receipt by the indemnifying party of notice of the
institution of such action, then, in each such case, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 9 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or
-23-
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, designated by the Initial
Purchasers in the case of paragraph (a) of this Section 9 or the Issuers in the
case of paragraph (b) of this Section 9, representing the indemnified parties
under such paragraph (a) or paragraph (b), as the case may be, who are parties
to such action or actions) or (ii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 9, in
which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuers on
the one hand and any Initial Purchaser on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
expenses) received by the Issuers bear to the total discounts and commissions
received by such Initial Purchaser. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand,
or such Initial Purchaser on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. Each of the Issuers and the
Initial Purchasers agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Initial Purchaser
shall be obligated to make contributions hereunder that in the aggregate exceed
the total discounts, commissions and other compensation received by such Initial
Purchaser under this Agreement, less the aggregate amount of any damages that
such Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or the omissions or alleged omissions to
state a material fact, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls an Initial Purchaser within the meaning of
-24-
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchasers, and each director of the
Issuers, each officer of the Issuers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company.
10. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Issuers, its officers and the Initial Purchasers set forth in this Agreement or
made by or on behalf of them pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Issuers, any of its officers or directors, the Initial Purchasers or any
controlling person referred to in Section 9 hereof and (ii) delivery of and
payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6, 9, 10 and 16 hereof shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement.
11. Default by an Initial Purchaser. If any one or more
Initial Purchasers shall fail to purchase and pay for any of the Notes agreed to
be purchased by such Initial Purchaser hereunder and such failure to purchase
shall constitute a default in the performance of its or their obligations under
this Agreement, the remaining Initial Purchasers shall be obligated severally to
take up and pay for (in the respective proportions which the amount of Notes set
forth opposite their names in Schedule 1 hereto bears to the aggregate amount of
Notes set forth opposite the names of all the remaining Initial Purchasers) the
Notes which the defaulting Initial Purchaser or Initial Purchasers agreed but
failed to purchase; provided, however, that in the event that the amount of
Notes which the defaulting Initial Purchaser or Initial Purchasers agreed but
failed to purchase shall exceed 10% of the total aggregate amount of Notes set
forth in Schedule 1 hereto, the remaining Initial Purchasers shall have the
right to purchase all, but shall not be under any obligation to purchase any, of
the Notes, and if such nondefaulting Initial Purchasers do not purchase all the
Notes, this Agreement will terminate without liability to any nondefaulting
Initial Purchaser or the Company except as provided in Section 10 hereof. In the
event of a default by any Initial Purchaser as set forth in this Section 11, the
Closing Date shall be postponed for such period, not exceeding five business
days, as the nondefaulting Initial Purchasers shall reasonably determine in
order that the required changes in the Final Memorandum or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Initial Purchaser of its liability, if any, to the
Company or any nondefaulting Initial Purchaser for damages occasioned by its
default hereunder.
12. Termination. (a) This Agreement may be terminated in the
sole discretion of the Initial Purchasers by notice to the Company given prior
to the Closing Date in the event that the Company shall have failed, refused or
been unable to perform all obligations and satisfy all conditions on its part to
be performed or satisfied hereunder at or prior thereto or, if at or prior to
the Closing Date:
(i) any of the Company or the Subsidiaries shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any strike, labor dispute,
slow down or work stoppage or any legal or governmental proceeding,
which loss or interference, in the reasonable judgment of the Initial
Purchasers, has had or has a Material Adverse Effect, or there shall
have been, in the reasonable judgment of the
-25-
Initial Purchasers, any event or development that, individually or in
the aggregate, has or would be reasonably likely to have a Material
Adverse Effect (including without limitation a change in control of the
Company or the Subsidiaries), except in each case as described in the
Final Memorandum (exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the New York Stock Exchange, American Stock Exchange or
the NASDAQ National Market shall have been suspended or materially
limited or minimum or maximum prices shall have been established on any
such exchange or market;
(iii) a banking moratorium shall have been declared by New
York or United States authorities or a material disruption in
commercial banking or securities settlement or clearance services shall
have occurred and be continuing in the United States;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency, or (C) any material change in the financial
markets of the United States which, in the case of (A), (B) or (C)
above and in the sole judgment of the Initial Purchasers, makes it
impracticable or inadvisable to proceed with the offering or the
delivery of the Notes as contemplated by the Final Memorandum; or
(v) any securities of the Company shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 12
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
13. Information Supplied by the Initial Purchasers. The
statements set forth in the last paragraph on the front cover page and in the
second sentence of the third paragraph and in the third sentence of the sixth
paragraph under the heading "Private Placement" in the Final Memorandum (to the
extent such statements relate to the Initial Purchasers) constitute the only
information furnished by the Initial Purchasers to the Company for the purposes
of Sections 2(a) and 9 hereof.
14. Notices. All communications hereunder shall be in writing
and, if sent to the Initial Purchasers, shall be mailed or delivered to (i)
Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Finance Department, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; if
sent to the Company, shall be mailed or delivered to the Company at ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.; with
a copy to Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the
-26-
mail, postage prepaid, if mailed; and one business day after being timely
delivered to a next-day air courier.
15. Successors. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 9 of this Agreement shall
also be for the benefit of any person or persons who control the Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Initial Purchasers contained in
Section 9 of this Agreement shall also be for the benefit of the directors of
the Company, its officers and any person or persons who control the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act.
