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EXHIBIT 1.1
RICHMONT MARKETING SPECIALISTS INC.
$100,000,000
10 1/8% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
December 16, 1997
CHASE SECURITIES INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Richmont Marketing Specialists Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $100,000,000 aggregate principal amount
of its 10 1/8% Senior Subordinated Notes due 2007 (the "Securities"). The
Securities will be issued pursuant to an Indenture to be dated as of December
19, 1997 (the "Indenture") among the Company, the Company's subsidiaries listed
on the signature pages hereto (the "Guarantor Subsidiaries"), Atlas Marketing
Company, Inc., a North Carolina corporation ("Atlas"), Century Food Brokers of
Hickory, Inc., a North Carolina corporation ("Century"), East Coast Food
Brokerage, Inc., a North Carolina corporation ("ECFB"), Ultimate Food Sales,
Inc., a North Carolina corporation ("Ultimate"), Cumberland Food Brokers, Inc.,
a North Carolina corporation ("Cumberland"), Meatmaster Brokerage, Inc., a North
Carolina corporation ("Meatmaster" and, together with Century, ECFB, Ultimate
and Cumberland, the "Atlas Subsidiaries"), and Texas Commerce Bank National
Association, as trustee (the "Trustee") and will be guaranteed on an unsecured,
senior subordinated basis by the Guarantor Subsidiaries. Pursuant to the Stock
Purchase Agreement among the Company, MSSC Carolina, Inc., a Delaware
corporation and a wholly owned subsidiary of the Company ("MSSC Carolina"),
Atlas and certain stockholders of Atlas (the "Atlas Stockholders") dated as of
November 8, 1997 (the "▇▇▇▇▇▇▇▇/▇▇▇▇▇ Stock Purchase Agreement"), and the Stock
Purchase Agreement among the Company, MSSC Carolina, the Atlas Employee Stock
Ownership Plan (the "ESOP") and seven management stockholders dated as of
November 8, 1997 (the "ESOP Stock Purchase Agreement" and, together with the
▇▇▇▇▇▇▇▇/▇▇▇▇▇ Stock Purchase Agreement, the "Stock Purchase Agreements"), MSSC
Carolina will acquire (the "Atlas Acquisition") all the outstanding stock of
Atlas and Atlas will become a wholly owned subsidiary of the Company. The Atlas
Acquisition will take place substantially simultaneously with the issuance of
the Securities and, upon consummation of the Atlas Acquisition, Atlas will
become a signatory to the Indenture as a Guarantor Subsidiary,
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guaranteeing payment of the Securities on an unsecured, senior subordinated
basis with the other Guarantor Subsidiaries. The Company hereby confirms its
agreement with Chase Securities Inc. (the "Initial Purchaser") concerning the
purchase of the Securities from the Company by the Initial Purchaser.
The Securities will be offered and sold to the Initial Purchaser
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Company has
prepared a preliminary offering memorandum dated December 2, 1997 (the
"Preliminary Offering Memorandum"), and will prepare an offering memorandum
dated the date hereof (the "Offering Memorandum") setting forth information
concerning the Company, the Company's subsidiaries, Atlas, the Atlas
Subsidiaries and the Securities. Copies of the Preliminary Offering Memorandum
have been, and copies of the Offering Memorandum will be, delivered by the
Company to the Initial Purchaser pursuant to the terms of this Agreement. Any
references herein to the Preliminary Offering Memorandum and the Offering
Memorandum shall be deemed to include all amendments and supplements thereto,
unless otherwise noted. The Company hereby confirms that it has authorized the
use of the Preliminary Offering Memorandum and the Offering Memorandum in
connection with the offering and resale of the Securities by the Initial
Purchaser in accordance with Section 2.
Holders of the Securities (including the Initial Purchaser and its
direct and indirect transferees) ("Holders") will be entitled to the benefits of
an Exchange and Registration Rights Agreement, substantially in the form
attached hereto as Annex A (the "Registration Rights Agreement"), pursuant to
which the Company will agree to file with the Securities and Exchange Commission
(the "Commission") (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") registering an issue of senior
subordinated notes of the Company (the "Exchange Securities") that are identical
in all material respects to the Securities (except that the Exchange Securities
will not contain terms with respect to transfer restrictions) and (ii) under
certain circumstances, a shelf registration statement pursuant to Rule 415 under
the Securities Act (the "Shelf Registration Statement").
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Company and the
Guarantor Subsidiaries. The Company and each of the Guarantor Subsidiaries
represents and warrants to, and agrees with, the Initial Purchaser on and as of
the date hereof and the Closing Date (as defined in Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, did not, and on the Closing Date
the Offering Memorandum will not, contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided
that the Company makes no representation or warranty as to information
contained in or omitted from the Preliminary Offering Memorandum or the
Offering
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Memorandum in reliance upon and in conformity with written information
relating to the Initial Purchaser furnished to the Company by or on behalf
of the Initial Purchaser specifically for use therein (the "Initial
Purchaser's Information").
(b) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its respective date, contains all of the information
that, if requested by a prospective purchaser of the Securities, would be
required to be provided to such prospective purchaser pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and warranties of
the Initial Purchaser contained in Section 2 and its compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchaser and the
offer, resale and delivery of the Securities by the Initial Purchaser in
the manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(d) The Company, Atlas, each of the Atlas Subsidiaries and each of
the Company's subsidiaries have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification,
and have all power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged, except
where the failure so to qualify or have such power or authority would not,
singularly or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company, Atlas, the Atlas Subsidiaries and the Company's
subsidiaries taken as a whole (a "Material Adverse Effect").
(e) The Company has an authorized capitalization as set forth in the
Offering Memorandum under the heading "Capitalization"; all of the
outstanding shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable; and
the capital stock of the Company conforms in all material respects to the
description thereof contained in the Offering Memorandum. All of the
outstanding shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly or indirectly by the Company, free
and clear of any lien, charge, encumbrance, security interest, restriction
upon voting or transfer or any other claim of any third party, other than
liens in connection with the Revolving Credit Facility and those other
existing liens listed in Schedule 1 attached hereto.
(f) The Company, Atlas, each of the Atlas Subsidiaries and each of
the Guarantor Subsidiaries has full right, power and authority to execute
and deliver each of this Agreement, the Indenture, the Registration Rights
Agreement, the Securities, the Stock
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Purchase Agreements and the amendment to the Credit Agreement described in
the Offering Memorandum (collectively, the "Transaction Documents", which
term shall include the Atlas Letter Agreement (as defined in Section 5(r)
hereof) upon its execution and delivery by Atlas and the Atlas
Subsidiaries) to which each is party and to perform its obligations
hereunder and thereunder; and all corporate action required to be taken
for the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.
(g) This Agreement has been duly authorized, executed and delivered
by the Company and each of the Guarantor Subsidiaries and constitutes a
valid and legally binding agreement of the Company and each of the
Guarantor Subsidiaries (and has been or will be duly authorized by Atlas
and the Atlas Subsidiaries and will be the valid and legally binding
agreement of Atlas and the Atlas Subsidiaries upon the execution and
delivery of the Atlas Letter Agreement).
