EXHIBIT 1.1
GENERAL CABLE CORPORATION
(a Delaware corporation)
9.5% Senior Notes due 2010
PURCHASE AGREEMENT
Dated: November 18, 2003
TABLE OF CONTENTS
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SECTION 1. REPRESENTATIONS AND WARRANTIES BY THE ISSUERS............................................... 2
(a) Representations and Warranties.................................................................. 2
(i) Offering Memorandum................................................................ 2
(ii) Independent Accountants............................................................ 3
(iii) Financial Statements............................................................... 3
(iv) No Material Adverse Change in Business............................................. 3
(v) Good Standing of the Company....................................................... 3
(vi) Good Standing of Subsidiaries...................................................... 3
(vii) Capitalization..................................................................... 4
(viii) Authorization of Agreement......................................................... 4
(ix) Authorization of the Indenture..................................................... 4
(x) Authorization of the Registration Rights Agreement................................. 4
(xi) Authorization of the Notes......................................................... 5
(xii) Authorization of the Guarantees.................................................... 5
(xiii) Authorization of the Exchange Securities and the Private Exchange Securities....... 5
(xiv) Description of the Securities and the Indenture.................................... 5
(xv) Absence of Defaults and Conflicts.................................................. 6
(xvi) Absence of Labor Dispute........................................................... 6
(xvii) Absence of Proceedings............................................................. 7
(xviii) Possession of Intellectual Property................................................ 7
(xix) Absence of Manipulation............................................................ 7
(xx) Absence of Further Requirements.................................................... 7
(xxi) Possession of Licenses and Permits................................................. 7
(xxii) Title to Property.................................................................. 8
(xxiii) Investment Company Act............................................................. 8
(xxiv) Environmental Laws................................................................. 8
(xxv) Internal Accounting Controls....................................................... 9
(xxvi) Disclosure Controls and Procedures................................................. 9
(xxvii) Loans to Directors and Executive Officers.......................................... 10
(xxviii) Statistical and Market-Related Data................................................ 10
(xxix) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002......................................................... 10
(xxx) Insurance.......................................................................... 10
(xxxi) No Agents and Brokers.............................................................. 10
(xxxii) Employee Matters................................................................... 10
(xxxiii) Taxes.............................................................................. 10
(xxxiv) Rule 144A Eligibility.............................................................. 11
(xxxv) No General Solicitation............................................................ 11
(xxxvi) No Registration Required........................................................... 11
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(xxxvii) Reporting Company.................................................................. 11
(xxxviii) No Directed Selling Efforts........................................................ 11
(xxxix) Offering Memorandum................................................................ 11
(xl) No Other Distributions............................................................. 11
(xli) Similar Offerings.................................................................. 12
(xlii) No Registration Rights............................................................. 12
(b) Officer's Certificates.......................................................................... 12
SECTION 2. SALE AND DELIVERY TO INITIAL PURCHASERS; CLOSING............................................ 12
(a) Securities...................................................................................... 12
(b) Payment......................................................................................... 12
(c) Denominations; Registration..................................................................... 13
SECTION 3. COVENANTS OF THE ISSUERS.................................................................... 13
(a) Delivery of Offering Memoranda.................................................................. 13
(b) Amendment to Offering Memorandum and Supplements................................................ 13
(c) Notice and Effect of Material Events............................................................ 13
(d) Qualification of Securities for Offer and Sale.................................................. 14
(e) Rating of Securities............................................................................ 14
(f) Restriction on Sale of Securities............................................................... 14
(g) DTC............................................................................................. 14
(h) Use of Proceeds................................................................................. 14
(i) PORTAL Designation.............................................................................. 14
(j) Reporting Requirements.......................................................................... 14
SECTION 4. PAYMENT OF EXPENSES......................................................................... 14
(a) Expenses........................................................................................ 14
(b) Termination of Agreement........................................................................ 15
SECTION 5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS............................................... 15
(a) Opinion of Counsel for Issuers.................................................................. 15
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(b) Opinion of Local Counsel for Issuers............................................................ 16
(c) Opinion of General Counsel for Company.......................................................... 16
(d) Opinion of Counsel for Initial Purchasers....................................................... 16
(e) Officers' Certificate........................................................................... 16
(f) Accountant's Comfort Letter..................................................................... 17
(g) Bring-down Comfort Letter....................................................................... 17
(h) Maintenance of Rating........................................................................... 17
(i) PORTAL.......................................................................................... 17
(j) Indenture....................................................................................... 17
(k) Registration Rights Agreement................................................................... 17
(l) Additional Documents............................................................................ 17
(m) Termination of Agreement........................................................................ 17
(n) Concurrent Transactions......................................................................... 18
SECTION 6. SUBSEQUENT OFFERS AND RESALES OF THE SECURITIES............................................. 18
(a) Offer and Sale Procedures....................................................................... 18
(i) Offers and Sales only to Qualified Institutional Buyers............................ 18
(ii) No General Solicitation............................................................ 18
(iii) Purchases by Non-Bank Fiduciaries.................................................. 18
(iv) Subsequent Purchaser Notification.................................................. 18
(v) Minimum Principal Amount........................................................... 19
(vi) Restrictions on Transfer........................................................... 19
(vii) Delivery of Offering Memorandum.................................................... 19
(b) Covenants of the Issuers........................................................................ 19
(i) Integration........................................................................ 19
(ii) Rule 144A Information.............................................................. 19
(iii) Restriction on Repurchases......................................................... 19
(c) Qualified Institutional Buyer................................................................... 20
(d) Resale Pursuant to Rule 903 of Regulation S or Rule 144A........................................ 20
(e) Resale Pursuant to Rule 903 of Regulation S or Rule 144A........................................ 20
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(f) Additional Representations and Warranties of Initial Purchasers................................. 21
SECTION 7. INDEMNIFICATION................................................................................. 21
(a) Indemnification of Initial Purchasers........................................................... 21
(b) Indemnification of Issuers, Directors and Officers.............................................. 22
(c) Actions Against Parties; Notification........................................................... 22
(d) Settlement Without Consent if Failure to Reimburse.............................................. 22
SECTION 8. CONTRIBUTION.................................................................................... 23
SECTION 9. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.................................. 24
SECTION 10. TERMINATION OF AGREEMENT........................................................................ 24
(a) Termination; General............................................................................ 24
(b) Liabilities..................................................................................... 25
SECTION 11. DEFAULT BY ONE OR MORE OF THE INITIAL PURCHASERS................................................ 25
SECTION 12. INFORMATION FURNISHED BY THE INITIAL PURCHASERS................................................. 25
SECTION 13. TAX DISCLOSURE.................................................................................. 25
SECTION 14. NOTICES......................................................................................... 26
SECTION 15. PARTIES......................................................................................... 26
SECTION 16. GOVERNING LAW................................................................................... 26
SECTION 17. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL................................................ 26
SECTION 18. TIME............................................................................................ 26
SECTION 19. COUNTERPARTS.................................................................................... 26
SECTION 20. EFFECT OF HEADINGS.............................................................................. 27
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SCHEDULES
Schedule A - List of Initial Purchasers............................... Sch A-1
Schedule B - Pricing Information...................................... Sch B-1
Schedule C - List of Subsidiaries..................................... Sch C-1
Schedule D - List of Guarantors....................................... Sch D-1
Schedule E - Non-Wholly Owned Subsidiaries............................ Sch E-1
Schedule F - Issuer's Local Counsel .................................. Sch F-1
EXHIBITS
Exhibit A - Form of Opinion of Issuers' Counsel....................... A-1
Exhibit B - Form of Opinion of Issuers' Local Counsel................. B-1
Exhibit C - Form of Opinion of General Counsel of the Company......... C-1
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GENERAL CABLE CORPORATION
(a Delaware corporation)
$285,000,000
9.5% Senior Notes due 2010
PURCHASE AGREEMENT
November 18, 2003
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
World Financial Center - North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
UBS SECURITIES LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as Representatives of the several Initial Purchasers
Ladies and Gentlemen:
General Cable Corporation, a Delaware corporation (the
"Company") and each of the guarantors listed in Schedule D attached hereto (the
"Guarantors" and, together with the Company, the "Issuers"), confirms its
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), UBS Securities LLC ("UBS") and each of the other
Initial Purchasers named in Schedule A hereto (collectively, the "Initial
Purchasers", which term shall also include any initial purchaser substituted as
hereinafter provided in Section 11 hereof), for whom ▇▇▇▇▇▇▇ ▇▇▇▇▇ and UBS are
acting as representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by the Initial
Purchasers, acting severally and not jointly, of the respective principal
amounts set forth in said Schedule A of $285,000,000 aggregate principal amount
of the Company's 9.5% Senior Notes due 2010 (the "Notes"), which are to be
unconditionally guaranteed on a senior basis (the "Guarantees" and, together
with the Notes, the "Securities"). The Securities are to be issued pursuant to
an indenture dated as of November 24, 2003 (the "Indenture") between the
Company, the Guarantors and U.S. Bank National Association, as trustee (the
"Trustee"). Securities issued in book-entry form will be issued to Cede & Co. as
nominee of The Depository Trust Company ("DTC") pursuant to a letter agreement,
to be dated as of the Closing Time (as defined in Section 2(b)) (the "DTC
Agreement"), among the Company, the Trustee and DTC.
