EXHIBIT 4.2
UNITED STATIONERS SUPPLY CO.
$100,000,000
8 3/8% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
April 9, 1998
CHASE SECURITIES INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
c/o Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
United Stationers Supply Co., an Illinois corporation (the
"COMPANY"), a wholly-owned subsidiary of United Stationers Inc., a Delaware
corporation ("UNITED"), proposes to issue and sell $100,000,000 aggregate
principal amount of its 8 3/8% Senior Subordinated Notes due 2008 (the
"NOTES"). The Securities will be issued pursuant to an Indenture to be dated
as of April 15, 1998 (the "INDENTURE") among the Company, the Guarantors (as
defined below) and The Bank of New York, as trustee (the "TRUSTEE"). The
Notes will be unconditionally guaranteed on a senior subordinated basis (the
"GUARANTEES") initially by each of United, ▇▇▇▇▇▇▇ Bros., Inc., a Louisiana
corporation, Azerty Incorporated, a Delaware corporation, Positive ID
Wholesale Inc., a Delaware corporation and AP Support Services Incorporated,
a Delaware corporation (collectively, the "GUARANTORS" and, together with the
Company, the "ISSUERS"), pursuant to the terms of the Indenture. The Notes
and the Guarantees are sometimes referred to herein together as the
"SECURITIES." The Issuers hereby confirm their agreement with Chase
Securities Inc. ("CSI") and Bear, ▇▇▇▇▇▇▇ & Co. Inc. (together with CSI, the
"INITIAL PURCHASERS") concerning the purchase of the Securities from the
Company by the several Initial Purchasers.
The Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), in reliance upon an exemption therefrom. The
Company has prepared a preliminary offering memorandum dated March 24, 1998
(the "PRELIMINARY OFFERING MEMORANDUM") and will prepare an offering
memorandum dated the date hereof (the "OFFERING MEMORANDUM") setting forth
information concerning the Issuers and the Securities. Copies of the
Preliminary Offering Memorandum have been, and copies of the Offering
Memorandum will be, delivered by the Company to the Initial Purchasers
pursuant to the terms of this Agreement. Any references herein to the
Preliminary Offering Memorandum and the Offering Memorandum shall be deemed
to include all amendments and supplements thereto, unless otherwise noted.
Each of the Issuers hereby confirms that it has authorized the use of the
Preliminary Offering Memorandum and the
Offering Memorandum in connection with the offering and resale of the
Securities by the Initial Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers
and their direct and indirect transferees) will be entitled to the benefits
of an Exchange and Registration Rights Agreement, substantially in the form
attached hereto as Exhibit A (the "REGISTRATION RIGHTS AGREEMENT"), pursuant
to which the Company will agree to file with the Securities and Exchange
Commission (the "COMMISSION") (i) a registration statement under the
Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") registering an
issue of senior subordinated notes of the Company (the "EXCHANGE NOTES")
which are identical in all material respects to the Notes and which are
unconditionally guaranteed by each of the guarantors (such guarantees,
together with the Exchange Notes, the "EXCHANGE SECURITIES") (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions) and (ii) under certain circumstances, a shelf registration
statement with respect to the resale of the Securities pursuant to Rule 415
under the Securities Act (the "SHELF REGISTRATION STATEMENT").
The net proceeds of the offering of the Securities will be
used by the Company to repay a portion of indebtedness of the Company
outstanding under a $100.0 million tranche B term loan facility (the "TRANCHE
B TERM LOAN FACILITY") under the Company's new senior secured credit
facilities (the "NEW CREDIT FACILITIES"). The Company used the Tranche B Term
Loan Facility and other drawings under the New Credit Facilities to pay the
purchase price for the acquisition of the capital stock of Azerty
Incorporated, Azerty de Mexico, S.A. de C.V., Positive ID Wholesale Inc. and
AP Support Services Incorporated (the "AZERTY ACQUISITION").
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ISSUERS.
Each of the Issuers, jointly and severally, represents and warrants to, and
agrees with, the several Initial Purchasers on and as of the date hereof and
the Closing Date (as defined in Section 3) that:
(a) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its respective date, did not, and on the
Closing Date the Offering Memorandum will not, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED that the Issuers make no representation or
warranty as to information contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum in reliance upon and in
conformity with written information relating to the Initial Purchasers
furnished to the Company by or on behalf of any Initial Purchaser
specifically for use therein (the "INITIAL PURCHASERS' INFORMATION").
(b) Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 2 and their
compliance with the agreements set forth therein, it is not necessary,
in connection with the issuance and sale of the Securities to the
Initial Purchasers and the offer, resale and delivery of the Securities
by the Initial Purchasers in the manner contemplated by this Agreement
and the Offering Memorandum, to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended (the "TRUST INDENTURE ACT").
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(c) Each of United, the Company and its subsidiaries has been
duly organized and is validly existing as a corporation or limited
liability company in good standing under the laws of its jurisdiction
of incorporation or organization, is duly qualified to do business and
is in good standing as a foreign corporation or limited liability
company in each jurisdiction in which the character or location of its
properties (owned, leased or licensed) or the nature or conduct of its
business makes such qualification necessary, and has all requisite
power and authority necessary to own or lease and operate its
properties and to conduct its business as now being conducted and as
described in the Offering Memorandum, except where the failure to be so
qualified or in good standing or have such power or authority would
not, singularly or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), results of operations, business
or prospects of United, the Company and its subsidiaries taken as a
whole (a "MATERIAL ADVERSE EFFECT").
(d) United has an authorized capitalization as set forth in
the Offering Memorandum under the heading "Capitalization"; all of the
outstanding shares of capital stock of United have been duly and
validly authorized and issued, are fully paid and non-assessable and
were not issued in violation of any preemptive, maintenance or similar
rights; all of the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and were not issued in violation of any preemptive,
maintenance or similar rights, and are owned directly by United, free
and clear of any lien, pledge, encumbrance, claim, security interest,
restriction on transfer, stockholders' agreement, voting trust or other
defect of title except for those created pursuant to the New Credit
Facilities. All of the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and were not issued in
violation of any preemptive, maintenance or similar rights, and are
owned directly or indirectly by the Company, free and clear of any
lien, pledge, encumbrance, claim, security interest, restriction on
transfer, stockholders' agreement, voting trust or other defect of
title except for those created pursuant to the New Credit Facilities.
(e) Each of the Issuers has the corporate power and authority
to execute and deliver this Agreement, the Indenture, the Registration
Rights Agreement and (in the case of the Company) the Notes, the
Exchange Notes and the Private Exchange Notes (as defined in the
Registration Rights Agreement) and (in the case of the Guarantors) the
Guarantees endorsed on the Notes, the Exchange Notes and the Private
Exchange Notes (collectively, the "TRANSACTION DOCUMENTS") and to
perform its obligations hereunder and thereunder; and all corporate
action required to be taken by each of the Issuers for the due and
proper authorization, execution and delivery of each of the Transaction
Documents to which it is a party and the consummation of the
transactions contemplated thereby have been duly and validly taken.