(h) The Registration Rights Agreement has been duly authorized by
the Company and each of the Guarantor Subsidiaries and, when duly executed
and delivered in accordance with its terms by each of the parties thereto,
will constitute a valid and legally binding agreement of the Company and
each of the Guarantor Subsidiaries enforceable against the Company and
each of the Guarantor Subsidiaries in accordance with its terms (and has
been or will be duly authorized by Atlas and the Atlas Subsidiaries and
will be the valid and legally binding agreement of Atlas and the Atlas
Subsidiaries, enforceable against Atlas in accordance with its terms after
the consummation of the Atlas Acquisition), except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law) and that the
rights to indemnification thereunder may be limited by public policy.
(i) The Indenture has been duly authorized by the Company and each
of the Guarantor Subsidiaries and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute
a valid and legally binding agreement of the Company and each of the
Guarantor Subsidiaries enforceable against the Company and each of the
Guarantor Subsidiaries in accordance with its terms (and has been or will
be duly authorized by Atlas and the Atlas Subsidiaries and will be the
valid and legally binding agreement of Atlas and the Atlas Subsidiaries,
enforceable against Atlas and the Atlas Subsidiaries in accordance with
its terms after the consummation of the Atlas Acquisition), except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at
law). On the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act and the rules and
regulations of the Commission applicable to an indenture that is qualified
thereunder.
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(j) The Securities have been duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as provided in the
Indenture and paid for as provided herein, will be duly and validly issued
and outstanding and will constitute valid and legally binding obligations
of the Company, as issuer, and each of the Guarantor Subsidiaries
(including Atlas and the Atlas Subsidiaries after the consummation of the
Atlas Acquisition), as guarantors, entitled to the benefits of the
Indenture and enforceable against the Company, as issuer, and each of the
Guarantor Subsidiaries (including Atlas and the Atlas Subsidiaries after
the consummation of the Atlas Acquisition), as guarantors, in accordance
with their terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether considered
in a proceeding in equity or at law).
(k) The Atlas Letter Agreement has been or will be duly authorized
by Atlas and the Atlas Subsidiaries and when duly executed and delivered
in accordance with the terms thereof, will constitute the valid and
legally binding agreement of Atlas and the Atlas Subsidiaries, enforceable
against Atlas and the Atlas Subsidiaries in accordance with its terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity
or at law) and that the rights to indemnification thereunder may be
limited by public policy.
(l) The Stock Purchase Agreements have been duly authorized,
executed and delivered by the Company, MSSC Carolina, Atlas, the Atlas
Stockholders, the ESOP and the eight management stockholders and
constitute valid and legally binding agreements of the Company, MSSC
Carolina, Atlas, the Atlas Stockholders, the ESOP and the eight management
stockholders, enforceable against the Company, MSSC Carolina, Atlas, the
Atlas Stockholders, the ESOP and the eight management stockholders in
accordance with their terms, except to the extent that such enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws affecting
creditors' rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(m) The amendment to the Credit Agreement described in the Offering
Memorandum has been duly authorized by the Company and, when duly executed
and delivered in accordance with its terms by each of the parties thereto,
will constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar laws affecting creditors' rights generally and by
general equitable principles (whether considered in a proceeding in equity
or at law).
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(n) Each Transaction Document conforms in all material respects to
the description thereof contained in the Offering Memorandum.
(o) The execution, delivery and performance by each of the Company,
Atlas, the Atlas Subsidiaries and the Guarantor Subsidiaries of each of
the Transaction Documents to which each is a party, the issuance,
authentication, sale and delivery of the Securities by the Company and the
compliance by each of the Company, Atlas and the Guarantor Subsidiaries
with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company,
Atlas, any of the Atlas Subsidiaries or any of the Company's subsidiaries
pursuant to any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company, Atlas, the Atlas
Subsidiaries or any of the Company's subsidiaries is a party or by which
the Company, Atlas, any of the Atlas Subsidiaries or any of the Company's
subsidiaries is bound or to which any of the property or assets of the
Company, Atlas, any of the Atlas Subsidiaries or any of the Company's
subsidiaries is subject (except for such violations that would not have a
Material Adverse Effect), nor will such actions result in any violation of
the provisions of the charter or by-laws of the Company, Atlas, any of the
Atlas Subsidiaries or any of the Company's subsidiaries or any statute or
any judgment, order, decree, rule or regulation of any court or arbitrator
or governmental agency or body in the United States having jurisdiction
over the Company, Atlas, any of the Atlas Subsidiaries or any of the
Company's subsidiaries or any of their properties or assets (except for
such violations (other than violations of the charter or by-laws of the
Company, Atlas, any of the Atlas Subsidiaries or any of the Company's
subsidiaries) that would not have Material Adverse Effect or a material
adverse effect on the ability of the Company, Atlas, the Atlas
Subsidiaries or the Company's subsidiaries to perform its obligations
under the Transaction Documents); and no consent, approval, authorization
or order of, or filing or registration with, any such court or arbitrator
or governmental agency or body under any such domestic statute, judgment,
order, decree, rule or regulation is required for the execution, delivery
and performance by each of the Company, Atlas, the Atlas Subsidiaries and
the Guarantor Subsidiaries of each of the Transaction Documents to which
each is a party, the issuance, authentication, sale and delivery of the
Securities and compliance by each of the Company, Atlas, the Atlas
Subsidiaries and the Guarantor Subsidiaries with the terms thereof and the
consummation of the transactions contemplated by the Transaction
Documents, except for such consents, approvals, authorizations, filings,
registrations or qualifications (i) that shall have been obtained or made
prior to the Closing Date, (ii) as may be required to be obtained or made
under the Securities Act and applicable state securities laws as provided
in the Registration Rights Agreement or (iii) the failure of which to
obtain would not reasonably be likely to restrain, prevent or impose
burdensome conditions on the transactions contemplated by the Transaction
Documents.
(p) Ernst & Young LLP ("E&Y") are independent certified public
accountants with respect to the Company, Atlas, the Atlas Subsidiaries and
the Company's subsidiaries
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within the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants ("AICPA") and its
interpretations and rulings thereunder. The historical financial
statements (including the related notes) contained in the Offering
Memorandum have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods covered
thereby and fairly present the financial position of the entities
purported to be covered thereby at the respective dates indicated and the
results of their operations and their cash flows for the respective
periods indicated; and the financial information contained in the Offering
Memorandum under the headings "Capitalization", "Selected Historical
Financial Data--Marketing Specialists Sales Company", "Selected Historical
Financial Data--Atlas Marketing Company, Inc.", "Selected Historical
Financial Data--Bromar, Inc.", "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and "Management--Executive
Compensation" are derived from the accounting records of the Company,
Atlas and the Company's subsidiaries and fairly present the information
purported to be shown thereby. The pro forma financial information
contained in the Offering Memorandum has been prepared on a basis
consistent with the historical financial statements contained in the
Offering Memorandum (except for the pro forma adjustments specified
therein), gives effect to assumptions made on a reasonable basis and
fairly presents the historical and proposed transactions contemplated by
the Offering
(q) Memorandum and the Transaction Documents. The other historical
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, fairly presented.