No purchaser of Notes from the Initial Purchasers will be deemed a successor
because of such purchase.
16. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
17. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-27-
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Issuers and the Initial Purchasers.
Very truly yours,
▇▇▇▇ FOOD COMPANY, INC.
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President, General
Counsel and Corporate
Secretary
THE SUBSIDIARY GUARANTORS NAMED IN
SCHEDULE 5 ATTACHED HERETO
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
BANC OF AMERICA SECURITIES LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
-28-
SCOTIA CAPITAL (USA) INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Managing Director
FLEET SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
-29-
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
-30-
SCHEDULE 1
Principal
Amount of
Initial Purchaser Notes
----------------- ------------
Deutsche Bank Securities Inc. ........................................... $116,325,000
Banc of America Securities LLC........................................... 116,325,000
Scotia Capital (USA) Inc................................................. 116,325,000
Fleet Securities, Inc.................................................... 74,250,000
▇▇ ▇▇▇▇▇ Securities Corporation.......................................... 47,025,000
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp................................................... 4,750,000
Total.......................................................... $475,000,000
SCHEDULE 2
Subsidiaries of the Company
COMPANY ▇▇▇▇'▇ JURISDICTION OF
OWNERSHIP % ORGANIZATION
▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ ▇▇.▇▇▇▇ ▇▇▇▇▇▇
AB Jamaica ▇▇▇▇▇▇▇ ▇▇.▇▇▇▇ ▇▇▇▇▇▇
ACTIVIDADES AGRICOLAS, S.A. 100.0000 Ecuador
AEROFUMIGACION CENTROAMERICANA, S.A. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
AGOURA LIMITED 100.0000 Bermuda
AGRICOLA CALIFORNIA, LTDA. 100.0000 Chile
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LTDA. 100.0000 Colombia
AGRICOLA PENCAHUE LTDA. 100.0000 Chile
AGRICOLA PUNITAQUI LTDA. 100.0000 Chile
AGRICOLA RAUQUEN LTDA. 100.0000 Chile
AGRICOLA SANTA ▇▇▇▇, S.A. 100.0000 Honduras
AGROINDUSTRIA DEL CARIBE, S.A. 100.0000 Honduras
AGROINDUSTRIAL ▇▇▇▇ VERDE, S.A. 100.0000 Honduras
AGROINDUSTRIAL PINAS DEL BOSQUE, S.A. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
AGROPECUARIA RIO ▇▇▇▇▇▇▇, ▇.▇. 100.0000 Costa Rica
AGROPECUARIA SAN ▇▇▇▇▇▇▇ LTDA. 100.0000 Colombia
AGROPECUARIA SAN ▇▇▇▇▇ LTDA. 100.0000 Colombia
AGROQUIVIR CHILE, S.A. 33.3300 Chile
AGROVERDE S.A. 100.0000 Colombia
ALMACENES ATALANTA, S.A. 100.0000 Costa Rica
ALIMENTOS CONCENTRADOS SOCIEDAD ANONIMA 50.0000 Guatemala
ALPHA SIDERAL, S.A. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
ASHFORD COMPANY, LTD 100.0000 Bermuda
ASK Centralen AB 60.0000 Sweden
BALTIME LIMITED. 100.0000 Bermuda
BANA LTDA. 100.0000 Colombia
BANANA TRADING CORP. 50.0000 Virgin Islands
BANANACORP, S.A. 100.0000 Ecuador
BANANAPUERTO PUERTO BANANERO S.A. 35.0000 Ecuador
BANANERA EL PORVENIR, S.A. 100.0000 Costa Rica
BANANERA ▇▇ ▇▇▇, ▇.▇. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
BANANERA NACIONAL SOCIEDAD ANONIMA 50.0000 Guatemala
BANANERA RIO MAME, SA 100.0000 Honduras
BANANOS, S.A. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
BANAPLUS, INC. 100.0000 British Virgin
Islands
BANCUBER, S.A. 100.0000 Ecuador
BENVUE INTERNATIONAL, INC. 100.0000 Panama
BETINO, S.A. 100.0000 Colombia