The holders of Securities, including the Initial Purchasers,
will be entitled to the benefits of a Registration Rights Agreement (the
"Registration Rights Agreement"), to be dated as of the Closing Time among the
Company, the Guarantors and the Initial Purchasers. Pursuant to the Registration
Rights Agreement, the Issuers will agree to file with the U.S. Securities and
Exchange Commission (the "Commission") under the circumstances set forth therein
either (i) a registration statement under the U.S. Securities Act of 1933, as
amended (the "1933 Act"), registering the Exchange Securities (as defined in the
Registration Rights Agreement) to be offered in exchange for the relevant
Securities or (ii) a shelf registration statement pursuant to Rule 415 under the
1933 Act.
The Issuers understand that the Initial Purchasers propose to
make an offering of the Securities on the terms and in the manner set forth
herein and agree that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to purchasers
("Subsequent Purchasers") at any time after this Agreement has been executed and
delivered. The Securities are to be offered and sold through the Initial
Purchasers without being registered under the Securities Act of 1933, as amended
(the "1933 Act"), in reliance upon exemptions therefrom. Pursuant to the terms
of the Securities and the Indenture, investors that acquire Securities may only
resell or otherwise transfer such Securities if such Securities are hereafter
registered under the 1933 Act or if an exemption from the registration
requirements of the 1933 Act is available (including the exemption afforded by
Rule 144A ("Rule 144A") or Regulation S ("Regulation S") of the rules and
regulations promulgated under the 1933 Act by the Commission).
The Issuers have prepared and delivered to each Initial
Purchaser copies of a preliminary offering memorandum dated November 4, 2003
(the "Preliminary Offering Memorandum") and have prepared and will deliver to
each Initial Purchaser, on the date hereof or the next succeeding day, copies of
a final offering memorandum dated November 18, 2003 (the "Final Offering
Memorandum"), each for use by such Initial Purchaser in connection with its
solicitation of purchases of, or offering of, the Securities. "Offering
Memorandum" means, with respect to any date or time referred to in this
Agreement, the most recent offering memorandum (whether the Preliminary Offering
Memorandum or the Final Offering Memorandum, or any amendment or supplement to
either such document), including exhibits thereto and any documents incorporated
therein by reference, which has been prepared and delivered by the Issuers to
the Initial Purchasers in connection with their solicitation of purchases of, or
offering of, the Securities.
SECTION 1. Representations and Warranties by the Issuers.
(a) Representations and Warranties. The Issuers, jointly
and severally, represent and warrant to each Initial Purchaser as of the date
hereof and as of the Closing Time referred to in Section 2(b) hereof, and agrees
with each Initial Purchaser, as follows:
(i) Offering Memorandum. The Offering Memorandum does
not, and at the Closing Time will not, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Offering Memorandum made in reliance upon and in
conformity with written information furnished to the Company by any
Initial Purchaser through the Representatives expressly for use in the
Offering Memorandum.
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(ii) Independent Accountants. The accountants who
certified the financial statements and supporting schedules included in
the Offering Memorandum are independent public accountants with respect
to the Company and its subsidiaries within the meaning of Regulation
S-X under the 1933 Act.
(iii) Financial Statements. The financial statements
included in the Offering Memorandum, together with the related
schedules and notes, present fairly the financial position of the
Company and its consolidated subsidiaries at the dates indicated and
the results of operations, changes in stockholders' equity and changes
in cash flows of the Company and its consolidated subsidiaries for the
periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The
supporting schedules, if any, included in the Offering Memorandum
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Offering Memorandum present fairly the
information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Offering
Memorandum.
(iv) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of
its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise, (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock, and (D) there has been no obligation,
contingent or otherwise, directly or indirectly incurred by the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries taken as a whole.
(v) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Offering Memorandum and to
enter into and perform its obligations under this Agreement; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not, singly or in
the aggregate, result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its
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business as described in the Offering Memorandum and is duly qualified
as a foreign corporation to transact business and is in good standing
in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not, singly or in the aggregate, result in a Material
Adverse Effect; except as otherwise disclosed in the Offering
Memorandum, all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable, except as disclosed on Schedule E, and is owned by
the Company, directly or through its subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary. The only subsidiaries of the
Company are the subsidiaries listed on Schedule C hereto.
(vii) Capitalization. The authorized, issued and
outstanding capital stock of the Company as of September 30, 2003, was
as set forth in the Offering Memorandum in the column entitled "Actual"
under the caption "Capitalization" (except for subsequent issuances, if
any, pursuant to this Agreement, pursuant to reservations, agreements
or employee benefit plans referred to in the Offering Memorandum or
pursuant to the exercise of convertible securities or options referred
to in the Offering Memorandum). The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company.
(viii) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(ix) Authorization of the Indenture. The Indenture has
been duly authorized by each of the Issuers and, when executed and
delivered by each of the Issuers and the Trustee, will constitute a
valid and binding agreement of each of the Issuers, enforceable against
each of the Issuers in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(x) Authorization of the Registration Rights Agreement.
The Registration Rights Agreement has been duly authorized by each of
the Issuers and, when duly executed and delivered in accordance with
its terms by each of the parties thereto, will constitute a valid and
binding agreement of each of the Issuers, enforceable against each of
the Issuers in accordance with its terms, except (A) as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
princi-
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ples of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (B) the enforceability of rights to
indemnification and contribution thereunder may be limited by federal
or state securities laws.
(xi) Authorization of the Notes. The Notes have been duly
authorized and, at the Closing Time, will have been duly executed by
the Company and, when authenticated, issued and delivered in the manner
provided for in the Indenture and delivered against payment of the
purchase price therefor as provided in this Agreement, will constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers) reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(xii) Authorization of the Guarantees. The Guarantees have
been duly authorized and, at the Closing Time, will have been duly
executed by each Guarantor and, when the Notes are authenticated,
issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in
this Agreement, will constitute valid and binding obligations of the
Guarantors, enforceable against the Guarantors in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers) reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be in the form contemplated by, and
entitled to the benefits of, the Indenture.
(xiii) Authorization of the Exchange Securities and the
Private Exchange Securities. The Exchange Securities and the Private
Exchange Securities (as defined in the Registration Rights Agreement)
have been duly authorized and, at the Closing Time, will have been duly
executed by the Issuers and, when authenticated, issued and delivered
in the manner provided for in the Indenture and delivered in exchange
for the Securities in accordance with the terms of the Registration
Rights Agreement, will constitute valid and binding obligations of the
Issuers, enforceable against the Issuers in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers) reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be in the form contemplated by, and
entitled to the benefits of, the Indenture.
(xiv) Description of the Securities and the Indenture. The
Securities and the Indenture will conform in all material respects to
the respective statements relating thereto
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contained in the Offering Memorandum and will be in substantially the
respective forms last delivered to the Initial Purchasers prior to the
date of this Agreement.
(xv) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is (x) in violation of its charter
or by-laws or (y) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
license, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease, material supply or distribution agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or affected, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments")
which default, in the case of clause (y), would not, singly or in the
aggregate, result in a Material Adverse Effect. The execution, delivery
and performance of this Agreement and the Registration Rights Agreement
and the consummation of the transactions contemplated herein, therein
and in the Offering Memorandum (including the entering into and
borrowing under new senior secured credit facilities, the private
offering and sale of Securities and convertible preferred stock, the
issuance and sale of the Company's common stock, the use of the
proceeds from the foregoing, including the payment of all outstanding
obligations under and the termination of commitments under the
Company's existing credit facilities and its U.S. accounts receivable
asset-backed securitization facility, as described in the Offering
Memorandum under the caption "Use of Proceeds" and the exchange offer
and/or filing of a shelf registration statement related to the
Securities) (the "Transactions") and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary
corporate action and do not conflict with and will not result in any
breach of or constitute a default under (nor constitute any event which
with notice, lapse of time or both would constitute a breach of or
default under) or a Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of its subsidiaries
pursuant to any provision of any contract, license, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease,
material supply or distribution agreement or any other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which any of them or their properties may be bound or affected
(except for such conflicts, breaches, defaults or Repayment Events or
liens, charges or encumbrances that would not, singly or in the
aggregate, result in a Material Adverse Effect), nor will such action
result in a violation of the charter or by-laws of the Company or any
of its subsidiaries or any applicable federal, state, local or foreign
law, statute, rule, regulation, judgment, order, writ or decree
applicable to the Company or any of its subsidiaries. As used herein, a
"Repayment Event" (other than such Repayment Events which will be
satisfied at the Closing Time) means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries.
