Exhibit 10.5
Denny's Holdings, Inc.
$175,000,000 10% Senior Notes due 2012
PURCHASE AGREEMENT
September 29, ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
UBS Securities LLC
▇▇▇▇▇▇▇, Sachs & Co.
Banc of America Securities LLC
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇'▇ Holdings, Inc., a New York corporation (the
"Company"), and ▇▇▇▇▇'▇ Corporation, a Delaware corporation ("Parent"), agree
with you as follows:
1. Issuance of Notes. Subject to the terms and conditions contained
herein, the Company proposes to issue and sell to UBS Securities LLC (the
"Representative") and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and Banc of America Securities LLC
(together with the Representative, the "Initial Purchasers") $175,000,000
aggregate principal amount of 10% Senior Notes due 2012 (the "Original Notes").
The Company's obligations under the Original Notes and the Indenture (as defined
below) will be unconditionally guaranteed (the "Guarantees"), on a senior basis,
by Parent (in such capacity, the "Guarantor," and, together with the Company,
the "Issuers"). The Original Notes and the Guarantees are referred to herein as
the "Securities." The Securities will be issued pursuant to an indenture (the
"Indenture"), to be dated the Closing Date (as defined herein), by and between
the Issuers and U.S. Bank National Association, as trustee (the "Trustee").
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Indenture.
The Securities will be offered and sold to the Initial
Purchasers pursuant to an exemption from the registration requirements under the
Securities Act of 1933, as amended (the "Act"). The Issuers have prepared a
preliminary offering memorandum, dated as of September 17, 2004 (as amended or
supplemented at the date thereof, including any and all exhibits thereto and any
information incorporated by reference therein, the "Preliminary Offering
Memorandum"), and a final offering memorandum dated as of and available for
distribution on the date hereof (as amended or supplemented at the date hereof,
including any and all exhibits thereto and any information incorporated by
reference therein, the "Offering Memorandum") relating to the Issuers and the
Securities. Unless stated to the contrary, any references herein to the terms
"amend", "amendment" or "supplement" with respect to the Offering Memorandum
shall be deemed to refer to and include any information filed under the
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Securities Exchange Act of 1934, as amended ( the "Exchange Act") subsequent to
the date hereof that is incorporated by reference therein. All references in
this Agreement to financial statements and schedules and other information which
is "contained," "included" or "stated" in the Offering Memorandum (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are incorporated
by reference in the Offering Memorandum.
The Initial Purchasers have advised the Issuers that the
Initial Purchasers intend, as soon as they deem practicable after this Purchase
Agreement (this "Agreement") has been executed and delivered, to resell (the
"Exempt Resales") the Securities in private sales exempt from registration under
the Act on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom the Initial Purchasers reasonably
believe to be "qualified institutional buyers" ("QIBs"), as defined in Rule 144A
under the Act ("Rule 144A"), and (ii) other eligible purchasers pursuant to
offers and sales that occur outside the United States within the meaning of
Regulation S under the Act ("Regulation S") (the persons specified in clauses
(i) and (ii), the "Eligible Purchasers").
Holders (including subsequent transferees) of the Securities
will have the registration rights under the registration rights agreement (the
"Registration Rights Agreement"), between the Issuers and the Initial
Purchasers, to be dated the Closing Date, substantially in the form attached
hereto as Exhibit A. Under the Registration Rights Agreement, and under the
circumstances set forth therein, the Issuers will agree to (i) file with the
Securities and Exchange Commission (the "Commission") (a) a registration
statement under the Act (the "Exchange Offer Registration Statement") relating
to a new issue of debt securities (collectively with the Private Exchange Notes
(as defined in the Registration Rights Agreement), the "Exchange Notes" and,
together with the Original Notes, the "Notes"), guaranteed by the Guarantors
under the Indenture, to be offered in exchange for the Original Notes (the
"Exchange Offer") and issued under the Indenture or an indenture substantially
identical to the Indenture and/or (b) under certain circumstances set forth in
the Registration Rights Agreement, a shelf registration statement pursuant to
Rule 415 under the Act (the "Shelf Registration Statement") relating to the
resale by certain holders of the Original Notes, (ii) to use its reasonable best
efforts to cause the Exchange Offer Registration Statement and, if applicable,
the Shelf Registration Statement to be declared effective and (iii) to
consummate the Exchange Offer, all with the time periods specified in the
Registration Rights Agreement.
The Securities are being issued as part of a refinancing of
certain outstanding indebtedness of Parent, the Company and its Subsidiaries, as
defined herein. On September 21, 2004, certain of the Subsidiaries entered into
new aggregate $420 million senior secured credit facilities (the "Credit
Facilities," and, together with all other documents related to such facilities,
the "Credit Documents") with Banc of America Securities LLC and UBS Securities
LLC, as joint lead arrangers, the lenders party thereto and Parent and the
Company as Guarantors thereunder. The borrowers under the Credit Facilities
initially borrowed approximately $345 million thereunder, a portion of which was
used to refinance the then-existing credit facility. In addition, a portion of
the proceeds from the initial borrowings under the Credit Facilities are being
used in connection with a tender offer (the "12 3/4% Tender Offer") commenced by
Parent on September 7, 2004 to purchase any and all of the $111.7 million of
outstanding 12 3/4% Senior Notes due 2007 issued by the Company and Parent (the
"12 3/4% Notes"). As further part of the refinancing transactions, on September
7, 2004, Parent commenced a tender offer (the "11 1/4% Tender Offer" and
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together with the 12 3/4% Tender Offer, the "Tender Offers") to purchase any and
all of the $343.9 million outstanding 11 1/4% Senior Notes Due 2008 issued by
the Parent (the "11 1/4% Notes"). In connection with the Tender Offers, Parent
also commenced consent solicitations (the "Consent Solicitations") to amend
certain provisions of each of the indentures relating to the 11 1/4% Notes and
12 3/4% Notes to be effectuated pursuant to supplemental indentures (the
"Supplemental Indentures"). All documents related to the Tender Offers and
Consent Solicitations are hereinafter sometimes referred to collectively as the
"Tender Documents." Any of the 11 1/4% Notes or the 12 3/4% Notes outstanding
after the closing of the Tender Offers will be redeemed by the Company pursuant
to the terms of the applicable indentures (the "Redemption"). Additional
proceeds from the initial borrowings under the Credit Facilities, together with
the net proceeds from the issuance and sale of the Securities, will be used to
purchase any 11 1/4% Notes tendered in the 11 1/4% Tender Offer or under the
Redemption, as relates to the 11 1/4% Notes and to pay the related consent fee
in the Consent Solicitations for the 11 1/4% Notes.