BIENES Y SERVICIOS S de ▇ ▇ de CV 97.1000 Honduras
BIENES Y VALORES, S.A. 97.1000 Honduras
BLOCK INVESTMENTS, INC. 100.0000 Panama
▇▇▇▇▇▇▇▇ ▇.▇. 100.0000 Ecuador
CADSKY S.R.L 15.0000 France
CARTONES SAN ▇▇▇▇▇▇▇▇., S.A. 100.0000 ▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, ▇.▇.▇. ▇▇▇.▇▇▇▇ ▇▇▇▇▇
CASTLE & ▇▇▇▇▇ WORLDWIDE, LTD 100.0000 Hong Kong
CIA. AGRICOLA EL PROGRESO, S.A. 100.0000 Honduras
CIA. AGRICOLA INDUSTRIAL CEIBENA, SA 80.3726 Honduras
CIA. AGRICOLA MAZAPAN, S.A. 100.0000 Honduras
CIA. AGROPECUARIA EL PORVENIR, S.A. 100.0000 Honduras
CIA. BANANERA DEBA, S.A. 100.0000 Costa Rica
CIA. BANANERA DEL SAN ▇▇▇▇▇▇, S.A. 100.0000 Costa Rica
CIA. BANANERA EL ENCANTO, S.A. 100.0000 Costa Rica
CIA. BANANERA ▇▇▇▇▇▇▇ S.A. 100.0000 Costa Rica
CIA. EXPORTADORA DE PRODUCTOS AGRICOLAS BANA LTDA. Y CIA. S.C.A. 100.0000 Colombia
CIA. FINANCIERA DE COSTA RICA, S.A. 100.0000 Costa Rica
CIA. ▇▇▇▇▇▇ DE LA TIERRA, S.A. 100.0000 Costa Rica
CIA. NAVIERA AGMARESA, S.A. 100.0000 Ecuador
CLINICAS MEDICAS DEL AGUAN, S.A. 99.8731 Honduras
▇▇.▇▇.▇▇. S.r.l. 15.0000 France
COMAFRICA 100.0000 Italy
COMERCIAL INDUSTRIAL ECUATORIANA, S.A. 85.5100 Ecuador
Comercializaciones Sunmex Mexicana, S.A. de C.V. 100.0000 Mexico
COMERCIALIZADORA E IMPORTADORA VINA DEL MAR, S.A. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
COMPAGNIE FINANCIERE DE PARTICIPATION 40.0000 France
COMPAGNIE FRUITIERE DISTRIBUTION UK 100.0000 France
COOKSTOWN FINANCIAL, LTD 35.0000 Bermuda
COOL CARE EUROPE S.A.R.L. 100.0000 France
COORDINADORA DE SERVICIOS DE TRANSPORTE, SA 100.0000 Honduras
COPDEBAN S.A.C. 100.0000 Peru
DA SYSTEM SOLUTIONS INC (▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇) ▇▇.▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
DESARROLLO BANANERO LA ESPERANZA, S.A. 100.0000 Costa Rica
DESARROLLO MELONERO DEL GOLFO, S.A. 100.0000 Costa Rica
DESARROLLOS AGRICOLAS TROPICALES, S.A. 50.0000 Guatemala
DESARROLLOS URBANOS LA CEIBA, S.A. 100.0000 Honduras
DFC FOODS, INC. 100.0000 Korea
DIAMOND FARMS, INC. 63.5746 Philippines
DISTRIBUIDORA DE FRUTA Y VEGETALES, S.A. 100.0000 Colombia
DISTRIBUIDORA DE PRODUCTOS DIVERSOS, S.A. 100.0000 Honduras
DIVERSIFICADOS DE COSTA RICA DICORI, S.A. 100.0000 Costa Rica
DLC INC 100.0000 Korea
DOLE ASIA, LTD. 100.0000 Bermuda
DOLE AVIATION 100.0000 Panama
-2-
DOLE CHILE S.A. 100.0000 Chile
DOLE CHINA LIMITED 100.0000 Hong Kong
DOLE COMERCIALIZACION (fka: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ) 100.0000 Spain
DOLE DE VENEZUELA, S.A. 100.0000 Venezuela
DOLE DEUTSCHLAND BETEILIGUNGSGESELLSCHAFT MBH 100.0000 Germany
DOLE DEUTSCHLAND GMBH 100.0000 Germany
DOLE DO BRASIL, LTDA (LIMITED PARTNERSHIP) 100.0000 Brazil
▇▇▇▇ EUROPE S.A.S 100.0000 France
DOLE EUROPE B.V. 100.0000 Netherlands
DOLE EXPORT COMPANY, LTD. 100.0000 Barbados
▇▇▇▇ FOOD ESPANA, S.A. 100.0000 Spain
DOLE FOODS OF CANADA, LTD 100.0000 Canada
DOLE FOREIGN HOLDINGS, LTD 100.0000 Bermuda
DOLE FRANCE, S.A. (▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇) ▇▇▇.▇▇▇▇ ▇▇▇▇▇▇
DOLE FRESH FRUIT EUROPE LTD. & CO PARTNERSHIP Germany
DOLE FRESH FRUIT HELLAS 100.0000 Greece
DOLE FRESH FRUIT INTERNATIONAL,INC. 100.0000 Panama
DOLE FRESH FRUIT INTERNATIONAL LIMITED 100.0000 Liberia
DOLE FRESH FRUIT MED. 100.0000 Turkey
DOLE HOLLAND B.V. 100.0000 Netherlands
DOLE HONG KONG LTD. 100.0000 Hong Kong
DOLE INTERNATIONAL, LTD. 100.0000 Bermuda
DOLE ITALIA SpA 100.0000 Italy
DOLE JAPAN, LTD. 100.0000 Japan
DOLE KOREA, LTD (fka: ▇▇▇ ▇▇▇▇▇, ▇▇▇.) ▇▇▇.▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇: MEXICOTEC) 100.0000 Mexico