(f) This Agreement has been duly authorized, executed and
delivered by each of the Issuers and (assuming the due authorization,
execution and delivery of this Agreement by the Initial Purchasers)
constitutes a valid and legally binding agreement of each of the
Issuers enforceable against each of the Issuers in accordance with the
terms hereof, except to the extent that (i) such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other
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similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity
or at law) and (ii) the enforceability of rights to indemnification
and contribution hereunder may be limited by federal or state
securities laws or regulations or the public policy underlying such
laws or regulations.
(g) The Registration Rights Agreement has been duly authorized
by each of the Issuers and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will
constitute a valid and legally binding agreement of each of the
Issuers, enforceable against each of the Issuers in accordance with its
terms, except to the extent that (i) such enforceability may be limited
by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law) and (ii) the
enforceability of rights to indemnification and contribution thereunder
may be limited by federal or state securities laws or regulations or
the public policy underlying such laws or regulations.
(h) The Indenture has been duly authorized by each of the
Issuers and, when duly executed and delivered in accordance with its
terms by each of the parties thereto, will constitute a valid and
legally binding agreement of each of the Issuers, enforceable against
each of the Issuers in accordance with its terms, except to the extent
that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or
at law) and except to the extent of the effect on the Notes of the laws
of any jurisdiction other than federal law and the law of the States of
New York or Illinois wherein any purchaser of the Notes may be located
or wherein enforcement may be sought which limits the rate of interest
legally chargeable or collectible. On the Closing Date, the Indenture
will conform in all material respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
(i) The Notes have been duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as provided in
the Indenture and paid for as provided herein, will be duly and validly
issued and outstanding and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, except
to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding
in equity or at law) and except to the extent of the effect on the
Notes of the laws of any jurisdiction other than federal law and the
law of the States of New York or Illinois wherein any purchaser of the
Notes may be located or wherein enforcement may be sought which limits
the rate of interest legally chargeable or collectible.
(j) The Guarantees to be endorsed on the Notes have been duly
authorized by each of the Guarantors and, when duly executed by each of
the Guarantors and when the Notes are duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as
provided herein, will constitute valid and legally binding obligations
of each of the Guarantors entitled to the benefits of the Indenture,
enforceable against each
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of the Guarantors in accordance with their terms, except to the
extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in
a proceeding in equity or at law).
(k) The Exchange Notes have been and, as of the Closing Date,
the Private Exchange Notes will be, duly authorized by the Company and,
when duly executed, authenticated, issued and delivered as provided in
the Indenture and the Registration Rights Agreement in exchange for the
Notes, will be duly and validly issued and outstanding and will
constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture, enforceable against the
Company in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(l) The Guarantees to be endorsed on the Exchange Notes have
been and, as of the Closing Date, the Guarantees to be endorsed on the
Private Exchange Notes will be, duly authorized by each of the
Guarantors and, when duly executed by each of the Guarantors and when
the Exchange Notes and/or the Private Exchange Notes, as the case may
be, are duly executed, authenticated, issued and delivered as provided
in the Indenture and the Registration Rights Agreement in exchange for
the Notes, will constitute valid and legally binding obligations of
each of the Guarantors entitled to the benefits of the Indenture,
enforceable against each of the Guarantors in accordance with their
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(m) Each of the Transaction Documents, the second amended and
restated credit agreement (the "New Credit Agreement") governing the
New Credit Facilities and the Receivables Securitization Program
conforms in all material respects to the description thereof contained
in the Offering Memorandum.
(n) The execution, delivery and performance by each of the
Issuers of each of the Transaction Documents to which it is a party,
the issuance, authentication, sale and delivery of the Securities, the
Exchange Securities and the Private Exchange Securities (as defined in
the Registration Rights Agreement) and compliance by each of the
Issuers with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of United, the Company or any of its subsidiaries
pursuant to, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which United, the Company or any of
its subsidiaries is a party or by which United, the Company or any of
its subsidiaries or their respective properties or assets may be bound,
except for any such conflict, breach, violation, default, lien, charge
or encumbrance that could not, singularly or in the
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aggregate, reasonably be expected to have a Material Adverse Effect
or a material adverse effect on the ability of the Issuers to
perform their respective obligations under the Transaction
Documents, nor will such actions result in any violation of the
provisions of the charter or bylaws of United, the Company or any of
its subsidiaries or any statute or any judgment, order, decree, rule
or regulation of any court or arbitrator or governmental agency or
body having jurisdiction over United, the Company or any of its
subsidiaries or any of their properties or assets; and no consent,
approval, authorization or order of, or filing, registration or
qualification with, any such court or arbitrator or governmental
agency or body under any such statute, judgment, order, decree, rule
or regulation is required for the execution, delivery and
performance by each of the Issuers of each of the Transaction
Documents to which it is a party, the issuance, authentication, sale
and delivery of the Securities, the Exchange Securities and the
Private Exchange Securities and compliance by each of the Issuers
with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents, except for such consents,
approvals, authorizations, orders, filings, registrations or
qualifications (i) which shall have been obtained or made prior to
the Closing Date and are in full force and effect on the Closing
Date, (ii) which may be required under the Trust Indenture Act in
connection with the Exchange Securities, and (iii) as may be
required to be obtained or made under the Securities Act and
applicable state securities laws as provided in the Registration
Rights Agreement.
(o) Ernst & Young LLP are independent certified public
accountants with respect to United and its consolidated subsidiaries
within the meaning of Rule 101 of the Code of Professional Conduct of
the American Institute of Certified Public Accountants ("AICPA") and
its interpretations and rulings thereunder. The historical financial
statements (including the related notes) contained in the Offering
Memorandum comply in all material respects with the requirements
applicable to a registration statement on Form S-1 under the Securities
Act (except that certain supporting schedules are omitted); such
financial statements have been prepared in accordance with United
States generally accepted accounting principles consistently applied
throughout the periods covered thereby and present fairly in all
material respects the financial position of the entities purported to
be covered thereby at the respective dates indicated and the results of
their operations and their cash flows for the respective periods
indicated; and the historical financial information contained in the
Offering Memorandum under the headings "Summary--Summary Consolidated
Financial and Pro Forma Data", "Capitalization", "Selected Consolidated
Financial Data" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations" are derived from the accounting
records of the entities purported to be covered thereby and fairly
present the information purported to be shown thereby. Each of the
unaudited consolidated pro forma balance sheet as of December 31, 1997
and the unaudited consolidated pro forma income statement for the year
ended December 31, 1997 contained in the Offering Memorandum has been
prepared on a basis consistent with the historical financial statements
of the entities purported to be covered thereby (except for the PRO
FORMA adjustments specified therein), complies in all material respects
with the applicable accounting requirements of the Commission, gives
effect to assumptions made on a reasonable basis and fairly presents
the historical and proposed transactions contemplated by the Offering
Memorandum, the Transaction Documents, the New Credit Facilities, the
Receivables Securitization Program and the documents relating to the
Azerty Acquisition and the 1997 Financing Transactions, as applicable.