This Agreement, the Notes, the Guarantees, the Indenture and
the Registration Rights Agreement are hereinafter sometimes referred to
collectively as the "Note Documents." The Note Documents, the Credit Documents,
the Supplemental Indenture and the Tender Documents are hereinafter sometimes
referred to collectively as the "Transaction Documents," and the issuance and
sale of the Securities, the entering into the Credit Documents and the initial
borrowings under the Credit Facilities, the Redemption, the Tender Offers and
Consent Solicitations, the entering into the Supplemental Indenture and the
Exchange Offer are hereinafter sometimes referred to collectively as the
"Transactions."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained in this Agreement, the Issuers
agree to issue and sell to the Initial Purchasers, and on the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained in this Agreement, each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Issuers, the aggregate principal amount of the Securities set forth opposite its
name on Schedule I attached hereto. The purchase price for the Securities shall
be 97.5% of their principal amount.
3. Delivery and Payment. Delivery of, and payment of the
purchase price for, the Securities shall be made at 10:00 a.m., New York time,
on October 5, 2004 (such date and time, the "Closing Date") at the offices of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. The Closing Date and the location of delivery of and the form of payment
for the Securities may be varied by mutual agreement between the Initial
Purchasers and the Issuers.
The Securities shall be delivered by the Issuers to the
Initial Purchasers (or as the Initial Purchasers direct) through the facilities
of The Depository Trust Company ("DTC") against payment by the Initial
Purchasers of the purchase price therefor by means of wire transfer of
immediately available funds to such account or accounts specified by the Company
in accordance with Section 8(j) on or prior to the Closing Date, or by such
means as the parties hereto shall agree prior to the Closing Date. The
Securities shall be evidenced by one or more certificates in global form
registered in such names as the Initial Purchasers may request upon at least one
business day's notice prior to the Closing Date and having an aggregate
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principal amount corresponding to the aggregate principal amount of the
Securities.
4. Agreements of the Issuers. The Issuers, jointly and
severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers, without charge, with as many
copies of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments or supplements thereto, as the Initial
Purchasers may reasonably request. The Issuers consent to the use of
the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments and supplements thereto, by the Initial Purchasers in
connection with Exempt Resales.
(b) To prepare the Offering Memorandum in a form approved by the
Initial Purchasers and not to make any changes or additions to the
information contained in the Offering Memorandum from the
corresponding information contained in the Preliminary Offering
Memorandum other than (i) changes to reflect pricing information with
respect to the Securities and (ii) such other changes and additions as
to which the Representative shall have consented. Not to amend or
supplement the Offering Memorandum prior to the Closing Date unless
the Initial Purchasers shall previously have been advised of such
proposed amendment or supplement at least two business days prior to
the proposed use and shall not have objected to such amendment or
supplement.
(c) If, at any time prior to the expiration of nine months after
the date of the Offering Memorandum, any event shall occur that, in
the judgment of the Issuers or in the judgment of counsel to the
Initial Purchasers, makes any statement of a material fact in the
Offering Memorandum, as then amended or supplemented, untrue or that
requires the making of any additions to or changes in the Offering
Memorandum in order to make the statements in the Offering Memorandum,
as then amended or supplemented, in the light of the circumstances
under which they are made, not misleading, or if it is necessary to
amend or supplement the Offering Memorandum to comply with all
applicable laws, the Issuers shall promptly notify the Initial
Purchasers of such event and (subject to Section 4(b)) prepare an
appropriate amendment or supplement to the Offering Memorandum so that
(i) the statements in the Offering Memorandum, as amended or
supplemented, will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances at the time that
the Offering Memorandum is delivered to prospective Eligible
Purchasers, not misleading and (ii) the Offering Memorandum will
comply with applicable law.
(d) To qualify or register the Securities under the securities
laws of such jurisdictions as the Initial Purchasers may request and
to continue such qualification in effect so long as required for the
Exempt Resales. Notwithstanding the foregoing, no Issuer shall be
required to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or to execute a general consent to
service of process in any such jurisdiction or subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
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(e) To advise the Initial Purchasers promptly, and if requested
by the Initial Purchasers, to confirm such advice in writing, of the
issuance by any securities commission of any stop order suspending the
qualification or exemption from qualification of any of the Securities
for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purpose by any securities commission or other
regulatory authority. The Issuers shall use their reasonable best
efforts to prevent the issuance of any stop order or order suspending
the qualification or exemption of any of the Securities under any
securities laws, and if at any time any securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption of any of the Securities under any securities laws, the
Issuers shall use their reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this
Agreement are consummated, to pay all costs, expenses, fees and
disbursements (including fees and disbursements of counsel and
accountants for the Issuers) incurred and stamp, documentary or
similar taxes incident to and in connection with: (i) the
preparation, printing and distribution of the Preliminary Offering
Memorandum and the Offering Memorandum and any amendments and
supplements thereto, (ii) all expenses (including travel expenses) of
the Issuers and the Initial Purchasers in connection with any meetings
with prospective investors in the Securities, (iii) the preparation,
notarization (if necessary) and delivery of the Note Documents and all
other agreements, memoranda, correspondence and documents prepared and
delivered in connection with this Agreement and with the Exempt
Resales, (iv) the issuance, transfer and delivery of the Securities by
the Issuers to the Initial Purchasers, (v) the qualification or
registration of the Securities for offer and sale under the securities
laws of the several states of the United States or provinces of Canada
(including, without limitation, the cost of printing and mailing
preliminary and final Blue Sky or legal investment memoranda and
reasonable fees and disbursements of counsel (including local counsel)
to the Initial Purchasers relating thereto), (vi) the application for
quotation of the Securities in The Portal Market ("Portal") of the
National Association of Securities Dealers, Inc. ("NASD"), (vii) the
inclusion of the Securities in the book-entry system of DTC, (viii)
the rating of the Securities by rating agencies, (ix) the fees and
expenses of the Trustee and its counsel and (x) the performance by the
Issuers of their other obligations under the Note Documents.
