EXHIBIT 10.16
EXECUTION VERSION
MOBILE MINI, INC.
$150,000,000
9 1/2% SENIOR NOTES DUE 2013
PURCHASE AGREEMENT
June 23, 2003
DEUTSCHE BANK SECURITIES INC.
CIBC WORLD MARKETS CORP.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
FLEET SECURITIES, INC.
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Each of Mobile Mini, Inc., a Delaware corporation (the
"Company"), and the Company's subsidiaries listed on the signature pages hereof
(collectively, the "Subsidiary Guarantors" and, together with the Company, the
"Issuers") hereby confirms its agreement with you (the "Initial Purchasers"), as
set forth below.
Section 1. The Notes. Subject to the terms and
conditions herein contained, the Company proposes to issue and sell to the
Initial Purchasers $150,000,000 aggregate principal amount of its 9 1/2% Senior
Notes due 2013 (the "Notes"). The Notes are to be issued under an indenture (the
"Indenture") to be dated as of June 26, 2003 by and among the Company, the
Subsidiary Guarantors and ▇▇▇▇▇ Fargo Bank Minnesota, N.A., as Trustee (the
"Trustee"). The Notes will be unconditionally guaranteed (the "Guarantees") on a
senior basis by each of the Subsidiary Guarantors and, unless the context
otherwise requires, any reference to the "Notes" shall include a reference to
the related Guarantees.
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
In connection with the sale of the Notes, the Company has
prepared a preliminary offering memorandum dated June 9, 2003 (the "Preliminary
Memorandum") and a final offering memorandum dated June 23, 2003 (the "Final
Memorandum"; the Preliminary Memorandum and the Final Memorandum each herein
being referred to as a "Memorandum") setting forth or including a description of
the terms of the Notes, the terms of the offering of
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the Notes, a description of the Company and any material developments relating
to the Company occurring after the date of the most recent historical financial
statements included therein.
Concurrently with this offering of the Notes, the Company will
amend and restate its senior secured revolving credit facility in the amount of
up to $250.0 million with Fleet Capital Corporation, as administrative agent,
and the other agents and lenders party thereto (the "Senior Credit Facility").
The Initial Purchasers and their direct and indirect
transferees of the Notes will be entitled to the benefits of the Registration
Rights Agreement to be dated as of the Closing Date (as defined in Section 3
below) (the "Registration Rights Agreement"), pursuant to which the Company and
the Subsidiary Guarantors will agree, among other things, to file with the
Securities and Exchange Commission (the "Commission") under the circumstances
set forth therein, (i) a registration statement under the Act (the "Exchange
Offer Registration Statement") relating to the 9 1/2% Senior Notes due 2013 of
the Issuers (the "Exchange Notes") to be offered in exchange (the "Exchange
Offer") for the Notes, and (ii) as and to the extent required by the
Registration Rights Agreement, a shelf registration statement pursuant to Rule
415 under the Act (the "Shelf Registration Statement" and, together with the
Exchange Offer Registration Statement, the "Registration Statements") relating
to the resale by certain holders of the Notes, and to cause such Registration
Statements to be declared effective in accordance with the provisions of the
Registration Rights Agreement.
Section 2. Representations and Warranties. The Issuers,
jointly and severally, represent and warrant to and agree with each of the
Initial Purchasers that:
(a) Neither the Preliminary Memorandum as of its date nor
the Final Memorandum as of its date nor any amendment or supplement
thereto as of the date thereof and at all times subsequent thereto up
to and including the Closing Date contained or contains any untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties set forth in this Section 2(a) do
not apply to statements or omissions made in reliance upon and in
conformity with information furnished to the Company in writing by the
Initial Purchasers expressly for use either in the Preliminary
Memorandum, the Final Memorandum or any amendment or supplement
thereto.
(b) As of the Closing Date, the Company will have the
authorized, issued and outstanding capitalization set forth in the
Final Memorandum; all of the outstanding shares of capital stock or
membership interests in the Company and the subsidiaries of the Company
listed in Schedule I attached hereto (each, a "Subsidiary" and
collectively, the "Subsidiaries") have been, and as of the Closing Date
will be, duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive or
similar rights; except as set forth in the Final Memo-
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randum or in any filings by the Company with the Securities and
Exchange Commission (the "SEC") all of the outstanding shares of
capital stock and other ownership interests of each of the Subsidiaries
will be free and clear of all liens, encumbrances, equities and claims
or restrictions on transferability (other than those imposed by the Act
and the securities or "Blue Sky" laws of certain jurisdictions) or
voting; except as set forth in the Final Memorandum or in any filings
by the Company with the SEC, there are no (i) options, warrants or
other rights to purchase, (ii) agreements or other obligations of the
Subsidiaries to issue or (iii) other rights to convert any obligation
into, or exchange any securities for, shares of capital stock of or
ownership interests in the Company or any of the Subsidiaries
outstanding. Except for the Subsidiaries or as disclosed in the Final
Memorandum, the Company does not own, directly or indirectly, any
shares of capital stock or any other equity or long-term debt
securities or have any equity interest in any firm, partnership, joint
venture or other entity.
(c) Each of the Company and the Subsidiaries is duly
incorporated or formed, validly existing and in good standing as a
corporation, limited liability company or limited partnership under the
laws of its respective jurisdiction of organization and has all
requisite corporate power and authority to own or lease its properties
and conduct its business as now conducted and as described in the Final
Memorandum; each of the Company and the Subsidiaries is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions where the ownership or leasing of its properties or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not, individually or in the aggregate,
have a material adverse effect on the business, condition (financial or
otherwise), prospects or results of operations of the Company and the
Subsidiaries, taken as a whole (any such event, a "Material Adverse
Effect").
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under
the Notes, the Exchange Notes and the Private Exchange Notes (as
defined in the Registration Rights Agreement). The Notes, when issued,
will be in the form contemplated by the Indenture. The Notes, the
Exchange Notes and the Private Exchange Notes have each been duly and
validly authorized by the Company and, when executed by the Company and
authenticated by the Trustee in accordance with the provisions of the
Indenture and, in the case of the Notes, when delivered to and paid for
by the Initial Purchasers in accordance with the terms of this
Agreement (or issued by the Company in accordance with the Registration
Rights Agreement and the Indenture, in the case of the Exchange Notes
and the Private Exchange Notes), will constitute valid and legally
binding obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company in accordance with their
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought.
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(e) Each of the Subsidiary Guarantors has all requisite
corporate, partnership, limited liability company or other
organizational power and authority to execute, deliver and perform each
of its obligations under the Guarantees and the guarantees of the
Exchange Notes and the Private Exchange Notes. The Guarantees, and the
guarantees of the Exchange Notes, when issued, will be in the form
contemplated by the Indenture. The Guarantees and the guarantees of the
Exchange Notes and the Private Exchange Notes have each been duly and
validly authorized by each of the Subsidiary Guarantors and, when the
Guarantees and the guarantees of the Exchange Notes are executed by
each of the Subsidiary Guarantors and when the Notes are duly executed
and delivered against payment therefor and are authenticated by the
Trustee in accordance with the provisions of the Indenture and the
Exchange Notes are issued, such Guarantees and guarantees of the
Exchange Notes will have been duly executed, issued and delivered and
will constitute valid and legally binding obligations of the Subsidiary
Guarantors, entitled to the benefits of the Indenture and enforceable
against the Subsidiary Guarantors in accordance with their terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought.
