EXHIBIT 10.3
EXECUTION VERSION
DEALER-MANAGER AND SOLICITATION AGENT AGREEMENT
▇▇▇▇▇▇▇ ENTERPRISES, INC.
June 8, 2004
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇ ▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
1. THE TENDER OFFER AND CONSENT SOLICITATION. ▇▇▇▇▇▇▇
Enterprises, Inc., a Delaware corporation (the "COMPANY"), intends to make a
tender offer (together with any amendments and extensions thereof, the "TENDER
Offer") to purchase any and all of its $200,000,000 principal amount outstanding
9 5/8% Senior Notes due 2009 (the "NOTES") and to engage in a related
solicitation (together with any amendments and extensions thereof, the
"SOLICITATION") of consents (the "CONSENTS") of the holders of the Notes (the
"HOLDERS") to certain amendments to the Indenture dated as of April 25, 2001
among the Company, its subsidiary guarantors (the "GUARANTORS") and The Bank of
New York, as trustee (the "TRUSTEE"), relating to the Notes (the "INDENTURE"),
in each case, on the terms and subject to the conditions set forth in the forms
of Offer to Purchase and Consent Solicitation Statement and related Letter of
Transmittal and Consent attached hereto as Exhibits A and B, respectively. Such
Offer to Purchase and Consent Solicitation Statement, (i) including (A) any
documents incorporated by reference therein and (B) any exhibits or annexes
thereto and (ii) as the same may be amended or supplemented from time to time,
and the Letter of Transmittal and Consent, as the same may be amended or
supplemented from time to time, are referred to herein as the "OFFER TO
PURCHASE" and "LETTER OF TRANSMITTAL" respectively. The Offer to Purchase, the
Letter of Transmittal, all statements and other documents filed or to be filed
with any federal, state or local governmental or regulatory agency or authority
and such other documents (including, but not limited to, any advertisements,
press releases or summaries relating to the Tender Offer and/or Solicitation and
any forms of letters to brokers, dealers, banks, trust companies and other
nominees relating to the Tender Offer and/or the Solicitation) as the Company
may authorize for use in connection with the Tender Offer and/or the
Solicitation, as amended or supplemented from time to time, are collectively
referred to as the "TENDER OFFER AND SOLICITATION MATERIALS".
2. APPOINTMENT AS DEALER-MANAGER. The Company hereby appoints
▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇ BROTHERS") as sole dealer-manager in connection
with the Tender Offer and as sole solicitation agent in connection with the
Solicitation (in such capacities, the "DEALER-MANAGER"), and the Company hereby
authorizes ▇▇▇▇▇▇ Brothers to act as such in connection with the Tender Offer
and Solicitation. On the basis of the representations and warranties and
agreements of the Company contained in this Agreement and subject to and in
accordance with the terms and conditions hereof, ▇▇▇▇▇▇ Brothers agrees in
accordance with its customary practice to use its reasonable best efforts to
solicit tenders of Notes and delivery of Consents pursuant to the Tender Offer
and Solicitation, respectively, and to communicate with
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brokers, dealers, banks, trust companies, nominees and other persons with
respect to the Tender Offer and Solicitation.
3. NO LIABILITY FOR ACTS OF BROKERS, DEALERS, BANKS, TRUST
COMPANIES, NOMINEES AND OTHERS. ▇▇▇▇▇▇ Brothers shall not be subject to any
loss, claim, damage, liability or expense owed to the Company or any of the
Company's affiliates or subsidiaries for any act or omission on the part of any
broker or dealer in securities (other than ▇▇▇▇▇▇ Brothers), bank, trust
company, nominee or any other person, and ▇▇▇▇▇▇ Brothers shall not be liable
for its own acts or omissions in performing its obligations as Dealer-Manager
except for any losses, claims, damages, liabilities and expenses determined in a
final judgment by a court of competent jurisdiction to have resulted directly
from any such acts or omissions undertaken or omitted to be taken by ▇▇▇▇▇▇
Brothers through its gross negligence or willful misconduct. In soliciting or
obtaining tenders of Notes and deliveries of Consents, the Company hereby
acknowledges that ▇▇▇▇▇▇ Brothers, as Dealer-Manager, is acting as independent
contractor and shall not be deemed to be acting as the agent of the Company or
as the agent of any broker, dealer, bank, trust company, nominee or other person
and no broker, dealer, bank, trust company, nominee or other person shall be
deemed to be acting as the agent of ▇▇▇▇▇▇ Brothers, the Company or any of the
Company's affiliates or subsidiaries.
4. THE TENDER OFFER AND SOLICITATION MATERIALS; COMMENCEMENT;
WITHDRAWAL.