(g) To use the proceeds from the sale of the Securities in the
manner described in the Offering Memorandum under the caption "Use of
proceeds."
(h) To use their reasonable best efforts to do and perform all
things required to be done and performed under this Agreement by it
prior to or after the Closing Date and to satisfy all conditions
precedent on its part to the delivery of the Securities.
(i) Not to, and not to permit any Subsidiary to, sell, offer for
sale or solicit offers to buy any security (as defined in the Act)
that would be integrated with the sale of the Securities in a manner
that would require the registration under the Act of the sale of the
Securities to the Initial Purchasers or any Eligible Purchasers.
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(j) Not to, and to cause its affiliates (as defined in Rule 144
under the Act) not to, resell any of the Securities that have been
reacquired by any of them.
(k) Not to engage, not to allow any Subsidiary to engage, and to
cause its other affiliates over which they have control and any person
acting on their behalf (other than, in any case, the Initial
Purchasers and any of their affiliates, as to whom the Issuers make no
covenant) not to engage, in any form of general solicitation or
general advertising (within the meaning of Regulation D under the Act)
in connection with any offer or sale of the Securities in the United
States.
(l) In connection with Securities offered or sold in an
off-shore transaction, not to engage, not to allow any Subsidiary to
engage, and to cause its other affiliates and any person acting on
their behalf (other than, in any case, the Initial Purchasers and any
of their affiliates, as to whom the Issuers make no covenant) not to
engage, in any directed selling effort with respect to the Securities,
and to comply with the offering restrictions requirement of Regulation
S. Terms used in this paragraph have the meanings given to them by
Regulation S.
(m) From and after the Closing Date, for so long as any of the
Securities remain outstanding and are "restricted securities" within
the meaning of Rule 144(a)(3) under the Act and during any period in
which neither the Company nor Parent (so long as Parent acts as
Guarantor) is subject to Section 13 or 15(d) of the Exchange Act, to
make available upon request the information required by Rule 144A(d)
(4) under the Act to (i) any holder or beneficial owner of Securities
in connection with any sale of such Securities and (ii) any
prospective purchaser of such Securities from any such holder or
beneficial owner designated by the holder or beneficial owner. The
Company will pay the expenses of preparing, printing and distributing
such documents.
(n) To comply with their obligations under the Registration
Rights Agreement.
(o) To comply with their obligations under the letter of
representations to DTC relating to the approval of the Securities by
DTC for "book-entry" transfer and to use their reasonable best efforts
to obtain approval of the Securities by DTC for "book-entry" transfer.
(p) To furnish without charge to the Initial Purchasers, (i)
prior to the Closing Date, as soon as they have been prepared by
Parent, a copy of any regularly prepared internal financial statements
of Parent and the Subsidiaries (including condensed consolidating
financial information on the same basis as that included in the
Offering Memorandum) for any period subsequent to the period covered
by the financial statements appearing in the Offering Memorandum and
(ii) during a period of five years after the Closing Date (A) all
other reports and other communications (financial or otherwise) that
Parent (so long as Parent acts as Guarantor) or the Company mails or
otherwise makes available to its respective security holders or
furnishes to or files with the Commission and (B) such other
information as the Initial Purchasers shall reasonably request.
(q) Not to, and not to permit any of its affiliates or anyone
acting on its or its affiliates' behalf to (other than the Initial
Purchasers and their affiliates), distribute prior to the Closing Date
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any offering material in connection with the offer and sale of the
Securities other than the Preliminary Offering Memorandum and the
Offering Memorandum.
(r) During the period of two years after the Closing Date or, if
earlier, until such time as the Securities are no longer restricted
securities (as defined in Rule 144 under the Act), not to be or become
a closed-end investment company required to be registered under the
Investment Company Act of 1940, as amended.
(s) In connection with the offering, until the Initial
Purchasers shall have notified the Issuers of the completion of the
distribution of the Securities, not to, and not to permit any of their
affiliates (as such term is defined in Rule 501(b) of Regulation D
under the Act) to, either alone or with one or more other persons, bid
for or purchase for any account in which they or any of their
affiliates has a beneficial interest, for the purpose of creating
actual or apparent active trading in, or of raising the price of, the
Securities.
(t) to use their reasonable best efforts to effect the inclusion
of the Securities in Portal.
(u) During the period from the date hereof through and including
the date that is 90 days after the date hereof, without the prior
written consent of the Representative, offer, sell, contract to sell
or otherwise dispose of any debt securities issued or guaranteed by
either Issuer or any Subsidiary and having a tenor of more than one
year.
5. Representations and Warranties. (a) The Issuers, jointly and
severally, represent and warrant to the Initial Purchasers that:
(i) The Preliminary Offering Memorandum and the Offering
Memorandum, and each amendment or supplement thereto, if any, have
been prepared for use in connection with the Exempt Resales. The
Preliminary Offering Memorandum, the Offering Memorandum and any
supplement or amendment thereto did not and will not, as of their
respective dates, contain any untrue statement of a material fact or
omits to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Issuers make no
representation or warranty with respect to information relating to the
Initial Purchasers contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum or any supplement or
amendment thereto in reliance upon and in conformity with information
furnished to the Issuers in writing by or on behalf of any Initial
Purchaser, directly or indirectly, through the Representative
expressly for inclusion in the Preliminary Offering Memorandum, the
Offering Memorandum or any supplement or amendment thereto. No order
preventing the use of the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, or any
order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has
been issued or, to the knowledge of the Issuers, has been threatened.
The documents incorporated or deemed to be incorporated by reference
in the Preliminary Offering Memorandum or the Offering Memorandum at
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the time they were or hereafter are filed with the Commission complied
and will comply in all material respects with the requirements of the
Exchange Act and the rules and regulations of the Commission
thereunder (the "Exchange Act Regulations"), and, when read together
with the other information in the Offering Memorandum, do not and will
not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(ii) There are no securities of the Issuers that are listed on
a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated
interdealer quotation system of the same class within the meaning of
Rule 144A as the Securities.
(iii) Parent is subject to Section 13 or 15(d) of the Exchange
Act.