(f) Each of the Issuers has all requisite corporate,
partnership, limited liability company or other organizational power
and authority to execute, deliver and perform its obligations under the
Indenture. The Indenture meets the requirements for qualification under
the Trust Indenture Act of 1939, as amended (the "TIA"). The Indenture
has been duly and validly authorized by each of the Issuers and, when
executed and delivered by each of the Issuers (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute a valid and legally binding agreement of each of the
Issuers, enforceable against each of the Issuers in accordance with its
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity and
the discretion of the court before which any proceeding therefor may be
brought.
(g) Each of the Issuers has all requisite corporate,
partnership, limited liability company or other organizational power
and authority to execute, deliver and perform its obligations under the
Registration Rights Agreement. The Registration Rights Agreement has
been duly and validly authorized by each of the Issuers and, when
executed and delivered by each of the Issuers (assuming the due
authorization, execution and delivery by the Initial Purchasers), will
constitute a valid and legally binding agreement of each of the Issuers
enforceable against each of the Issuers in accordance with its terms,
except that (A) the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and
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(ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought and (B) any rights
to indemnity or contribution thereunder may be limited by federal and
state securities laws and public policy considerations.
(h) Each of the Issuers has all requisite corporate,
partnership, limited liability company or other organizational power
and authority to execute, deliver and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby.
This Agreement and the consummation by the Issuers of the transactions
contemplated hereby have been duly and validly authorized by each of
the Issuers. This Agreement has been duly executed and delivered by
each of the Issuers.
(i) Assuming (a) the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 8 hereof, (b)
the Initial Purchasers' compliance with the agreements set forth in
Section 8 and the offering and transfer procedures and restrictions
described in the Final Memorandum and (c) the accuracy of the
representations and warranties deemed to be made by each of the
purchasers to whom the Initial Purchasers initially sell the Notes, no
consent, waiver, approval, authorization or order of or filing,
registration, qualification, license or permit of or with any court or
governmental agency or body, or third party is required for the
issuance and sale by the Company of the Notes to the Initial Purchasers
or the consummation by the Issuers of the other transactions
contemplated hereby, except such as have been obtained and such as may
be required under state securities or "Blue Sky" laws in connection
with the purchase and resale of the Notes by the Initial Purchasers.
None of the Company or the Subsidiaries is (i) in violation of its
certificate of incorporation or bylaws (or similar organizational
document), (ii) in breach or violation of any statute, judgment,
decree, order, rule or regulation applicable to any of them or any of
their respective properties or assets, except for any such breach or
violation that would not, individually or in the aggregate, have a
Material Adverse Effect, or (iii) in breach of or default under (nor
has any event occurred that, with notice or passage of time or both,
would constitute a default under) or in violation of any of the terms
or provisions of any indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, permit,
certificate, contract or other agreement or instrument to which any of
them is a party or to which any of them or their respective properties
or assets is subject (collectively, "Contracts"), except for any such
breach, default, violation or event that would not, individually or in
the aggregate, have a Material Adverse Effect.
(j) The execution, delivery and performance by the
Company of this Agreement, the Indenture and the Registration Rights
Agreement, the execution, delivery and performance by the Subsidiary
Guarantors of this Agreement, the Indenture and the Registration Rights
Agreement and the consummation by the Issuers of the transactions
contemplated hereby and thereby (including, without limitation, the
issuance and sale of the Notes to the Initial Purchasers and the
issuance of the Exchange Notes in the Exchange Offer) will not conflict
with or constitute or result in a breach
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of or a default under (or an event that with notice or passage of time
or both would constitute a default under) or violation of any of (i)
the terms or provisions of any Contract, except for any such conflict,
breach, violation, default or event that would not, individually or in
the aggregate, have a Material Adverse Effect, (ii) the certificate of
incorporation or bylaws (or similar organizational document) of the
Company or any of the Subsidiaries or (iii) (assuming compliance with
all applicable state securities or "Blue Sky" laws and assuming the
accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof) any statute, judgment, decree, order,
rule or regulation applicable to the Company or any of the Subsidiaries
or any of their respective properties or assets, except for any such
conflict, breach or violation that would not, individually or in the
aggregate, have a Material Adverse Effect.
(k) Ernst & Young LLP ("E&Y"), who are reporting on the
audited financial statements, for the fiscal year ended December 31,
2002, of the Issuers in the Final Memorandum, are independent public
accountants within the meaning of the Act and the rules and regulations
promulgated thereunder. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP was, at the time of its
audit of any of the financial statements referred to in that firm's
report dated February 11, 2002, and included in the Final Memorandum,
an independent public accounting firm within the meaning of the Act and
the rules and regulations promulgated thereunder. The audited
consolidated financial statements of the Company and the Subsidiaries
and the related notes thereto included in the Final Memorandum under
the headings "Offering Memorandum Summary -- Summary of Financial Data"
and "Selected Consolidated Financial and Other Data" present fairly in
all material respects the financial position, results of operations and
cash flows of the Company and the Subsidiaries at the dates and for the
periods to which they relate and have been prepared in accordance with
generally accepted accounting principles consistently applied
throughout such periods, except as otherwise stated therein. The
summary and selected financial data in the Final Memorandum present
fairly in all material respects the information shown therein and have
been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated
therein.
(l) The pro forma financial information included in the
Final Memorandum (i) complies as to form in all material respects with
the applicable requirements of Regulation S-X promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), (ii)
has been properly computed on the bases described therein; the
assumptions used in the preparation of the pro forma financial data and
other pro forma financial information included in the Final Memorandum
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions or circumstances referred to therein.
(m) There is not pending or, to the knowledge of the
Company or any of the Subsidiaries, threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any of the
Subsidiaries is a party, or to which the property or assets of
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the Company or any of the Subsidiaries are subject, before or brought
by any court, arbitrator or governmental agency or body that would,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect or that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the
Notes to be sold hereunder or the consummation of the other
transactions described in the Final Memorandum.
(n) Each of the Company and the Subsidiaries possesses
all licenses, permits, certificates, consents, orders, approvals and
other authorizations from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
presently required or necessary to own or lease, as the case may be,
and to operate its respective properties and to carry on its respective
businesses as now conducted as set forth in the Final Memorandum
("Permits"), except where the failure to obtain such Permits would not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed all of its obligations with respect to such
Permits and no event has occurred that allows, or after notice or lapse
of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such
Permit except where such revocation, termination or impairment would
not, individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect; and none of the Company or the Subsidiaries
has received any written notice of any proceeding relating to the
revocation or modification of any such Permit, except as described in
the Final Memorandum and except where such revocation or modification
would not, individually or in the aggregate, be reasonably expected to
have a Material Adverse Effect.
(o) Since the date of the most recent financial
statements appearing in the Final Memorandum and except under the
Senior Credit Facility (or its predecessor), or as otherwise described
in the Final Memorandum, (i) none of the Company or the Subsidiaries
has incurred any liabilities or obligations, direct or contingent, or
entered into or agreed to enter into any transactions or contracts
(written or oral) not in the ordinary course of business, which
liabilities, obligations, transactions or contracts would, individually
or in the aggregate, be reasonably expected to have a Material Adverse
Effect, (ii) none of the Company or the Subsidiaries has purchased any
of its outstanding capital stock, nor declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock (other
than with respect to any of such Subsidiaries, the purchase of, or
dividend or distribution on, capital stock owned by the Company) and
(iii) there shall not have been any material change in the capital
stock or any change in the long-term indebtedness of the Company or the
Subsidiaries.