DOLE NEW ZEALAND LTD. 100.0000 Bermuda
DOLE PACKAGED FOODS EUROPE (fka DOLE FRANCE SERVICES, S.A.) 100.0000 France
DOLE PACIFIC GENERAL SERVICES, LTD. (FKA PUROTURE OVERSEAS, LTD.) 100.0000 Bahamas
DOLE PERPIGNAN 100.0000 France
DOLE PHILIPPINES, INC. 99.6154 Philippines
▇▇▇▇ POLAND LIMITED LIABILITY COMPANY Poland
DOLE ▇▇▇▇ ▇▇▇ CO, LTD. (aka QINGDAO ▇▇▇▇ FOOD CO, LTD) 100.0000 Mauritius
DOLE SHANGHAI CO. LTD. (aka SHANGHAI ▇▇▇▇ FOOD CO, LTD.) 100.0000 Mauritius
DOLE SHARED SERVICES, LIMITED ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ PTE, LTD. 100.0000 Singapore
DOLE SOUTH AFRICA 100.0000 South Africa
DOLE TERM S.R.L. 51.0000 Italy
DOLE THAILAND, LTD 64.3300 Thailand
DOLE ▇▇▇▇▇▇▇ ▇.▇. 51.0000 Chile
DOLE U.K. LIMITED 100.0000 United Kingdom
DOLMAR PRODUCTS, INC. 30.0000 Philippines
DUEBI IMPORT EXPORT SrL 15.0000 Italy
EMBALAJES STANDARD, S.A. 100.0000 Chile
ENERGUA S.A. SUCURSALl HONDURAS 100.0000 Honduras
ENERGUA S.A. MATRIZ GUATEMALA 100.0000 Guatemala
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ENERO S.A. 80.3726
EQUIPO PESADO S.A. 99.8246 Honduras
ESTIBADORA CARIBE, S.A. 50.0000 Costa Rica
ESTIBADORES DEL TROPICO, S.A. ▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
ESTIBADORES GOLFITENOS 100.0000 Costa Rica
EUFRUCHT FRUCHTIMPORT GMBH 33.0000 Germany
Exotic International BV 60.0000 Netherlands
FABRICA DE MANTECA & JABON ATLANTIDA, S.A. 80.3726 Honduras
FEDERFRUTTA SrL 15.0000 Italy
▇▇▇▇▇▇▇ SrL 15.0000 Italy
Fibras FYBX S.A. 50.0000 Costa Rica
▇▇▇▇▇ ▇ ▇▇▇▇▇▇ AB 60.0000 Sweden
FRATELLI ISELLA S.R.L. 99.5000 Italy
FRESH SYSTEMS, LTD. 40.0000 Japan
FRIOCONT, S.A. 100.0000 Ecuador
FRUCHTHOF ROSTOCK GmbH 36.0000 Germany
FRUCHTVERTRIEB ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇.▇▇▇▇ ▇▇▇▇▇▇▇
FRUIT CARE SERVICES 100.0000 South Africa
FRUTAS TROPICALES, S.A. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
FRUTBAN, S.A. 100.0000 Ecuador
FTK Holland BV 60.0000 Netherlands
FTK London Ltd 60.0000 Great Britian
FTK Onroerend BV 60.0000 Netherlands
FUMIGADORA NICARAGUENSE 100.0000 ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇.▇▇▇▇ ▇▇▇▇▇
GRANELCONT, S.A. 100.0000 Ecuador
▇▇▇▇▇ DE ORO SOCIEDAD ANONIMA 50.0000 Guatemala
GUAYAMI, S.A. 100.0000 Ecuador
HACIENDA ▇▇ ▇▇▇▇▇▇▇, ▇.▇. 100.0000 Costa Rica
HANDELSGESELLCHAFT FRUCHTRING mbH & CO. KG (aka ▇▇▇▇▇) ▇▇.▇▇▇▇ ▇▇▇▇▇▇▇
HOMELAND DEVELOPMENT CORPORATION 74.3868 Philippines
HOPS LIMITED 100.0000 Bermuda
HOSPITAL COYOLES, S.A. 99.8731 Honduras
INDUSTRIA ACEITERA HONDURENA, S.A. 63.6792 ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇.▇▇▇▇ ▇▇▇▇▇▇▇
INTERFRUIT COMPANY, LIMITED 100.0000 Bermuda
Interocean Financial Management Corporation 100.0000 Pamama
INVERSIONES AGRICA, S.A. 100.0000 Venezuela
INVERSIONES DEL AGRO, C.A. 100.0000 Venezuela
INVERSIONES DEL ▇▇▇▇▇▇▇▇ ▇.▇. 100.0000 Chile
CIA.INVERSIONES MEDICAS NACIONALE SA 99.8731 Honduras
INVERSIONES ORIHUECA LTDA. 100.0000 Colombia
INVERSIONES Y VALORES DE MONTECRISTO,SA 100.0000 Honduras
INVERSIONISTA ▇▇▇▇▇▇▇ ▇.▇. 100.0000 Pamama
INVERSIONISTA ZARATI, S.A. 100.0000 Pamama
IT & COMMUNICATIONS PHILIPPINES, INC. 99.6154 Philippines
-4-
JAMAICA PRODUCERS FRUIT DISTRIBUTORS 35.0000 England
KHAO ANG KAEW CO,. LTD 56.8351 Thailand
K. I. FRESH ACCESS, LTD 20.0000 Japan
LA FIORITA 91.0000 Italy
▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
LABORATORIOS Y SERVICIOS DE MERISTEMOS, S.A. 100.0000 Honduras
LANGOSTINOS, S.A. 10.0000 Ecuador
LAS FRUTAS, S.A. 100.0000 Guatemala
MAGAZZINI ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.▇▇▇▇ ▇▇▇▇▇