(xvi) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, and the Company has no knowledge
of any existing or imminent labor disturbance
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by the employees of any of its or any of its subsidiaries' principal
suppliers, manufacturers, customers or contractors, which, in either
case, would not, singly or in the aggregate, result in a Material
Adverse Effect.
(xvii) Absence of Proceedings. There is no action, suit or
proceeding (collectively, "Legal Proceedings") pending or, to the
Company's knowledge, threatened against the Company or any of its
subsidiaries or any of their properties, at law or in equity, or before
or by any governmental authority, other than Legal Proceedings
disclosed in the Offering Memorandum and Legal Proceedings that would
not, singly or in the aggregate, result in a Material Adverse Effect.
(xviii) Possession of Intellectual Property. The Company and
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "Intellectual Property") necessary
to carry on the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice, or has knowledge,
of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any of its subsidiaries therein,
other than infringements or conflicts (if the subject of any
unfavorable decision, ruling or finding) or facts or circumstances of
invalidity or inadequacy that would not, singly or in the aggregate,
result in a Material Adverse Effect.
(xix) Absence of Manipulation. Neither the Company nor any
affiliate of the Company has taken, nor will the Company or any
affiliate take, directly or indirectly, any action which is designed to
stabilize or manipulate the price of any security or which has
constituted or which would be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(xx) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance or
sale of the Securities hereunder or the consummation of the
Transactions (other than the registration of the Exchange Notes
pursuant to the Registration Rights Agreement), except such as have
been already obtained or as may be required under any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Securities are being offered by the Initial
Purchasers.
(xxi) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued
by the appropriate federal, state, local or foreign regulatory agencies
or bodies necessary to conduct the business now operated by them,
except where the failure so to possess would not, singly or in the
aggregate, result in a Material
-7-
Adverse Effect; the Company and its subsidiaries are in compliance with
the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate,
result in a Material Adverse Effect; all of the Governmental Licenses
are valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not, singly or in the aggregate,
result in a Material Adverse Effect; and neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses other than
revocations or modifications that would not, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, result in a Material Adverse Effect.
(xxii) Title to Property. The Company and its subsidiaries
have good and marketable title to all real property owned by the
Company and its subsidiaries and good title to all other properties
owned by them, in each case, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Offering Memorandum or (b)
do not, singly or in the aggregate, materially affect the value of such
property and do not materially interfere with the use made and proposed
to be made of such property by the Company or any of its subsidiaries;
and all of the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and under
which the Company or any of its subsidiaries holds properties described
in the Offering Memorandum, are in full force and effect, except where
failure to be in full force and effect would not, singly or in the
aggregate, result in a Material Adverse Effect, and neither the Company
nor any of its subsidiaries has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company
or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease.
(xxiii) Investment Company Act. Neither the Company nor any
of its subsidiaries is required, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Offering Memorandum neither the
Company nor any of its subsidiaries will be required to register as an
"investment company" under the Investment Company Act of 1940, as
amended (the "1940 Act").
(xxiv) Environmental Laws. Except as described in the
Offering Memorandum and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any federal, state,
local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of
human health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
natural resources such as wetlands, flora and fauna, including, without
limitation, laws and regulations relating to the release or threatened
release of Hazardous Materials or to the manufacture, processing,
distribu-
-8-
tion, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are each
in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating to any Environmental
Law against the Company or any of its subsidiaries and (D) there are no
events or circumstances that would reasonably be expected to prevent or
interfere with compliance by the Company and its subsidiaries with any
Environmental Law or to result in any liability (including, without
limitation, fines or penalties or costs of remediation) to the Company
or any of its subsidiaries under any Environmental Law. The term
"Hazardous Materials" means any chemical, waste, pollutant,
contaminant, substance, constituent, or material, including without
limitation, petroleum or petroleum products, asbestos-containing
material or mold, which is subject to regulation or can give rise to
liability under any Environmental Law.
(xxv) Internal Accounting Controls. The Company and each of
the Subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are
executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (B) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxvi) Disclosure Controls and Procedures. The Company has
established and maintains disclosure controls and procedures (as such
term is defined in Rule 13a-14 and 15d-14 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that material
information relating to the Company, including its consolidated
subsidiaries, is made known to the Company's Chief Executive Officer
and its Chief Financial Officer by others within those entities, and
such disclosure controls and procedures are reasonably effective to
perform the functions for which they were established, subject to the
limitation of any such control system; the Company's auditors and the
Audit Committee of the Board of Directors of the Company have been
advised of: (A) any significant deficiencies in the design or operation
of internal controls which could adversely affect the Company's ability
to record, process, summarize, and report financial data; and (B) any
fraud, whether or not material, that involves management or other
employees who have a role in the Company's internal controls; any
material weaknesses in internal controls have been identified for the
Company's auditors; and since the date of the most recent evaluation of
such disclosure controls and procedures, there have been no significant
changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses.
-9-
(xxvii) Loans to Directors and Executive Officers. The
Company has provided you true, correct, and complete copies of all
documentation pertaining to any extension of credit in the form of a
personal loan made, directly or indirectly, by the Company to any
director or executive officer of the Company, or to any family member
or affiliate of any director or executive officer of the Company, which
loan was outstanding on July 30, 2002.
(xxviii) Statistical and Market-Related Data. Any statistical
and market-related data included or incorporated by reference in the
Offering Memorandum are based on or derived from sources that the
Company believes to be reliable and accurate, and the Company has
obtained the written consent to the use of such data from such sources
to the extent required.
(xxix) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002. There is and has been no
failure on the part of the Company and the Subsidiaries or any of the
officers and directors of the Company or any of the Subsidiaries, in
their capacities as such, to comply in all material respects with the
provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and
regulations in connection therewith applicable to the Company or the
Subsidiaries, including without limitation Section 402 thereof related
to loans and Sections 302 and 906 thereof related to certifications.
(xxx) Insurance. The Company and each of the Subsidiaries
maintains insurance covering its properties, operations, personnel and
businesses as the Company deems adequate; such insurance insures
against such losses and risks to an extent which the Company believes
to be adequate in accordance with customary industry practice to
protect the Company and the Subsidiaries and their respective
businesses; all such insurance is fully in force on the date hereof and
will be fully in force at the time of purchase and any additional time
of purchase.
(xxxi) No Agents and Brokers. Other than Representatives, no
person has the right to act as an underwriter or as a financial advisor
to the Company or its subsidiaries in connection with the offer and
sale of the Securities whether as a result of the sale of the
Securities as contemplated hereby or otherwise.
(xxxii) Employee Matters. Other than as described in the
Offering Memorandum or as would not, singly or in the aggregate, result
in a Material Adverse Effect, neither the Company nor any of its
subsidiaries has violated any foreign, federal, state or local law,
regulation, decree, order, directive, requirement or judgment
applicable to the Company or any of its subsidiaries relating to the
protection of human health and safety, any federal or state law
relating to discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws nor any
provision of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, and neither the Company nor any
of its subsidiaries has received any notice which is pending alleging
any violation thereof or liability thereunder.
(xxxiii) Taxes. The Company and its subsidiaries have filed
all federal or state income or franchise tax returns required to be
filed and have paid all taxes shown thereon
-10-
as due and required to be paid except for tax assessments, if any, as
to which adequate reserves have been provided in accordance with
generally accepted accounting principles. There is no material tax
deficiency which has been asserted against the Company or any of its
subsidiaries. All material tax liabilities are adequately provided for
on the books of the Company and its subsidiaries.
(xxxiv) Rule 144A Eligibility. The Securities are eligible
for resale pursuant to Rule 144A and will not be, at the Closing Time,
of the same class as securities listed on a national securities
exchange registered under Section 6 of the 1934 Act, or quoted in a
U.S. automated interdealer quotation system.
(xxxv) No General Solicitation. None of the Company, its
Affiliates or any person acting on its or any of their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the
offering of the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the 1933
Act.
(xxxvi) No Registration Required. Subject to compliance by
the Initial Purchasers with the representations and warranties set
forth in Section 2 and the procedures set forth in Section 6 hereof, it
is not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the 1933 Act or to qualify
the Indenture under the Trust Indenture Act of 1939, as amended (the
"1939 Act").
(xxxvii) Reporting Company. The Company is subject to the
reporting requirements of Section 13 or Section 15(d) of the 1934 Act.