(p) Each of the Company and the Subsidiaries has filed
all necessary federal, state and foreign income and franchise tax
returns, except where the failure to so file such returns would not,
individually or in the aggregate, be reasonably expected to
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have a Material Adverse Effect, and has paid all taxes shown as due
thereon other than amounts being contested in good faith; and other
than tax deficiencies that the Company or any Subsidiary is contesting
in good faith and for which the Company or such Subsidiary has provided
adequate reserves, there is no tax deficiency that has been asserted
against the Company or any of the Subsidiaries that would be reasonably
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(q) The statistical and market-related data included in
the Final Memorandum are based on or derived from sources that the
Company and the Subsidiaries believe to be reliable and accurate.
(r) None of the Company, the Subsidiaries or any agent
acting on their behalf has taken or will take any action that might
cause this Agreement or the sale of the Notes to violate Regulation T,
U or X of the Board of Governors of the Federal Reserve System, in each
case as in effect, or as the same may hereafter be in effect, on the
Closing Date.
(s) Each of the Company and the Subsidiaries has good and
marketable title to all real property and good title to all material
personal property described in the Final Memorandum as being owned by
it and valid leasehold interests in the real and personal property
described in the Final Memorandum as being leased by it free and clear
of all liens, charges, encumbrances or restrictions, except as
described in the Final Memorandum (including those liens permitted by
the terms of the Indenture) or to the extent the failure to have such
title or the existence of such liens, charges, encumbrances or
restrictions would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect. All leases, contracts and
agreements to which the Company or any of the Subsidiaries is a party
or by which any of them is bound are valid and enforceable against the
Company or such Subsidiary, and with only such exceptions as would not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect.
(t) The Company and the Subsidiaries own or possess
adequate licenses or other rights to use all patents, trademarks,
service marks, trade names, copyrights and know-how necessary to
conduct the businesses now operated by them as described in the Final
Memorandum, and none of the Company or the Subsidiaries has received
any notice of infringement of or conflict with (or knows of any such
infringement of or conflict with) asserted rights of others with
respect to any patents, trademarks, service marks, trade names,
copyrights or know-how that, if such assertion of infringement or
conflict were sustained, would have a Material Adverse Effect.
(u) There are no legal or governmental proceedings now
pending or known by any executive officer of the Company to be
threatened against or involving or affecting the Company or any
Subsidiary or any of their respective properties or assets that would
be required to be described in a prospectus delivered pursuant to the
Act
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that are not described in the Final Memorandum, nor are there any
material contracts or other documents that would be required to be
described in a prospectus delivered pursuant to the Act that are not
described in the Final Memorandum.
(v) Except as would not, individually or in the
aggregate, have a Material Adverse Effect (A) each of the Company and
the Subsidiaries is in compliance with and not subject to liability
under applicable Environmental Laws (as defined below), (B) each of the
Company and the Subsidiaries has made all filings and provided all
notices required under any applicable Environmental Law, and has and is
in compliance with all Permits required under any applicable
Environmental Laws and each of them is in full force and effect, (C)
there is no civil, criminal or administrative action, suit, demand,
claim, hearing, notice of violation, investigation, proceeding, notice
or demand letter or request for information pending or, to the
knowledge of the Company or any of the Subsidiaries, threatened against
the Company or any of the Subsidiaries under any Environmental Law, (D)
no lien, charge, encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property
owned, operated, leased or controlled by the Company or any of the
Subsidiaries, (E) none of the Company or the Subsidiaries has received
notice that it has been identified as a potentially responsible party
under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or any comparable state
law and (F) no property or facility of the Company or any of the
Subsidiaries is (i) listed or proposed for listing on the National
Priorities List under CERCLA or (ii) listed in the Comprehensive
Environmental Response, Compensation and Liability Information System
List promulgated pursuant to CERCLA, or on any comparable list
maintained by any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, laws relating to (i) emissions,
discharges, releases or threatened releases of hazardous materials into
the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials, and
(iii) underground and aboveground storage tanks and related piping, and
emissions, discharges, releases or threatened releases therefrom.
(w) There is no strike, labor dispute, slowdown or work
stoppage with the employees of the Company or any of the Subsidiaries
that is pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened which would, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect.
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(x) Each of the Company and the Subsidiaries carries
insurance in such amounts and covering such risks as is adequate for
the conduct of its business and the value of its properties except
where the failure to do so would not, individually or in the aggregate,
be reasonably expected to have a Material Adverse Effect.
(y) Except as would not, individually or in the
aggregate, have a Material Adverse Effect, none of the Company or the
Subsidiaries has any liability for any prohibited transaction or
funding deficiency or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan that is subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), to which the Company or any of the Subsidiaries makes or
ever has made a contribution and in which any employee of the Company
or of any Subsidiary is or has ever been a participant and with respect
to such plans, the Company and each Subsidiary is in compliance in all
material respects with all applicable provisions of ERISA.
(z) Each of the Company and the Subsidiaries (i) makes
and keeps accurate books and records and (ii) maintains internal
accounting controls that provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets at
reasonable intervals.
(aa) None of the Company or the Subsidiaries is, or after
the issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the Final
Memorandum will be, required to register as an "investment company" or
"promoter" or "principal underwriter" for an "investment company," as
such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(bb) The Notes the Indenture and the Registration Rights
Agreement as of the Closing Date will conform in all material respects
to the descriptions thereof in the Final Memorandum.
(cc) No holder of securities of the Company or any
Subsidiary will be entitled to have such securities registered under
the Registration Statements required to be filed by the Company
pursuant to the Registration Rights Agreement other than as expressly
permitted thereby.
(dd) Immediately after the consummation of the
transactions contemplated by this Agreement, the fair value and present
fair saleable value of the assets of the Company and the Subsidiaries
(on a consolidated basis) will exceed the sum of their stated
liabilities and identified contingent liabilities; the Company and the
Subsidiaries
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(on a consolidated basis) are not, nor will the Company or the
Subsidiaries (on a consolidated basis) be, after giving effect to the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, (a) left with
unreasonably small capital with which to carry on their business as it
is proposed to be conducted, (b) unable to pay their debts (contingent
or otherwise as they mature or (c) otherwise insolvent.
(ee) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under
the Act) has directly, or through any agent (excluding any Initial
Purchaser), (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of any "security" (as defined in the
Act) that is or could be integrated with the sale of the Notes in a
manner that would require the registration under the Act of the Notes
or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a
public offering within the meaning of Section 4(2) of the Act. Assuming
(a) the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof (b) due performance of the covenants and
agreement of the Initial Purchasers set forth in this Agreement and
compliance by the Initial Purchasers with the offering and transfer
procedures and restrictions described in the Final Memorandum, it is
not necessary in connection with the offer, sale and delivery of the
Notes to the Initial Purchasers in the manner contemplated by this
Agreement to register any of the Notes under the Act or to qualify the
Indenture under the TIA.