MAHELE, LIMITED 100.0000 Bermuda
MANUFACTURAS DE CARTON, S.A. 97.5715 Honduras
MEGABANANA, S.A. 100.0000 Ecuador
MIRADERO FISHING CO., INC. 100.0000 Puerto Rico
MODUMOLL, S.A. 100.0000 Ecuador
MULTISERVICIOS, S.A. 99.8264 Honduras
NAPORTEC, S.A. 100.0000 Ecuador
NOA-NOA S.A. 19.8900 Ecuador
Nordic Distribution BV 60.0000 Netherlands
NZ RIPENERS LIMITED 24.9000 New Zealand
OPERACIONES TROPICALES, S.A. 100.0000 Panama
PACIFIC INTERNATIONAL TERMINAL SERVICES 74.3868 Philippines
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ GmbH & Co. KG (Limited Partnership) 100.0000 Germany
PEMATIN S.A. 100.0000 Ecuador
PESCASEROLI S.A. 100.0000 Ecuador
▇▇▇▇ ANTILLANA, S.A. 100.0000 Honduras
PLASTICOS, S.A. 99.7572 Honduras
PLATANO CANARIO, S.A. 50.0000 Canary Islands
PLATANO COMUNITARIO, S.A. 100.0000 Canary Islands
▇▇▇▇▇ CORPORATION 100.0000 Panama
PRIMAVERA '81 Srl 15.0000 Italy
PRODUCTORA AGRICOLA DE ATLANTIDA, S.A. 100.0000 Honduras
PRODUCTORA CARTONERA, S.A. 99.9700 Ecuador
PRODUCTOS DEL LITORAL, S.A. 100.0000 Ecuador
PROPOLISA, S.A. 99.9700 Ecuador
QUANTUM FOODS, INC. 100.0000 Philippines
REDAMAWAL, S.A. 100.0000 Ecuador
REFERSHIP MARINE SERVICES, LTD 100.0000 Bermuda
▇▇▇▇▇▇ FARMS, S.A. ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
S ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇ ▇▇.▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ Blommor AB 60.0000 Sweden
Saba Distribution AB 60.0000 Sweden
SABA FRESH CUTS SA fka: Farskvarucentralen i Malmo AB 60.0000 Sweden
Saba Frukt & Gront AB 60.0000 Sweden
Saba Trading AB 60.0000 Sweden
Saba Trading Holding AB 100.0000 Sweden
SAN ▇▇▇▇ DEL RIO SOCIEDAD ANONIMA 50.0000 Guatemala
-5-
SARANGANI RESOURCES CORPORATION 49.4100 Philippines
SARANGANI SEAFOOD, INC. 17.0000 Philippines
SAT LAS PRIMICIAS 87.4764 Spain
SERVICIOS ADUANALES BANADOLE ▇▇▇.▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
SERVICIOS E INVESTIGACIONES AEREAS, SA 100.0000 Honduras
SERVICIOS HONDURENOS DE AGRICULTURA Y RECURSOS 99.4657 Honduras
SERVICIOS TECNICOS BANANEROS LTDA. 100.0000 Colombia
SERVICIOS TECNICIOS PORTUARIOS S.A. 100.0000 Guatemala
SHANGHAI ▇▇▇▇ ▇▇▇▇▇▇ FOOD CO. LTD. 100.0000 China
SHOP EXPRESS, INC. Philippines
SIEMBRANUEVA, S.A. 100.0000 Ecuador
Single Tree Corporation - Divisions: 100.0000 Panama
Agricola El Castilla Ltda. 100.0000 Colombia
Agricola Guacari Ltda. 100.0000 Colombia
Altalanos Technology, Inc. 100.0000 British Virgin
Islands
Americaflor Ltda. 100.0000 Colombia
Aspen International, Inc. 100.0000 Virgin Islands
Bluewater Industries Limited 100.0000 British Virgin
Islands
Bogor Capital Limited 100.0000 British Virgin
Islands
Brook Investment Limited 100.0000 British Virgin
Islands
Cardanz Technologies Corp. 100.0000 British Virgin
Islands
Colombian Carnations Ltda. 100.0000 Colombia
Comercial Agroflor, S.D.R.L. 100.0000 Panama
Comercializadora Agricola Caribe S.D.R.L. 100.0000 Ecuador
Comercializadora Caribbean Ltda. 100.0000 Colombia
Cultivos del Caribe Ltda. 100.0000 Colombia
Cultivos San Nicolas Ltda. 100.0000 Colombia
Delta Tree Enterprises, S.D.R.L. 100.0000 Panama
Floramerica Investments Ltd. 100.0000 Bermuda
Floramerica Ltda. 100.0000 Colombia
Flores Altamira Ltda. 100.0000 Colombia
▇▇▇▇▇▇ de Exportacion Ltda. 100.0000 Colombia
▇▇▇▇▇▇ La Fragancia Ltda. 100.0000 Colombia
▇▇▇▇▇▇ Las Palmas Ltda. 100.0000 Colombia
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, S. de ▇.▇. de C.V. 100.0000 Colombia
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇.▇▇▇▇ ▇▇▇▇▇▇▇
Flores Primavera Ltda. 100.0000 Colombia