(a) The Company hereby (i) agrees to furnish ▇▇▇▇▇▇ Brothers
with as many copies as ▇▇▇▇▇▇ Brothers may reasonably request of the final forms
of the Tender Offer and Solicitation Materials and, upon its request, any other
documents filed or to be filed with any federal, state or local governmental or
regulatory agency or authority, any stock exchange or any court, (ii) authorizes
▇▇▇▇▇▇ Brothers to use copies of the Tender Offer and Solicitation Materials in
connection with the Tender Offer and Solicitation and (iii) acknowledges that
the Tender Offer and Solicitation Materials have been, or will be, prepared and
approved by the Company and are the Company's sole responsibility with respect
to their accuracy and completeness (other than statements or omissions made in
reliance upon and in conformity with information relating to ▇▇▇▇▇▇ Brothers as
Dealer-Manager furnished by ▇▇▇▇▇▇ Brothers in writing to the Company expressly
for use therein). ▇▇▇▇▇▇ Brothers hereby agrees that it will not disseminate any
written materials in connection with the Tender Offer and Solicitation other
than the Tender Offer and Solicitation Materials, information consistent with
the Tender Offer and Solicitation Materials or information otherwise authorized
by the Company.
(b) The Company hereby represents and warrants that it will
commence the Tender Offer and Solicitation as soon as practicable by publicly
announcing its commencement and by distributing, mailing, or causing to be
mailed on its behalf, copies of the Tender Offer and Solicitation Materials
(excluding the documents incorporated by reference in the Tender Offer and
Solicitation Materials) to the Holders for delivery, where necessary to the
beneficial holders of the Notes (the date of such announcement and of the
commencement of such distribution, the "COMMENCEMENT DATE").
(c) The Company hereby represents and agrees that no
solicitation material in addition to the Tender Offer and Solicitation
Materials, each of which shall be in the form which
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has been approved by ▇▇▇▇▇▇ Brothers, will be used in connection with the Tender
Offer and Solicitation or filed with any federal, state or local governmental or
regulatory agency or authority, including the Securities and Exchange Commission
(the "COMMISSION"), by or on behalf of the Company without ▇▇▇▇▇▇ Brothers'
prior approval, which approval will not be unreasonably withheld. In the event
that (i) the Company uses or permits the use of any such solicitation material
in connection with the Tender Offer or the Solicitation or files any such
solicitation material with any such federal, state or local governmental or
regulatory agency or authority without ▇▇▇▇▇▇ Brothers' prior approval, (ii) the
Company withdraws, terminates or cancels the Tender Offer and Solicitation or
(iii) if at any time ▇▇▇▇▇▇ Brothers shall determine that any condition set
forth in Section 9 shall not be satisfied, then ▇▇▇▇▇▇ Brothers (A) shall have a
reasonable period of time after discovering or being informed of such event to
elect whether to continue to act as Dealer-Manager and shall be entitled to
withdraw as Dealer-Manager in connection with the Tender Offer and Solicitation
without any liability or penalty to ▇▇▇▇▇▇ Brothers or any other person defined
in Section 11 as an "Indemnified Person," (B) shall be entitled promptly to
receive the payment of all fees and expenses payable to it under this Agreement
which have accrued to the date of such withdrawal or which otherwise thereafter
become payable and (C) shall continue to be entitled to the indemnification and
contribution provisions contained in Section 11.
5. COMPENSATION. The Company hereby agrees to pay ▇▇▇▇▇▇
Brothers as compensation for its services as Dealer-Manager, upon the acceptance
by the Company for payment of Notes tendered pursuant to the Tender Offer and
upon acceptance by the Company for payment of Consents delivered pursuant to the
Solicitation, a fee equal to $2.50 per $1,000 principal amount of Note accepted
for payment by the Company; provided, however, that in no event shall such fee
exceed $500,000. The fee set forth in this Section shall be paid within three
business days after the Expiration Date.
6. REIMBURSEMENT OF EXPENSES AND PAYMENT OF OTHER COSTS. The
Company hereby agrees (a) to reimburse ▇▇▇▇▇▇ Brothers in connection with its
services as Dealer-Manager for any expenses incurred by ▇▇▇▇▇▇ Brothers in
connection with the preparation, printing, filing, mailing and publishing of the
Tender Offer and Solicitation Materials and for all out-of-pocket expenses
incurred by ▇▇▇▇▇▇ Brothers as Dealer-Manager, including, without limitation,
the reasonable fees and disbursements of ▇▇▇▇▇▇ Brothers' legal counsel,
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, (b) to pay all fees and expenses of the
Depositary (as defined below) and the Information Agent (as defined below), in
each case, in connection with the Tender Offer and Solicitation, (c) to pay any
fees payable to brokers, dealers, banks, trust companies and nominees as
reimbursement for their customary mailing and handling expenses incurred in
forwarding the Tender Offer and Solicitation Materials to their customers, if
any, and (d) to pay any advertising and public relations charges pertaining to
the Tender Offer and Solicitation. The Company shall promptly reimburse ▇▇▇▇▇▇
Brothers for all amounts owing under this Section after such expenses have been
made or have accrued and an invoice therefor has been sent by ▇▇▇▇▇▇ Brothers to
the Company, which may be sent from time to time as such expenses are made or
accrued, whether or not the Tender Offer and Solicitation is consummated and in
addition to the amounts owing to ▇▇▇▇▇▇ Brothers under the preceding Section.
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7. THE DEPOSITARY; THE INFORMATION AGENT; NOTEHOLDER LISTS.