(xxxviii) No Directed Selling Efforts. With respect to those
Securities sold in reliance on Regulation S, (A) none of the Company,
the Guarantors, any of their Affiliates or any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the Issuers
make no representation) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (B) each of the
Issuers, their Affiliates and any person acting on its or their behalf
(other than the Initial Purchasers, as to whom the Issuers make no
representation) has complied and will comply with the offering
restrictions requirement of Regulation S.
(xxxix) Offering Memorandum. The statements in the Offering
Memorandum under the headings "Description of New Credit Facility and
New Preferred Stock," "Description of the Notes," "Exchange Offer;
Registration Rights," and "Certain U.S. Federal Income Tax
Consequences," insofar as such statements purport to describe or
summarize certain provisions of the agreements, statutes and
regulations referred to therein, are accurate descriptions or
summaries.
(xl) No Other Distributions. The Company has not
distributed and, prior to the later to occur of (i) the Closing Time
and (ii) completion of the distribution of the Securi-
-11-
ties, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Offering Memorandum.
(xli) Similar Offerings. Neither the Company nor any of its
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
(each, an "Affiliate"), has, directly or indirectly, solicited any
offer to buy, sold or offered to sell or otherwise negotiated in
respect of, or will solicit any offer to buy, sell or offer to sell or
otherwise negotiate in respect of, in the United States or to any
United States citizen or resident, any security which is or would be
integrated with the sale of the Securities in a manner that would
require the Securities to be registered under the 1933 Act.
(xlii) No Registration Rights. There are no persons with
registration rights or other similar rights to have any securities
registered pursuant to the Offering Memorandum or otherwise registered
by the Company under the 1933 Act.
(b) Officer's Certificates. Any certificate signed by any
officer of the Company or any of its subsidiaries delivered to the
Representatives or to counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company or any such subsidiary to each
Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Issuers, jointly and severally, agree to sell to each Initial
Purchaser, severally and not jointly, and each Initial Purchaser, severally and
not jointly, agrees to purchase from the Issuers, at the price set forth in
Schedule B, the aggregate principal amount of Securities set forth in Schedule A
opposite the name of such Initial Purchaser, plus any additional principal
amount of Securities which such Initial Purchaser may become obligated to
purchase pursuant to the provisions of Section 11 hereof.
(b) Payment. Payment of the purchase price for, and delivery
of certificates for, the Securities shall be made at the offices of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Representatives and the Company, at
9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30
P.M. (Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 11), or such other time
not later than ten business days after such date as shall be agreed upon by the
Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Time").
Payment of the purchase price for the Securities shall be made
to the Company by wire transfer of immediately available funds to a bank account
designated by the Company, against delivery to the Representatives for the
respective accounts of the Initial Purchasers of certificates for the Securities
to be purchased by them. It is understood that each Initial Purchaser has
authorized the Representatives, for its account, to accept delivery of, give
receipt for, and make payment of the purchase price for, the Securities which it
has agreed to purchase. The Representatives, individually and not as
representative of the Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by
-12-
any Initial Purchaser whose funds have not been received by the Closing Time,
but such payment shall not relieve such Initial Purchaser from its obligations
hereunder.
(c) Denominations; Registration. Certificates for the
Securities shall be in such denominations ($100,000 or integral multiples of
$1,000 in excess thereof) and registered in such names as the Representatives
may request in writing at least one full business day before the Closing Time.
The certificates representing the Securities shall be made available for
examination and packaging by the Initial Purchasers in The City of New York not
later than 10:00 A.M. (Eastern Time) on the business day prior to the Closing
Time.
SECTION 3. Covenants of the Issuers. The Company, and where
specifically indicated, each of the other Issuers, jointly and severally,
covenants with each Initial Purchaser as follows:
(a) Delivery of Offering Memoranda. The Company will furnish
to each Initial Purchaser, without charge, such number of copies of the Offering
Memorandum (as amended or supplemented) as such Initial Purchaser may reasonably
request.
(b) Amendment to Offering Memorandum and Supplements. The
Company will give the Initial Purchasers notice of its intention to amend or
supplement the Offering Memorandum, will furnish the Initial Purchasers with
copies of any such documents a reasonable amount of time prior to such proposed
use and will not effect any such document to which the Initial Purchasers or
counsel for the Initial Purchasers shall object.
(c) Notice and Effect of Material Events. The Company will
immediately notify each Initial Purchaser, and confirm such notice in writing,
of (x) any filing made by any Issuer of information relating to the offering of
the Securities with any securities exchange or any other regulatory body in the
United States or any other jurisdiction, and (y) prior to the completion of the
placement of the Securities by the Initial Purchasers as evidenced by a notice
in writing from the Initial Purchasers to the Company, any material changes in
or affecting the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise which (i) make any statement in the Offering Memorandum false or
misleading or (ii) are not disclosed in the Offering Memorandum. In such event
or if during such time any event shall occur as a result of which it is
necessary, in the reasonable opinion of any of the Company, its counsel, the
Initial Purchasers or counsel for the Initial Purchasers, to amend or supplement
the Final Offering Memorandum in order that the Final Offering Memorandum not
include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances then existing, the Issuers will forthwith amend or supplement
the Final Offering Memorandum by preparing and furnishing to each Initial
Purchaser an amendment or amendments of, or a supplement or supplements to, the
Final Offering Memorandum (in form and substance satisfactory in the reasonable
opinion of counsel for the Initial Purchasers) so that, as so amended or
supplemented, the Final Offering Memorandum will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances existing at the time
it is delivered to a Subsequent Purchaser, not misleading.
-13-
(d) Qualification of Securities for Offer and Sale. The
Issuers will use their best efforts, in cooperation with the Initial Purchasers,
to qualify the Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions (domestic or foreign) as the
Representatives may designate and will maintain such qualifications in effect as
long as required for the sale of the Securities; provided, however, that no
Issuer shall be obligated to file any general consent to service of process or
to qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject.
(e) Rating of Securities. The Company shall take all
reasonable action necessary to enable Standard & Poor's Ratings Services, a
division of McGraw Hill, Inc. ("S&P"), and ▇▇▇▇▇'▇ Investors Service Inc.
("Moody's") to provide their respective credit ratings of the Securities.
(f) Restriction on Sale of Securities. During a period of 90
days from the date of the Offering Memorandum, the Company will not, without the
prior written consent of the Representatives, directly or indirectly, issue,
sell, offer or agree to sell, grant any option for the sale of, or otherwise
dispose of, any other debt securities of the Company or securities of the
Company that are convertible into, or exchangeable for, the Securities or such
other debt securities.
(g) DTC. The Issuers will cooperate with the Representatives
and use their best efforts to permit the Securities to be eligible for clearance
and settlement through the facilities of DTC.
(h) Use of Proceeds. The Issuers will use the net proceeds
received by them from the sale of the Securities in the manner specified in the
Offering Memorandum under "Use of Proceeds".
(i) PORTAL Designation. The Issuers will use their best
efforts to permit the Securities to be designated PORTAL securities in
accordance with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. ("NASD") relating to trading in The PORTAL Market.
(j) Reporting Requirements. The Company, during the period
when the Offering Memorandum is required to be delivered pursuant to Section
6(a)(vii) hereof, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Issuers will, jointly and severally, pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation and printing of the Offering Memorandum (including
financial statements and exhibits) and of each amendment thereto, (ii) the
preparation, printing and delivery to the Initial Purchasers of this Agreement,
any Agreement among Initial Purchasers, the Indenture, the Registration Rights
Agreement and such other documents as may be required in connection with the
offering, pur-
-14-
chase, sale, issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the Initial
Purchasers, including any transfer taxes, any stamp or other duties payable upon
the sale, issuance and delivery of the Securities to the Initial Purchasers and
any charges of DTC in connection therewith, (iv) the fees and disbursements of
the Issuers' counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of
Section 3(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection therewith and
in connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee in connection with the Indenture and
the Securities, (vii) any fees payable in connection with the rating of the
Securities, (viii) any fees and expenses payable in connection with the initial
and continued designation of the Securities as PORTAL securities under the
PORTAL Market Rules pursuant to NASD Rule 5322, (ix) the printing and delivery
to the Initial Purchasers of copies of the Preliminary Offering Memorandum and
the Offering Memorandum and any amendments or supplements thereto, (x) the
preparation, printing and delivery to the Initial Purchasers of copies of the
Blue Sky Survey and any supplement thereto and (xi) the costs and expenses of
the Issuers relating to investor presentations on any "road show" undertaken in
connection with the marketing of the Securities, including without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations, travel and lodging expenses of the representatives and officers
of the Company and any such consultants, and the costs of aircraft and other
transportation chartered in connection with the road show.