▇▇▇▇▇▇ San ▇▇▇▇▇▇▇ Ltda. 100.0000 Colombia
Flower International, S.D.R.L. 100.0000 Panama
Galana Internacional, S.D.R.L. 100.0000 Panama
Importadora y Exportadora Nopal, S.D.R.L. 100.0000 Panama
Importadora y Exportadora Rovego, S.D.R.L. 100.0000 Panama
Inversiones Comertex, S.A. 100.0000 Virgin Islands
Inversiones Crown, S.D.R.L. 100.0000 Panama
Inversiones Floricola S.D.R.L. 100.0000 Panama
Inversiones Floricolas S.D.R.L. 100.0000 Ecuador
-6-
Jardines de Colombia Ltda. 100.0000 Colombia
Jardines del Valle Ltda. 100.0000 Colombia
Joroko Intertrade Ltd. 100.0000 British Virgin
Islands
Liverpool International, S.A. 100.0000 Virgin Islands
▇▇▇▇▇▇▇▇ International Corp. 100.0000 Virgin Islands
Milano Trading Corporation 100.0000 Virgin Islands
Monaco Investment Corp 100.0000 Virgin Islands
Newent Trading, Inc 100.0000 British Virgin
Islands
▇▇▇▇▇▇▇ International, S.D.R.L. 100.0000 Panama
Noir Ventures Corp. 100.0000 British Virgin
Islands
▇▇▇▇▇▇▇ Technologies Corp. 100.0000 British Virgin
Islands
Olympia Flowers Ltda. 100.0000 Colombia
Opal Resources, Ltd. 100.0000 British Virgin
Islands
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, S.D.R.L. 100.0000 Panama
Polar Trading Corp. 100.0000 Virgin Islands
Porcelain Flowers Ltda. 100.0000 Colombia
Riverwood Management Company Inc. 100.0000 British Virgin
Islands
Santa ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ltda. 100.0000 Colombia
Splendor Flowers Ltda. 100.0000 Colombia
Skandinaviska Bananimporten AB 60.0000 Sweden
SNOW ▇▇▇▇ CO, LTD 50.0000 Japan
SOCIEDAD AGROPECUARIA PIMOCHA C.A. 100.0000 Colombia
SOGAS, S.A. 100.0000 Honduras
SOLAMERICA, LTD. 100.0000 Bermuda
SOLEIL HOLDING FRANCE S.A. 100.0000 France
SOLVEST, LTD. 100.0000 Bermuda
STANDARD FRUIT CO. (BERMUDA) 100.0000 Bermuda
STANDARD FRUIT DE COSTA RICA S.A. 100.0000 Costa Rica
STANDARD FRUIT DE GUATEMALA S.A. 100.0000 Guatemala
STANDARD FRUIT DE HONDURAS 100.0000 Honduras
STANDARD FRUIT ▇▇ ▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇.▇▇▇▇ ▇▇▇▇▇▇▇▇▇
STANDARD FRUIT DE PANAMA, S.A. 100.0000 Panama
STANDARD FRUIT, S.A. (ARGENTINA) 100.0000 Argentina
STANDARD TRADING 50.0000 Argentina
Stockholm Fruktimport AB 60.0000 Sweden
T.A.I.C. LIMITED 49.0000 Thailand
TALLERES Y LLANTAS, S.A. 100.0000 Ecuador
TEATREE, INC. UNCERTAIN Panama
TECNICAS BALTIME DE COLOMBIA S.A. 100.0000 Colombia
TECNICOS Y ELECTRICISTAS, S.A. 100.0000 Ecuador
THAI AMERICAN FOOD CO., LTD. 99.9900 Thailand
THAI AMERICAN PRODUCTS, LTD. 51.9500 Thailand
TINADI, S.A. 100.0000 Colombia
TRANSPORTES POR MAR, S.A. 100.0000 Ecuador
TRANSTRADING OVERSEAS, LTD 100.0000 Bahamas
TRIPLEJAY INVESTMENT CORP., S.A. 100.0000 Panama
-7-
TROPICAL NAVIGATION (MALTA) LIMITED 100.0000 Malta
TROPICAL SHIPPING, ITALIANA, S.P.A. 100.0000 Italy
UBESAIR, SA. 100.0000 Ecuador
UNION DE BANANEROS ECUATORIANOS, S.A. 100.0000 Ecuador
VERENIGDE BANANENHANDLELAREB N.V. 100.0000 Belgium
VIGILANCIA Y SEGURIDAD, S.A. 100.0000 Honduras
VIUDA ▇▇ ▇▇▇▇▇▇, ▇.▇. 100.0000 Spain
ZANPOTI, S.A. 100.0000 Colombia
AG 1970, INC. 100.0000 U.S.
AG 1971, INC. 100.0000 U.S.
AG 1972, INC. 100.0000 U.S.
APACHE GROVE LAND, 1970 LIMITED PARTNERSHIP U.S.
APACHE GROVE LAND, 1971 LIMITED PARTNERSHIP U.S.
APACHE GROVE LAND, 1972 LIMITED PARTNERSHIP U.S.
ALYSSUM CORPORATION ( FKA CASTLE & ▇▇▇▇▇ HOMES, INC. (CA)) 100.0000 U.S.
BAKERSFIELD-▇▇▇▇▇▇▇▇▇ LIMITED PARTERSHIP U.S.
BANANA PRODUCTS CORP. U.S.
BANANERA ANTILLANA (COLOMBIA), INC. 100.0000 U.S.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ CORPORATION 100.0000 U.S.