The other historical financial and statistical
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information and data included in the Offering Memorandum are, in all
material respects, presented fairly in accordance with their
descriptions therein.
(p) Except as described in the Offering Memorandum, there are
no legal or governmental proceedings pending to which United, the
Company or any of its subsidiaries is a party or, to the best knowledge
of the Company, of which any property or assets of United, the Company
or any of its subsidiaries is the subject which, singularly or in the
aggregate, if determined adversely to United, the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and to the best knowledge of the Company, no such proceedings
are threatened by governmental authorities or by others.
(q) To the best knowledge of the Company, no action has been
taken and no statute, rule, regulation or order has been enacted,
adopted or issued by any governmental agency or body which prevents the
issuance of the Securities, the Exchange Securities or the Private
Exchange Securities or suspends the sale of the Securities in any
jurisdiction; no injunction, restraining order or order of any nature
by any federal or state court of competent jurisdiction has been issued
with respect to United, the Company or any of its subsidiaries which
would prevent or suspend the issuance or sale of the Securities, the
Exchange Securities or the Private Exchange Securities or the use of
the Preliminary Offering Memorandum or the Offering Memorandum in any
jurisdiction; no action, suit or proceeding is pending against or, to
the best knowledge of the Company, threatened against or affecting
United, the Company or any of its subsidiaries before any court or
arbitrator or any governmental agency, body or official, domestic or
foreign, which could reasonably be expected to interfere with or
adversely affect the issuance of the Securities, the Exchange
Securities or the Private Exchange Securities or in any manner draw
into question the validity or enforceability of any of the Transaction
Documents or any action taken or to be taken pursuant thereto.
(r) None of United, the Company or any of its subsidiaries is,
(i) in violation of its charter or bylaws, (ii) in default in any
material respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which it is a party or by
which it is bound or to which any of its property or assets is subject
or (iii) in violation in any material respect of any law, ordinance,
governmental rule, regulation, order, judgment or court decree to which
it or its property or assets may be subject, except for, in the cases
of clauses (ii) and (iii) above, such default or violation which could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or a material adverse effect on the ability of
the Issuers to perform their respective obligations under the
Transaction Documents.
(s) Each of United, the Company and its subsidiaries possesses
all material licenses, certificates, authorizations and permits issued
by, and has made all declarations and filings with, the appropriate
federal, state, local or foreign regulatory agencies or bodies which
are necessary to own or lease and operate its properties or conduct its
business as now being conducted and as described in the Offering
Memorandum, except where the failure to possess or make the same would
not, singularly or in the aggregate, have a Material Adverse Effect,
and none of the Company or any of its subsidiaries has
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received notification of any revocation or modification of any such
license, certificate, authorization or permit or has any reason to
believe that any such license, certificate, authorization or permit
will not be renewed in the ordinary course.
(t) Each of United, the Company and its subsidiaries has (i)
filed all federal, state, local and foreign income and franchise tax
returns required to be filed through the date hereof and all such tax
returns are true, complete and accurate in all material respects, or
(ii) properly filed for extensions thereof, and has paid all taxes due
thereon and all assessments received by it, except where, in the case
of state, local and foreign tax returns, the failure to file, extend
the due date or pay the same, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect; and no tax deficiency has
been determined adversely to United, the Company or any of its
subsidiaries which has had (nor does United, the Company or any of its
subsidiaries have any knowledge of any tax deficiency which, if
determined adversely to United, the Company or any of its subsidiaries,
could reasonably be expected to have) a Material Adverse Effect.
(u) None of United, the Company or any of its subsidiaries is,
and upon consummation of the transactions contemplated hereby will be,
an "investment company" or a company "controlled by" an investment
company within the meaning of the Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT"), and the rules and regulations
of the Commission thereunder.
(v) Each of United, the Company and its subsidiaries maintains
a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with United States generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(w) Each of United, the Company and its subsidiaries has in
effect, with insurers the Company reasonably believes to be financially
sound, insurance covering its properties, operations, personnel and
business, which insurance is of the type and in amounts and insures
against such losses and risks as are adequate to protect it and its
business as now conducted or proposed to be conducted as described in
the Offering Memorandum. None of United, the Company or any of its
subsidiaries has received notice from any insurer or agent of such
insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance.
(x) Each of United, the Company and its subsidiaries owns or
possesses adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark
registrations, service ▇▇▇▇ registrations, copyrights, licenses,
technology and know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of its business as now conducted
or proposed to be conducted as described in the Offering Memorandum;
and the conduct of its business will not conflict in any material
respect with, and none of United, the Company or any of its
subsidiaries
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has received any written notice of any infringement of or claim of
conflict with (or knows of such infringement or conflict with), any
such rights of others.
(y) Each of United, the Company and its subsidiaries has good
and marketable title in fee simple to, or has valid rights to lease or
otherwise use, all items of real and personal property which are
material to the business of United, the Company and its subsidiaries,
taken as a whole, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except such
liens, encumbrances, claims, defects and imperfections as (i) are not
in the aggregate material and do not materially interfere with the use
made and proposed to be made of such property by United, the Company
and its subsidiaries or (ii) are reflected in the financial statements
or otherwise described in the Offering Memorandum (including, without
limitation, to secure the New Credit Facilities).
(z) Except as described in the Offering Memorandum, no labor
disturbance by or dispute with the employees of United, the Company or
any of its subsidiaries exists or, to the best knowledge of the
Company, is threatened that could reasonably be expected to have a
Material Adverse Effect.
(aa) No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect
to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan of
United, the Company or any of its subsidiaries which could reasonably
be expected to have a Material Adverse Effect; each such employee
benefit plan is in compliance in all material respects with applicable
law, including ERISA and the Code; each of United, the Company and its
subsidiaries has not incurred and does not expect to incur liability
under Title IV of ERISA with respect to the termination of, or
withdrawal from, any pension plan for which United, the Company or any
of its subsidiaries would have any liability; and each such pension
plan that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which could reasonably be
expected to cause a Material Adverse Effect.