(a) The Company (i) has arranged for ▇.▇. ▇▇▇▇ & Co., Inc. to serve as
depositary in connection with the Tender Offer and Solicitation (the
"DEPOSITARY"), (ii) will arrange for the Depositary to advise ▇▇▇▇▇▇ Brothers
daily as to such matters as ▇▇▇▇▇▇ Brothers may reasonably request, including
the aggregate principal amount of Notes that have been tendered and for which
Consents have been delivered pursuant to the Tender Offer and Solicitation,
respectively, and (iii) will arrange for the Depositary to be responsible for
the payment of the consideration offered by the Company to the Holders in
connection with the Tender Offer and Solicitation pursuant and subject to the
Offer to Purchase.
(a) The Company has arranged for ▇.▇. ▇▇▇▇ & Co., Inc. to
serve as information agent in connection with the Tender Offer and Solicitation
(the "INFORMATION AGENT") and to perform services in connection with the Tender
Offer and Solicitation that are customary for an information agent.
(b) The Company will provide, or will cause the Depositary and
Information Agent, as applicable, to provide, ▇▇▇▇▇▇ Brothers with the security
listing position (or other cards or lists) containing the names and addresses
of, and the aggregate principal amount of Notes held by, the Holders as of a
recent date and will use its best efforts to cause ▇▇▇▇▇▇ Brothers to be
advised, from time to time as ▇▇▇▇▇▇ Brothers may request, during the period of
the Tender Offer and Solicitation as to any transfers of record of Notes. In
addition, the Company hereby authorizes ▇▇▇▇▇▇ Brothers to communicate with the
Trustee, the Depositary and the Information Agent with respect to matters
relating to the Tender Offer and Solicitation and to cause the Depositary to
advise ▇▇▇▇▇▇ Brothers daily as to such matters as ▇▇▇▇▇▇ Brothers may
reasonably request, including the aggregate principal amount of Notes that have
been tendered and for which Consents have been delivered pursuant to the Tender
Offer and Solicitation, respectively.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In addition
to the other representations and warranties made by the Company contained in
this Agreement, the Company represents and warrants to ▇▇▇▇▇▇ Brothers, and
agrees with ▇▇▇▇▇▇ Brothers, that:
(a) Each of the Company and its subsidiaries has been duly
organized and is validly existing and in good standing under the laws of its
jurisdiction of organization, is duly qualified to do business and is in good
standing in each jurisdiction in which its ownership or lease of property or the
conduct of its businesses requires such qualification, and has all power and
authority necessary to own, lease or hold its properties and to conduct the
businesses in which it is engaged, except where the failure to so qualify would
not be reasonably expected to have a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (a "MATERIAL
ADVERSE EFFECT")
(b) The Company has all necessary power and authority to
execute and deliver and perform this Agreement, to make and consummate the
Tender Offer and Solicitation, including, but not limited to, by purchasing the
Notes, by making any related borrowings by the Company or any of its affiliates,
by effecting the proposed amendments to the Indenture as set forth in the Offer
to Purchase by executing and delivering a supplemental indenture between the
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Company and the Trustee supplementing the Indenture (the "SUPPLEMENTAL
INDENTURE"), and by paying a consent fee in connection with the Solicitation, in
each case, pursuant to the Tender Offer and Solicitation Materials, and to
consummate the other transactions contemplated by this Agreement and by the
Offer to Purchase (other than the New Financing and the Amendment to the Bank
Facility (as such terms are defined in the Offer to Purchase)) and the other
Tender Offer and Solicitation Materials (collectively, the "TRANSACTIONS"); and
all necessary action has been duly taken by the Company to authorize the making,
execution, delivery, performance and consummation, as the case may be, of the
Transactions.
(c) This Agreement has been duly authorized, executed and
delivered by the Company.
(d) The Tender Offer and Solicitation Materials (including any
documents incorporated therein by reference) do not and will not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that no representation
is made with respect to statements contained in the Tender Offer and
Solicitation Materials furnished in writing by or on behalf of ▇▇▇▇▇▇ Brothers
relating to ▇▇▇▇▇▇ Brothers as Dealer-Manager.
(e) The documents incorporated by reference in the Tender
Offer and Solicitation Materials, as of each of their respective filing dates,
complied as to form in all material respects with the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder
(collectively the "EXCHANGE ACT").
(f) The execution, delivery, performance, making and
consummation, as the case may be, of the Transactions will comply in all
material respects with all applicable requirements of law, including the
Exchange Act and any applicable rules or regulations of any governmental or
regulatory agency or authority, including, without limitation those of the
Commission.
(g) The execution, delivery, performance of this Agreement and
the consummation of the Transactions will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to which
any of the properties or assets of the Company or any of its subsidiaries is
subject, except for (y) such conflicts, breaches, violations or defaults that,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect and (z) any conflicts, breaches, violations or defaults
that would not have occurred if the Bank Condition (as such term is defined in
the Offer to Purchase) had been satisfied on the date hereof, (ii) result in any
violation of the provisions of the charter or by-laws or other constituent
document of the Company or any of its subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets, (iii) result in any violation of any judgment,
order, decree, law, statute, rule or regulation of any court, governmental or
regulatory agency or authority to which the Company or any of its affiliates or
subsidiaries is a party or by which the Company or any of
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its affiliates or subsidiaries or assets or properties is bound (iv) result in
the suspension, termination or revocation of any material permits, licenses,
consents, exemptions, franchises, authorizations and other approvals or (v)
result in the creation or imposition of any lien, charge, claim or encumbrance
on any material asset or property of the Company or any of its affiliates or
subsidiaries.