(b) Termination of Agreement. If this Agreement is terminated
by the Representatives in accordance with the provisions of Section 5 or Section
10(a) hereof, the Company shall reimburse the Initial Purchasers for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and warranties of the Issuers contained in
Section 1 hereof or in certificates of any officer of the Issuers or any of
their subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Issuers of their covenants and other obligations hereunder,
and to the following further conditions:
(a) Opinion of Counsel for Issuers. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Blank Rome LLP, counsel for the Issuers, in form and substance
satisfactory to counsel for the Initial Purchasers, together with signed or
reproduced copies of such letter for each of the other Initial Purchasers to the
effect set forth in Exhibit A. Such opinion may be subject to customary
exceptions, limitations and qualifications reasonably acceptable to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
-15-
(b) Opinion of Local Counsel for Issuers. At the Closing Time,
the Representatives shall have received the favorable opinion, dated as of the
Closing Time, of each of the local counsel listed on Schedule F hereto, in form
and substance satisfactory to counsel for the Initial Purchasers, together with
signed or reproduced copies of such letter for each of the other Initial
Purchasers to the effect set forth in Exhibit B. Such opinion may be subject to
customary exceptions, limitations and qualifications reasonably acceptable to
the Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(c) Opinion of General Counsel for Company. At the Closing
Time, the Representatives shall have received the favorable opinion, dated as of
the Closing Time, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Company, in form
and substance satisfactory to counsel for the Initial Purchasers, together with
signed or reproduced copies of such letter for each of the other Initial
Purchasers to the effect set forth in Exhibit C. Such opinion may be subject to
customary exceptions, limitations and qualifications reasonably acceptable to
the Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, he has relied, to the extent he deems proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) Opinion of Counsel for Initial Purchasers. At the Closing
Time, the Representatives shall have received the favorable opinion, dated as of
the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial
Purchasers, together with signed or reproduced copies of such letter for each of
the other Initial Purchasers. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Such opinion may be subject to customary
exceptions, limitations and qualifications reasonably acceptable to the
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(e) Officers' Certificate. At the Closing Time, there shall
not have been, since the date hereof or since the respective dates as of which
information is given in the Offering Memorandum (exclusive of any amendments,
supplements or modifications thereto after the date hereof), any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of the
President or a Vice President of the Company and of the chief financial or chief
accounting officer of the Company, dated as of the Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with the
same force and effect as though expressly made at and as of the Closing Time,
and (iii) the Company and the Guarantors have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or prior
to the Closing Time.
-16-
(f) Accountant's Comfort Letter. At the time of the execution
of this Agreement, the Representatives shall have received from Deloitte &
Touche LLP a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers containing statements and information of
the type ordinarily included in accountants' "comfort letters" to initial
purchasers with respect to the financial statements and certain financial
information contained in the Offering Memorandum.
(g) Bring-down Comfort Letter. At the Closing Time, the
Representatives shall have received from Deloitte & Touche LLP a letter, dated
as of the Closing Time, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (d) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
(h) Maintenance of Rating. Since the execution of this
Agreement, there shall not have been any decrease in the rating of any of the
Company's debt or preferred stock by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the ▇▇▇▇ ▇▇▇)
or any notice given of any intended or potential decrease in any such rating or
of a possible change in any such rating that does not indicate the direction of
the possible change.
(i) PORTAL. At the Closing Time, the Securities shall have
been designated for trading on PORTAL.
(j) Indenture. At the Closing Time, the Representatives shall
have received the Indenture, in form and substance reasonably satisfactory to
the Initial Purchasers, executed by each of the Issuers and the Trustee, and
such agreement shall be in full force and effect.
(k) Registration Rights Agreement. At the Closing Time, the
Representatives shall have received the Registration Rights Agreement, in form
and substance reasonably satisfactory to the Initial Purchasers, executed by
each of the Issuers, and such agreement shall be in full force and effect.
(l) Additional Documents. At the Closing Time, counsel for the
Initial Purchasers shall have been furnished with such documents and opinions as
they may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Issuers in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Initial Purchasers.
(m) Termination of Agreement. If any condition specified in
this Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement may be terminated by the Representatives by notice to
the Company at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as
-17-
provided in Section 4 and except that Sections 1, 7, 8 and 9 shall survive any
such termination and remain in full force and effect.
(n) Concurrent Transactions. On or prior to the Closing Time,
the Company shall have concurrently (i) consummated a public offering of its
common stock for aggregate gross proceeds of not less than $41.41 million, (ii)
consummated a private placement of its 5.75% series A redeemable convertible
preferred stock for gross proceeds of not less than $90.0 million, (iii) entered
into and made initial borrowings under the new $240.0 million senior secured
credit facilities, (iv) repaid all outstanding obligations made and terminated
commitments under the Company's existing senior secured credit facilities and
(v) repaid all outstanding obligations made and terminated commitments under the
Company's U.S. accounts receivable asset-backed securitization facility.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers
and the Issuers hereby establish and agree to, severally and not jointly,
observe the following procedures in connection with the offer and sale of the
Securities:
(i) Offers and Sales only to Qualified Institutional
Buyers. Offers and sales of the Securities shall only be made (A) to
persons whom the offeror or seller reasonably believes to be qualified
institutional buyers, as defined in Rule 144A under the 1933 Act
("Qualified Institutional Buyers") or (B) non-U.S. persons outside the
United States, as defined in Regulation S under the 1933 Act, to whom
the offeror or seller reasonably believes offers and sales of the
Securities may be made in reliance upon Regulation S under the 1933
Act. Each Initial Purchaser, severally and not jointly, agrees that it
will not offer, sell or deliver any of the Securities in any
jurisdiction outside the United States except under circumstances that
will result in compliance with the applicable laws thereof, and that it
will take at its own expense whatever action is required to permit its
purchase and resale of the Securities in such jurisdictions.
(ii) No General Solicitation. No general solicitation or
general advertising (within the meaning of Rule 502(c) under the ▇▇▇▇
▇▇▇) will be used in the United States in connection with the offering
or sale of the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a
non-bank Subsequent Purchaser of a Security acting as a fiduciary for
one or more third parties, each third party shall, in the judgment of
the applicable Initial Purchaser, be a Qualified Institutional Buyer or
a non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial
Purchaser will take reasonable steps to inform, and cause each of its
U.S. Affiliates to take reasonable steps to inform, persons acquiring
Securities from such Initial Purchaser or Affiliate, as the case may
be, in the United States that the Securities (A) have not been and will
not be registered under the 1933 Act, (B) are being sold to them
without registration under the 1933 Act in reliance on Rule 144A or in
accordance with another exemption from registration under the 1933 Act,
as the case may be, and (C) may not be offered, sold or otherwise
-18-
transferred except (1) to the Company, (2) outside the United States in
accordance with Regulation S, or (3) inside the United States in
accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Minimum Principal Amount. No sale of the Securities
to any one Subsequent Purchaser will be for less than $100,000
principal amount and no Security will be issued in a smaller principal
amount. If the Subsequent Purchaser is a non-bank fiduciary acting on
behalf of others, each person for whom it is acting must purchase at
least $100,000 principal amount of the Securities.
(vi) Restrictions on Transfer. The transfer restrictions
and the other provisions set forth in the Offering Memorandum under the
heading "Notice to Investors", including the legend required thereby,
shall apply to the Securities except as otherwise agreed by the Company
and the Initial Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial
Purchaser will deliver to each purchaser of the Securities from such
Initial Purchaser, in connection with its original distribution of the
Securities, a copy of the Offering Memorandum, as amended and
supplemented at the date of such delivery.
(b) Covenants of the Issuers. The Company, and where
specifically indicated, each of the other Issuers, jointly and severally,
covenants with each Initial Purchaser as follows:
(i) Integration. The Company, relying on the Black Box
and related "no action" letters, agrees that it will not and will cause
its Affiliates not to, directly or indirectly, solicit any offer to
buy, sell or make any offer or sale of, or otherwise negotiate in
respect of, securities of the Company of any class if, as a result of
the doctrine of "integration" referred to in Rule 502 under the 1933
Act, such offer or sale would render invalid (for the purpose of (i)
the sale of the Securities by the Issuers to the Initial Purchasers,
(ii) the resale of the Securities by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Securities by such
Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by
Rule 144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information. The Issuers agree that, in
order to render the Securities eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Securities remain
outstanding, it will make available, upon request, to any holder of
Securities or prospective purchasers of Securities the information
specified in Rule 144A(d)(4), unless the Issuers furnish information to
the Commission pursuant to Section 13 or 15(d) of the 1934 Act.
(iii) Restriction on Repurchases. Until the expiration of
two years after the original issuance of the Securities, the Issuers
will not, and will cause their affiliates not
-19-
to, resell any Securities which are "restricted securities" (as such
term is defined under Rule 144(a)(3) under the 1933 Act), whether as
beneficial owner or otherwise (except as agent acting as a securities
broker on behalf of and for the account of customers in the ordinary
course of business in unsolicited broker's transactions).