(bb) To the knowledge of the Company, except as disclosed in
the Offering Memorandum, none of United, the Company or any of its
subsidiaries is in violation of any federal or state law or regulation
relating to occupational safety and health or to the storage, handling
or transportation of hazardous or toxic materials, except any such
violation which could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, and each of United, the
Company and its subsidiaries has received all material permits,
licenses or other approvals required under applicable federal and state
occupational safety and health and environmental laws and regulations
to conduct its business. Each of United, the Company and its
subsidiaries is in compliance with all terms and conditions of any such
permits, licenses or approvals, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
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permits, licenses or approvals which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(cc) On and immediately after the Closing Date, each of
United, the Company and the other Guarantors (after giving effect to
the issuance of the Securities and to the other transactions related
thereto as described in the Offering Memorandum) will be Solvent. As
used in this paragraph, the term "SOLVENT" means, with respect to any
entity on a particular date, that on such date (i) the present fair
market value (or present fair saleable value) of the assets of such
entity is not less than the total amount required to pay the probable
liabilities of such entity on its total existing debts and liabilities
(including contingent liabilities) as they become absolute and matured,
(ii) assuming the sale of the Securities as contemplated by this
Agreement and the Offering Memorandum, such entity has not incurred
debts or liabilities beyond its ability to pay as such debts and
liabilities mature and (iii) such entity is not engaged in any business
or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small
capital. In computing the amount of such contingent liabilities at any
time, it is intended that such liabilities will be computed at the
amount that, in the light of all the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
(dd) Except as described in the Offering Memorandum, there are
no outstanding subscriptions, rights, warrants, calls or options to
acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with third parties with respect to the
sale or issuance of, any shares of capital stock of or other equity or
other ownership interest in United, the Company or any of its
subsidiaries.
(ee) None of United, the Company or any of its subsidiaries
owns any "margin securities" as that term is defined in Regulations G
and U of the Board of Governors of the Federal Reserve System (the
"FEDERAL RESERVE BOARD"), and none of the proceeds of the sale of the
Securities will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin security, for the purpose of reducing
or retiring any indebtedness which was originally incurred to purchase
or carry any margin security or for any other purpose which might cause
any of the Securities to be considered a "purpose credit" within the
meanings of Regulation G, T, U or X of the Federal Reserve Board.
(ff) None of United, the Company or any of its subsidiaries is
a party to any contract, agreement or understanding with any person
that would give rise to a valid claim against the Issuers or the
Initial Purchasers for a brokerage commission, finder's fee or like
payment in connection with the offering and sale of the Securities, the
Exchange Securities or the Private Exchange Securities (it being
understood that this Agreement is not such a contract, agreement or
understanding).
(gg) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
(hh) None of United, the Company, the other Guarantors, any of
their affiliates or any person acting on their behalf has engaged or
will engage in any directed selling efforts (as such term is defined in
Regulation S under the Securities Act ("REGULATION S")) with respect to
the Securities, the Exchange Securities or the Private Exchange
Securities,
-10-
and all such persons have complied and will comply with the
offering restrictions requirement of Regulation S to the extent
applicable.
(ii) None of United, the Company, the other Guarantors, nor
any of their affiliates has, directly or through any agent (provided
that no representation is made as to the Initial Purchasers or any
person acting on their behalf), sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any security (as
such term is defined in the Securities Act), which is or will be
integrated with the sale of the Securities in a manner that would
require registration of the Securities under the Securities Act.
(jj) None of United, the Company, the other Guarantors or any
of their affiliates or any other person acting on their behalf
(provided that no representation is made as to the Initial Purchasers
or any person acting on their behalf) has engaged, in connection with
the offering of the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) of Regulation D
under the Securities Act ("REGULATION D") or has solicited offers for,
or has offered and sold, the Securities in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act.
(kk) Other than the common stock of United, there are no
securities of United, the Company or the other Guarantors registered
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), listed on a national securities exchange or quoted in a U.S.
automated inter-dealer quotation system.
(ll) None of United, the Company or any of the other
Guarantors has taken, and none of them will take, directly or
indirectly, any action prohibited by Regulation M under the Exchange
Act in connection with the offering of the Securities, the Exchange
Securities or the Private Exchange Securities.
(mm) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in the Preliminary Offering Memorandum or the Offering
Memorandum has been made or reaffirmed without a reasonable basis or
has been disclosed other than in good faith.
(nn) The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources which the
Company believes to be reliable.
(oo) None of United, the Company or any of its subsidiaries
does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Florida Statutes
Section 517.075.
(pp) Since the date as of which information is given in the
Offering Memorandum, except as otherwise stated therein, (i) there has
been no material adverse change, or any development involving a
prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects
of United, the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business,
(ii) the Company has not incurred any material liability or obligation,
direct or contingent, other than in the ordinary course of business,
(iii) the Company has not entered into any material transaction other
than in the
-11-
ordinary course of business and (iv) there has not been any
change in the capital stock or long-term debt of the Company, or any
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
2. PURCHASE AND RESALE OF THE SECURITIES. (a) On the basis of
the representations, warranties and agreements contained herein, and subject to
the terms and conditions set forth herein, the Issuers agree to issue and sell
to each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Issuers, the principal amount of Notes (including the Guarantees thereof) set
forth opposite the name of such Initial Purchaser on Schedule 1 hereto at a
purchase price equal to 97.25% of the principal amount thereof. The Issuers
shall not be obligated to deliver any of the Securities except upon payment for
all of the Securities to be purchased as provided herein.
(b) The Initial Purchasers have advised the Company that they
propose to offer the Securities for resale upon the terms and subject to the
conditions set forth herein and in the Offering Memorandum. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, the Issuers that (i) it is purchasing the Securities pursuant to a private
sale exempt from registration under the Securities Act and that the Securities
may not be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons except pursuant to an exemption from, or in
transactions not subject to, the registration requirements of the Securities
Act, (ii) it has not solicited offers for, or offered or sold, and will not
solicit offers for, or offer or sell, the Securities by means of any form of
general solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act and it has not engaged, and will not engage,
in any directed selling efforts within the meaning of Rule 902 under the
Securities Act in connection with the Securities, and it will comply with the
offering restrictions and other requirements of Regulation S, (iii) it has
solicited and will solicit offers for the Securities only from, and has offered
or sold and will offer, sell or deliver the Securities, as part of its initial
offering and otherwise until 40 days after the later of the commencement of the
offering of the Securities and Closing Date, only (A) within the United States
to persons whom it reasonably believes to be qualified institutional buyers
("QUALIFIED INSTITUTIONAL BUYERS") as defined in Rule 144A under the Securities
Act ("RULE 144A"), or if any such person is buying for one or more institutional
accounts for which such person is acting as fiduciary or agent, only when such
person has represented to it that each such account is a Qualified Institutional
Buyer to whom notice has been given that such sale or delivery is being made in
reliance on Rule 144A and in each case, in transactions in accordance with Rule
144A and (B) outside the United States to persons other than U.S. persons (as
defined in Rule 902 under the Securities Act) and to whom such Initial Purchaser
reasonably believes offers and sales of the Securities may be made in reliance
on Rule 903 under the Securities Act in transactions meeting the requirements of
Regulation S, and (iv) it is a Qualified Institutional Buyer. Each Initial
Purchaser, severally and not jointly, agrees that, prior to or simultaneously
with the confirmation of sale by such Initial Purchaser to any purchaser of any
of the Securities purchased by such Initial Purchaser from the Issuers pursuant
hereto, such Initial Purchaser shall furnish to that purchaser a copy of the
Offering Memorandum (and any amendment or supplement thereto that the Issuers
shall have furnished to such Initial Purchaser prior to the date of such
confirmation of sale). In addition to the foregoing, each Initial Purchaser
acknowledges and agrees that the Issuers and, for purposes of the opinions to be
delivered to the Initial Purchasers pursuant to Sections 5(d) and (e), counsel
-12-
for the Issuers and for the Initial Purchasers, respectively, may rely upon the
accuracy of the representations and warranties of the Initial Purchasers and
their compliance with their agreements contained in this Section 2, and each
Initial Purchaser hereby consents to such reliance. The Initial Purchasers will
advise the Issuers of the completion of the distribution of Securities pursuant
to Regulation S. Each Initial Purchaser agrees that, at or prior to confirmation
of sale of Securities (other than a sale pursuant to Rule 144A), it will have
sent to each distributor, dealer or person receiving a selling concession, fee
or other remuneration that purchases Securities from it during the restricted
period a confirmation of notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities Act"), and
may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their distribution
at any time or (ii) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the date of original
issuance of the Securities, except in accordance with Regulation S or
Rule 144A or any other available exemption from registration under the
Securities Act. Terms used above have the meanings given to them by
Regulation S."