(h) No consent, approval, authorization or order of, or filing
or registration with, any court or governmental agency or body is required in
connection with the execution, delivery, performance, making and consummation,
as the case may be, of the Transactions other than any post-closing filings to
be made pursuant to the Exchange Act.
(i) There are no actions, lawsuits, claims or governmental or
administrative proceedings pending (including any stop order, restraining order
or denial of an application for approval), or to the best knowledge of the
Company after due inquiry, threatened against the Company or any of its
affiliates or subsidiaries which would, if adversely determined, affect or
impair the execution, delivery, performance, making or consummation, as the case
may be, of the Transactions.
(j) The New Financing (as such term is defined in the Offer to
Purchase) will provide sufficient funds which, together with funds presently
available or committed to it, will enable the Company to pay, and the Company
hereby agrees that the Company will pay promptly, in accordance with the terms
and subject to the conditions of the Tender Offer and Solicitation as set forth
in the Tender Offer and Solicitation Materials and this Agreement, (i) the full
purchase price (and related costs) of the Notes pursuant to the Tender Offer,
plus accrued and unpaid interest on the Notes until but not including the date
of payment for the Tender Offer, (ii) the consent fee relating to the
Solicitation and (iii) all related fees and expenses, including, but not limited
to, fees and expenses payable hereunder.
(k) The Indenture has been duly authorized, executed and
delivered by the Company and, assuming that the Indenture is the valid and
legally binding obligation of the Trustee, constitutes a valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization, liquidation,
moratorium or other similar laws affecting the rights and remedies of creditors
generally and except as may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) and by an implied covenant of good faith and fair dealing.
(l) The Supplemental Indenture has been duly authorized and,
on or promptly following the satisfaction of the Required Consents Condition,
the Financing Condition, the Bank Condition and the General Conditions (as
defined in the Offer to Purchase and subject to the Company's right to terminate
the Tender Offer and Solicitation at any time prior to the expiration of the
Tender Offer and Solicitation), will be duly executed and delivered by the
Company and, assuming that the Supplemental Indenture will be a valid and legal
binding obligation of the Trustee, will constitute a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance or transfer, reorganization,
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liquidation, moratorium or other similar laws affecting the rights and remedies
of creditors generally and except as may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law) and by an implied covenant of good faith and fair dealing.
(m) The Supplemental Indenture conforms to the description
thereof contained in the Offer to Purchase and complies in all material respects
with the Trust Indenture Act of 1939, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "TRUST INDENTURE ACT").
(n) Reserved.
(o) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest financial statements included or
incorporated by reference in the Tender Offer and Solicitation Materials, any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, other than as set forth or
contemplated in the Tender Offer and Solicitation Materials; and, since such
date, there has not been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries taken as a whole, other than as set forth or contemplated in the
Tender Offer and Solicitation Materials.
(p) The financial statements (including the related notes and
supporting schedules) incorporated by reference in the Tender Offer and
Solicitation Materials present fairly in all material respects the financial
position, the results of operations and cash flows of the Company and its
subsidiaries on the basis stated therein at the respective dates or for the
respective periods to which they apply (subject, in the case of the interim
financial statements only, to normal year-end audit adjustments); such
statements and related schedules and notes have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved; the supporting schedules, if any, included or incorporated by
reference in the Tender Offer and Solicitation Materials present fairly, in all
material respects, in accordance with generally accepted accounting principles
the information required to be stated therein; and the other financial and
statistical information and data set forth in the Tender Offer and Solicitation
Materials (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(q) Ernst & Young LLP, who have certified the financial
statements of the Company incorporated by reference into the Tender Offer and
Solicitation Materials, are independent public accountants as required by the
Securities Act and were independent accountants as required by the Securities
Act during the periods covered by the financial statements on which they
reported.
(r) The Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 under the
Exchange Act), which (i) are
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designed to ensure that material information relating to the Company, including
its consolidated subsidiaries, is made known to the Company's principal
executive officer and its principal financial officer by others within those
entities, particularly during the periods in which the periodic reports required
under the Exchange Act are being prepared; (ii) have been evaluated for
effectiveness as of March 31, 2004; and (iii) are effective to provide
reasonable assurance that they perform the functions for which they were
established.
(s) Based on the evaluation of its disclosure controls and
procedures, the Company is not aware of (i) any significant deficiency in the
design or operation of internal controls which could adversely affect the
Company's ability to record, process, summarize and report financial data or any
material weaknesses in internal controls; or (ii) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company's internal controls.
(t) Since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses.
(u) Each of the Company and its subsidiaries (i) makes and
keeps books and records and (ii) maintains internal accounting controls which
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 in conformity with United States
generally accepted accounting principles and to maintain accountability for its
assets, (C) access to the Company's assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(v) There is and has been no failure on the part of the
Company and any of the Company's directors or officers, in their capacities as
such, to comply, in all material respects, with any applicable provision of the
U.S. Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith.