(iv) As of the Closing Date, Parent shall have the
capitalization as set forth under the heading "Capitalization" in the
Offering Memorandum. All of the issued and outstanding equity
interests of Parent have been duly authorized and validly issued, are
fully paid and nonassessable and were not issued in violation of any
preemptive or similar right. Attached as Schedule II is a true and
complete list of each entity in which Parent has a direct or indirect
majority equity or voting interest, including the Company (each a
"Subsidiary" and, together, the "Subsidiaries"), their jurisdictions
of organization, name of their equityholder(s) and percentage held by
each equity holder. The Company is wholly owned by Parent and is the
only entity in which Parent holds a direct majority equity or voting
interest. All of the issued and outstanding equity interests of each
Subsidiary have been duly and validly authorized and issued, are fully
paid and nonassessable, were not issued in violation of any preemptive
or similar right and, except as set forth in the Offering Memorandum,
are owned, directly or indirectly through Subsidiaries, by Parent free
and clear of all liens (other than transfer restrictions imposed by
the Act, the securities or Blue Sky laws of certain jurisdictions and
security interests granted pursuant to the Credit Documents). Except
for rights to purchase or receive up to an aggregate of 162,000 shares
of common stock of Parent granted to non-employee directors on August
25, 2004 or as set forth in the Offering Memorandum, there are no
outstanding options, warrants or other rights to acquire or purchase,
or instruments convertible into or exchangeable for, any equity
interests of Parent or any of the Subsidiaries. No holder of any
securities of Parent or any of the Subsidiaries is entitled to have
such securities (other than the Securities) registered under any
registration statement contemplated by the Registration Rights
Agreement.
(v) Each of Parent and each Subsidiary (A) is a corporation,
limited liability company, partnership or other entity duly organized
and validly existing under the laws of the jurisdiction of its
organization; (B) has all requisite corporate power and authority
necessary to own its property and carry on its business as now being
conducted and (C) is qualified to do business and is in good standing
in all jurisdictions in which the nature of the business conducted by
it or its ownership of property makes such qualification necessary,
except where the failure to be so qualified and be in good standing,
individually or in the aggregate, would not have, individually or in
the aggregate, a Material Adverse Effect. A "Material Adverse Effect"
means (x) a material adverse effect on the business, condition
(financial or other), results of operations, performance, properties
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or prospects of Parent and the Subsidiaries, taken as a whole, or (y)
an adverse effect on the ability to consummate the Transactions on a
timely basis.
(vi) Each Issuer has all requisite corporate or other power
and authority to execute, deliver and perform all of its obligations
under the Note Documents to which it is a party and to consummate the
transactions contemplated thereby and, without limitation, each Issuer
has all requisite corporate power and authority to issue, sell and
deliver and perform its obligations under the Securities to be issued
by it.
(vii) This Agreement has been duly and validly authorized,
executed and delivered by each Issuer.
(viii) The Indenture has been duly and validly authorized by
each Issuer and, when duly executed and delivered by the Issuers
(assuming the due authorization, execution and delivery thereof by the
Trustee), will be a legally binding and valid obligation of each such
Issuer, enforceable against it in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (the "Bankruptcy
Exceptions"). The Indenture, when executed and delivered, will conform
in all material respects to the description thereof in the Offering
Memorandum.
(ix) The Original Notes have been duly and validly authorized
for issuance and sale to the Initial Purchasers by the Company, and
when executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and when delivered to
and paid for by the Initial Purchasers in accordance with the terms of
this Agreement and the Indenture, the Original Notes will be legally
binding and valid obligations of the Company, entitled to the benefits
of the Indenture and enforceable against the Company in accordance
wwth their terms, except as the enforcement thereof may be limited by
the Bankruptcy Exceptions. The Original Notes, when issued,
authenticated by the Trustee and delivered, will conform in all
material respects to the description thereof in the Offering
Memorandum. The Exchange Notes have been, or on or before the Closing
Date will be, duly and validly authorized for issuance by the Company,
and when issued, authenticated and delivered by the Company in
accordance with the terms of the Registration Rights Agreement, the
Exchange Offer and the Indenture, the Exchange Notes will be legally
binding and valid obligations of the Company, entitled to the benefits
of the Indenture and enforceable against the Company in accordance
with their terms, except as the enforcement thereof may be limited by
the Bankruptcy Exceptions.
(x) The Guarantees, when the Original Notes are issued,
authenticated by the Trustee and delivered by the Company against
payment by the Initial Purchasers in accordance with the terms of this
Agreement and the Indenture, will be legally binding and valid
obligations of the Guarantor, enforceable against the Guarantor in
accordance with their terms, except that enforceability thereof may be
limited by the Bankruptcy Exceptions. The guarantees to be endorsed
on the Exchange Notes, when the Exchange Notes are issued,
authenticated by the Trustee and delivered in accordance with the
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terms of the Registration Rights Agreement, the Exchange Offer and the
Indenture, will be legally binding and valid obligations of the
guarantors under the Indenture, enforceable against each of them in
accordance with their terms, except that enforceability thereof may be
limited by the Bankruptcy Exceptions.
(xi) The Registration Rights Agreement has been duly and
validly authorized by each Issuer and, when duly executed and
delivered by the Issuers (assuming the due authorization, execution
and delivery thereof by the Initial Purchasers), will constitute a
valid and legally binding obligation of each such Issuer, enforceable
against it in accordance with its terms, except that (A) the
enforcement thereof may be limited by the Bankruptcy Exceptions and
(B) any rights to indemnity or contribution thereunder may be limited
by federal and state securities laws and public policy considerations.
The Registration Rights Agreement, when executed and delivered, will
conform in all material respects to the description thereof in the
Offering Memorandum.
(xii) Each of the representations and warranties of Parent or
any Subsidiary in any other Transaction Document is true and correct
in all material respects.