(c) Qualified Institutional Buyer. Each Initial Purchaser
severally and not jointly represents and warrants to, and agrees with, the
Company that it is a "qualified institutional buyer" within the meaning of Rule
144A under the 1933 Act (a "Qualified Institutional Buyer") and an "accredited
investor" within the meaning of Rule 501(a) under the 1933 Act (an "Accredited
Investor").
(d) Resale Pursuant to Rule 903 of Regulation S or Rule 144A.
Each Initial Purchaser understands that the Securities have not been and will
not be registered under the 1933 Act and may not be offered or sold within the
United States except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the 1933 Act. Each Initial
Purchaser, severally and not jointly, represents and agrees that it has not
offered or sold, and will not offer or sell, any Securities constituting part of
its allotment within the United States except in accordance with Rule 903 of
Regulation S under the Securities Act, Rule 144A under the Securities Act or
another applicable exemption from the registration requirements of the 1933 Act.
Accordingly, neither it nor its affiliates or any persons acting on its or their
behalf have engaged or will engage in any directed selling efforts with respect
to the Securities. Terms used in this paragraph have the meanings given to them
by Regulation S.
(e) Resale Pursuant to Rule 903 of Regulation S or Rule 144A.
Each Initial Purchaser understands that the Securities have not been and will
not be registered under the 1933 Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser, severally
and not jointly, represents and agrees, that, except as permitted by Section
6(a) above, it has offered and sold Securities and will offer and sell
Securities (i) as part of their distribution at any time and (ii) otherwise
until forty days after the later of the date upon which the offering of the
Securities commences and the Closing Time, only in accordance with Rule 903 of
Regulation S, Rule 144A under the 1933 Act or another applicable exemption from
the registration requirements of the 1933 Act. Accordingly, neither the Initial
Purchasers, their affiliates nor any persons acting on their behalf have engaged
or will engage in any directed selling efforts with respect to Securities sold
hereunder pursuant to Regulation S, and the Initial Purchasers, their affiliates
and any person acting on their behalf have complied and will comply with the
offering restriction requirements of Regulation S. Each Initial Purchaser,
severally and not jointly, agrees that, at or prior to confirmation of a sale of
Securities pursuant to Regulation S it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases Securities from it or through it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the United States Securities Act of 1933 (the "Securities Act") and may
not be offered or sold within the United States or to or for the
account or benefit of U.S. persons (i)
-20-
as part of their distribution at any time and (ii) otherwise until
forty days after the later of the date upon which the offering of the
Securities commenced and the date of closing, except in either case in
accordance with Regulation S or Rule 144A under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to
them by Regulation S.
(f) Additional Representations and Warranties of Initial
Purchasers. Each Initial Purchaser, severally and not jointly, represents and
agrees that it has not entered and will not enter into any contractual
arrangements with respect to the distribution of the Securities, except with its
affiliates or with the prior written consent of the Company.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Issuers agree,
jointly and severally, to indemnify and hold harmless each Initial Purchaser,
its affiliates, as such term is defined in Rule 501(b) under the 1933 Act (each,
and "Affiliate"), its selling agents and each person, if any, who controls any
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained
in the Preliminary Offering Memorandum or the Final Offering
Memorandum (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company;
and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
(i) or (ii) above;
-21-
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by such
Initial Purchaser through the Representatives expressly for use in the Offering
Memorandum (or any amendment or supplement thereto).
(b) Indemnification of Issuers, Directors and Officers. Each
Initial Purchaser, severally agrees to indemnify and hold harmless the Issuers,
its directors and each person, if any, who controls an Issuer within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Offering Memorandum (or any amendment or supplement thereto) in reliance upon
and in conformity with written information relating to such Initial Purchaser
furnished to the Company by such Initial Purchaser through the Representatives
expressly for use in the Offering Memorandum (or any amendment or supplement
thereto).
(c) Actions Against Parties; Notification. Each indemnified
party shall give notice as promptly as reasonably practicable to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. In the case of parties indemnified pursuant
to Section 7(a) above, counsel to the indemnified parties shall be selected by
the Representatives, and, in the case of parties indemnified pursuant to Section
7(b) above, counsel to the indemnified parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 7 or Section 8 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at
any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent if
-22-
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party for such fees and expenses of counsel in
accordance with such request prior to the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for
in Section 7 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers on the one hand and the Initial Purchasers on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Issuers on the one hand and of the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Issuers on the one hand
and the Initial Purchasers on the other hand in connection with the offering of
the Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Issuers and the total discount received by the Initial Purchasers, bear to
the aggregate initial offering price of the Securities.
The relative fault of the Issuers on the one hand and the
Initial Purchasers on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this Section
8. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 8 shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities purchased and sold by it hereunder
exceeds the amount of any damages which such
-23-
Initial Purchaser has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 8, each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act and each Initial Purchaser's Affiliates and
selling agents shall have the same rights to contribution as such Initial
Purchaser, and each director of the Company and each person, if any, who
controls an Issuer within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as such Issuer.
The Initial Purchasers' respective obligations to contribute pursuant to this
Section 8 are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to
Survive Delivery. All representations, warranties and agreements contained in
this Agreement or in certificates of officers of the Issuers or any of their
subsidiaries submitted pursuant hereto shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of any
Initial Purchaser or its Affiliates or selling agents, any person controlling
any Initial Purchaser, its officers or directors or any person controlling the
Issuers and (ii) delivery of and payment for the Securities.
SECTION 10. Termination of Agreement.
(a) Termination; General. The Representatives may terminate
this Agreement, by notice to the Company, at any time at or prior to the Closing
Time (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Offering
Memorandum (exclusive of any amendments, supplements or modifications thereto
after the date hereof), any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange, or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD, or any other governmental authority, or (iv) a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, or (v) if a banking moratorium has been
declared by either Federal or New York authorities.
-24-
(b) Liabilities. If this Agreement is terminated pursuant to
this Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 7, 8 and 9 shall survive such termination and remain in full force
and effect.
SECTION 11. Default by One or More of the Initial Purchasers.
If one or more of the Initial Purchasers shall fail at the Closing Time to
purchase the Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Initial Purchasers, or any other initial purchasers, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed
10% of the aggregate principal amount of the Securities to be purchased
hereunder, each of the non-defaulting Initial Purchasers shall be
obligated, severally and not jointly, to purchase the full amount
thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Initial Purchasers, or
(b) if the number of Defaulted Securities exceeds 10% of
the aggregate principal amount of the Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part
of any non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any
defaulting Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Issuers shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Offering Memorandum or in
any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section 11.
SECTION 12. Information Furnished by the Initial Purchasers.
The statements set forth in the fourth, seventh and eighth paragraphs under the
caption "Plan of Distribution" in the final Offering Memorandum constitute the
only information furnished by or on behalf of the Initial Purchasers.
SECTION 13. Tax Disclosure. Notwithstanding any other
provision of this Agreement, from the commencement of discussions with respect
to the Transactions and the other transactions contemplated by this Agreement,
the Company (and each employee, representative or other agent of the Company)
may disclose to any and all persons, without limitation of any kind, the tax
treatment and tax structure (as such terms are used in Sections 6011, 6111 and
6112 of the U.S. Code and the Treasury Regulations promulgated thereunder) of
the Transactions and the other transactions contemplated by this Agreement and
all materials of any kind (including opinions or other tax analyses) that are
provided relating to such tax treatment and tax structure.
-25-
SECTION 14. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Initial Purchasers shall be directed to the Representatives at ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, World Financial Center - North Tower, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of High Yield Debt Capital
Markets and UBS Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
attention of High Yield Syndicate Department; and notices to the Company shall
be directed to it at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
attention of Chief Executive Officer.
SECTION 15. Parties. This Agreement shall each inure to the
benefit of and be binding upon the Initial Purchasers and the Issuers and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers and the Issuers and their respective successors and
the controlling persons and officers and directors referred to in Sections 7 and
8 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Initial Purchasers and the
Issuers and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Initial Purchasers shall be deemed to be a successor by reason merely of
such purchase.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. Submission to Jurisdiction; Waiver of Jury Trial.
No proceeding related to this Agreement or the transactions contemplated hereby
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Issuers
hereby consent to the jurisdiction of such courts and personal service with
respect thereto. Each of the Issuers and the Initial Purchasers hereby waive all
right to trial by jury in any proceeding (whether based upon contract, tort or
otherwise) in any way arising out of or relating to this Agreement. Each of the
Issuers and the Initial Purchasers agrees that a final judgment in any such
proceeding brought in any such court shall be conclusive and binding upon the
Issuers and the Initial Purchasers and may be enforced in any other courts in
the jurisdiction of which the Issuers are or may be subject, by suit upon such
judgment.
SECTION 18. TIME. TIME SHALL BE OF THE ESSENCE OF THIS
AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
SECTION 19. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same Agreement.
-26-
SECTION 20. Effect of Headings. The Section headings herein
are for convenience only and shall not affect the construction hereof.