(r) There are no legal or governmental proceedings pending to which
the Company, Atlas or any of the Company's subsidiaries is a party or of
which any property or assets of the Company, Atlas, any of the Atlas
Subsidiaries or any of the Company's subsidiaries is the subject that,
singularly or in the aggregate, if determined adversely to the Company,
Atlas or any of the Company's subsidiaries, could reasonably be expected
to have a Material Adverse Effect; and to the best knowledge of the
Company, Atlas, each of the Atlas Subsidiaries and each of the Guarantor
Subsidiaries, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(s) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental agency or
body that prevents the issuance of the Securities or suspends the sale of
the Securities in any jurisdiction; no injunction, restraining order or
order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to the Company, Atlas, any of
the Atlas Subsidiaries or any of the Company's subsidiaries that would
prevent or suspend the issuance or sale of the Securities or the use of
the Preliminary Offering Memorandum or the Offering Memorandum in any
jurisdiction; no action, suit or proceeding is pending against or, to the
best knowledge of the Company, Atlas, each of the Atlas Subsidiaries and
each of the Guarantor Subsidiaries, threatened against or affecting the
Company, Atlas, any of the Atlas Subsidiaries or any of the Company's
subsidiaries before any court or arbitrator or any governmental agency,
body or official, domestic or foreign, that could reasonably be
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expected to interfere with or adversely affect the issuance of the
Securities or in any manner draw into question the validity or
enforceability of any of the Transaction Documents or any action taken or
to be taken pursuant thereto; and the Company and Atlas have complied with
any and all requests by any securities authority in any jurisdiction for
additional information to be included in the Preliminary Offering
Memorandum and the Offering Memorandum.
(t) None of the Company, Atlas, any of the Atlas Subsidiaries or any
of the Company's subsidiaries is (i) in violation of its charter or
by-laws, (ii) in default, and no event has occurred that, with notice or
lapse of time or both, would constitute a default, in the due performance
or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject (except for such defaults or
violations that would not have a Material Adverse Effect) or (iii) in
violation of any law, ordinance, governmental rule, regulation or court
decree to which it or its property or assets may be subject (except for
any applicable foreign securities laws, regulations or restrictions in
connection with the offering of the Securities outside the United States,
as to which the Company and the Guarantor Subsidiaries make no
representation).
(u) Each of the Company, Atlas, the Atlas Subsidiaries and the
Company's subsidiaries possess all material licenses, certificates,
authorizations and permits issued by, and have made all declarations and
filings with, the appropriate federal, state or foreign regulatory
agencies or bodies that are necessary or desirable for the ownership of
their respective properties or the conduct of their respective businesses
as described in the Offering Memorandum, except where the failure to
possess or make the same would not, singularly or in the aggregate, have a
Material Adverse Effect, and none of the Company, Atlas, any of the Atlas
Subsidiaries or any of the Company's subsidiaries has received
notification of any revocation or modification of any such license,
certificate, authorization or permit or has any reason to believe that any
such license, certificate, authorization or permit will not be renewed in
the ordinary course except, in either case, where the failure to have any
such license, certificate, authorization or permit would not have a
Material Adverse Effect.
(v) Each of the Company, Atlas, the Atlas Subsidiaries and the
Company's subsidiaries has timely filed or caused to be filed all federal,
state, local and foreign income, franchise and other material tax returns
and reports required to have been filed and has paid or caused to be paid
all taxes required to have been paid by it (except where the failure to
made such filings or to pay such taxes would not have a Material Adverse
Effect) and no tax deficiency has been determined adversely to the
Company, Atlas, any of the Atlas Subsidiaries or any of the Company's
subsidiaries that has had (nor does the Company, Atlas, any of the Atlas
Subsidiaries or any of the Company's subsidiaries have any knowledge of
any tax deficiency that, if determined adversely to the Company or any of
its subsidiaries, could reasonably be expected to have, except for those
deficiencies that
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are subject to rights to indemnification as described in the Offering
memorandum) a Material Adverse Effect.
(w) None of the Company, Atlas, the Atlas Subsidiaries or the
Company's subsidiaries is (i) an "investment company" or a company
"controlled by" an investment company within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the
rules and regulations of the Commission thereunder or (ii) a "holding
company" or a "subsidiary company" of a holding company or an "affiliate"
thereof within the meaning of the Public Utility Holding Company Act of
1935, as amended.
(x) Each of the Company, Atlas, the Atlas Subsidiaries and the
Company's subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(y) Each of the Company, Atlas, the Atlas Subsidiaries and the
Company's subsidiaries have insurance covering its properties, operations,
personnel and businesses, which insurance is in amounts and insures
against such losses and risks as are adequate to protect it and its
businesses. None of the Company, Atlas, the Atlas Subsidiaries or the
Company's subsidiaries has received notice from any insurer or agent of
such insurer that capital improvements or other expenditures are required
or necessary to be made in order to continue such insurance.
(z) Each of the Company, Atlas, the Atlas Subsidiaries and the
Company's subsidiaries owns or possesses adequate rights to use all
material patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of its businesses; and the conduct
of their respective businesses will not conflict in any material respect
with, and the Company, Atlas, the Atlas Subsidiaries and the Company's
subsidiaries have not received any notice of any claim of conflict with,
any such rights of others.
(aa) Each of the Company, Atlas, the Atlas Subsidiaries and the
Company's subsidiaries have good and marketable title in fee simple to, or
have valid rights to lease or otherwise use, all items of real and
personal property that are material to the business of the Company, Atlas,
the Atlas Subsidiaries and the Company's subsidiaries, in each case free
and clear of all liens, encumbrances, claims and defects and imperfections
of title except such that (i) do not materially interfere with the use
made and proposed to be made
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of such property by the Company, Atlas, the Atlas Subsidiaries and the
Company's subsidiaries, (ii) could not reasonably be expected to have a
Material Adverse Effect, (iii) arise in connection with the Credit
Agreement or (iv) are listed in Schedule 2 attached hereto.
(bb) No labor disturbance by or dispute with the employees of the
Company, Atlas, any of the Atlas Subsidiaries or any of the Company's
subsidiaries exists or, to the best knowledge of the Company, Atlas, any
of the Atlas Subsidiaries or any of the Company's subsidiaries, is
contemplated or threatened.