(ff) No securities of the Company or any Subsidiary are of
the same class (within the meaning of Rule 144A under the Act) as the
Notes and listed on a national securities exchange registered under
Section 6 of the Exchange Act, or quoted in a U.S. automated
inter-dealer quotation system.
(gg) As of the date hereof, none of the Company or the
Subsidiaries has taken, nor will any of them take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Notes.
(hh) None of the Company, the Subsidiaries, any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under
the Act) or any person acting on its or their behalf (other than the
Initial Purchasers) has engaged in any directed selling efforts (as
that term is defined in Regulation S under the Act ("Regulation S"))
with respect to the Notes; the Company, the Subsidiaries and their
respective Affiliates and any person acting on its or their behalf
(other than the Initial Purchasers) have complied with the offering
restrictions requirement of Regulation S.
(ii) Except as will be disclosed in the Final Memorandum,
there are no business relationships or related party transactions required to be
disclosed therein by Item
-12-
404 of Regulation S-K of the Commission and each business relationship or
related party transaction described therein is in all material respects a fair
and accurate description of the relationships and transactions so described.
Any certificate signed by any officer of the Company or any
Subsidiary Guarantor and delivered to any Initial Purchaser or to counsel for
the Initial Purchasers shall be deemed a joint and several representation and
warranty by the Company and each of the Subsidiary Guarantors to each Initial
Purchaser as to the matters covered thereby.
Section 3. Purchase, Sale and Delivery of the Notes. On
the basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the Initial Purchasers, and the Initial Purchasers,
acting severally and not jointly, agree to purchase, the Notes in the respective
amounts set forth on Schedule II attached hereto from the Company at 97.0% of
their principal amount. One or more certificates in global form for the Notes
that the Initial Purchasers have agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as the
Initial Purchasers request upon notice to the Company at least 36 hours prior to
the Closing Date, shall be delivered by or on behalf of the Company to the
Initial Purchasers, against payment by or on behalf of the Initial Purchasers of
the purchase price therefor by wire transfer (same day funds), to such account
or accounts as the Company shall specify prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. Such delivery
of and payment for the Notes shall be made at the offices of ▇▇▇▇▇ ▇▇▇▇ LLP,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ at 10:00 A.M., New York time, on
June 26, 2003, or at such other place, time or date as the Initial Purchasers,
on the one hand, and the Company, on the other hand, may agree upon, such time
and date of delivery against payment being herein referred to as the "Closing
Date." The Company will make such certificate or certificates for the Notes
available for checking and packaging by the Initial Purchasers at the offices of
Deutsche Bank Securities Inc. in New York, New York, or at such other place as
Deutsche Bank Securities Inc. may designate, at least 24 hours prior to the
Closing Date.
Section 4. Offering by the Initial Purchasers. The
Initial Purchasers propose to make an offering of the Notes at the price and
upon the terms set forth in the Final Memorandum as soon as practicable after
this Agreement is entered into and as in the judgment of the Initial Purchasers
is advisable.
Section 5. Covenants of the Issuers. The Issuers,
jointly and severally, covenant and agree with each of the Initial Purchasers
that:
(a) The Issuers will not amend or supplement the Final
Memorandum or make any amendment or supplement thereto of which the
Initial Purchasers shall not previously have been advised and furnished
a copy for a reasonable period of time prior to the proposed amendment
or supplement and as to which the Initial Purchasers shall not have
given their consent, which consent shall not be unreasonably withheld.
-13-
At any time prior to the completion of the sale of the Notes by the
Initial Purchasers (as determined by the Initial Purchasers), the
Issuers will promptly, upon the reasonable request of the Initial
Purchasers, make any amendments or supplements to the Preliminary
Memorandum or the Final Memorandum that may be necessary or advisable
in connection with the resale of the Notes by the Initial Purchasers.
(b) The Issuers will cooperate with the Initial
Purchasers in arranging for the qualification of the Notes for offering
and sale under the securities or "Blue Sky" laws of such jurisdictions
as the Initial Purchasers may designate and will continue such
qualifications in effect for as long as may be necessary to complete
the resale of the Notes; provided, however, that in connection
therewith, none of the Issuers shall be required to qualify as a
foreign corporation or to execute a general consent to service of
process in any jurisdiction or subject itself to taxation in excess of
a nominal dollar amount in any such jurisdiction where it is not then
so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Notes or the Private
Exchange Notes, any event occurs or information becomes known as a
result of which the Final Memorandum as then amended or supplemented
would include any untrue statement of a material fact, or omit to state
a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, or if
for any other reason it is necessary at any time to amend or supplement
the Final Memorandum to comply with applicable law, the Company will
promptly notify the Initial Purchasers thereof and will prepare, at the
expense of the Company, an amendment or supplement to the Final
Memorandum that corrects such statement or omission or effects such
compliance.
(d) The Company will, without charge, provide to the
Initial Purchasers and to counsel for the Initial Purchasers as many
copies of the Preliminary Memorandum and the Final Memorandum or any
amendment or supplement thereto as the Initial Purchasers may
reasonably request.
(e) The Company will apply the net proceeds from the sale
of the Notes as set forth under "Use of Proceeds" in the Final
Memorandum.
(f) For two years following the offering of the Notes,
the Company will furnish to the Initial Purchasers copies of all
reports and other communications (financial or otherwise) furnished by
the Company to the Trustee or to the holders of the Notes and, as soon
as available, copies of any reports or financial statements furnished
to or filed by the Issuers with the Commission or any national
securities exchange on which any class of securities of the Company may
be listed.
(g) Prior to the Closing Date, the Company will furnish
to the Initial Purchasers, as soon as they have been prepared, a copy
of any unaudited interim financial
-14-
statements of the Issuers for any period subsequent to the period
covered by the most recent financial statements appearing in the Final
Memorandum.
(h) None of the Company or any of its Affiliates will
sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any "security" (as defined in the Act) that could be
integrated with the sale of the Notes in a manner which would require
the registration under the Act of the Notes.
(i) The Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or
in any directed selling efforts (as such term is defined in teh
Securities Act) in connection with the offering of the Notes or in any
manner involving a public offering within the meaning of Section 4(2)
of the Act.
(j) For so long as any of the Notes remain outstanding,
the Company will make available at its expense, upon request, to any
holder of such Notes and any prospective purchasers thereof the
information specified in Rule 144A(d)(4) under the Act, unless the
Company is then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its reasonable efforts to (i)
permit the Notes to be designated as Portal-eligible securities in
accordance with the rules and regulations adopted by the National
Association of Securities Dealers, Inc. ("NASD") relating to trading in
the NASD's Private Offering Resales and Trading through Automatic
Linkages Market (the "Portal Market") and (ii) permit the Notes to be
eligible for clearance and settlement through The Depository Trust
Company.
(l) In connection with Notes offered and sold in an
off-shore transaction (as defined in Regulation S) the Company will not
authorize the Trustee to register any transfer of such Notes not made
in accordance with the provisions of Regulation S and will not, except
in accordance with the provisions of Regulation S, if applicable, issue
any such Notes in the form of definitive securities.
(m) During the period from the Closing Date until two
years after the Closing Date, without the prior written consent of the
Initial Purchasers, not to, and not permit any of their affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the
Notes that have been reacquired by them, except for Notes purchased by
the Issuers or any of their affiliates and resold in a transaction
registered under the Securities Act.