Each Initial Purchaser represents that it has not entered into
and agrees that it will not enter into any contractual arrangement with respect
to the distribution or delivery of the Securities, except with the prior written
consent of the Company.
(c) Each Initial Purchaser represents, warrants and agrees
that (i) it has not offered or sold and will not offer or sell, in the United
Kingdom, any Securities offered hereby, other than to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 (the "REGULATIONS"), (ii) it has complied
and will comply with all applicable provisions of the Financial Services ▇▇▇
▇▇▇▇ and the Regulations with respect to anything done by it in relation to the
Securities in, from or otherwise involving the United Kingdom, and (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Securities to a
person who is of a kind described in Article 11(3) of the Financial Services ▇▇▇
▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on.
(d) The Issuers acknowledge and agree that the Initial
Purchasers may sell Securities to any affiliate of an Initial Purchaser and that
any such affiliate may sell Securities purchased by it to an Initial Purchaser.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. (a) Delivery of
and payment for the Securities shall be made at the offices of Milbank, Tweed,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, New York, New York, or at such other place as shall be agreed
upon by the Initial Purchasers and the Company, at 10:00 A.M., New York City
time, on April 15, 1998, or at such other time or date, not later than seven
full business days thereafter, as shall be agreed upon by the Initial Purchasers
and the Company (such date and time of payment and delivery being referred to
herein as the "CLOSING DATE").
-13-
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Initial Purchasers of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Initial Purchasers hereunder. Upon delivery,
the Securities shall be in global form, registered in such names and in such
denominations as CSI on behalf of the Initial Purchasers shall have requested in
writing not less than two full business days prior to the Closing Date. The
Company agrees to make one or more global certificates evidencing the Securities
available for inspection by CSI on behalf of the Initial Purchasers in New York,
New York at least 24 hours prior to the Closing Date.
4. FURTHER AGREEMENTS OF THE ISSUERS. Each of the Issuers,
jointly and severally, agrees with each of the several Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if
requested, confirm such advice in writing, of the happening of any
event which makes any statement of a material fact made in the Offering
Memorandum untrue or which requires the making of any additions to or
changes in the Offering Memorandum (as amended or supplemented from
time to time) in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; to advise
the Initial Purchasers promptly upon receipt of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum, of any suspension of the qualification of the
Securities for offering or sale in any jurisdiction and of the
initiation or, to the best knowledge of the Company, the threatening of
any proceeding for any such purpose; and to use its reasonable best
efforts to prevent the issuance of any such order preventing or
suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum or suspending any such qualification and, if any
such suspension is issued, to obtain the lifting thereof at the
earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum (and
any amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the
Offering Memorandum, to furnish a copy thereof to each of the Initial
Purchasers and counsel for the Initial Purchasers and not to effect any
such amendment or supplement to which the Initial Purchasers shall
reasonably object by notice to the Company after a reasonable period to
review, which shall not in any case be longer than 10 business days
after receipt of such copy;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of
counsel for the Initial Purchasers or counsel for the Company, to amend
or supplement the Offering Memorandum in order that the Offering
Memorandum will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing at the time
-14-
it is delivered to a purchaser, not misleading, or if it is necessary
to amend or supplement the Offering Memorandum to comply with
applicable law, to promptly prepare such amendment or supplement as may
be necessary to correct such untrue statement or omission or so that
the Offering Memorandum, as so amended or supplemented, will comply
with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request
of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to and in compliance
with Section 13 or 15(d) of the Exchange Act (the foregoing agreement
being for the benefit of the holders from time to time of the
Securities and prospective purchasers of the Securities designated by
such holders);
(f) for a period of three years following the Closing Date, to
furnish to the Initial Purchasers copies of any annual reports,
quarterly reports and current reports filed by the Company with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar forms as
may be designated by the Commission, and such other documents, reports
and information as shall be furnished by the Company to the Trustee or
to the holders of the Securities pursuant to the Indenture or the
Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the
Initial Purchasers may reasonably request to qualify the Securities for
offering and sale under the state securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may designate and to continue
such qualifications in effect for so long as required for the resale of
the Securities; and to arrange for the determination of the eligibility
for investment of the Securities under the laws of such jurisdictions
as the Initial Purchasers may reasonably request; PROVIDED that in no
event shall any of the Issuers be obligated to qualify as a foreign
corporation in any jurisdiction in which it is not then so qualified or
to take any action which would subject it to general consent to service
of process in any action other than one arising out of the offering of
the Securities in any such jurisdiction where it is not then so
subject, or to subject itself to the payment of taxes in excess of a
nominal amount in any jurisdiction where it is not then so subject;
(h) to assist the Initial Purchasers in arranging for the
Securities to be designated Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL
Market and for the Securities to be eligible for clearance and
settlement through The Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as such term is defined in the Securities Act) which
could be integrated with the sale of the Securities in a manner which
would require registration of the Securities under the Securities Act;
-15-
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause its affiliates not to, and not to
authorize or knowingly permit any person acting on their behalf to,
solicit any offer to buy or offer to sell the Securities, the Exchange
Securities or the Private Exchange Securities by means of any form of
general solicitation or general advertising within the meaning of
Regulation D, by means of any directed selling efforts (as defined in
Regulation S) in connection with the Securities or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act; and not to offer, sell, contract to sell or otherwise
dispose of, directly or indirectly, any securities under circumstances
where such offer, sale, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities Act to cease to be
applicable to the offering and sale of the Securities to the Initial
Purchasers as contemplated by this Agreement and the Offering
Memorandum;
(k) for a period of 90 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement
for, or announce any offer, sale, contract for sale of or other
disposition of any debt securities issued or guaranteed by the Issuers
(other than the Securities, the Exchange Securities, the Private
Exchange Securities and debt incurred in the ordinary course of
business) without the prior written consent of the Initial Purchasers;
(l) until consummation of the Exchange Offer, without the
prior written consent of the Initial Purchasers, not to, and not permit