(cc) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section
4975 of the Internal Revenue Code of 1986, as amended from time to time
(the "Code")) or "accumulated funding deficiency" (as defined in Section
302 of ERISA) or any of the events set forth in Section 4043(b) of ERISA
(other than events with respect to which the 30-day notice requirement
under Section 4043 of ERISA has been waived) has occurred with respect to
any employee benefit plan of the Company, Atlas, any of the Atlas
Subsidiaries or any of the Company's subsidiaries that could reasonably be
expected to have a Material Adverse Effect; each of the Company, Atlas,
the Atlas Subsidiaries and the Company's subsidiaries have not incurred
and do not expect to incur liability under Title IV of ERISA with respect
to the termination of, or withdrawal from, any pension plan for which the
Company, Atlas, any of the Atlas Subsidiaries or any of the Company's
subsidiaries would have any liability; and none of the Company, Atlas, the
Atlas Subsidiaries or the Company's subsidiaries would have liability for
any failure of any employee benefit plan to comply with any applicable
law, including ERISA or the Code, that could reasonably be expected to
result in a Material Adverse Effect.
(dd) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of any
kind of toxic or other wastes or other hazardous substances by, due to or
caused by the Company, Atlas, any of the Atlas Subsidiaries or any of the
Company's subsidiaries (or, to the best knowledge of the Company, any
other entity (including any predecessor) for whose acts or omissions the
Company, Atlas, any of the Atlas Subsidiaries or any of the Company's
subsidiaries is or could reasonably be expected to be liable) upon any of
the property now or previously owned or leased by the Company, Atlas, any
of the Atlas Subsidiaries or any of the Company's subsidiaries, or upon
any other property, in violation of any statute or any ordinance, rule,
regulation, order, judgment, decree or permit or that would, under any
statute or any ordinance, rule (including rule of common law), regulation,
order, judgment, decree or permit, give rise to any liability, except for
any violation or liability that could not reasonably be expected to have,
singularly or in the aggregate with all such violations and liabilities, a
Material Adverse Effect; and there has been no disposal, discharge,
emission or other release of any kind onto such property or into the
environment surrounding such property of any toxic or other wastes or
other hazardous substances with respect to which the Company has
knowledge, except for any such
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disposal, discharge, emission or other release of any kind that could not
reasonably be expected to have, singularly or in the aggregate with all
such discharges and other releases, a Material Adverse Effect.
(ee) None of the Company, Atlas, the Atlas Subsidiaries or the
Company's subsidiaries, to the best knowledge of each of the Company,
Atlas, the Atlas Subsidiaries and the Company's or subsidiaries, any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company, Atlas, any of the Atlas Subsidiaries or
any of the Company's subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; (ii) made any direct or indirect unlawful
payment to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(ff) Immediately after the consummation of the transactions to occur
on the Closing Date (a) the fair value of the assets of each of the
Company, Atlas, the Atlas Subsidiaries and the Guarantor Subsidiaries, at
fair valuation, will exceed its debts and liabilities, subordinated,
contingent or otherwise; (b) the present fair saleable value of the
property of each of the Company, Atlas, the Atlas Subsidiaries and the
Guarantor Subsidiaries will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each of the Company, Atlas, the Atlas
Subsidiaries and the Guarantor Subsidiaries will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each of the Company,
Atlas, the Atlas Subsidiaries and the Guarantor Subsidiaries will not have
unreasonably small capital with which to conduct the business in which it
is engaged as such business is now conducted and is proposed to be
conducted following the Closing Date.
(gg) There are no outstanding subscriptions, rights, warrants, calls
or options issued by the Company to acquire, or instruments convertible
into or exchangeable for, or agreements or understandings with respect to
the sale or issuance of, any shares of capital stock of or other equity or
other ownership interest in the Company, Atlas, any of the Atlas
Subsidiaries or any of the Company's subsidiaries, in each case other than
as described in the Offering Memorandum.
(hh) None of the Company, Atlas, any of the Atlas Subsidiaries or
any of the Company's subsidiaries owns any "margin securities" as that
term is defined in Regulations G and U of the Board of Governors of the
Federal Reserve System (the "Federal Reserve Board"), and none of the
proceeds of the sale of the Securities will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin security,
for the purpose of reducing or retiring any indebtedness that was
originally incurred to purchase or carry any margin security or for any
other purpose that might cause any of the Securities to be
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considered a "purpose credit" within the meanings of Regulation G, T, U or
X of the Federal Reserve Board.
(ii) None of the Company, Atlas, the Atlas Subsidiaries or the
Company's subsidiaries is a party to any contract, agreement or
understanding with any person (other than the Initial Purchaser) that
would give rise to a valid claim against the Company, Atlas, any of the
Atlas Subsidiaries or any of the Company's subsidiaries or the Initial
Purchaser for a brokerage commission, finder's fee or like payment in
connection with the offering and sale of the Securities.
(jj) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(kk) Assuming the accuracy of the representations and warranties of
the Initial Purchaser in Section 2 hereof and due performance and
compliance by the Initial Purchaser of its obligations under this
Agreement and the Offering Memorandum, none of the Company, Atlas, any of
their respective affiliates or any person acting on its or their behalf
has engaged or will engage in any directed selling efforts (as such term
is defined in Regulation S under the Securities Act ("Regulation S")), and
all such persons have complied and will comply with the offering
restrictions requirement of Regulation S.
(ll) Assuming the accuracy of the representations and warranties of
the Initial Purchaser in Section 2 hereof and due performance and
compliance by the Initial Purchaser of its obligations under this
Agreement and the Offering Memorandum, none of the Company, Atlas or any
of their respective affiliates has, directly or through any agent, sold,
offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as such term is defined in the Securities Act),
which is or will be integrated with the sale of the Securities in a manner
that would require registration of the Securities under the Securities
Act.
(mm) None of the Company, Atlas, any of their respective affiliates
or any other person acting on its or their behalf has engaged, in
connection with the offering of the Securities, in any form of general
solicitation or general advertising in the United States within the
meaning of Rule 502(c) under the Securities Act.
(nn) There are no securities of the Company, Atlas, any of the Atlas
Subsidiaries or any of the Company's subsidiaries registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
listed on a national securities exchange or quoted in a U.S. automated
inter-dealer quotation system.
(oo) None of the Company, Atlas, the Atlas Subsidiaries or the
Company's subsidiaries have taken and none of the Company, Atlas, the
Atlas Subsidiaries or the Company's subsidiaries will take, directly or
indirectly, any action prohibited by Regulation M under the Exchange Act
in connection with the offering of the Securities.
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(pp) No forward-looking statement (within the meaning of Section 27A
of the Securities Act and Section 21E of the Exchange Act) contained in
the Preliminary Offering Memorandum or the Offering Memorandum has been
made or reaffirmed without a reasonable basis or has been disclosed other
than in good faith.
(qq) None of the Company, Atlas, the Atlas Subsidiaries or the
Company's subsidiaries does business with the government of Cuba or with
any person or affiliate located in Cuba within the meaning of Florida
Statutes Section 517.075.