BLUE ANTHURIUM, INC. ( FKA C&C COMMUNITIES, INC. (HI)) 100.0000 U.S.
▇▇▇ ▇▇▇▇▇, INC. 100.0000 U.S.
CALAZO CORPORATION (FKA CASTLE & ▇▇▇▇▇ ARIZONA, INC.) 100.0000 U.S.
CALICAHOMES, INC. (FKA CASTLE & ▇▇▇▇▇ CALIFORNIA, INC.) 100.0000 U.S.
CALIFORNIA POLARIS, INC. 100.0000 U.S.
CAMARILLO LIMITED 100.0000 U.S.
CERULEAN, INC. ( FKA CASTLE & ▇▇▇▇▇ HOMES, INC. (HI)) 100.0000 U.S.
CLOVIS (SAN ▇▇▇▇▇▇▇) CITRUS 100.0000 U.S.
COOL ADVANTAGE, INC. 100.0000 U.S.
COOL CARE, INC. ( FKA COOL CARE CONSULTING, INC.) 100.0000 U.S.
COUNTY LINE MUTUAL WATER COMPANY 100.0000 U.S.
DELPHINIUM CORPORATION ( FKA C&C BAKERSFIELD HOLDING CORP) 100.0000 U.S.
DIVERSIFIED IMPORTS COMPANY 100.0000 U.S.
DNW SERVICES COMPANY 100.0000 U.S.
DOLE ABPIK, INC. 100.0000 U.S.
DOLE ARIZONA DRIED FRUIT & NUT COMPANY ( FKA C&C SIERRA VISTA, INC. ) 100.0000 U.S.
DOLE ASIA, INC. 100.0000 U.S.
DOLE ASSETS, INC. 100.0000 U.S.
DOLE CARROT COMPANY, INC. 100.0000 U.S.
DOLE CITRUS COMPANY, INC. 100.0000 U.S.
DOLE DF&N, INC. (PAYROLL COMPANY ONLY) 100.0000 U.S.
DOLE DIVERSIFIED, INC. (FKA C&C LAND COMPANY, INC.) 100.0000 U.S.
DOLE DRIED FRUIT & NUT COMPANY 100.0000 U.S.
DOLE EUROPE COMPANY 100.0000 U.S.
DOLE FARMING CO. 100.0000 U.S.
▇▇▇▇ FOOD FLIGHT OPERATIONS., INC. 100.0000 U.S.
DOLE FRESH FLOWERS, INC. (FKA SUNBURST FARMS, INC.) 100.0000 U.S.
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DOLE FRESH FRUIT CO. 100.0000 U.S.
DOLE FRESH VEGETABLES, INC. 100.0000 U.S.
DOLE HOLDINGS, INC. (FKA C&C FRESH FRUIT COMPANY) 100.0000 U.S.
DOLE LAND CO 100.0000 U.S.
DOLE LOGISTICS SERVICES, INC. 100.0000 U.S.
DOLE NORTHWEST, INC. (FKA ▇▇▇▇▇ ORCHARDS CO.) 100.0000 U.S.
DOLE OCEAN CARGO EXPRESS, INC. 100.0000 U.S.
DOLE OCEAN LINER EXPRESS, INC. 100.0000 U.S.
▇▇▇▇ ▇▇▇▇▇▇, INC. (FKA DOLE NUT COMPANY) 100.0000 U.S.
DOLE PACKAGED FOODS CORPORATION (FKA DPF, INC.) 100.0000 U.S.
DOLE SUNFRESH EXPRESS--DOLE CAFE DIV. 100.0000 U.S.
DOLE VISAGE, INC. (FKA S&J RANCH, INC.) 100.0000 U.S.
E.T. WALL COMPANY 100.0000 U.S.
EARLIBEST ORANGE ASSOCIATION 100.0000 U.S.
FALLBROOK CITRUS CO. 100.0000 U.S.
FLOWERNET, INC. 100.0000 U.S.
IKON CORPORATION - A SEPARATE RETURN 100.0000 U.S.
INTERVEST, INC. 100.0000 U.S.
LA PETITE D'AGEN, INC. (FKA CASTLE & ▇▇▇▇▇ PROPERTIES, INC.) 100.0000 U.S.
LINDERO HEADQUARTERS COMPANY, INC. 100.0000 U.S.
LINDERO PROPERTY, INC. 100.0000 U.S.
M.K. DEVELOPMENT, INC. 100.0000 U.S.
MALAGA COMPANY, INC. ( FKA LANAI HOLDING, INC.) 100.0000 U.S.
MENDOCINO LIMITED 100.0000 Bermuda
MUSCAT, INC. (FKA CASTLE & ▇▇▇▇▇ HOMES HAWAII, INC.) 100.0000 U.S.
OAHU TRANSPORT CO., LTD. 100.0000 U.S.
OCEANVIEW PRODUCE CO. 100.0000 U.S.
PACIFIC COAST TRUCK COMPANY 100.0000 U.S.
PAN-ALASKA FISHERIES, INC. 100.0000 U.S.
PRAIRIE VISTA, INC. 100.0000 U.S.
RENAISSANCE CAPITAL CORPORATION 100.0000 U.S.
ROYAL PACKING, CO. 100.0000 U.S.
SAW GRASS TRANSPORT, INC. 100.0000 U.S.
STANDARD FRUIT & STEAMSHIP COMPANY 100.0000 U.S.