9. CONDITIONS TO THE DEALER-MANAGER'S OBLIGATIONS. ▇▇▇▇▇▇
Brothers' obligation to act as Dealer-Manager shall at all times be subject to
the performance by the Company in all material respects of its obligations
herein and to the following additional conditions:
(a) At all times from the Commencement Date to and including
each date on which the Company makes payment for validly tendered Notes that it
has accepted in accordance with the terms of the Tender Offer (each, a "PAYMENT
DATE"), the Company's representations and warranties contained herein shall be
true and correct in all material respects and the Company shall have performed
in all material respects all of the agreements contained in this Agreement and
as set forth in the Tender Offer and Solicitation Materials theretofore required
by it to have been performed; and ▇▇▇▇▇▇ Brothers shall have received
certificates to that effect, dated each of the Commencement Date and each
Payment Date, signed by the Chief Executive Officer, the Chief Financial Officer
or the Treasurer of the Company. The Company acknowledges that
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▇▇▇▇▇▇ Brothers' agreement to act, or to continue to act, as Dealer-Manager at a
time when it knows or should know that any such representation, warranty and
agreement is or may be untrue or incorrect or not performed, as the case may be,
in a material respect shall be without prejudice to its right subsequently to
cease so to act by reason of such untruth, incorrectness or nonperformance, as
the case may be.
(b) No stop order or restraining order shall have been issued
and no action, lawsuit, claim or governmental or administrative proceeding shall
have been commenced or, to the best of the Company's knowledge, threatened with
respect to the Tender Offer or Solicitation or the other Transactions before any
court, agency or other governmental regulatory body of any jurisdiction that
▇▇▇▇▇▇ Brothers, in good faith after consultation with counsel, believes renders
it inadvisable for ▇▇▇▇▇▇ Brothers to continue to act hereunder as
Dealer-Manager.
(c) The Company will furnish to ▇▇▇▇▇▇ Brothers on the date
hereof and on each Payment Date (i) an opinion of Weil, Gotshal & ▇▇▇▇▇▇ LLP,
counsel to the Company, addressed to ▇▇▇▇▇▇ Brothers, in the form attached
hereto as Schedule I, (ii) an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel to the
Company, addressed to ▇▇▇▇▇▇ Brothers, in the form attached hereto as Schedule
II and (iii) an opinion of ▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel of the Company,
addressed to ▇▇▇▇▇▇ Brothers, in the form attached hereto as Schedule III.
(d) All opinions and certificates required to be delivered
pursuant to the terms hereof shall be in a form and substance reasonably
satisfactory to counsel for ▇▇▇▇▇▇ Brothers.
10. ADDITIONAL AGREEMENTS. In addition to the other agreements
of the Company contained elsewhere in this Agreement, the Company hereby agrees
and acknowledges, as applicable, that:
(a) It will advise ▇▇▇▇▇▇ Brothers promptly of any of the
following: (i) the occurrence of any event which may cause the Company to
withdraw, terminate or cancel the Tender Offer and Solicitation or would permit
the Company to exercise any right not to purchase Notes validly tendered in the
Tender Offer and Solicitation, (ii) the occurrence of any event or the discovery
of any fact, the occurrence or existence of which it believes would require the
making of any material change in the Tender Offer and Solicitation Materials
then being used or would cause any representation or warranty contained in this
Agreement to be untrue or inaccurate in any material respect, (iii) any proposal
or requirement to amend or supplement the Tender Offer and Solicitation
Materials or to make any other filing pursuant to any applicable law, regulation
or other rule, (iv) the issuance by the Commission or any other governmental or
regulatory agency or authority of any comment or order concerning the Tender
Offer and Solicitation, (v) any material development in connection with the
Tender Offer and Solicitation or the other transactions contemplated by the
Offer to Purchase or (vi) any other information relating to the Tender Offer and
Solicitation which ▇▇▇▇▇▇ Brothers may from time to time reasonably request.
(b) In the event that the Company is required, or considers it
advisable, to amend or supplement the Tender Offer and Solicitation Materials or
make any additional filings related to the Tender Offer and Solicitation with
any governmental or regulatory agency or
10
authority, then it shall not make such amendment or supplement or filing without
▇▇▇▇▇▇ Brothers' prior approval, which shall not be unreasonably withheld.
(c) It will file and disseminate, as required, any necessary
amendments or supplements to the Tender Offer and Solicitation Materials and
other documents that are filed with any governmental or regulatory agency or
authority relating to the Tender Offer and Solicitation, and, if there is any
such filing, it will promptly furnish to ▇▇▇▇▇▇ Brothers an accurate and
complete copy of each such amendment or supplement upon the filing thereof.
(d) It will comply in all material respects with the Exchange
Act relating to the Tender Offer and Solicitation in the future, to the extent
applicable.
(e) It will perform the agreements and obligations it has that
are set forth in or contemplated by the Tender Offer and Solicitation Materials,
including, but not limited to, accepting for payment Notes that have been
validly tendered and not withdrawn in accordance with and subject to the terms
and conditions of the Tender Offer, paying a consent fee, as set forth in the
Offer to Purchase, for Consents delivered prior to the Consent Date and not
revoked, in accordance with and subject to the terms and conditions of the
Solicitation and, after receiving the requisite Consents, duly executing and
delivering to the Trustee the Supplemental Indenture and furnishing the Trustee
any officers' certificates or other documents required or reasonably requested
by the Trustee in connection with the execution and delivery of the Supplemental
Indenture by the Trustee.