(rr) Since the date as of which information is given in the Offering
Memorandum, except as otherwise stated therein, (i) there has been no
material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs, management or business prospects of the
Company, Atlas, the Atlas Subsidiaries and the Company's subsidiaries,
taken as a whole, whether or not arising in the ordinary course of
business, (ii) none of the Company, Atlas or any of the Company's
subsidiaries has incurred any material liability or obligation, direct or
contingent, other than in the ordinary course of business, (iii) none of
the Company, Atlas, the Atlas Subsidiaries or the Company's subsidiaries
has entered into any material transaction other than in the ordinary
course of business and (iv) there has not been any change in the capital
stock or long-term debt of the Company, Atlas, any of the Atlas
Subsidiaries or any of the Company's subsidiaries, or any dividend or
distribution of any kind declared, paid or made by the Company or Atlas on
any class of their capital stock.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
the Initial Purchaser, and the Initial Purchaser agrees to purchase from the
Company, $100,000,000 principal amount of Securities at a purchase price equal
to 3.0% of the principal amount thereof. The Company shall not be obligated to
deliver any of the Securities except upon payment for all of the Securities to
be purchased as provided herein.
(b) The Initial Purchaser has advised the Company that it proposes
to offer the Securities for resale upon the terms and subject to the conditions
set forth herein and in the Offering Memorandum. The Initial Purchaser
represents, warrants and agrees that (i) it is purchasing the Securities
pursuant to a private sale exempt from registration under the Securities Act,
(ii) it has not solicited offers for, or offered or sold, and will not solicit
offers for, or offer or sell, the Securities by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D under the Securities Act ("Regulation D") or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (iii) it has solicited and will solicit offers for the Securities only
from, and has offered or sold and will offer, sell or deliver the Securities, as
part of its initial offering, only (A) within the United States to persons whom
it reasonably believes to be qualified institutional buyers ("Qualified
Institutional Buyers"), as defined in Rule 144A under the Securities Act ("Rule
144A"), or if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to it that each such account is a
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Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A and in each case, in
transactions in accordance with Rule 144A and (B) outside the United States to
persons other than U.S. persons in reliance on Regulations S under the
Securities Act ("Regulation S").
(c) In connection with the offer and sale of Securities in reliance
on Regulation S, the Initial Purchaser represents, warrants and agrees that:
(i) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except pursuant to an
exemption from, or in transactions not subject to, the registration
requirements of the Securities Act;
(ii) it has offered and sold the Securities, and will offer
and sell the Securities, (A) as part of its distribution at any time and
(B) otherwise until 40 days after the later of the commencement of the
offering of the Securities and the Closing Date, only in accordance with
Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act;
(iii) none of the Initial Purchaser, any of its affiliates or
any other person acting on its or their behalf has engaged or will engage
in any directed selling efforts with respect to the Securities, and all
such persons have complied and will comply with the offering restrictions
requirement of Regulation S;
(iv) at or prior to the confirmation of sale of any Securities
sold in reliance on Regulation S, it will have sent to each distributor,
dealer or other person receiving a selling concession, fee or other
remuneration that purchases Securities from it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and
may not be offered or sold within the United States or to, or for
the account or benefit of, a U.S. person (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering of the Securities and the
date of original issuance of the Securities, except in accordance
with Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act. Terms used above have the
meanings given to them by Regulation S;"
(v) it has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of the
Securities, except with its affiliates or with the prior written consent
of the Company.
Terms used in this Section 2(c) have the meanings given to them by
Regulation S.
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(d) The Initial Purchaser represents, warrants and agrees that (i)
it has not offered or sold and prior to the date six months after the Closing
Date will not offer or sell any Securities to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances that have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995; (ii) it has complied and will
comply with all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ and the
Public Offers of Securities Regulations 1995 with respect to anything done by it
in relation to the Securities in, from or otherwise involving the United
Kingdom; and (iii) it has only issued or passed on and will only issue or pass
on in the United Kingdom any document received by it in connection with the
issue of the Securities to a person who is of a kind described in Article 11(3)
of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom such document may otherwise lawfully be issued
or passed on.
(e) The Initial Purchaser agrees that, prior to or simultaneously
with the confirmation of sale by the Initial Purchaser to any purchaser of any
of the Securities purchased by the Initial Purchaser from the Company pursuant
hereto, the Initial Purchaser shall furnish to that purchaser a copy of the
Offering Memorandum (and any amendment or supplement thereto that the Company
shall have furnished to the Initial Purchaser prior to the date of such
confirmation of sale). In addition to the foregoing, the Initial Purchaser
acknowledges and agrees that the Company and, for purposes of the opinions to be
delivered to the Initial Purchaser pursuant to Section 5(d) and (e), counsel for
the Company and for the Initial Purchaser, respectively, may rely upon the
accuracy of the representations and warranties of the Initial Purchaser and its
compliance with its agreements contained in this Section 2, and the Initial
Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial Purchaser
may sell Securities to any affiliate of the Initial Purchaser and that any such
affiliate may sell Securities purchased by it to the Initial Purchaser.
(g) The Initial Purchaser represents and agrees that (i) it has not
solicited, and will not solicit, offers to purchase any of the Securities from,
(ii) it has not sold, and will not sell, any of the Securities to, and (iii) it
has not distributed, and will not distribute, the Offering Document to, any
person or entity in any jurisdiction outside of the United States except, in
each case in compliance in all material respects with all applicable laws. For
the purpose of this Agreement, "United States" means the United States of
America, its territories, its possessions and other areas subject to its
jurisdiction.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Cravath, Swaine &
▇▇▇▇▇ ("CS&M"), New York, New York, or at such other place as shall be agreed
upon by the Initial Purchaser and the Company, at 10:00 A.M., New York City
time, on December 19, 1997, or at such other time or date, not later than seven
full business days thereafter, as shall be agreed upon by the Initial
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Purchaser and the Company (such date and time of payment and delivery being
referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Initial Purchaser of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Initial Purchaser hereunder. Upon delivery,
the Securities shall be in global form, registered in such names and in such
denominations as the Initial Purchaser shall have requested in writing not less
than two full business days prior to the Closing Date. The Company agrees to
make one or more global certificates evidencing the Securities available for
inspection by the Initial Purchaser in New York, New York at least 24 hours
prior to the Closing Date.