(xiii) Neither Parent nor any Subsidiary is (A) in violation of
its charter, bylaws or other constitutive documents, (B) in default
(or, with notice or lapse of time or both, would be in default) in the
performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note, indenture, mortgage,
deed of trust, loan or credit agreement, lease, license, franchise
agreement, authorization, permit, certificate or other agreement or
instrument to which Parent or any Subsidiary is a party or by which
any of them is bound or to which any of their assets or properties is
subject (collectively, "Agreements and Instruments"), or (C) in
violation of any law, statute, rule or regulation or any judgment,
order or decree of any domestic or foreign court or other governmental
or regulatory authority, agency or other body with jurisdiction over
any of them or any of their assets or properties ("Governmental
Authority"), except, in the case of clauses (B) and (C), for such
defaults or violations as would not have, individually or in the
aggregate, a Material Adverse Effect.
(xiv) The execution, delivery and performance of the
Transaction Documents and consummation of the Transactions does not
and will not (i) violate the charter, bylaws or other constitutive
documents of Parent or any Subsidiary, (ii) conflict with or
constitute a breach of or a default under (or an event that with
notice or the lapse of time, or both, would constitute a default), or
require consent under, or result in a Repayment Event (as defined
below), other than a Repayment Event that will be satisfied at the
Closing Time as contemplated by the Offering Memorandum, or the
creation or imposition of a lien, charge or encumbrance on any
property or assets of Parent or any Subsidiary (other than as created
pursuant to the Credit Documents) under any of the Agreements and
Instruments or (iii) violate any law, statute, rule or regulation,
including, without limitation, Regulation T, U or X of the Board of
Governors of the Federal Reserve System, or any judgment, order or
decree of any Governmental Authority. Assuming the accuracy of the
representations and warranties of the Initial Purchasers in Section
5(b) of this Agreement, no consent, approval, authorization or order
of, or filing, registration, qualification, license or permit of or
with, any Governmental Authority is required to be obtained or made by
Parent or any Subsidiary for the execution, delivery and performance
by Parent or any Subsidiary of the Transaction Documents and the
consummation of the Transactions, except (A) such as have been or will
be obtained or made on or prior to the Closing Date and (B)
registration of the Exchange Offer or resale of the Notes under the
Act pursuant to the Registration Rights Agreement, and qualification
of the Indenture under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"), in connection with the issuance of the
Exchange Notes. No consents or waivers from any other person or
entity are required for the execution, delivery and performance of the
Transaction Documents and the consummation of the Transactions, other
than such consents and waivers as have been obtained or will be
obtained prior to the Closing Date and will be in full force and
effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by Parent or any Subsidiary.
(xv) The public accountants whose report is included in the
Offering Memorandum are independent within the meaning of the Act.
The historical financial statements (including the notes thereto)
included in the Offering Memorandum present fairly in all material
respects the consolidated financial position, results of operations,
cash flows and changes in stockholder's equity of the entities to
which they relate at the respective dates and for the respective
periods indicated. All such financial statements have been prepared
in accordance with generally accepted accounting principles in the
United States ("GAAP") applied on a consistent basis throughout the
periods presented (except as disclosed therein) and in compliance with
Regulation S-X ("Regulation S-X") under the Exchange Act, except that
the interim financial statements do not include full footnote
disclosure. The information set forth under the captions "Offering
memorandum summary -- Summary consolidated financial statements" and
"Selected consolidated financial data" included in the Offering
Memorandum have been prepared on a basis consistent with that of the
audited financial statements of Parent. The ratio of earnings to
fixed charges has been calculated in compliance with Item 503(d) of
Regulation S-K. Neither Parent nor any of the Subsidiaries has
sustained since the date of the latest audited financial statements
included in the Offering Memorandum any material loss or nterference
with its business from fire, explosion, flood or other calamity,
whether or nor covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set
forth in or contemplated by the Offering Memorandum. Since the
respective dates as of which information is given in the Offering
Memorandum, except as set forth or contemplated in the Offering
Memorandum, (A) neither Parent nor any Subsidiary has (1) incurred any
liabilities or obligations, direct or contingent, except such as would
not have, individually or in the aggregate, a Material Adverse Effect,
or (2) entered into any material transaction not in the ordinary
course of business, (B) there has not been any event or development in
respect of the business, general affairs, management, prospects or
condition (financial or other) of Parent or any Subsidiary except such
as would not have, individually or in the aggregate, a Material
Adverse Effect, (C) there has been no dividend or distribution of any
kind declared, paid or made by Parent on any of its equity interests
and (D) there has not been any change in the capital stock or
long-term debt of Parent or any Subsidiary. The other financial and
statistical information and data included in the Offering Memorandum
(other than industry- and market-related data discussed in (xvii)
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below) are accurately presented in all material respects and prepared
on a basis consistent with the financial statements and the books and
records of Parent and the Subsidiaries.
(xvi) The unaudited pro forma financial statements (including
the notes thereto) included in the Offering Memorandum (A) comply as
to form in all material respects with the applicable requirements of
Regulation S-X, (B) have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and (C) have been properly computed on the bases described
therein. The assumptions used in the preparation of the pro forma
financial statements and the other pro forma financial information
included in the Offering Memorandum are reasonable, and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(xvii) The industry- and market-related data and
forward-looking statements (within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act) included in the Offering
Memorandum are based on or derived from sources that the Issuers
believe to be reliable and accurate in all material respects and
represent their good faith estimates that are made on the basis of
data derived from such sources. The Issuers have obtained the written
consent to the use of such data from such sources to the extent
required.
(xviii) As of the date hereof and as of the Closing Date, and
immediately prior to and immediately following the consummation of the
Transactions, each Issuer and its respective Subsidiaries (on a
consolidated basis) is and will be Solvent. None of the Issuers or the
Subsidiaries is contemplating the filing of a petition by it under any
bankruptcy or insolvency laws or the liquidation of all or a
substantial portion of its property, and none of the Issuers or the
Subsidiaries has knowledge of any Person contemplating the filing of
any such petition or liquidation. As used herein, "Solvent" shall
mean, for any person on a particular date, that on such date (A) the
fair value of the property of such person is greater than the total
amount of liabilities, including, without limitation, contingent
liabilities, of such person, (B) the present fair salable value of the
assets of such person is not less than the amount that will be
required to pay the probable liability of such person on its debts as
they become absolute and matured, (C) such person does not intend to,
and does not believe that it will, incur debts and liabilities beyond
such person's ability to pay as such debts and liabilities mature, (D)
such person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such
person's property would constitute an unreasonably small capital and
(E) such person is able to pay its debts as they become due and
payable.