Section 6. Expenses. The Issuers, jointly and
severally, agree to pay all costs and expenses incident to the performance of
their obligations under this Agreement, whether or not the transactions
contemplated herein are consummated or this Agreement is terminated pursuant to
Section 11 hereof, including all costs and expenses incident to (i) the
printing, word processing or other production of documents with respect to the
transactions
-15-
contemplated hereby, including any costs of printing the Preliminary Memorandum
and the Final Memorandum and any amendment or supplement thereto, and any "Blue
Sky" memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Issuers, (iv) preparation (including printing), issuance and
delivery to the Initial Purchasers of the Notes, (v) the qualification of the
Notes under state securities and "Blue Sky" laws, including filing fees and fees
and disbursements of counsel for the Initial Purchasers relating thereto, not to
exceed $5,000 in the aggregate, (vi) expenses in connection with the "roadshow"
and any other meetings with prospective investors in the Notes, (vii) fees and
expenses of the Trustee including fees and expenses of counsel for the Trustee,
(viii) all expenses and listing fees incurred in connection with the application
for quotation of the Notes on The Portal Market, (ix) any fees charged by
investment rating agencies for the rating of the Notes, (x) the cost of any
advertising approved by the Initial Purchasers and the Company in connection
with the Notes, and (xi) all other costs and expenses incident to the
performance by the Issuers of their respective obligations hereunder. If the
sale of the Notes provided for herein is not consummated because any condition
to the obligations of the Initial Purchasers set forth in Section 7 hereof is
not satisfied, because this Agreement is terminated or because of any failure,
refusal or inability on the part of the Issuers to perform all obligations and
satisfy all conditions on their part to be performed or satisfied hereunder
(other than pursuant to clauses (ii), (iii) or (iv) of Section 11(a) hereof or
solely by reason of a default by the Initial Purchasers of their obligations
hereunder after all conditions hereunder have been satisfied in accordance
herewith), the Issuers agree to promptly reimburse the Initial Purchasers upon
demand for all out-of-pocket expenses (including reasonable fees, disbursements
and charges of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers)
that shall have been reasonably incurred by the Initial Purchasers in connection
with the proposed purchase and sale of the Notes.
Section 7. Conditions of the Initial Purchasers'
Obligations. The obligation of the Initial Purchasers to purchase and pay for
the Notes shall, in their sole discretion, be subject to the satisfaction or
waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall
have received the opinion, dated as of the Closing Date and addressed
to the Initial Purchasers, of ▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the Company,
in form and substance reasonably satisfactory to counsel for the
Initial Purchasers, to the effect that:
(i) Each of the Company and the Subsidiaries is
duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of organization and
has all requisite corporate power and authority to own or
lease its properties and to conduct its business as described
in the Final Memorandum. Each of the Company and the
Subsidiaries is duly qualified to do business as a foreign
corporation or otherwise in good standing in all other
jurisdictions where the ownership or leasing of its properties
or the conduct of its
-16-
business requires such qualification, except where the failure
to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect.
(ii) The Company has the authorized, issued and
outstanding capitalization as set forth in the Final
Memorandum under the caption "Capitalization", as of the date
stated under the caption; to the knowledge of such counsel;
all of the outstanding shares of capital stock of the Company
and the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable and were not issued
in violation of any preemptive or similar rights; to the
knowledge of such counsel, all of the outstanding shares of
capital stock of the Subsidiaries are owned, directly or
indirectly, by the Company, free and clear of all perfected
security interests (other than securing indebtedness under the
Senior Credit Facility (or its predecessor)) and, to the
knowledge of such counsel, free and clear of all other liens,
encumbrances, equities and claims or restrictions on
transferability (other than those imposed by the Act and the
securities or "Blue Sky" laws of certain jurisdictions) or
voting.
(iii) Except as set forth in the Final Memorandum
or in any filing by the Company with the SEC and to the
knowledge of such counsel (A) no options, warrants or other
rights to purchase from the Company or any Subsidiary shares
of capital stock or ownership interests in the Company or any
Subsidiary are outstanding, (B) no agreements or other
obligations to issue, or other rights to convert any
obligation into, or exchange any securities for, shares of
capital stock or ownership interests in the Company or any
Subsidiary are outstanding and (C) no holder of securities of
the Company or any Subsidiary is entitled to have such
securities registered under a registration statement filed by
the Company pursuant to the Registration Rights Agreement.
(iv) Each of the Issuers has all requisite
corporate, partnership, limited liability company or other
organizational power and authority to execute, deliver and
perform each of its obligations under the Indenture, the
Notes, the Exchange Notes and the Private Exchange Notes; the
Indenture meets the requirements for qualification under the
TIA; the Indenture has been duly and validly authorized by
each of the Issuers and, when duly executed and delivered by
each of the Issuers (assuming the due authorization, execution
and delivery thereof by the Trustee), will constitute the
valid and legally binding agreement of each of the Issuers,
enforceable against each of the Issuers in accordance with its
terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
-17-
(v) The Notes have each been duly and validly
authorized by the Company and, when duly executed and
delivered by the Company and paid for by the Initial
Purchasers in accordance with the terms of this Agreement
(assuming the due authorization, execution and delivery of the
Indenture by the Trustee and due authentication and delivery
of the Notes by the Trustee in accordance with the Indenture),
will constitute the valid and legally binding obligations of
the Company, entitled to the benefits of the Indenture, and
enforceable against the Company in accordance with their
terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(vi) The Exchange Notes and the Private Exchange
Notes have been duly and validly authorized by the Company
and, when the Exchange Notes and the Private Exchange Notes
are duly executed and delivered by the Company in accordance
with the terms of the Registration Rights Agreement and the
Indenture (assuming the due authorization, execution and
delivery of the Indenture by the Trustee and due
authentication and delivery of the Exchange Notes and the
Private Exchange Notes by the Trustee in accordance with the
Indenture), will constitute the valid and legally binding
obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company in accordance
with their terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the discretion of
the court before which any proceeding therefor may be brought.
(vii) The Guarantees and the guarantees of the
Exchange Notes and the Private Exchange Notes have been duly
and validly authorized by each Subsidiary Guarantor and, when
executed by each of the Subsidiary Guarantors and when the
Notes are duly executed and delivered against payment therefor
and are authenticated by the Trustee in accordance with the
provisions of the Indenture, such Guarantees and such
guarantees of the Exchange Notes will have been duly executed,
issued and delivered and will constitute valid and legally
binding obligations of each Subsidiary Guarantor, entitled to
the benefits of the Indenture and enforceable against the
Subsidiary Guarantors in accordance with their terms, except
that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights generally, and (ii) general principles of
equity and the discretion of the court before which any
proceeding therefor may be brought.
-18-
(viii) Each of the Company and the Subsidiaries has
all requisite corporate, partnership, limited liability
company or other organizational power and authority to
execute, deliver and perform its obligations under the
Registration Rights Agreement; the Registration Rights
Agreement has been duly and validly authorized by each of the
Issuers and, when duly executed and delivered by each of the
Issuers (assuming due authorization, execution and delivery
thereof by the Initial Purchasers), will constitute the valid
and legally binding agreement of each of the Issuers,
enforceable against each of the Issuers in accordance with its
terms, except that (A) the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court
before which any proceeding therefor may be brought and (B)
any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy
considerations.