4. Further Agreements of the Company and the Guarantor Subsidiaries.
The Company and each of the Guarantor Subsidiaries agrees with the Initial
Purchaser:
(a) to advise the Initial Purchaser promptly and, if requested,
confirm such advice in writing, of the happening of any event that makes
any statement of a material fact made in the Offering Memorandum untrue or
that requires the making of any additions to or changes in the Offering
Memorandum (as amended or supplemented from time to time) in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; to advise the Initial Purchaser promptly of any
order preventing or suspending the use of the Preliminary Offering
Memorandum or the Offering Memorandum, of any suspension of the
qualification of the Securities for offering or sale in any jurisdiction
and of the initiation or threatening of any proceeding for any such
purpose; and to use its best efforts to prevent the issuance of any such
order preventing or suspending the use of the Preliminary Offering
Memorandum or the Offering Memorandum or suspending any such qualification
and, if any such suspension is issued, to obtain the lifting thereof at
the earliest possible time;
(b) to furnish promptly to the Initial Purchaser and counsel for the
Initial Purchaser, without charge, as many copies of the Preliminary
Offering Memorandum and the Offering Memorandum (and any amendments or
supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to the Initial Purchaser and counsel
for the Initial Purchaser and not to effect any such amendment or
supplement to which the Initial Purchaser shall reasonably object by
notice to the Company after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchaser, any event shall occur or condition
exist as a result of which it is necessary, in the opinion of counsel for
the Initial Purchaser or counsel for the Company, to amend or
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17
supplement the Offering Memorandum in order that the Offering Memorandum
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Offering Memorandum to comply with applicable law, to promptly prepare
such amendment or supplement as may be necessary to correct such untrue
statement or omission or so that the Offering Memorandum, as so amended or
supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request of
such holders or such prospective purchasers, the information required to
be delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless
the Company is then subject to and in compliance with Section 13 or 15(d)
of the Exchange Act (the foregoing agreement being for the benefit of the
holders from time to time of the Securities and prospective purchasers of
the Securities designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the
Initial Purchaser copies of any annual reports, quarterly reports and
current reports filed by the Company with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall be
furnished by the Company to the Trustee or to the holders of the
Securities pursuant to the Indenture or the Exchange Act or any rule or
regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial
Purchaser may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as
the Initial Purchaser may designate and to continue such qualifications in
effect for so long as required for the resale of the Securities; and to
arrange for the determination of the eligibility for investment of the
Securities under the laws of such jurisdictions as the Initial Purchaser
may reasonably request; provided that the Company and its subsidiaries
shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to file a general
consent to service of process in any jurisdiction;
(h) to assist the Initial Purchaser in arranging for the Securities
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers,
Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through The
Depository Trust Company ("DTC");
(i) not to, and to cause their affiliates not to, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as such term is defined in the
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Securities Act) which could be integrated with the sale of the Securities
in a manner which would require registration of the Securities under the
Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause their affiliates not to, and not to authorize
or knowingly permit any person acting on their behalf to, solicit any
offer to buy or offer to sell the Securities by means of any form of
general solicitation or general advertising within the meaning of
Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and not to offer, sell,
contract to sell or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act or by Regulation S to cease to be applicable to the
offering and sale of the Securities as contemplated by this Agreement and
the Offering Memorandum;
(k) for a period of 90 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement for,
or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
subsidiaries (other than the Securities) without the prior written consent
of the Initial Purchaser;
(l) during the period from the Closing Date until two years after
the Closing Date, without the prior written consent of the Initial
Purchaser, not to, and not permit any of their affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities that
have been reacquired by them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered
under the Securities Act;
(m) not to, for so long as the Securities are outstanding, be or
become, or be or become owned by, an open-end investment company, unit
investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act, and to
not be or become, or be or become owned by, a closed-end investment
company required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until the
Initial Purchaser has notified the Company of the completion of the resale
of the Securities, not to, and to cause its affiliated purchasers (as
defined in Regulation M under the Exchange Act) not to, either alone or
with one or more other persons, bid for or purchase, for any account in
which it or any of its affiliated purchasers has a beneficial interest,
any Securities, or attempt to induce any person to purchase any
Securities; and not to, and to cause its affiliated purchasers not to,
make bids or purchase for the purpose of creating actual, or apparent,
active trading in or of raising the price of the Securities;
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(o) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchaser;
(p) to furnish to the Initial Purchaser on the date hereof a copy of
the independent accountants' report included in the Offering Memorandum
signed by the accountants rendering such report;
(q) to do and perform all things required to be done and performed
by it under this Agreement that are within its control prior to or after
the Closing Date, and to use its best efforts to satisfy all conditions
precedent on its part to the delivery of the Securities;
(r) to not take any action prior to the execution and delivery of
the Indenture that, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(s) to not take any action prior to the Closing Date that would
require the Offering Memorandum to be amended or supplemented pursuant to
Section 4(d);
(t) prior to the Closing Date, not to issue any press release or
other communication directly or indirectly or hold any press conference
with respect to the Company, its condition, financial or otherwise, or
earnings, business affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business and consistent
with the past practices of the Company and of which the Initial Purchaser
is notified), without the prior written consent of the Initial Purchaser,
unless in the judgment of the Company and its counsel, and after
notification to the Initial Purchaser, such press release or communication
is required by law; and
(u) to apply the net proceeds from the sale of the Securities as set
forth in the Offering Memorandum under the heading "Use of Proceeds".
5. Conditions of Initial Purchaser's Obligations. The obligations of
the Initial Purchaser hereunder are subject to the accuracy, on and as of the
date hereof and the Closing Date, of the representations and warranties of the
Company and each of the Guarantor Subsidiaries contained herein and of Atlas and
the Atlas Subsidiaries contained in the Atlas Letter Agreement, to the accuracy
of the statements of the Company, Atlas, each of the Atlas Subsidiaries and each
of the Guarantor Subsidiaries and their respective officers made in any
certificates delivered pursuant hereto, to the performance by the Company and
each of the Guarantor Subsidiaries of their respective obligations hereunder,
and to each of the following additional terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchaser as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchaser
may agree; and no stop order suspending the sale of the Secu-
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20
rities in any jurisdiction shall have been issued and no proceeding for
that purpose shall have been commenced or shall be pending or threatened.
(b) The Initial Purchaser shall not have discovered and disclosed to
the Company on or prior to the Closing Date that the Offering Memorandum
or any amendment or supplement thereto contains an untrue statement of a
fact that, in the opinion of counsel for the Initial Purchaser, is
material or omits to state any fact that, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of each of the Transaction Documents
and the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby, shall be
satisfactory in all material respects to the Initial Purchaser, and the
Company and Atlas shall have furnished to the Initial Purchaser all
documents and information that it or its counsel may reasonably request to
enable them to pass upon such matters.
(d) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P,
Hunton & ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.A. shall have furnished to the
Initial Purchaser their written opinions, as counsel to the Company,
addressed to the Initial Purchaser and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchaser, substantially
to the effect set forth in Annex ▇-▇, ▇-▇, ▇-▇ and B-4 hereto,
respectively.
(e) The Initial Purchaser shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Initial Purchaser, such opinion or opinions, dated
the Closing Date, with respect to such matters as the Initial Purchaser
may reasonably require, and the Company shall have furnished to such
counsel such documents and information as they request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Initial Purchaser a
letter (the "Initial Letter") of E&Y, addressed to the Initial Purchaser
and dated the date hereof, in form and substance satisfactory to the
Initial Purchaser, substantially to the effect set forth in Annex C
hereto.
(g) The Company shall have furnished to the Initial Purchaser a
letter (the "Bring-Down Letter") of E&Y, addressed to the Initial
Purchaser and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Company, Atlas, the
Atlas Subsidiaries and the Company's subsidiaries within the meaning of
Rule 101 of the Code of Professional Conduct of the AICPA and its
interpretations and rulings thereunder, (ii) stating, as of the date of
the Bring-Down Letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more
than three business days prior to the date of the Bring-Down Letter), that
the conclusions and
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findings of such accountants with respect to the financial information and
other matters covered by the Initial Letter are accurate and (iii)
confirming in all material respects the conclusions and findings set forth
in the Initial Letter.