(xix) Except as set forth in the Offering Memorandum, there
is (A) no action, suit or proceeding before or by any Governmental
Authority or arbitrator, now pending or, to the knowledge of Parent or
any Subsidiary, threatened or contemplated, to which Parent or any
Subsidiary is or may be a party or to which the business, assets or
property of Parent or any Subsidiary is or may be subject, (B) no law,
statute, rule, regulation or order that has been enacted, adopted or
issued or, to the knowledge of the Parent or any Subsidiary, that has
been proposed by any Governmental Authority, (C) no judgment, decree
or order of any Governmental Authority except, in any of clause (A),
(B) or (C), such as would not have, individually or in the aggregate,
a Material Adverse Effect.
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(xx) Except as would not have a Material Adverse Effect, no
labor disturbance by the employees of Parent or any Subsidiary exists
or, to the knowledge of Parent or any Subsidiary, has been threatened
or is otherwise imminent.
(xxi) Except as disclosed in the Offering Memorandum or as
would not have, individually or in the aggregate, a Material Adverse
Effect, (A) Parent and the Subsidiaries are in compliance with and
not subject to any liability, including any actual, potential or
anticipated costs, operating expenses, capital expenditures or other
liabilities, under applicable Environmental Laws (as defined below),
(B) Parent and the Subsidiaries have made all filings and provided all
notices required under any applicable Environmental Law, and have, and
are in compliance with, all permits, licenses or other approvals
required under any applicable Environmental Laws for their current
operations and each of them is in full force and effect, (C) there is
no civil, criminal or administrative action, suit, demand, claim,
hearing, notice of violation, investigation, proceeding, notice,
demand letter, request for information or any other communication
alleging any violation or potential liability pending or to the
knowledge of the Issuer, threatened against Parent or any Subsidiary
or against any person or entity for whose acts or omissions Parent or
any Subsidiary is liable, contractually, (D) no lien, charge,
encumbrance or restriction has been recorded under any Environmental
Law with respect to any assets, facility or property owned, operated,
leased or controlled by Parent or any Subsidiary, (E) neither Parent
nor any Subsidiary has received notice that it has been identified as
a potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or any comparable state law, (F) no property or facility
of Parent or any Subsidiary is (y) listed or proposed for listing on
the National Priorities List under CERCLA or (z) listed on the
Comprehensive Environmental Response, Compensation and Liability
Information System List promulgated pursuant to CERCLA, or on any
comparable list maintained by any Governmental Authority and (G)
Parent and the Subsidiaries maintain a system of internal
environmental management controls sufficient to provide reasonable
assurance of compliance of their business, facilities, real property
and operations with requirements of applicable Environmental Laws. No
facts or circumstances exist and no event or condition is occurring or
has occurred with respect to Parent or any Subsidiary relating to any
Environmental Law, any release of any hazardous, toxic or dangerous
substance or waste, any chemical, any solid waste, any other pollutant
or contaminant, or Parent's or any Subsidiary's compliance with
current requirements of Environmental Law, except such as would not
have, individually or in the aggregate, a Material Adverse Effect or
otherwise require disclosure under federal securities laws.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state, and local laws,
regulations, rules, ordinances, codes, orders, decrees, judgments,
injunctions or any other legally enforceable requirement issued,
promulgated, approved or entered thereunder, relating to pollution or
protection of public or employee health and safety or the environment,
including, without limitation, laws relating to: (A) emissions,
discharges, releases or threatened releases of hazardous materials
into the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), (B)
the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport, arrangement for disposal or transport or
handling of hazardous, toxic or dangerous substances or waste, any
chemical, any solid waste, or any other pollutant or contaminant,
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fungi or mold, and (C) underground and aboveground storage tanks and
related piping, and emissions, discharges, releases or threatened
releases therefrom.
(xxii) Parent and the Subsidiaries have (A) all licenses,
certificates, permits, authorizations, approvals, franchises and other
rights from, and have made all declarations and filings with, all
applicable Governmental Authorities and all self-regulatory
authorities (each, an "Authorization") necessary to engage in the
business conducted by it in the manner described in the Offering
Memorandum, except where the failure to hold such Authorizations would
not have, individually or in the aggregate, a Material Adverse Effect,
and (B) no reason to believe that any Governmental Authority or
self-regulatory authority is considering or threatening limiting,
suspending or revoking any such Authorization, except where such
limitation, suspension or revocation would not have, individually or
in the aggregate, a Material Adverse Effect. All such Authorizations
are valid and in full force and effect, and Parent and the
Subsidiaries are in compliance with the terms and conditions of all
such Authorizations and with the rules and regulations of the
authorities having jurisdiction with respect to such Authorizations,
except for any invalidity, failure to be in full force and effect or
noncompliance with any Authorization that would not have, individually
or in the aggregate, a Material Adverse Effect.
(xxiii) Parent and the Subsidiaries have good, valid and
marketable title in fee simple to all items of owned real property,
and valid title to all personal property owned by each of them in each
case free and clear of any pledge, lien, encumbrance, security
interest or other defect or claim of any third party, except (A) such
as do not materially and adversely affect the value of such property
and do not materially interfere with the use made or proposed to be
made of such property by Parent or such Subsidiary, (B) liens
described in the Offering Memorandum, (C) as created pursuant to the
Credit Documents, and (D) liens permitted by the Indenture and Credit
Documents. Any real property, personal property and buildings held
under lease by Parent or any such Subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as do not
materially interfere with the use made or proposed to be made of such
property and buildings by Parent or such Subsidiary.
(xxiv) Parent and each Subsidiary owns, or possesses adequate
licenses or other rights to use all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names (collectively, the "Intellectual Property") necessary to
conduct the businesses operated by it as described in the Offering
Memorandum, except where the failure to own, or possess adequate
licenses or other rights to use such Intellectual Property,
individually or in the aggregate, would not have a Material Adverse
Effect. Neither Parent nor any Subsidiary has received any notice of
infringement of or conflict with (and neither knows of any such
infringement or a conflict with) asserted rights of others with
respect to any of the foregoing. The use of the Intellectual Property
in connection with the business and operations of Parent and the
Subsidiaries does not infringe on the rights of any person, except for
such infringement as would not have a Material Adverse Effect.