(ix) Each of the Company and the Subsidiaries has
all requisite corporate, partnership, limited liability
company or other organizational power and authority to
execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated
hereby; this Agreement and the consummation by the Company and
each of the Subsidiaries of the transactions contemplated
hereby have been duly and validly authorized by the Company
and each of the Subsidiaries. This Agreement has been duly
executed and delivered by the Company and each of the
Subsidiaries.
(x) The Indenture, the Notes, the Guarantees and
the Registration Rights Agreement conform in all material
respects to the descriptions thereof contained in the Final
Memorandum.
(xi) None of the Company or the Subsidiaries is
(i) in violation of its certificate of incorporation or bylaws
(or similar organizational document) or (ii) to the knowledge
of such counsel, in breach or default under (nor has any event
occurred that, with notice or passage of time or both, would
constitute a default under) or in violation of any of the
terms or provisions of any Contract filed as an exhibit to the
Company's Form 10-K for the year ended December 31, 2002,
except for any such breach, default, violation or event which
would not, individually or in the aggregate, have a Material
Adverse Effect.
(xii) The execution, delivery and performance of
the Senior Credit Facility, this Agreement, the Indenture and
the Registration Rights Agreement and the consummation of the
transactions contemplated hereby and thereby (including,
without limitation, the issuance and sale of the Notes to the
Initial Purchasers) will not conflict with or constitute or
result in a breach or a default under (or, to the knowledge of
such counsel, an event that with notice or pas-
-19-
sage of time or both would constitute a default under or
violation) of any of (i) the terms or provisions of any
Contract filed as an exhibit to the Company's Form 10-K for
the year ended December 31, 2002 (assuming the application of
proceeds from the issuance and sale of the Notes as described
in the Final Memorandum), except for any such conflict,
breach, violation, default or event that could not reasonably
be expected to have, individually or in the aggregate, a
Material Adverse Effect, (ii) the certificate of incorporation
or bylaws (or similar organizational document) of the Company
or any of the Subsidiaries, or (iii) to such counsel's
knowledge (assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the
representations and warranties of the Initial Purchasers in
Section 8 of this Agreement) any statute, judgment, decree,
order, rule or regulation known to such counsel to be
applicable to the Company or any of the Subsidiaries or any of
their respective properties or assets, except for any such
conflict, breach or violation that would not, individually or
in the aggregate, have a Material Adverse Effect.
(xiii) Except for those consents as to which the
failure to obtain would not, individually or in the aggregate,
have a Material Adverse Effect on the consummation of the
transactions contemplated hereby, no consent, approval,
authorization or order of any governmental authority is
required for the issuance and sale by the Company of the Notes
to the Initial Purchasers or the consummation by the Company
of the other transactions contemplated hereby, except such as
may be required under Blue Sky laws, as to which such counsel
need express no opinion, and those which have previously been
obtained.
(xiv) To the knowledge of such counsel, there are
no legal or governmental proceedings involving or affecting
the Company or the Subsidiaries or any of their respective
properties or assets that would be required to be described in
a prospectus pursuant to the Act that are not described in the
Final Memorandum, nor are there, to the knowledge of such
counsel, any material contracts or other documents that would
be required to be described in a prospectus pursuant to the
Act that are not described in the Final Memorandum.
(xv) None of the Company or the Subsidiaries is,
or immediately after the sale of the Notes to be sold
hereunder and the application of the proceeds from such sale
(as described in the Final Memorandum under the caption "Use
of Proceeds") will be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
(xvi) No registration under the Act of the Notes
is required in connection with the sale of the Notes to the
Initial Purchasers as contemplated by this Agreement and the
Final Memorandum or in connection with the initial resale of
the Notes by the Initial Purchasers in accordance with Section
8 of this
-20-
Agreement, and prior to the commencement of the Exchange Offer
(as defined in the Registration Rights Agreement) or the
effectiveness of the Shelf Registration Statement (as defined
in the Registration Rights Agreement), the Indenture is not
required to be qualified under the TIA, in each case assuming
(a) the accuracy of the representations and warranties of the
Initial Purchasers and the Company contained in this
Agreement, (b) the due performance of the covenants and
agreements of the Company and the Initial Purchasers set forth
in this Agreement and (c) the compliance by the Initial
Purchasers with the offering and transfer procedures and
restrictions described in the Final Memorandum.
(xvii) Neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance,
execution or delivery of the Notes will violate Regulation T,
U or X of the Board of Governors of the Federal Reserve
System.
(xviii) The Senior Credit Facility has been duly
authorized and, assuming due authorization, execution and
delivery thereof by the lenders and agents party thereto, when
executed and delivered by the Company and each subsidiary of
the Company a party thereto, will constitute the legal, valid
and binding and enforceable instrument of the Company and each
such subsidiary party thereto except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights generally, and (ii) general principles of equity and
the discretion of the court before which any proceeding
therefor may be brought.
At the time the foregoing opinion is delivered, ▇▇▇▇▇ ▇▇▇▇ LLP
shall additionally state that it has participated in conferences with
officers and other representatives of the Company, representatives of
the independent public accountants for the Company, representatives of
the Initial Purchasers and counsel for the Initial Purchasers, at which
conferences the contents of the Final Memorandum and related matters
were discussed, and, although it has not independently verified and is
not passing upon and assumes no responsibility for the accuracy,
completeness or fairness of the statements contained in the Final
Memorandum (except to the extent specified in subsection 7(a)(x)), no
facts have come to its attention which lead it to believe that the
Final Memorandum, on the date thereof or at the Closing Date, contained
an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements contained therein, in light of
the circumstances under which they were made, not misleading (it being
understood that such firm need express no opinion with respect to the
financial statements and related notes thereto and the other financial
and accounting data derived from the Company's books and records
included in the Final Memorandum). The opinion of ▇▇▇▇▇ ▇▇▇▇ LLP
described in this Section shall be rendered to the Initial Purchasers
at the request of the Company and shall so state
-21-
therein. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem
proper, upon the representations and warranties of the Initial
Purchasers and the Company contained in this Agreement, certificates of
officers of the Company and any of the Subsidiaries and certificates of
public officials.
References to the Final Memorandum in this subsection (a)
shall include any amendment or supplement thereto prepared in
accordance with the provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall
have received the opinion, in form and substance satisfactory to the
Initial Purchasers, dated as of the Closing Date and addressed to the
Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the
Initial Purchasers, with respect to certain legal matters relating to
this Agreement and such other related matters as the Initial Purchasers
may reasonably require. In rendering such opinion, ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP shall have received and may rely upon such certificates and
other documents and information as it may reasonably request to pass
upon such matters.
(c) The Initial Purchasers shall have received from E&Y a
comfort letter or letters dated the date hereof and the Closing Date,
in form and substance reasonably satisfactory to counsel for the
Initial Purchasers.
(d) The representations and warranties of the Issuers
contained in this Agreement shall be true and correct on and as of the
date hereof and on and as of the Closing Date as if made on and as of
the Closing Date; the statements of the Company's officers made
pursuant to any certificate delivered in accordance with the provisions
hereof shall be true and correct in all material respects on and as of
the date made and on and as of the Closing Date; the Company shall have
performed all covenants and agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date; and, except as described in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date
hereof), subsequent to the date of the most recent financial statements
in such Final Memorandum, there shall have been no event or
development, and no information shall have become known, that,
individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect.