-27-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Issuers and the Initial Purchasers in accordance with its
terms.
Very truly yours,
GENERAL CABLE CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
GUARANTORS:
GENCA CORPORATION
GENERAL CABLE CANADA, LTD.
GENERAL CABLE COMPANY
GENERAL CABLE HOLDINGS, INC.
GENERAL CABLE INDUSTRIES, INC.
GENERAL CABLE INDUSTRIES, LLC
GENERAL CABLE MANAGEMENT LLC
GENERAL CABLE OVERSEAS HOLDINGS, INC.
GENERAL CABLE RESOURCES CORPORATION
GENERAL CABLE TECHNOLOGIES CORPORATION
GENERAL CABLE TEXAS OPERATIONS, L.P.
GK TECHNOLOGIES, INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
DIVERSIFIED CONTRACTORS, INC.
GENERAL CABLE DE MEXICO DEL NORTE,
S.A. DE C.V.
GENERAL CABLE DE LATINOAMERICA,
S.A. DE C.V.
MARATHON STEEL COMPANY
MARATHON MANUFACTURING HOLDINGS, INC.
MLTC COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
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CONFIRMED AND ACCEPTED,
as of the date first above written for
themselves and as Representatives of the
other Initial Purchasers named in
Schedule A hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇.▇. ▇▇▇▇▇
-----------------------------
Authorized Signatory
UBS SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Authorized Signatory
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Authorized Signatory
-29-
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Securities
------------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated...................... $142,500,000
UBS Securities LLC...................................................... 142,500,000
------------
Total................................................................... $285,000,000
============
Sch A-1
SCHEDULE B
PRICING INFORMATION
GENERAL CABLE CORPORATION
$285,000,000 Senior Notes due 2010
1. The initial offering price of the Notes shall be 100%
of the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial
Purchasers for the Notes shall be 97.375% of the principal amount thereof.
3. The interest rate on the Notes shall be 9.5% per
annum.
4. Optional Redemption: The Notes are redeemable, in
whole or in part, at any time on or after November 15, 2007 at the Company's
option at certain redemption prices as set forth in the Indenture plus accrued
and unpaid interest to the redemption date.
5. On or before November 15, 2006, the Company may
redeem up to 35% of the Notes with the net proceeds of certain equity offerings
at 109.5% of the principal amount thereof, plus accrued interest, if at least
65% of the aggregate principal amount of the originally issued Notes remain
outstanding.
6. Mandatory Offer to Purchase: Upon a change of control
of the Company, the Company will be required to offer to repurchase the Notes at
a price equal to 101% of their principal amount, plus accrued and unpaid
interest to the date or repurchase.
Sch B-1
SCHEDULE C
LIST OF SUBSIDIARIES
Austral Standard Cables Pty. Ltd.
BICCGeneral do Brasil S.A.
Comercializadora de Cables Dominicana, ▇.▇.
▇▇▇▇▇▇-Fabrica de Contudores Electricos de Angola SARL
Diversified Contractors, Inc.
Dominion Wire and Cables Ltd.
Genca Corporation
General Cable (WA) Pty. Ltd.
General Cable Argentina S.A.
General Cable Australia Pty. Ltd.
General Cable Canada, Ltd.
General Cable Capital Funding, Inc.
General Cable Celcat, Energia e Telecomunicacoes SA
General Cable Company
General Cable Corporation
General Cable de Latinoamerica, S.A. de C.V.
General Cable de Mexico del Norte, S.A. de C.V.
General Cable Export Sales Corporation
General Cable Finance Co. Limited
General Cable Holdings (Spain) SRL
General Cable Holdings (UK) Limited
General Cable Holdings de Mexico, S.A de C.V.
General Cable Holdings Netherlands C.V.
General Cable Holdings New Zealand
General Cable Holdings, Inc.
General Cable Industries, Inc.
General Cable Industries, LLC
General Cable Investments, SGPS, Sociedade Unipessoal, SA
General Cable Management LLC
General Cable New Zealand Limited
General Cable Norge A/S
General Cable Overseas Holdings, Inc.
General Cable Prescot Property Limited
General Cable Projects Limited
General Cable Property Holdings Limited
General Cable Resources Corporation
General Cable Services Europe Limited
General Cable Services Limited
General Cable Technologies Corporation
General Cable Texas Operations L.P.
General Cable UK Pension Trustee Limited
Sch C-1
General Cables Sistema S.A.
GK Technologies, Inc
Grupo General Cable Sistemas, ▇.▇.
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Energie Gmbh
KAISER KWO KABEL Verwaltungs Gmbh
Marathon Manufacturing Holdings, Inc.
Marathon Steel Company
MLTC Company
NextGen Fiber Optics, LLC
PT BICC Berca Cables
Telmag Internacional, S.A. de C.V.
Sch C-2
SCHEDULE D
GUARANTORS
Diversified Contractors, Inc.
Genca Corporation
General Cable Canada, Ltd.
General Cable Company
General Cable de Mexico Del Norte, S.A. de C.V.
General Cable de Latinoamerica, S.A. de C.V.
General Cable Holdings, Inc.
General Cable Industries, Inc.
General Cable Industries, LLC
General Cable Management LLC
General Cable Overseas Holdings, Inc.
General Cable Resources Corporation
General Cable Technologies Corporation
General Cable Texas Operations, L.P.
GK Technologies, Incorporated
Marathon Steel Company
Marathon Manufacturing Holdings, Inc.
MLTC Company
Sch D-1
SCHEDULE E
NON-WHOLLY OWNED SUBSIDIARIES
Name Ownership %
---- -----------
BICCGeneral do Brasil S.A. 80%
Dominion Wire and Cables Ltd. 51%
General Cable Argentina S.A. 96.25%
General Cable Norge A/S 85%
NextGen Fiber Optics, LLC 49%
PT BICC Berca Cables 50%
Sch E-1
SCHEDULE F
Issuer's Local Counsel
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Concuera Y ▇▇▇▇▇ (Mexico)
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, A Professional Corporation (Arizona)
Osler, ▇▇▇▇▇▇ & Harcourt (Ontario)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Sterling Scales (Nova Scotia)
Sch F-1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
1. The Company is validly existing as a corporation in good standing under
the laws of the State of Delaware.
2. The Company has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Offering
Memorandum and to enter into and perform its obligations under the
Purchase Agreement, the Indenture, the Securities, the Exchange
Securities, the Private Exchange Securities and the Registration Rights
Agreement.
3. The authorized capital stock of the Company is as set forth in the
Offering Memorandum in the column entitled "Actual" under the caption
"Capitalization."
4. The issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company under the
Delaware General Corporation Law, the Company's charter or bylaws or
any agreement to which the Company is a party and to which we have
knowledge.
5. The Purchase Agreement has been duly authorized, executed and delivered
by the Company.
6. The Indenture has been duly authorized, executed and delivered by the
Company and each U.S. Guarantor and (assuming the due authorization,
execution and delivery thereof by the Trustee) constitutes a valid and
binding agreement of the Company and each Guarantor, enforceable
against the Company and the Guarantors in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
relating to or affecting enforcement of creditors' rights generally, or
by general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
7. The Securities are in the form contemplated by the Indenture, have been
duly authorized and executed by the Company and each U.S. Guarantor
and, when authenticated by the Trustee in the manner provided in the
Indenture (assuming the due authorization, execution and delivery of
the Indenture by the Trustee) and issued and delivered against payment
of the purchase price therefor will constitute valid and binding
obligations of the Company and the Guarantors, enforceable against the
Company and the Guarantors in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium (including, without limitation, all laws
re-
A-1
lating to fraudulent transfers), or other similar laws relating to or
affecting enforcement of creditor's rights generally, or by general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and will be entitled to the
benefits of the Indenture.
8. The Securities and the Indenture conform in all material respects to
the descriptions thereof contained in the Offering Memorandum.
9. The Exchange Securities and Private Exchange Securities, have been duly
authorized by the Company and each U.S. Guarantor and, when executed by
the Company and the Guarantors and authenticated by the Trustee in the
manner provided in the Indenture (assuming the due authorization,
execution and delivery of the Indenture by the Trustee) and issued and
delivered in exchange for the Securities will constitute valid and
binding obligations of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium (including, without limitation,
all laws relating to fraudulent transfers), or other similar laws
relating to or affecting enforcement of creditor's rights generally, or
by general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be entitled
to the benefits of the Indenture.