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(xxv) All Tax returns required to be filed by Parent or any
Subsidiary have been filed in all jurisdictions where such returns are
required to be filed, which returns are true, complete, and correct in
all material respects and have paid all Taxes shown on such returns.
All Taxes due or claimed to be due from Parent and each of its
Subsidiaries have been paid, other than those (i) currently payable
without penalty or interest or (ii) being contested in good faith and
by appropriate proceedings and for which, in the case of both clauses
(i) and (ii), adequate reserves have been established on the books
and records of Parent and its Subsidiaries in accordance with GAAP.
No material deficiency or adjustment for any Taxes has been
threatened, proposed, asserted or assessed against Parent or any of
its Subsidiaries. To the best knowledge and belief of Parent, the
reserves on the books and records of Parent and its Subsidiaries in
respect of any Tax liability for any taxable period not finally
determined are adequate to meet any assessments of Tax for any such
period. For purposes of this Agreement, the term "Tax" and "Taxes"
shall mean all Federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties
applicable thereto.
(xxvi) Neither Parent nor any Subsidiary has any material
liability for any prohibited transaction or accumulated funding
deficiency (within the meaning of Section 412 of the Internal Revenue
Code) or any complete or partial withdrawal liability with respect to
any pension, profit sharing or other plan which is subject to the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
to which Parent or any Subsidiary makes or ever has made a
contribution and in which any employee of Parent or any Subsidiary is
or has ever been a participant. With respect to such plans, Parent and
each Subsidiary is in compliance in all material respects with all
applicable provisions of ERISA.
(xxvii) Neither Parent nor any Subsidiary is, or after giving
effect to the Transactions will be, required to be registered as an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
(xxviii) Parent and the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that: (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of their financial
statements in conformity with GAAP and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for their assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect
to any differences.
(xxix) Parent and the Subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is commercially
reasonable for the conduct of their respective businesses and the
value of their respective properties and as is customary for companies
engaged in similar businesses in similar industries.
(xxx) Parent has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 and
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15d-14 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating
to Parent and the Subsidiaries is made known to the chief executive
officer and chief financial officer of Parent by others within Parent
or any Subsidiary, and such disclosure controls and procedures are
reasonably effective to perform the functions for which they were
established subject to the limitations of any such control system;
Parent's auditors and the audit committee of the board of directors of
Parent have been advised of: (A) any significant deficiencies in the
design or operation of internal controls which could adversely affect
Parent's ability to record, process, summarize, and report financial
data; and (B) any fraud, whether or not material, that involves
management or other employees who have a role in Parent's internal
controls; any material weaknesses in internal controls have been
identified for Parent's auditors; and since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls, including
any corrective actions with regard to significant deficiencies and
material weaknesses. Parent has provided or made available to the
Initial Purchasers or their counsel true and complete copies of all
extant minutes or draft minutes of meetings, or resolutions adopted by
written consent, of the board of directors of Parent and each
Subsidiary and each committee of each such board since January 1,
2001, and all agendas for each such meeting for which minutes or draft
minutes do not exist.
(xxxi) Neither Parent nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Act) has, directly or through
any person acting on its or their behalf (other than any Initial
Purchaser, as to which no representation is made), (A) taken,
directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of any Issuer to facilitate
the sale or resale of the Securities, (B) sold, bid for, purchased or
paid any person any compensation for soliciting purchases of the
Securities in a manner that would require registration of the
Securities under the Act or paid or agreed to pay to any person any
compensation for soliciting another to purchase any other securities
of any Issuer in a manner that would require registration of the
Securities under the Act, (C) sold, offered for sale, contracted to
sell, pledged, solicited offers to buy or otherwise disposed of or
negotiated in respect of any security (as defined in the Act) that is
currently or will be integrated with the sale of the Securities in a
manner that would require the registration of the Securities under the
Act or (D) engaged in any directed selling effort (as defined by
Regulation S) with respect to the Securities, and each of them has
complied with the offering restrictions requirement of Regulation S.
(xxxii) No form of general solicitation or general advertising
(prohibited by the Act in connection with offers or sales such as the
Exempt Resales) was used by either Issuer or any person acting on its
behalf or at its direction (other than any Initial Purchaser, as to
which no representation is made) in connection with the offer and sale
of any of the Securities or in connection with Exempt Resales,
including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium
or broadcast over television or radio or the Internet, or any seminar
or meeting whose attendees have been invited by any general
solicitation or general advertising within the meaning of Regulation D
under the Act. Neither Issuer nor any of their affiliates has entered
into, or will enter into, any contractual arrangement with respect to
the distribution of the Securities except for this Agreement.
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(xxxiii) Except as described in the section entitled "Plan of
distribution" in the Offering Memorandum, there are no contracts,
agreements or understandings between Parent or any Subsidiary and any
other person other than the Initial Purchasers pursuant to this
Agreement that would give rise to a valid claim against Parent, any
Subsidiary or any of the Initial Purchasers for a brokerage
commission, finder's fee or like payment in connection with the
issuance, purchase and sale of the Securities.
(xxxiv) There is and has been no failure on the part of
Parent or any of Parent's directors or officers, in their capacities
as such, to comply with any provision of the Sarbanes Oxley Act of
2002 and the rules and regulations promulgated in connection therewith
(the "Sarbanes Oxley Act"), including Section 402 relating to loans
and Sections 302 and 906 relating to certifications.
(xxxv) The statements set forth in the Offering Memorandum
under the caption "Description of notes" insofar as they purport to
constitute a summary of the terms of the Securities, and under the
captions "Description of certain indebtedness," "Plan of
distribution," and "Summary of certain United States federal income
tax considerations," insofar as they purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair.
Each certificate signed by any officer of any Issuer and
delivered to the Initial Purchasers or counsel for the Initial Purchasers
pursuant to, or in connection with, this Agreement shall be deemed to be a
representation and warranty under this Agreement by the Issuers to the Initial
Purchasers as to the matters covered by such certificate.
Each of the Issuers acknowledges that the Initial Purchasers
and, for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Section 8 of this Agreement, counsel to the Issuers and counsel to
the Initial Purchasers will rely upon the accuracy and truth of the foregoing
representations and each Issuer hereby consents to such reliance.