any of its affiliates (as defined in Rule 144 under the Securities Act)
to, resell any of the Securities, the Exchange Securities or the
Private Exchange Securities that have been reacquired by them, except
for any such securities purchased by the Issuers or any of their
affiliates and resold in a transaction registered under the Securities
Act;
(m) in connection with the offering of the Securities, until
CSI on behalf of the Initial Purchasers shall have notified the Company
of the completion of the resale of the Securities, not to, and to cause
its affiliated purchasers (as defined in Regulation M under the
Exchange Act) not to, either alone or with one or more other persons,
bid for or purchase, for any account in which it or any of its
affiliated purchasers has a beneficial interest, any Securities, or
attempt to induce any person to purchase any Securities; and not to,
and to cause its affiliated purchasers not to, make bids or purchase
for the purpose of creating actual, or apparent, active trading in or
of raising the price of the Securities;
(n) in connection with the offering of the Securities, to make
its officers, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
(o) to furnish to each of the Initial Purchasers on the date
hereof a copy of the independent accountants' report included in the
Offering Memorandum signed by the accountants rendering such report;
(p) to do and perform all things required to be done and
performed by it under this Agreement that are within its control prior
to or after the Closing Date, and to use its
-16-
reasonable best efforts to satisfy all conditions precedent on its
part to the delivery of the Securities;
(q) not to take any action prior to the execution and delivery
of the Indenture which, if taken after such execution and delivery,
would have violated any of the covenants contained in the Indenture;
(r) not to take any action prior to the Closing Date which
would require the Offering Memorandum to be amended or supplemented
pursuant to Section 4(d);
(s) prior to the Closing Date, not to issue any press release
or other communication directly or indirectly or hold any press
conference with respect to any of the Issuers, its condition (financial
or otherwise) or earnings, business affairs or business prospects
(except for routine oral marketing communications in the ordinary
course of business and consistent with the past practices of the
Issuers and of which the Initial Purchasers are notified), without the
prior written consent of the Initial Purchasers, unless in the judgment
of the Issuers and their counsel, and after notification to the Initial
Purchasers, such press release or communication is required by law or
the rules of any national securities exchange or inter-dealer quotation
system; and
(t) to apply the net proceeds from the sale of the Securities
as set forth in the Offering Memorandum under the heading "Use of
Proceeds."
5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The
respective obligations of the several Initial Purchasers hereunder are subject
to the accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of each of the Issuers contained herein, to the
accuracy of the statements of each of the Issuers and their respective officers
made in any certificates delivered pursuant hereto, to the performance by the
Issuers of their obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial
Purchasers may agree; and no stop order suspending the sale of the
Securities in any jurisdiction shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or, to
the best knowledge of the Company, threatened.
(b) None of the Initial Purchasers shall have discovered and
disclosed to the Company on or prior to the Closing Date that the
Offering Memorandum or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the
Initial Purchasers, is material or omits to state any fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of the Transaction
Documents and the Offering Memorandum, and all other legal matters
relating to the Transaction Documents and the transactions contemplated
thereby, shall be reasonably satisfactory in all material respects
-17-
to the Initial Purchasers, and the Issuers shall have furnished to
the Initial Purchasers all documents and information that they or
their counsel may reasonably request to enable them to pass upon such
matters.
(d) (i) Weil, Gotshal & ▇▇▇▇▇▇ LLP, (ii) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Esq., and (iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP shall have furnished to the Initial
Purchasers their respective written opinions, as counsel to the
Issuers, addressed to the Initial Purchasers and dated the Closing
Date, in form and substance reasonably satisfactory to the Initial
Purchasers, substantially to the effect set forth in Exhibit B hereto.
(e) The Initial Purchasers shall have received from Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for the Initial Purchasers, such
opinion or opinions, dated the Closing Date, with respect to such
matters as the Initial Purchasers may reasonably require, and the
Issuers shall have furnished to such counsel such documents and
information as they request for the purpose of enabling them to pass
upon such matters.
(f) The Company shall have furnished to the Initial Purchasers
a letter (the "INITIAL LETTER") of Ernst & Young LLP, addressed to the
Initial Purchasers and dated the date hereof, in form and substance
satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers and counsel to the Initial Purchasers, substantially to the
effect set forth in Exhibit C hereto.
(g) The Company shall have furnished to the Initial Purchasers
a letter (the "BRING-DOWN LETTER") of Ernst & Young LLP, addressed to
the Initial Purchasers and dated the Closing Date (i) confirming that
they are independent public accountants with respect to the Issuers
within the meaning of Rule 101 of the Code of Professional Conduct of
the AICPA and its interpretations and rulings thereunder, (ii) stating,
as of the date of the Bring-Down Letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Offering
Memorandum, as of a date not more than three business days prior to the
date of the Bring-Down Letter), that the conclusions and findings of
such accountants with respect to the financial information and other
matters covered by the Initial Letter are accurate and (iii) confirming
in all material respects the conclusions and findings set forth in the
Initial Letter.
(h) Each Issuer shall have furnished to the Initial Purchasers
a certificate, dated the Closing Date, of its chief executive officer
and its chief financial officer stating that (A) such officers have
carefully examined the Offering Memorandum, (B) in their opinion, the
Offering Memorandum, as of its date, did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and since the date of the Offering
Memorandum, no event has occurred which should have been set forth in a
supplement or amendment to the Offering Memorandum so that the Offering
Memorandum (as so amended or supplemented) would not include any untrue
statement of a material fact and would not omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and (C) as of the Closing Date, the
representations and warranties of such Issuer in this Agreement are
true and correct in all material respects, such Issuer has
-18-
complied in all material respects with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder
on or prior to the Closing Date, and subsequent to the date of the
ent financial statements contained in the Offering Memorandum, there
has been no material adverse change, or any development including a
prospective material adverse change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects
of such Issuer and its subsidiaries taken as a whole, except as set
forth in the Offering Memorandum.
(i) The Initial Purchasers shall have received a counterpart
of the Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of each of the Issuers.
(j) The Indenture shall have been duly executed and delivered
by each of the Issuers and the Trustee, and the Notes shall have been
duly executed and delivered by the Company and duly authenticated by
the Trustee and the Guarantee of each Guarantor shall have been duly
endorsed thereon.
(k) The Notes shall have been approved by the NASD for trading
in the PORTAL Market.