(f) The Dealer-Manager, with the prior written consent of the
Company, which consent shall not be unreasonably withheld, and at the
Dealer-Manager's expense, may place an announcement in any newspapers and
periodicals as it may choose, stating that ▇▇▇▇▇▇ Brothers is acting as
Dealer-Manager in connection with the Tender Offer and Solicitation.
(g) In performing the services contemplated by this Agreement,
▇▇▇▇▇▇ Brothers will be relying on the information furnished by the Company, its
officers, attorneys and other agents and information available from generally
recognized public sources without independent verification.
11. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company hereby agrees to hold harmless and indemnify
▇▇▇▇▇▇ Brothers and its affiliates and any officer, director, employee or agent
of ▇▇▇▇▇▇ Brothers or any such affiliates and any person controlling (within the
meaning of Section 20(a) of the Exchange Act) ▇▇▇▇▇▇ Brothers or any such
affiliates (collectively, the "INDEMNIFIED PERSONS") from and against any loss,
claim, damage, liability and expense whatsoever (as incurred or suffered, and
including, but not limited to, any and all legal or other expenses incurred in
connection with investigating, preparing to defend or defending any lawsuit,
claim or other proceeding, commenced or threatened, whether or not resulting in
any liability, which legal or other expenses shall be reimbursed by the Company
promptly after receipt of any invoices therefor from ▇▇▇▇▇▇ Brothers or such
other Indemnified Person), (i) arising out of or based upon (a) any untrue
statement or alleged untrue statement of a material fact contained in the Tender
Offer and Solicitation Materials or in any other solicitation material used by
the Company or authorized by
11
it for use in connection with the Tender Offer or Solicitation, or arising out
of or based upon the omission or alleged omission to state in any such document
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading (other than
statements or omissions made in reliance upon and in conformity with information
relating to ▇▇▇▇▇▇ Brothers as Dealer-Manager furnished by ▇▇▇▇▇▇ Brothers in
writing to the Company expressly for use therein), (b) any withdrawal,
termination or cancellation by the Company of, or failure by the Company to make
or consummate, the Tender Offer or Solicitation, (c) any actions taken or
omitted to be taken by an Indemnified Person pursuant to this Agreement or with
the consent of the Company or in conformity with actions taken or omitted to be
taken by the Company or (d) any breach by the Company of any representation or
warranty, or any failure by the Company to comply with any agreement contained
in this Agreement or (ii) arising out of, relating to or in connection with or
alleged to arise out of, relate to or be in connection with the Tender Offer or
Solicitation, any of the other Transactions or the performance of ▇▇▇▇▇▇
Brothers' services as Dealer-Manager. However, the Company will not be obligated
to indemnify an Indemnified Person for any loss, claim, damage, liability or
expense pursuant to clause (ii) of the preceding sentence, which has been
determined in a final judgment by a court of competent jurisdiction to have
resulted directly from the willful misconduct or gross negligence on the part of
such Indemnified Person. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to the Indemnified Person or to
any director, officer, employee or controlling person of the Indemnified Person.
(b) If any lawsuit, claim or proceeding is brought against any
Indemnified Person in respect of which indemnification may be sought against the
Company pursuant to this Section 11, such Indemnified Person shall promptly
notify the Company of the commencement of such lawsuit, claim or proceeding
after receipt by such Indemnified Person of notice of such lawsuit, claim or
proceeding; provided, however, that the failure to so notify the Company shall
not relieve the Company from any obligation or liability which it may have under
this Section 11 except to the extent that it has been prejudiced in any material
respect by such failure and in any event shall not relieve the Company from any
other obligation or liability which it may have to such Indemnified Person
otherwise than under this Section 11. In case any such lawsuit, claim or
proceeding shall be brought against any Indemnified Person and such Indemnified
Person shall notify the Company of the commencement of such lawsuit, claim or
proceeding, the Company shall be entitled to participate in such lawsuit, claim
or proceeding, and, after written notice from the Company to such Indemnified
Person, to assume the defense of such lawsuit, claim or proceeding with counsel
of its choice at its expense; provided, however, that such counsel shall be
satisfactory to the Indemnified Person in the exercise of its reasonable
judgment. Notwithstanding the election of the Company to assume the defense of
such lawsuit, claim or proceeding, such Indemnified Person shall have the right
to employ separate counsel and to participate in the defense of such lawsuit,
claim or proceeding, and the Company shall bear the reasonable fees, costs and
expenses of such separate counsel (and shall pay such fees, costs and expenses
promptly after receipt of any invoice therefor from ▇▇▇▇▇▇ Brothers) if (i) the
use of counsel chosen by the Company to represent such Indemnified Person would
present such counsel with a conflict of interest; (ii) the defendants in, or
targets of, any such lawsuit, claim or proceeding include both an Indemnified
Person and the Company, and such Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it or to other
Indemnified Persons which are different from or in addition to those available
to the Company
12
(in which case the Company shall not have the right to direct the defense of
such action on behalf of the Indemnified Person); (iii) the Company shall not
have employed counsel satisfactory to such Indemnified Person, in the exercise
of such Indemnified Person's reasonable judgment, to represent such Indemnified
Person within a reasonable time after notice of the institution of any such
lawsuit, claim or proceeding; or (iv) the Company shall authorize such
Indemnified Person to employ separate counsel at the expense of the Company. The
foregoing indemnification commitments shall apply whether or not the Indemnified
Person is a formal party to any such lawsuit, claim or proceeding. The Company
shall not be liable for any settlement of any lawsuit, claim or proceeding
effected without its consent (which consent will not be unreasonably withheld),
but if settled with such consent, or if there be a final judgment of the
plaintiff in any such action, the Company agrees, subject to the provisions of
this Section 11, to indemnify the Indemnified Person from and against any loss,
damage or liability by reason of such settlement or final judgment, as the case
may be. The Company agrees to notify ▇▇▇▇▇▇ Brothers promptly, or cause ▇▇▇▇▇▇
Brothers to be notified promptly, of the assertion of any lawsuit, claim or
proceeding against the Company, any of its officers or directors or any person
who controls any of the foregoing within the meaning of Section 20(a) of the
Exchange Act, arising out of or relating to the Tender Offer and Solicitation.