(h) The Company, Atlas, each of the Atlas Subsidiaries and each of
the Guarantor Subsidiaries shall have furnished to the Initial Purchaser a
certificate, dated the Closing Date, of their respective chief executive
officers and their respective chief financial officers stating that (A)
such officers have carefully examined the Offering Memorandum, (B) in
their opinion, the Offering Memorandum, as of its date, did not include
any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and since the date of the Offering Memorandum,
no event has occurred that should have been set forth in a supplement or
amendment to the Offering Memorandum so that the Offering Memorandum (as
so amended or supplemented) would not include any untrue statement of a
material fact and would not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading
and (C) as of the Closing Date, the representations and warranties of the
Company, Atlas, the Atlas Subsidiaries and the Guarantor Subsidiaries in
this Agreement are true and correct in all material respects, the Company,
Atlas, the Atlas Subsidiaries and the Guarantor Subsidiaries have complied
with all agreements and satisfied all conditions on their part to be
performed or satisfied hereunder on or prior to the Closing Date, and
subsequent to the date of the most recent financial statements contained
in the Offering Memorandum, there has been no material adverse change in
the financial position or results of operation of the Company, Atlas, any
of the Atlas Subsidiaries or any of the Company's subsidiaries, or any
change, or any development including a prospective change, in or affecting
the condition (financial or otherwise), results of operations, business or
prospects of the Company, Atlas, the Atlas Subsidiaries and the Company's
subsidiaries taken as a whole.
(i) The Initial Purchaser shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and delivered
by a duly authorized officer of the Company, Atlas, each of the Atlas
Subsidiaries and each of the Guarantor Subsidiaries.
(j) The Indenture shall have been duly executed and delivered by the
Company, Atlas, the Atlas Subsidiaries, the Guarantor Subsidiaries and the
Trustee, and the Securities shall have been duly executed and delivered by
the Company and duly authenticated by the Trustee.
(k) The Securities shall have been approved by the NASD for trading
in the PORTAL Market.
(l) If any event shall have occurred that requires the Company under
Section 4(d) to prepare an amendment or supplement to the Offering
Memorandum, such amendment
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or supplement shall have been prepared, the Initial Purchaser shall have
been given a reasonable opportunity to comment thereon, and copies thereof
shall have been delivered to the Initial Purchaser reasonably in advance
of the Closing Date.
(m) There shall not have occurred any invalidation of Rule 144A or
Regulation S under the Securities Act by any court or any withdrawal or
proposed withdrawal of any rule or regulation under the Securities Act or
the Exchange Act by the Commission or any amendment or proposed amendment
thereof by the Commission that in the judgment of the Initial Purchaser
would materially impair the ability of the Initial Purchaser to purchase,
hold or effect resales of the Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall
not have been any change in the capital stock or long-term debt or any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), results of operations, business or
prospects of the Company, Atlas, the Atlas Subsidiaries and the Company's
subsidiaries taken as a whole, the effect of which, in any such case
described above, is, in the judgment of the Initial Purchaser, so material
and adverse as to make it impracticable or inadvisable to proceed with the
sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum (exclusive of
any amendment or supplement thereto).
(o) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental
agency or body that would, as of the Closing Date, prevent the issuance or
sale of the Securities; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction
shall have been issued as of the Closing Date that would prevent the
issuance or sale of the Securities.
(p) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Securities
or any of the Company's other debt securities or preferred stock by any
"nationally recognized statistical rating organization", as such term is
defined by the Commission for purposes of Rule 436(g)(2) of the rules and
regulations of the Commission under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance
or review (other than an announcement with positive implications of a
possible upgrading) its rating of the Securities or any of the Company's
other debt securities or preferred stock.
(q) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or market
by the Commission, by any such exchange or by any other regulatory body or
governmental authority having jurisdiction, or trading in any securities
of the
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Company on any exchange or in the over-the-counter market shall have been
suspended or (ii) any moratorium on commercial banking activities shall
have been declared by federal or New York state authorities or (iii) an
outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or (iv) a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in the case of this clause (iv), is,
in the judgment of the Initial Purchaser, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or the
delivery of the Securities on the terms and in the manner contemplated by
this Agreement and in the Offering Memorandum (exclusive of any amendment
or supplement thereto).
(r) Substantially simultaneously with the sale of the Securities
hereunder (i) the Atlas Acquisition shall have been consummated on the
terms described in the Offering Memorandum, (ii) the existing indebtedness
under the Revolving Credit Facility and certain other indebtedness of the
Company shall have been repaid, as described in the Offering Memorandum,
(iii) the Initial Purchaser shall have received a counterpart of an
agreement in the form of Annex D hereto (the "Atlas Letter Agreement")
that shall have been executed and delivered by a duly authorized officer
of each of Atlas, Century, ECFB, Ultimate, Cumberland and Meatmaster,
whereby, among other things, Atlas, Century, ECFB, Ultimate, Cumberland
and Meatmaster will become parties to this Agreement and be subject to the
obligations of the Company under this Agreement, including, but not
limited to, the obligations under Sections 4, 8, 9, 10, 11 and 12 hereof.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchaser.
6. Termination. The obligations of the Initial Purchaser hereunder
may be terminated by the Initial Purchaser, in its absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Section
5(m), (n), (o), (p) or (q) shall have occurred and be continuing.
7. Reimbursement of Initial Purchaser's Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6, (b) the Company
shall fail to tender the Securities for delivery to the Initial Purchaser for
any reason permitted under this Agreement or (c) the Initial Purchaser shall
decline to purchase the Securities for any reason permitted under this
Agreement, the Company shall reimburse the Initial Purchaser for such
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
as shall have been reasonably incurred by the Initial Purchaser in connection
with this Agreement and the proposed purchase and resale of the Securities.
8. Indemnification. (a) The Company and each of the Guarantor
Subsidiaries shall jointly and severally indemnify and hold harmless the Initial
Purchaser, its affiliates, its officers, directors, employees, representatives
and agents, and each person, if any, who controls the Initial Purchaser within
the meaning of the Securities Act or the Exchange Act (collectively
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referred to for purposes of this Section 8(a) and Section 9 as the Initial
Purchaser), from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, without limitation, any
loss, claim, damage, liability or action relating to purchases and sales of the
Securities), to which the Initial Purchaser may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto or in any information provided by the
Company pursuant to Section 4(e) or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse the Initial Purchaser
promptly upon demand for any legal or other expenses reasonably incurred by the
Initial Purchaser in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of, or
is based upon, an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with the Initial Purchaser's Information; and provided, further, that with
respect to any such untrue statement in or omission from the Preliminary
Offering Memorandum, the indemnity agreement contained in this Section 8(a)
shall not inure to the benefit of the Initial Purchaser to the extent that the
sale to the person asserting any such loss, claim, damage, liability or action
was an initial resale by the Initial Purchaser and any such loss, claim, damage,
liability or action of or with respect to the Initial Purchaser results from the
fact that both (A) to the extent required by applicable law, a copy of the
Offering Memorandum was not sent or given to such person at or prior to the
written confirmation of the sale of such Securities to such person and (B) the
untrue statement in or omission from the Preliminary Offering Memorandum was
corrected in the Offering Memorandum unless, in either case, such failure to
deliver the Offering Memorandum was a result of non-compliance by the Company
with Section 4(b).