(l) If any event shall have occurred that requires the Issuers
under Section 4(d) to prepare an amendment or supplement to the
Offering Memorandum, such amendment or supplement shall have been
prepared, the Initial Purchasers shall have been given a reasonable
opportunity to comment thereon, and copies thereof shall have been
delivered to the Initial Purchasers reasonably in advance of the
Closing Date.
(m) There shall not have occurred any invalidation of Rule
144A or Regulation S under the Securities Act by any court or any
withdrawal or proposed withdrawal of any rule or regulation under the
Securities Act or the Exchange Act by the Commission or any amendment
or proposed amendment thereof by the Commission which in the reasonable
judgment of the Initial Purchasers would materially impair the ability
of the Initial Purchasers to purchase, hold or effect resales of the
Securities as contemplated hereby.
(n) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which relevant information is given in
the Offering Memorandum (exclusive of any amendment or supplement
thereto) other than as expressly described in the Offering Memorandum,
there shall not have been any change in the capital stock or long-term
debt or any change, or any development involving a prospective change,
in or affecting the management, condition (financial or otherwise),
results of operations, business or prospects of the Company and its
subsidiaries taken as a whole, the effect of which, in any such case
described above, is, in the reasonable judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or delivery of the Securities on
the terms and in the manner contemplated by this Agreement and the
Offering Memorandum (exclusive of any amendment or supplement thereto).
(o) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would,
-19-
as of the Closing Date, prevent the issuance or sale of the Securities,
the Exchange Securities or the Private Exchange Securities, and no
injunction, restraining order or order of any other nature by any
federal or state court of competent jurisdiction shall have been issued
as of the Closing Date which would prevent the issuance or sale of
the Securities, the Exchange Securities or the Private Exchange
Securities, in each case in the manner contemplated by this Agreement,
the Registration Rights Agreement and the Offering Memorandum.
(p) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the Notes
or any of United's or the Company's other debt securities by any
"nationally recognized statistical rating organization", as such term
is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of the Notes or any of United's or the Company's other debt
securities.
(q) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on any such
exchange or market by the Commission, by any such exchange or by any
other regulatory body or governmental authority having jurisdiction, or
trading in any securities of the Company on any exchange or in the
over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by
federal or New York state authorities or (iii) an outbreak or
escalation of hostilities or a declaration by the United States of a
national emergency or war or (iv) a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in the case of this clause (iv),
is, in the reasonable judgment of the Initial Purchasers, so material
and adverse as to make it impracticable or inadvisable to proceed with
the sale or the delivery of the Securities on the terms and in the
manner contemplated by this Agreement and in the Offering Memorandum
(exclusive of any amendment or supplement thereto).
(r) The Company shall have entered into the New Credit
Agreement and the Initial Purchasers or their counsel shall have
received a conformed copy thereof.
(s) The Company shall have entered into the Receivables
Securitization Program and the Initial Purchasers or their counsel
shall have received a conformed copy of the principal operative
documents related thereto.
(t) The Initial Purchasers or their counsel shall have
received a conformed copy of the purchase agreement and related closing
documents for the Azerty Acquisition.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
-20-
6. TERMINATION. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers, in their absolute
discretion, by notice given to and received by the Company prior to delivery of
and payment for the Securities if, prior to that time, any of the events
described in Section 5(m), (n), (o), (p) or (q) shall have occurred and be
continuing.
7. DEFAULTING INITIAL PURCHASERS. (a) If, on the Closing Date,
any Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities which such defaulting Initial Purchaser agreed but
failed to purchase by other persons satisfactory to the Company and the
non-defaulting Initial Purchasers, but if no such arrangements are made within
36 hours after such default, this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers or the Issuers, except that
the Issuers will continue to be liable for the payment of expenses to the extent
set forth in Sections 8 and 12 and except that the provisions of Sections 9 and
10 shall not terminate and shall remain in effect. As used in this Agreement,
the term "Initial Purchasers" includes, for all purposes of this Agreement
unless the context otherwise requires, any party not listed in Schedule 1 hereto
that, pursuant to this Section 7, purchases Securities which a defaulting
Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Initial Purchaser of any liability it may have to the Issuers or any
non-defaulting Initial Purchaser for damages caused by its default. If other
persons are obligated or agree to purchase the Securities of a defaulting
Initial Purchaser, either the non-defaulting Initial Purchasers or the Company
may postpone the Closing Date for up to seven full business days in order to
effect any changes that in the opinion of counsel for the Company or counsel for
the Initial Purchasers may be necessary in the Offering Memorandum or in any
other document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Offering Memorandum that effects any such
changes.
8. REIMBURSEMENT OF INITIAL PURCHASERS' EXPENSES. If (a) this
Agreement shall have been terminated pursuant to Section 6 or 7, (b) the Issuers
shall fail to tender the Securities for delivery to the Initial Purchasers for
any reason permitted under this Agreement or (c) the Initial Purchasers shall
decline to purchase the Securities for any reason permitted under this
Agreement, the Issuers shall reimburse the Initial Purchasers for such
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
as shall have been reasonably incurred by the Initial Purchasers in connection
with this Agreement and the proposed purchase and resale of the Securities. If
this Agreement is terminated pursuant to Section 7 by reason of the default of
one or more of the Initial Purchasers, the Issuers shall not be obligated to
reimburse any defaulting Initial Purchaser on account of such expenses.