The Company further agrees that any settlement of a lawsuit, claim or proceeding
against it arising out of or relating to the Tender Offer or Solicitation or the
consent to the entry of any judgment with respect to any pending or threatened
lawsuit, claim or proceeding in respect of which indemnification or contribution
may be sought under this Agreement (whether or not the Indemnified Person is an
actual or potential party to such claim or action) shall include an explicit and
unconditional release from the parties bringing such lawsuit, claim or
proceeding of all Indemnified Persons who are or could have been a party to such
lawsuit, claim or proceeding if such Indemnified Persons could have sought
indemnification hereunder, which release shall be reasonably satisfactory to
▇▇▇▇▇▇ Brothers (unless otherwise previously consented to by ▇▇▇▇▇▇ in writing).
(c) The Company and ▇▇▇▇▇▇ Brothers agree that if any
indemnification sought by any Indemnified Person pursuant to this Section 11 is
unavailable or is insufficient for any reason, other than that specified in the
second sentence of this Section 11, then (whether or not ▇▇▇▇▇▇ Brothers is the
Indemnified Person) the Company, on the one hand, and ▇▇▇▇▇▇ Brothers, on the
other hand, shall contribute to the losses, claims, damages, liabilities and
expenses for which such indemnification is held unavailable (i) in such
proportion as is appropriate to reflect the relative benefits to the Company, on
one hand, and ▇▇▇▇▇▇ Brothers, on the other hand, in connection with the matter
giving rise to such losses, claims, damages, liabilities and expenses, or (ii)
if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing clause (i) but also the relative
faults of the Company, on the one hand, and ▇▇▇▇▇▇ Brothers, on the other, in
connection with the matter giving rise to such losses, claims, damages,
liabilities and expenses, and other equitable considerations, subject to the
limitation that in any event ▇▇▇▇▇▇ Brothers' aggregate contribution to all
losses, claims, damages, liabilities and expenses with respect to which
contribution is available hereunder shall not exceed the amount of fees actually
received by ▇▇▇▇▇▇ Brothers pursuant to this Agreement. It is hereby agreed by
the parties hereto that the relative benefits to the Company, on the one hand,
and ▇▇▇▇▇▇ Brothers, on the other hand, with respect to the Tender Offer and
Solicitation and the other Transactions shall be deemed to be in the same
proportion as (i) the aggregate value of the consideration paid or proposed to
be paid to the beneficial holders of the Notes of
13
the Company pursuant to the Tender Offer and Solicitation and the other
Transactions (whether or not the Tender Offer and Solicitation and the other
Transactions are consummated) bears to (ii) the fees payable to ▇▇▇▇▇▇ Brothers
with respect to the Tender Offer and Solicitation and the other Transactions
pursuant to Section 5. It is further agreed that the relative faults of the
Company, on the one hand, and ▇▇▇▇▇▇ Brothers, on the other hand, (i) in the
case of an untrue or alleged untrue statement of a material fact or an omission
or alleged omission to state a material fact, shall be determined by reference
to, among other things, whether such statement or omission relates to
information supplied by the Company or by ▇▇▇▇▇▇ Brothers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission and (ii) in the case of any other action or
omission, shall be determined by reference to, among other things, whether such
action or omission was taken or omitted to be taken by the Company or ▇▇▇▇▇▇
Brothers and the parties' relative intent, knowledge, access to information and
opportunity to prevent such action or omission. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages, liabilities or
expenses referred to in this Section shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Person in connection with investigating, preparing to defend or
defending any such action or claim.
(d) In the event an Indemnified Person appears as a witness in
any action brought by or on behalf of or against the Company (other than an
action brought by the Company against any Indemnified Person or an action
brought by an Indemnified Person against the Company) in which such Indemnified
Person is not named as defendant, the Company agrees to reimburse such
Indemnified Person for all reasonable expenses incurred by it in connection with
such Indemnified Person's appearing and preparing to appear as such a witness,
including, without limitation, the reasonable fees and disbursements of its
legal counsel.