(e) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), none of the Company or any
of the Subsidiaries shall have sustained any loss or interference with
respect to its business or properties from fire, flood, hurricane,
ac-
-22-
cident or other calamity, whether or not covered by insurance, or from
any strike, labor dispute, slowdown or work stoppage or from any legal
or governmental proceeding, order or decree, which loss or
interference, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a
certificate from each of the Company and the Subsidiary Guarantors,
dated the Closing Date, signed by two authorized officers on behalf of
the Company or the Subsidiary Guarantors by their respective Chairman
of the Board, President or any Senior Vice President and the Chief
Financial Officer, to the effect that, to such officer's knowledge.
(i) the representations and warranties of the
Company contained in this Agreement are true and correct on
and as of the date hereof and on and as of the Closing Date,
and the Company has performed all covenants and agreements and
satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof
or since the date of the most recent financial statements in
the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), no event or development has
occurred, and no information has become known, that,
individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect;
(iii) The audited financial statements included in
the Final Memorandum that were audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
present fairly in all material respects the financial
position, results of operations and cash flows of the
applicable entities at the dates and for the periods to which
they relate and have been prepared in accordance with
generally accepted accounting principles applied on a
consistent basis, except as otherwise stated therein; and
(iv) the sale of the Notes hereunder has not been
enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall
have received the Registration Rights Agreement executed by the
Company.
(i) On the Closing Date, the Senior Credit Facility shall
have been executed and delivered by the respective parties thereto in
form and substance reasonably satisfactory to the Initial Purchasers
and shall be in full force and effect. The Senior Credit Facility shall
provide for not less than $250.0 million in revolving borrowings, of
which up to approximately $91.0 million may be outstanding on the
Closing Date after giving effect to the application of the net proceeds
of the sale of the Notes hereunder.
-23-
(j) The Notes shall be eligible for clearance and
settlement through The Depository Trust Company.
(k) The Notes shall be designated Portal-eligible
securities in accordance with the rules and regulations of the NASD.
On or before the Closing Date, the Initial Purchasers and
counsel for the Initial Purchasers shall have received such further documents,
opinions, certificates, letters and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have heretofore reasonably requested from the
Company.
All such documents, opinions, certificates, letters, schedules
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchasers and counsel for the Initial Purchasers. Each
of the Issuers shall furnish to the Initial Purchasers such conformed copies of
such documents, opinions, certificates, letters, schedules and instruments in
such quantities as the Initial Purchasers shall reasonably request.
Section 8. Offering of Notes; Restrictions on Transfer.
(a) Each of the Initial Purchasers agrees with the Company (as to itself and its
respective Affiliates) that (i) neither it nor its Affiliates has nor will they
solicit offers for, or offer or sell, the Notes by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act; and (ii) neither it nor its Affiliates has nor will
they solicit offers for the Notes only from, and will offer the Notes only to,
(A) in the case of offers inside the United States, persons whom the Initial
Purchasers reasonably believe to be QIBs or, if any such person is buying for
one or more institutional accounts for which such person is acting as fiduciary
or agent, only when such person has represented to the Initial Purchasers that
each such account is a QIB to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A and, in each case, in
transactions under Rule 144A and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("non-U.S. purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for non-U.S. beneficial owners (other than an
estate or trust)); provided, however, that, in the case of this clause (B), in
purchasing such Notes such persons are deemed to have represented and agreed as
provided under the caption "Transfer Restrictions" contained in the Final
Memorandum (or, if the Final Memorandum is not in existence, in the most recent
Memorandum).
(b) Each of the Initial Purchasers represents and
warrants (as to itself and its respective Affiliates) with respect to offers and
sales of securities by it outside the United States that (i) it, its Affiliates
and persons acting on its or their behalf has and will comply with all
applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Notes or has in its possession or distributes any
Memorandum or any such other
-24-
material, in all cases at its own expense; (ii) the Notes have not been and will
not be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S under the Act or
pursuant to an exemption from the registration requirements of the Act; and
(iii) it has offered the Notes and will offer and sell the Notes (A) as part of
its distribution at any time and (B) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in accordance with
Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on
its behalf have engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Notes, and any such persons
have complied and will comply with the offering restrictions requirement of
Regulation S.
Terms used in this Section 8 and not defined in this Agreement
have the meanings given to them in Regulation S.
Section 9. Indemnification and Contribution. (a) The
Issuers, jointly and severally, agree to indemnify and hold harmless each
Initial Purchaser, its affiliates and each person, if any, who controls any
Initial Purchaser within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act against any losses, claims, damages or liabilities to which any
Initial Purchaser, such affiliate or such controlling person may become subject
under the Act, the Exchange Act or otherwise, insofar as any such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon the following:
(i) any untrue statement or alleged untrue statement of
any material fact contained in any Memorandum or any amendment or
supplement thereto; or
(ii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers or such controlling person in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, that the
Issuers will not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission (i) made
in any Memorandum or any amendment or supplement thereto in reliance upon and in
conformity with written information concerning the Initial Purchasers furnished
to the Company by the Initial Purchasers through Deutsche Bank Securities Inc.
specifically for use therein as set forth in Section 12 or (ii) made in any
Memorandum or any amendment or supplement thereto, if a copy of the Final
Memorandum, or any amendment or supplement, if applicable, was not delivered by
or on behalf of an Initial Purchaser to the person asserting any claim against
such Initial Purchaser and the untrue statement or alleged untrue statement in
or omission or alleged omission from such Memorandum or any amendment or
supplement thereto was corrected in the Final Memorandum, or any
-25-
amendment or supplement, if applicable, unless such failure to deliver the Final
Memorandum or any amendment or supplement thereto was a result of noncompliance
by the Company with Section 5(d) hereof. The indemnity provided for in this
Section 9 will be in addition to any liability that the Issuers may otherwise
have to the indemnified parties. None of the Issuers shall be liable under this
Section 9 for any settlement of any claim or action effected without its prior
written consent, which shall not be unreasonably withheld.
(b) Each Initial Purchaser, severally and not jointly,
agrees to indemnify and hold harmless the Issuers, their respective directors,
officers and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act against any losses,
claims, damages or liabilities to which the Company or any such director,
officer or controlling person may become subject under the Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any Memorandum or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated in any Memorandum or any
amendment or supplement thereto, or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Initial Purchaser furnished to the Company by such Initial Purchaser through
Deutsche Bank Securities Inc. specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Issuers or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 9 will be in addition to any liability that the
Initial Purchasers may otherwise have to the indemnified parties. The Initial
Purchasers shall not be liable under this Section 9 for any settlement of any
claim or action effected without their consent, which shall not be unreasonably
withheld. None of the Issuers shall, without the prior written consent of the
Initial Purchasers (which consent shall not be unreasonably withheld), effect
any settlement or compromise of any pending or threatened proceeding in respect
of which any Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by any Initial Purchaser, unless such settlement (A)
includes an unconditional written release of the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under
this Section 9 of notice of the commencement of any action for which such
indemnified party is entitled to indemnification under this Section 9, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party of the
commencement thereof in writing; but the omission to so notify the indemnifying
party (i) will not relieve it from any liability under paragraph (a) or (b)
above unless and to the ex-
-26-
tent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties provided, however, in said event the indemnifying party will not be made
liable for the expense of more than one separate counsel. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchasers in the case of paragraph (a) of this
Section 9 or the Issuers in the case of paragraph (b) of this Section 9,
representing the indemnified parties under such paragraph (a) or paragraph (b),
as the case may be, who are parties to such action or actions) or (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party or (iii) the
indemnifying party has failed to employ counsel reasonably satisfactory to the
indemnified party. All fees and expenses reimbursed pursuant to this paragraph
(c) shall be reimbursed as they are incurred. After such notice from the
indemnifying party to such indemnified party, the indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by
such indemnified party without the prior written consent of the indemnifying
party (which consent shall not be unreasonably withheld), unless such
indemnified party waived in writing its rights under this Section 9, in which
case the indemnified party may effect such a settlement without such consent.