9. INDEMNIFICATION. (a) Each of the Issuers, jointly and
severally, shall indemnify and hold harmless each Initial Purchaser, its
affiliates, their respective officers, directors, employees, representatives and
agents, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 9(a) and Section 10 as an Initial Purchaser), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to which
that Initial Purchaser may become subject, whether commenced or threatened,
under the Securities Act, the Exchange Act, any other federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action
-21-
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum
or the Offering Memorandum or in any amendment or supplement thereto or in
any information provided by the Issuers to the holders of the Securities
pursuant to Section 4(e) or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and shall reimburse each Initial Purchaser
promptly upon demand for any legal or other expenses reasonably incurred by
that Initial Purchaser in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; PROVIDED, HOWEVER, that the Issuers shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Initial Purchasers'
Information; and PROVIDED, FURTHER, that with respect to any such untrue
statement in or omission from the Preliminary Offering Memorandum, the
indemnity agreement contained in this Section 9(a) shall not inure to the
benefit of any such Initial Purchaser to the extent that the sale to the
person asserting any such loss, claim, damage, liability or action was an
initial resale by such Initial Purchaser and any such loss, claim, damage,
liability or action of or with respect to such Initial Purchaser results from
the fact that both (A) a copy of the Offering Memorandum was not sent or
given to such person at or prior to the written confirmation of the sale of
such Securities to such person and (B) the untrue statement in or omission
from the Preliminary Offering Memorandum was corrected in the Offering
Memorandum unless, in either case, such failure to deliver the Offering
Memorandum was a result of non-compliance by the Issuers with Section 4(b).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless each of the Issuers, their respective affiliates,
their respective officers, directors, employees, representatives and agents,
and each person, if any, who controls each Issuer within the meaning of the
Securities Act or the Exchange Act (collectively referred to for purposes of
this Section 9(b) and Section 10 as the Issuers), from and against any loss,
claim, damage or liability, joint or several, or any action in respect
thereof, to which the Issuers may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based
upon, (i) any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case
only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
any Initial Purchasers' Information, and shall reimburse the Issuers promptly
upon demand for any legal or other expenses reasonably incurred by the
Issuers in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party pursuant to Section 9(a) or 9(b), notify the
indemnifying party in writing of the claim or the commencement of that action;
-22-
PROVIDED, HOWEVER, that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have under this Section 9
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and, PROVIDED,
FURTHER, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have to an indemnified party otherwise
than under this Section 9. If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there
may be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based upon advice of counsel to
the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 9(a) and 9(b),
shall use all reasonable efforts to cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release in form and
substance reasonably satisfactory to such indemnified party of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
The obligations of the Issuers and the Initial Purchasers in
this Section 9 and in Section 10 are in addition to any other liability that
the Issuers or the Initial Purchasers, as the case may be, may otherwise
have, including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
-23-
10. CONTRIBUTION. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified
party under Section 9(a) or 9(b), then each indemnifying party shall, in lieu
of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Issuers on the
one hand and the Initial Purchasers on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuers on the one hand and the Initial Purchasers on
the other with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received
by the Issuers on the one hand and the Initial Purchasers on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by or on behalf of the
Issuers, on the one hand, and the total discounts and commissions received by
the Initial Purchasers with respect to the Securities purchased under this
Agreement, on the other, bear to the total gross proceeds from the sale of
the Securities under this Agreement, in each case as set forth in the table
on the cover page of the Offering Memorandum. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to the Issuers or information supplied by the
Issuers on the one hand or to any Initial Purchasers' Information on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Issuers and the Initial Purchasers agree that it would not be
just and equitable if contributions pursuant to this Section 10 were to be
determined by PRO RATA allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
that does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 10 shall be deemed to include, for purposes of this
Section 10, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing
to defend any such action or claim. Notwithstanding the provisions of this
Section 10, no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total discounts and commissions received
by such Initial Purchaser with respect to the Securities purchased by it
under this Agreement exceeds the amount of any damages which such Initial
Purchaser has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute as provided in this Section 10 are several in
proportion to their respective purchase obligations and not joint.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Issuers and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except as
provided in Sections 9 and 10 with respect to affiliates, officers,
directors, employees, representatives, agents and controlling persons of the
Issuers and the Initial Purchasers and in Section 4(e) with respect to
holders and prospective purchasers of the
-24-
Securities. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 11, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
12. EXPENSES. The Issuers agree with the Initial Purchasers to
pay (a) the costs incident to the authorization, issuance, sale, preparation
and delivery of the Securities and any taxes payable in that connection; (b)
the costs incident to the preparation, printing and distribution of the
Preliminary Offering Memorandum, the Offering Memorandum and any amendments
or supplements thereto; (c) the costs of reproducing and distributing each of
the Transaction Documents; (d) the costs incident to the preparation,
printing and delivery of the certificates evidencing the Securities,
including stamp duties and transfer taxes, if any, payable upon issuance of
the Securities; (e) the fees and expenses of the Issuers' counsel and
independent accountants; (f) the fees and expenses of qualifying the
Securities under the securities laws of the several jurisdictions as provided
in Section 4(g) and of preparing, printing and distributing Blue Sky
Memoranda (including related reasonable fees and expenses of counsel for the
Initial Purchasers); (g) any fees charged by rating agencies for rating the
Securities; (h) the fees and expenses of the Trustee and any paying agent
(including related reasonable fees and expenses of any counsel to such
parties); (i) all expenses and application fees incurred in connection with
the application for the inclusion of the Securities on the PORTAL Market and
the approval of the Securities for book-entry transfer by DTC; and (j) all
other costs and expenses incident to the performance of the obligations of
the Issuers under this Agreement which are not otherwise specifically
provided for in this Section 12; PROVIDED, HOWEVER, that except as provided
in this Section 12 and Section 8, the Initial Purchasers shall pay their own
costs and expenses (including the costs and expenses of their legal counsel
other than as provided in clause (f) above).
13. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Issuers and
the Initial Purchasers contained in this Agreement or made by or on behalf of
the Issuers or the Initial Purchasers pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any of them or any of their respective
affiliates, officers, directors, employees, representatives, agents or
controlling persons.
14. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail or telecopy transmission to Chase Securities Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇ (telecopier
no.: (▇▇▇) ▇▇▇-▇▇▇▇); or
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Offering Memorandum, Attention: General Counsel (telecopier no.:
(▇▇▇) ▇▇▇-▇▇▇▇);
PROVIDED that any notice to an Initial Purchaser pursuant to Section 9(c) shall
also be delivered or sent by mail to such Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Issuers shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Initial Purchasers by CSI.
-25-
15. DEFINITION OF TERMS. For purposes of this Agreement, (a)
the term "business day" means any day on which The New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
16. INITIAL PURCHASERS' INFORMATION. The parties hereto
acknowledge and agree that, for all purposes of this Agreement, the Initial
Purchasers' Information consists solely of the following information in the
Preliminary Offering Memorandum and the Offering Memorandum: (i) the last
paragraph on the front cover page concerning the terms of the offering by the
Initial Purchasers; (ii) the legend on page i concerning over-allotment and
trading activities by the Initial Purchasers; and (iii) the statements
concerning the Initial Purchasers contained in the first sentence of the third
paragraph, the second sentence of the ninth paragraph, the eleventh paragraph
and the twelfth paragraph under the heading "Plan of Distribution."
17. GOVERNING LAW. 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 (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. AMENDMENTS. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
20. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
-26-
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between each of the Issuers and the
several Initial Purchasers in accordance with its terms.
Very truly yours,
UNITED STATIONERS SUPPLY CO.
By
--------------------------------------
Name:
Title:
UNITED STATIONERS INC.
By
--------------------------------------
Name:
Title:
▇▇▇▇▇▇▇ BROS., INC.
By
--------------------------------------
Name:
Title:
AZERTY INCORPORATED
By
--------------------------------------
Name:
Title:
POSITIVE ID WHOLESALE INC.
By
--------------------------------------
Name:
Title
-27-
AP SUPPORT SERVICES INCORPORATED
By
--------------------------------------
Name:
Title:
Accepted:
CHASE SECURITIES INC.
By
-----------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Department
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By
-----------------------------
Authorized Signatory
Address for notices pursuant to Section 9(c):
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
-28-
SCHEDULE 1
Principal
Amount
Initial Purchasers Of Securities
-------------------------------------------------------------------------------
Chase Securities Inc. $ 90,000,000
10,000,000
------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $100,000,000
S-1