(e) The Company also agrees that no Indemnified Person shall
have any liability to the Company or any person asserting claims on behalf of or
in right of the Company in connection with this Agreement or ▇▇▇▇▇▇ Brothers'
acting as Dealer-Manager hereunder, except for liabilities determined in a final
judgment by a court of competent jurisdiction to have resulted directly from any
acts or omissions undertaken or omitted to be taken by such Indemnified Person
through its or his, as the case may be, gross negligence or willful misconduct.
(f) The foregoing rights to indemnification and contribution
shall be in addition to any other rights which ▇▇▇▇▇▇ Brothers and the other
Indemnified Persons may have against the Company under common law or otherwise.
12. INDEMNIFICATION, REPRESENTATIONS AND WARRANTIES TO REMAIN
OPERATIVE. The rights to indemnification, contribution and exculpation contained
in Section 11 and the representations, warranties and agreements of the Company
set forth in this Agreement shall survive and remain operative and in full force
and effect regardless of (a) the failure to commence the Tender Offer and
Solicitation, the consummation of the Tender Offer and Solicitation, any
withdrawal, termination or cancellation of the Tender Offer and Solicitation for
any reason whatsoever, the purchase of Notes pursuant to the Tender Offer and
Solicitation or any withdrawal by ▇▇▇▇▇▇ Brothers pursuant to Section 4, (b) any
investigation made by or on behalf of any party hereto or any person controlling
any party hereto within the meaning of
14
Section 20(a) of the Exchange Act and (c) the completion of ▇▇▇▇▇▇ Brothers'
services under this Agreement.
13. TERMINATION. This Agreement shall terminate upon the
earliest to occur of (a) the consummation or the termination, withdrawal or
cancellation of the Tender Offer and Solicitation by the Company, (b) the
withdrawal by ▇▇▇▇▇▇ Brothers as the Dealer-Manager pursuant to Section 4 hereof
and (c) the date that is one year from the date hereof; provided that, Sections
3, 5, 6, 8, 11-22 hereof shall survive the termination of this Agreement.
14. NOTICES. All notices and other communications required or
permitted to be provided under this Agreement shall be in writing and shall be
deemed to have been duly given if (a) delivered personally, (b) sent by
facsimile with immediate telephonic confirmation or (c) sent by registered or
certified mail, return receipt requested, postage prepaid, to the parties hereto
as follows:
(a) if to ▇▇▇▇▇▇ Brothers:
▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Liability Management Group, 3rd Floor
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Company:
▇▇▇▇▇▇▇ Enterprises, Inc.
One Thousand ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ Enterprises, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
15
Attention: ▇▇▇▇ ▇▇▇▇▇,
General Counsel - Corporate
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
15. MODIFICATIONS. This Agreement may not be amended or
modified except in writing signed by each of the parties hereto.
16. CONSENT TO JURISDICTION; FORUM SELECTION; APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) The Company hereby submits to the jurisdiction of the
courts of the State of New York and the courts of the United States of America
located in the State of New York over any suit, action or proceeding with
respect to this Agreement or the transactions contemplated hereby.
(b) Any action, lawsuit or proceeding with respect to this
Agreement or the transactions contemplated hereby may be brought only in the
courts of the State of New York or the courts of the United States of America
located in the State of New York, in each case, located in the Borough of
Manhattan, City of New York, State of New York. The Company waives any objection
that it may have to the venue of such action, lawsuit or proceeding in any such
court or that such action, lawsuit or proceeding in such court was brought in an
inconvenient court and agrees not to plead or claim the same.
(c) Any right to trial by jury with respect to any action,
lawsuit, claim or other proceeding arising out of or relating to this Agreement
or the services to be rendered by ▇▇▇▇▇▇ Brothers hereunder is expressly and
irrevocably waived.
17. GOVERNING LAW. The terms of this Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
18. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, and by different parties hereto on separate counterparts,
each of such counterparts, when so executed and delivered, shall be deemed to be
an original, and all of such counterparts, taken together, shall constitute one
and the same Agreement.
19. SEVERABILITY. If any term or provision of this Agreement
is deemed or rendered invalid or unenforceable in any jurisdiction, then such
term or provision shall, as to such jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or affecting
the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction, which shall remain in full force and
effect.
20. SUCCESSORS. This Agreement is made solely for the benefit
of ▇▇▇▇▇▇ Brothers and the Company and, to the extent expressly set forth
herein, the Indemnified Persons
16
and their executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement by and among the parties hereto with respect to the subject matter
thereof and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
22. HEADINGS. The headings to sections contained in this
Agreement are included for ease of reference only, and the parties hereto agree
that they are not to be given substantive meaning or otherwise affect each
party's rights and duties hereunder.
[The rest of this page has been left blank intentionally; the
signature page follows.]
17
Please indicate ▇▇▇▇▇▇ Brothers' willingness to act as
Dealer-Manager and ▇▇▇▇▇▇ Brothers' acceptance of the foregoing provisions by
signing in the space provided below for that purpose and returning to us a copy
of this letter so signed, whereupon this letter and ▇▇▇▇▇▇ Brothers' acceptance
shall constitute a valid and legally binding agreement between us.
Very truly yours,
▇▇▇▇▇▇▇ ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP - Treasurer
Accepted and agreed as of the date first above written:
▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Authorized Representative