-27-
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuers on
the one hand and any Initial Purchaser on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
expenses) received by the Issuers bear to the total discounts and commissions
received by such Initial Purchaser. The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand
or such Initial Purchaser on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. Each of the Issuers and the
Initial Purchasers agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Initial Purchaser
shall be obligated to make contributions hereunder that in the aggregate exceed
the total discounts, commissions and other compensation received by such Initial
Purchaser under this Agreement, less the aggregate amount of any damages that
such Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or the omissions or alleged omissions to
state a material fact, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls an Initial Purchaser (or any affiliate thereof) within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchasers, and each director of the
Issuers, each officer of the Issuers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company. The
Initial Purchasers' obligations to contribute pursuant to paragraph (d) above
are several in proportion to their respective purchase obligations hereunder and
not joint.
-28-
Section 10. Survival Clause. The respective
representations, warranties, agreements, covenants, indemnities and other
statements of the Issuers, their officers and the Initial Purchasers set forth
in this Agreement or made by or on behalf of them pursuant to this Agreement
shall remain in full force and effect, regardless of (i) any investigation made
by or on behalf of the Issuers, any of their officers or directors, the Initial
Purchasers or any controlling person referred to in Section 9 hereof and (ii)
delivery of and payment for the Notes. The respective agreements, covenants,
indemnities and other statements set forth in Sections 6, 9, 10 and 15 hereof
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
Section 11. Termination. (a) This Agreement may be
terminated in the sole discretion of the Initial Purchasers by notice to the
Company given prior to the Closing Date in the event that the Company shall have
failed, refused or been unable to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Closing Date,
(i) the Company or the Subsidiaries, taken as one
enterprise; shall have sustained any loss or interference with respect
to its businesses or properties from fire, flood, hurricane, accident
or other calamity, whether or not covered by insurance, or from any
strike, labor dispute, slowdown or work stoppage or any legal or
governmental proceeding, which loss or interference, in the sole
judgment of the Initial Purchasers, has had or has a Material Adverse
Effect, or there shall have been, in the sole judgment of the Initial
Purchasers, any event or development that, individually or in the
aggregate, has or could be reasonably likely to have a Material Adverse
Effect (including without limitation a change in control of the Company
or the Subsidiaries), except in each case as described in the Final
Memorandum (exclusive of any amendment or supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the New York Stock Exchange, American Stock Exchange or
the NASDAQ National Market shall have been suspended or materially
limited or minimum or maximum prices shall have been established on any
such exchange or market;
(iii) a banking moratorium shall have been declared by New
York or United States authorities or a material disruption in
commercial banking or securities settlement or clearance services in
the United States;
(iv) there shall have been (A) an outbreak or escalation
of hostilities between the United States and any foreign power, or (B)
an outbreak or escalation of any other insurrection or armed conflict
involving the United States or any other national or international
calamity or emergency, or (C) any material change in the financial
markets of the United States which, in the case of (A), (B) or (C)
above and in the sole judgment of the Initial Purchasers, makes it
impracticable or inadvisable to proceed
-29-
with the offering or the delivery of the Notes as contemplated by the
Final Memorandum; or
(v) any securities of the Company shall have been
downgraded or placed on any "watch list" for possible downgrading by
any nationally recognized statistical rating organization (as defined
for purposes of Rule 436(g) under the Act).
(b) Termination of this Agreement pursuant to this
Section 11 shall be without liability of any party to any other party except as
provided in Section 10 hereof.
Section 12. Information Supplied by the Initial
Purchasers. The statements set forth in the second to last paragraph on the
front cover page, in the third and fourth sentences of the third paragraph, in
the third sentence of the fifth paragraph and the sixth paragraph under the
heading "Private Placement" in the Final Memorandum (to the extent such
statements relate to the Initial Purchasers) constitute the only information
furnished by the Initial Purchasers to the Company for the purposes of Sections
2(a) and 9 hereof.
Section 13. Notices. All communications hereunder shall
be in writing and, if sent to the Initial Purchasers, shall be mailed or
delivered to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Corporate Finance Department, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇; and if sent to the Company, shall be mailed or delivered to the
Company at ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇; with a copy to ▇▇▇▇▇ ▇▇▇▇ LLP, ▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and one
business day after being timely delivered to a next-day air courier.
Section 14. Successors. This Agreement shall inure to
the benefit of and be binding upon the Initial Purchasers, the Company and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 9 of this Agreement shall
also be for the benefit of any person or persons who control the Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Initial Purchasers contained in
Section 9 of this Agreement shall also be for the benefit of the directors of
the Company, its officers and any person or persons who control the Company
within the meaning of Sec-
-30-
tion 15 of the Act or Section 20 of the Exchange Act. No purchaser of Notes from
the Initial Purchasers will be deemed a successor because of such purchase.
Section 15. APPLICABLE LAW. THE VALIDITY AND
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN,
WITHOUT GIVING EFFECT TO ANY PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
Section 16. Counterparts. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
-31-
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between the
Company and the Initial Purchasers.
Very truly yours,
MOBILE MINI, INC.
By: _________________________________
Name:
Title:
EACH OF THE GUARANTORS
LISTED ON SCHEDULE I HERETO
By: _________________________________
Name:
Title:
EXECUTION VERSION
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
DEUTSCHE BANK SECURITIES INC.
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
CIBC WORLD MARKETS CORP.
By: _____________________________________
Name:
Title:
▇.▇. ▇▇▇▇▇▇ SECURITES INC.
By: _____________________________________
Name:
Title:
FLEET SECURITIES, INC.
By: _____________________________________
Name:
Title:
SCHEDULE I
Subsidiaries of the Company
Jurisdiction of
Name Incorporation
---- ---------------
DELIVERY DESIGN SYSTEMS, INC. Arizona
MOBILE MINI, LLC California
MOBILE MINI, LLC Delaware
MOBILE MINI I, INC. Arizona
MOBILE MINI HOLDINGS, INC. Delaware
MOBILE MINI OF OHIO, LLC Delaware
MOBILE MINI TEXAS LIMITED PARTNERSHIP, L. L. P. Texas
SCHEDULE II
Initial Purchaser Principal Amount of Notes
----------------- -------------------------
Deutsche Bank Securities Inc. ................. $ 56,250,000
CIBC World Markets Corp........................ 56,250,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. ................... 22,500,000
Fleet Securities, Inc. ........................ 15,000,000
------------
Total................................. $150,000,000