10. The Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and each U.S. Guarantor and (assuming the
due authorization, execution and delivery by the other parties thereto)
constitute valid and binding agreement of the Company and the
Guarantors, enforceable against the Company and the Guarantors in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium
(including, without limitation, all laws relating to fraudulent
transfers), or other similar laws relating to or affecting enforcement
of creditor's rights generally, or by general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
11. Each of the other Transaction Documents has been duly authorized,
executed and delivered by the Company and each U.S. Guarantor, to the
extent a party thereto, and, when (assuming the due authorization,
execution and delivery by the other parties thereto) constitute valid
and binding agreement of the Company and the Guarantors, as applicable,
enforceable against the Company and the Guarantors in accordance with
its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium (including, without
limitation, all laws relating to fraudulent transfers), or other
similar laws relating to or affecting enforcement of creditor's rights
generally, or by general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
12. Except as disclosed or incorporated by reference in the Offering
Memorandum, to our knowledge, there is not pending or threatened in
writing any action, suit, proceeding, inquiry or investigation, to
which the Company or any of its subsidiaries is a party, or to which
the property of the Company or any of its subsidiaries is subject,
before or brought by any court or governmental agency or body, domestic
or foreign, which would result in
A-2
a Material Adverse Effect, or which would to materially and adversely
affect the properties or assets thereof or the consummation of the
Transactions contemplated in the Purchase Agreement or the performance
by the Company of its obligations thereunder.
13. The information in the Offering Memorandum under "Business --
Environmental Matters," "Business -- Legal Proceedings," "Description
of New Credit Facility and New Preferred Stock," "Description of the
Notes," "Exchange Offer; Registration Rights" and "Certain U.S. Federal
Income Tax Considerations" in the Offering Memorandum, to the extent
that it constitutes matters of law, summaries of legal matters,
agreements, the Certificate of Designations, or legal proceedings, or
legal conclusions, has been reviewed by us and is correct in all
material respects.
14. No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than as may be required
under the securities or blue sky laws of the various states, as to
which we need express no opinion) is necessary or required in
connection with the due authorization, execution and delivery of the
Purchase Agreement or for the offering, issuance, sale or delivery of
the Securities.
15. The execution, delivery and performance of the Purchase Agreement, the
Registration Rights Agreement, the Indenture and the Securities and the
consummation of the transactions contemplated in the Purchase Agreement
and the Registration Rights Agreement and in the Offering Memorandum
(including the issuance and sale of the Securities, the use of the
proceeds from the sale of the Securities as described in the Offering
Memorandum under the caption "Use of Proceeds" and the exchange offer
and/or filing of a shelf registration statement related to the
Securities) and compliance by the Company with its obligations under
the Purchase Agreement and the Registration Rights Agreement do not and
will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xi) of the Purchase
Agreement) under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to any provision of any agreement or
instrument which is listed as an exhibit to the Company's Annual Report
on Form 10-K for the year ended December 31, 2002 or any subsequent
filing by the Company under the Exchange Act or of the new senior
secured credit facility (except for such conflicts, breaches, defaults
or Repayment Events or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries, or any applicable federal, state or local law,
statute, rule, or regulation which we, in our experience, believe are
generally applicable to the Company and the Transactions or any
judgment, order, writ or decree, known to us.
16. None of the Company, General Cable Industries, Inc. or, to our
knowledge, any of the other Guarantors is required, or upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum will be required, to register as an "investment company"
under the 1940 Act.
A-3
Nothing has come to our attention that would lead us to
believe that the Offering Memorandum or any amendment thereto (it being
understood that we express no comment with respect to the financial statements,
including the notes thereto, or any other financial or statistical data that is
found in or derived from the internal accounting or financial records of the
Company and its subsidiaries set forth or referred to in the Offering
Memorandum), at the time the Offering Memorandum was issued, at the time any
such amended or supplemented Offering Memorandum was issued or at the Closing
Time, included or include an untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
A-4
Exhibit B
FORM OF OPINION OF COMPANY'S LOCAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
1. Each Guarantor is validly existing and in good standing under the laws
of its jurisdiction of formation.
2. The Purchase Agreement has been duly authorized, executed and delivered
by each of the Guarantors.
3. The Indenture has been duly authorized, executed and delivered by each
of the Guarantors.
4. The Guarantees have been duly authorized, executed and delivered by
each Guarantor.
5. The Guarantees of the Exchange Notes and Private Exchange Notes have
been duly authorized by each Guarantor.
6. The Registration Rights Agreement has been duly authorized, executed
and delivered by each Guarantor.
7. The execution, delivery and performance of the Purchase Agreement and
the Registration Rights Agreement and the consummation of the
transactions contemplated in the Purchase Agreement and the
Registration Rights Agreement and in the Offering Memorandum (including
the issuance and sale of the Securities, the use of the proceeds from
the sale of the Securities as described in the Offering Memorandum
under the caption "Use of Proceeds" and the exchange offer and/or
filing of a shelf registration statement related to the Securities) and
compliance by the Guarantors with its obligations under the Purchase
Agreement do not and will not result in any violation of the provisions
of the charter or by-laws of the Guarantors, or any applicable [name of
jurisdiction] law, statute, rule, or regulation which we, in our
experience, believe are generally applicable to the Guarantors and the
Transactions or any judgment, order, writ or decree, known to us.
8. To our knowledge, there are no judicial administrative or arbitration
orders, awards or proceedings pending or threatened against or
affecting any of the Guarantors in any court of before any governmental
instrumentality or arbitration board of tribunal.
9. It is not necessary for the execution delivery, performance or
enforcement by any Trustee of the rights of the Noteholders under the
Transaction Documents to which each of the
A-1
Guarantors is a party that such Trustee be licensed, qualified or
otherwise entitled to carry on business in [name of jurisdiction].(1)
10. No taxes or other charges are payable in or to any political
subdivision therein on account of the execution and delivery of the
Transaction Documents or the creation of any of the indebtedness
evidenced by any of the Transaction Documents.(1)
11. A court in [name of jurisdiction] applying the choice of law principles
of [name of jurisdiction] will give effect to the provisions in the
Transaction Documents which select the laws of the State of New York as
the governing law thereof and will apply such laws, rather than the
laws of the any other jurisdiction, to the enforceability, construction
and application thereof.(1)
----------------------------
(1) For opinion of non-U.S. counsel only.
A-2
Exhibit C
FORM OF OPINION OF GENERAL COUNSEL
OF THE COMPANY TO BE DELIVERED PURSUANT TO
SECTION 5(c)
1. The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
2. The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectus in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreement or pursuant to reservations,
agreements or employee benefit plans referred to in the Offering
Memorandum or pursuant to the exercise of convertible securities or
options referred to in the Offering Memorandum); the shares of issued
and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable; and none of
the outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company.
3. Each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Offering Memorandum and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing could not reasonably be
expected to result in a Material Adverse Effect; except as otherwise
disclosed in the Offering Memorandum, all of the issued and outstanding
capital stock of each Subsidiary has been duly authorized and validly
issued, is fully paid and non-assessable and, to my knowledge, is owned
by the Company, directly or through its subsidiaries, free and clear of
any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary.
4. The Company has been duly incorporated. To my knowledge, there is not
pending or threatened in writing any action, suit, proceeding, inquiry
or investigation, to which the Company or any of its subsidiaries is a
party, or to which the property of the Company or any of its
subsidiaries is subject, before or brought by any court or governmental
agency or body, domestic or foreign, which would reasonably be expected
to result in a Material Adverse Effect, or which would reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the Transactions contem-
B-1
plated in the Purchase Agreement or the performance by the Company of
its obligations thereunder.
5. All descriptions in the Offering Memorandum of contracts and other
documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Offering Memorandum.
6. The execution, delivery and performance of the Purchase Agreement, the
Registration Rights Agreement, the Indenture and the Securities and the
consummation of the transactions contemplated in the Purchase Agreement
and the Registration Rights Agreement and in the Offering Memorandum
(including the issuance and sale of the Securities, the use of the
proceeds from the sale of the Securities as described in the Offering
Memorandum under the caption "Use Of Proceeds" and the exchange offer
and/or filing of a shelf registration statement related to the
Securities) and compliance by the Company with its obligations under
the Purchase Agreement and the Registration Rights Agreement do not and
will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xi) of the Purchase
Agreement) under or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of its subsidiaries pursuant to any provision of any contract, license,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease, material supply or distribution agreement or any other agreement
or instrument, known to me, to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any of its
subsidiaries is subject (except for such conflicts, breaches, defaults
or Repayment Events or liens, charges or encumbrances that could not
reasonably be expected to have a Material Adverse Effect).
Nothing has come to such counsel's attention that would lead
such counsel to believe that the Offering Memorandum or any amendment thereto
(it being understood that I express no comment with respect to the financial
statements, including the notes thereto, or any other financial or statistical
data that is found in or derived from the internal accounting or financial
records of the Company and its subsidiaries set forth or referred to in the
Offering Memorandum), at the time the Offering Memorandum was issued, at the
time any such amended or supplemented Offering Memorandum was issued or at the
Closing Time, included or include an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
B-2