(b) The Initial Purchaser shall indemnify and hold harmless the
Company, its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 8(b) and Section 9 as the Company),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in
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reliance upon and in conformity with the Initial Purchaser's Information, and
shall reimburse the Company for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 8(a) or 8(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under this Section 8 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability that it
may have to an indemnified party otherwise than under this Section 8. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party and
which would be material to the defense of the indemnified party and adverse to
the indemnifying party, (3) a conflict or potential conflict exists (based upon
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 8(a) and 8(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying
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party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld), effect any settlement
of any pending or threatened proceeding in respect of which any indemnified
party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The obligations of the Company, the Guarantor Subsidiaries and the
Initial Purchaser in this Section 8 and in Section 9 are in addition to any
other liability that the Company, the Guarantor Subsidiaries or the Initial
Purchaser, as the case may be, may otherwise have, including in respect of any
breaches of representations, warranties and agreements made herein by any such
party.
9. Contribution. If the indemnification provided for in Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a) or 8(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company and the Guarantor Subsidiaries on the one hand
and the Initial Purchaser on the other from the offering of the Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Guarantor Subsidiaries on the one hand and the Initial
Purchaser on the other with respect to the statements or omissions that resulted
in such loss, claim, damage or liability, or action in respect thereof, as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor Subsidiaries on the one hand and the Initial
Purchaser on the other with respect to such offering shall be deemed to be in
the same proportion as the total net proceeds from the offering of the
Securities purchased under this Agreement (before deducting expenses) received
by or on behalf of the Company and the Guarantor Subsidiaries, on the one hand,
and the total discounts and commissions received by the Initial Purchaser with
respect to the Securities purchased under this Agreement, on the other, bear to
the total gross proceeds from the sale of the Securities under this Agreement,
in each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to the Company or
information supplied by the Company on the one hand or to the Initial
Purchaser's Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company, the Guarantor Subsidiaries and
the Initial Purchaser agree that it would not be just and equitable if
contributions pursuant to this Section 9 were to be determined by pro rata
allocation (even if the Initial Purchaser were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 9 shall be deemed
to include, for purposes of this
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Section 9, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending or preparing to defend any
such action or claim. Notwithstanding the provisions of this Section 9, the
Initial Purchaser shall not be required to contribute any amount in excess of
the amount by which the total discounts and commissions received by the Initial
Purchaser with respect to the Securities purchased by it under this Agreement
exceeds the amount of any damages that the Initial Purchaser has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the Company,
the Guarantor Subsidiaries (including, upon delivery of the Atlas Letter
Agreement, Atlas and the Atlas Subsidiaries) and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except as provided in Sections 8 and 9 with respect to
affiliates, officers, directors, employees, representatives, agents and
controlling persons of the Company, the Guarantor Subsidiaries (including, upon
delivery of the Atlas Letter Agreement, Atlas and the Atlas Subsidiaries) and
the Initial Purchaser and in Section 4(e) with respect to holders and
prospective purchasers of the Securities. Nothing in this Agreement is intended
or shall be construed to give any person, other than the persons referred to in
this Section 10, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
11. Expenses. The Company and each of the Guarantor Subsidiaries
agrees with the Initial Purchaser to pay (a) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Securities and
any taxes payable in that connection; (b) the costs incident to the preparation,
printing and distribution of the Preliminary Offering Memorandum, the Offering
Memorandum and any amendments or supplements thereto; (c) the costs of
reproducing and distributing each of the Transaction Documents; (d) the costs
incident to the preparation, printing and delivery of the certificates
evidencing the Securities, including stamp duties and transfer taxes, if any,
payable upon issuance of the Securities; (e) the fees and expenses of the
Company's counsel and independent accountants; (f) the fees and expenses of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 4(g) and of preparing, printing and distributing Blue Sky
Memoranda (including related fees and expenses of counsel for the Initial
Purchaser); (g) any fees charged by rating agencies for rating the Securities;
(h) the fees and expenses of the Trustee and any paying agent (including related
fees and expenses of any counsel to such parties); (i) all expenses and
application fees incurred in connection with the application for the inclusion
of the Securities on the PORTAL Market and the approval of the Securities for
book-entry transfer by DTC; and (j) all other costs and expenses incident to the
performance of the obligations of the Company under this Agreement which are not
otherwise specifically provided for in this Section 11; provided, however, that
except as provided in this Section 11 and Section 7, the Initial Purchaser shall
pay its own costs and expenses.
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12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, Atlas, the Atlas
Subsidiaries, the Guarantor Subsidiaries and the Initial Purchaser contained in
this Agreement or made by or on behalf of the Company, Atlas, the Atlas
Subsidiaries, the Guarantor Subsidiaries or the Initial Purchaser pursuant to
this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination or cancelation of this Agreement or any
investigation made by or on behalf of any of them or any of their respective
affiliates, officers, directors, employees, representatives, agents or
controlling persons.
13. Notices, etc.. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered or sent by mail
or telecopy transmission to Chase Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (telecopier no.: (212)
270-0994); or
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Offering Memorandum, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (telecopier no.: (972)
550-1986);
provided that any notice to the Initial Purchaser pursuant to
Section 8(c) shall also be delivered or sent by mail to the Initial Purchaser at
its address set forth on the signature page hereof. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof.
14. Definition of Terms. For purposes of this Agreement, (a) the
term "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
15. Initial Purchaser's Information. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Initial Purchaser's
Information consists solely of the following information in the Preliminary
Offering Memorandum and the Offering Memorandum: (i) the last paragraph on the
front cover page concerning the terms of the offering by the Initial Purchaser;
(ii) the legend on the inside front cover page concerning over-allotment and
trading activities by the Initial Purchaser; and (iii) the statements concerning
the Initial Purchaser contained in the third, fourth, fifth, seventh, ninth,
twelfth and thirteenth paragraphs under the heading "Plan of Distribution".
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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17. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
18. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company, the Guarantor
Subsidiaries and the Initial Purchaser in accordance with its terms.
Very truly yours,
RICHMONT MARKETING SPECIALISTS INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
MARKETING SPECIALISTS SALES COMPANY,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
MSSC CAROLINA, INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
FERRO & ASSOCIATES, INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
BROMAR, INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
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▇▇▇▇ ▇▇▇▇▇▇▇ & ASSOCIATES, INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
SERVICE ASSETS CORP.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
BROKERAGE SERVICES, INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
BATESTAS & CO.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
TOWER MARKETING, INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
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T-BAR BROKERAGE,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
T'NT NATIONAL CONVENIENCE STORE BROKERS,
INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Financial Officer
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Accepted:
CHASE SECURITIES INC.,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Authorized Signatory
Address for notices pursuant to Section 8(c):
▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department