STANDARD FRUIT COMPANY 100.0000 U.S.
SUN COUNTRY PRODUCE, INC. 100.0000 U.S.
SUN GIANT, INC. (NEVADA) 100.0000 U.S.
TECHNOLOGY SERVICES COMPANY 100.0000 U.S.
▇▇▇▇▇▇▇ TERMINALS 100.0000 U.S.
WAHIAWA WATER COMPANY 100.0000 U.S.
WAIALUA SUGAR COMPANY, INC. 100.0000 U.S.
WEST FOODS, INC. 100.0000 U.S.
ZANTE CURRANT, INC. (FKA LANAI COMPANY, INC.) 100.0000 U.S.
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SCHEDULE 3
Significant Subsidiaries
▇▇▇ ▇▇▇▇▇, Inc., a California corporation
Dole Citrus, a California corporation
Dole Dried Fruit and Nut Company, a California General Partnership
Dole Fresh Vegetables, Inc., a California corporation
▇▇▇▇ ▇▇▇▇▇▇, Inc., a California corporation
Dole Visage, Inc., a California corporation
Royal Packing Co., a California corporation
Dole Fresh Flowers, Inc., a Delaware corporation
Standard Fruit Company, a Delaware corporation
Blue Anthurium, Inc., a Hawaii corporation
Cerulean, Inc., a Hawaii corporation
La Petite d'Agen, Inc., a Hawaii corporation
MK Development, Inc., a Hawaii corporation
Baltime Securities Corporation, a Nevada corporation
Dole Fresh Fruit Company, a Nevada corporation
Dole Holdings, Inc., a Nevada corporation
SCHEDULE 4
[Intentionally Blank]
SCHEDULE 5
Subsidiary Guarantors
▇▇▇▇'▇
JURISDICTION OF OWNERSHIP
COMPANY ORGANIZATION %
Calazo Corporation Arizona 100%
AG 1970, Inc. California 100%
AG 1971, Inc. California 100%
AG 1972, Inc. California 100%
Alyssum Corporation California 100%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Corporation California 100%
▇▇▇ ▇▇▇▇▇, Inc. California 100%
Calicahomes, Inc. California 100%
California Polaris, Inc. California 100%
Dole ABPIK, Inc. California 100%
Dole Arizona Dried Fruit and Nut Company California 100%
Dole Carrot Company California 100%
Dole Citrus California 100%
Dole DF&N, Inc. California 100%
Dole Dried Fruit and Nut Company, a California General Partnership California 100%
Dole Farming, Inc. California 100%
Dole Fresh Vegetables, Inc. California 100%
▇▇▇▇ ▇▇▇▇▇▇, Inc. California 100%
Dole Visage, Inc. California 100%
E. T. Wall Company California 100%
Earlibest Orange Association, Inc. California 100%
Fallbrook Citrus Company, Inc. California 100%
Lindero Headquarters Company, Inc. California 100%
Lindero Property, Inc. California 100%
Oceanview Produce Company California 100%
Prairie Vista, Inc. California 100%
Royal Packing Co. California 100%
▇▇▇▇▇▇▇ Terminal Co. California 100%
Bananera Antillana (Colombia), Inc. Delaware 100%
Clovis Citrus Association Delaware 100%
Delphinium Corporation Delaware 100%
Dole Europe Company Delaware 100%
▇▇▇▇ Foods Flight Operations, Inc. Delaware 100%
Dole Fresh Flowers, Inc. Delaware 100%
Dole Northwest, Inc. Delaware 100%
Dole Sunfresh Express, Inc. Delaware 100%
Standard Fruit and Steamship Company Delaware 100%
Standard Fruit Company Delaware 100%
Sun Country Produce, Inc. Delaware 100%
West Foods, Inc. Delaware 100%
Cool Advantage, Inc. Florida 100%
Cool Care, Inc. Florida 100%
Flowernet Inc. Florida 100%
Saw Grass Transport, Inc. Florida 100%
Blue Anthurium, Inc. Hawaii 100%
Cerulean, Inc. Hawaii 100%
Dole Diversified, Inc. Hawaii 100%
Dole Land Company, Inc. Hawaii 100%
Dole Packaged Foods Corporation Hawaii 100%
La Petite d'Agen, Inc. Hawaii 100%
MK Development, Inc. Hawaii 100%
Malaga Company, Inc. Hawaii 100%
Muscat, Inc. Hawaii 100%
Oahu Transport Company, Limited Hawaii 100%
Wahiawa Water Company, Inc. Hawaii 100%
Waialua Sugar Company, Inc. Hawaii 100%
Zante Currant, Inc. Hawaii 100%
Diversified Imports Co. Nevada 100%
Dole Assets, Inc. Nevada 100%
▇▇▇▇ Fresh Fruit Company Nevada 100%
▇▇▇▇ Holdings, Inc. Nevada 100%
Dole Logistics Services, Inc. Nevada 100%
Dole Ocean Cargo Express, Inc. (DOCE) Nevada 100%
Dole Ocean Liner Express, Inc. Nevada 100%
Renaissance Capital Corporation Nevada 100%
Sun Giant, Inc. Nevada 100%
DNW Services Company Washington 100%
Pacific Coast Truck Company Washington 100%
Pan-Alaska Fisheries, Inc. Washington 100%
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