(b) Each Initial Purchaser acknowledges that it is purchasing
the Securities pursuant to a private sale exemption from registration under the
Act, and that the Securities have not been registered under the Act and may not
be offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except pursuant to an exemption from the registration
requirements of the Act. Each Initial Purchaser, severally and not jointly,
represents, warrants and covenants to the Issuers that:
(i) Neither it, nor any person acting on its behalf, has or will
solicit offers for, or offer or sell, the Securities by any form of
general solicitation or general advertising (as those terms are used
in Regulation D under the Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Act, and it has and
will solicit offers for the Securities only from, and will offer and
sell the Securities only to, (1) persons whom such Initial Purchaser
reasonably believes to be QIBs or, if any such person is buying
for one or more institutional accounts for which such person is acting
as fiduciary or agent, only when such person has represented to such
Initial Purchaser that each such account is a QIB to whom notice has
been given that such sale or delivery is being made in reliance on
Rule 144A, and, in each case, in reliance on the exemption from the
registration requirements of the Act pursuant to Rule 144A, or (2)
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persons other than U.S. persons outside the United States in reliance
on the exemption from the registration requirements of the Act
provided by Regulation S.
(ii) With respect to offers and sales outside the United States,
such Initial Purchaser has offered the Securities and will offer and
sell the Securities (1) as part of its distribution at any time and
(2) otherwise until 40 days after the later of the commencement of the
offering of the Securities and the Closing Date, only in accordance
with Rule 903 of Regulation S or another exemption from the
registration requirements of the Act. Accordingly, neither such
Initial Purchaser nor any person acting on its behalf has engaged or
will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Securities, and any such persons
have complied and will comply with the offering restrictions
requirements of Regulation S. Each Initial Purchaser severally agrees
that, at or prior to confirmation of a sale of Securities pursuant to
Regulation S it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that
purchases Securities from it or through it during the restricted
period a confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been
registered under the United States Securities Act of 1933 (the
"Securities Act") and may not be offered or sold within the
United States or to or for the account or benefit of U.S.
persons (i) as part of their distribution at any time and (ii)
otherwise until forty days after the later of the date upon
which the offering of the Securities commenced and the date of
closing, except in either case in accordance with Regulation S
or Rule 144A under the Securities Act.
Terms used above have the meaning given to them by Regulation
S."
Terms used in this Section 5(b)(ii) have the meanings given to
them by Regulation S.
(iii) It is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
The Initial Purchasers understand that the Issuers and, for
purposes of the opinions to be delivered to them pursuant to Section 8 hereof,
counsel to the Issuers and counsel to the Initial Purchasers will rely upon the
accuracy and truth of the foregoing representations, and each Initial Purchaser
hereby consents to such reliance.
6. Indemnification. (a) The Issuers, jointly and severally,
agree to indemnify and hold harmless the Initial Purchasers, each person, if
any, who controls any Initial Purchaser within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, the agents, employees, officers and
directors of any Initial Purchaser and the agents, employees, officers and
directors of any such controlling person from and against any and all losses,
liabilities, claims, damages and expenses whatsoever (including, but not
limited, to reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
reasonable amounts paid in settlement of any claim or litigation) (collectively,
"Losses") to which they or any of them may become subject under the Act, the
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Exchange Act or otherwise insofar as such Losses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Offering Memorandum or the
Offering Memorandum, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Issuers will not be liable in any such case to the extent, but only to
the extent, that any such Loss arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission relating
to an Initial Purchaser made therein in reliance upon and in conformity with
written information furnished to the Issuers by or on behalf of such Initial
Purchaser through the Representative expressly for use therein. This indemnity
agreement will be in addition to any liability that the Issuers may otherwise
have, including, but not limited to, liability under this Agreement.
(b) Each Initial Purchaser agrees to indemnify and hold harmless
the Issuers, and each person, if any, who controls the Issuers within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each of
their respective agents, employees, officers and directors and the agents,
employees, officers and directors of any such controlling person from and
against any Losses to which they or any of them may become subject under the
Act, the Exchange Act or otherwise insofar as such Losses (or actions in respect
thereof) arise out of or are based upon 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 thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission relating to such Initial Purchaser made therein in reliance upon and in
conformity with information furnished in writing to the Issuers by or on behalf
of such Initial Purchaser through the Representative expressly for use therein.
Each of the Issuers and the Initial Purchasers acknowledge that the information
described in Section 9 is the only information furnished in writing by the
Initial Purchasers to the Issuers expressly for use in the Preliminary Offering
Memorandum or the Offering Memorandum. This indemnity agreement will be in
addition to any liability that the Initial Purchasers may otherwise have,
including, but not limited to, liability under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection 6(a) or 6(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may otherwise have under this Section 6). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (together
with appropriate local counsel) at any time for all indemnified parties in
connection with any one action or separate but substantially similar or related
-20-
actions arising in the same jurisdiction out of the same general allegations or
circumstances. An indemnifying party shall not be liable for any settlement or
compromise of, or consent to the entry of any judgment with respect to, any
claim or action effected without its written consent, which consent may not be
unreasonably withheld. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by paragraph
(a) or (b) of this Section 6, then the indemnifying party agrees that it shall
be liable for any settlement or compromise of, or consent to the entry of any
judgment with respect to, any proceeding effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 45 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent to the
entry of any judgment with respect to, 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, compromise or consent (x) includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding and (y) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuers, on the one hand, and the Initial Purchasers, on the other hand,
from the offering of the Securities or (ii) if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Issuers,
on the one hand, and the Initial Purchasers, on the other hand, in connection
with the statements or omissions that resulted in such Losses, as well as any
other relevant equitable considerations. The relative benefits received by the
ssuers, on the one hand, and the Initial Purchasers, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
of Securities (net of discounts and commissions but before deducting expenses)
received by the Issuers are to (y) the total discount and commissions received
by the Initial Purchasers, in each case as set forth in the Offering Memorandum.
The relative fault of the Issuers, on the one hand, and the Initial Purchasers,
on the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by an Issuer or the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission.
The Issuers and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall any Initial Purchaser be
required to contribute any amount in excess of the amount by which the total
discount and commissions applicable to the Securities purchased by such Initial
-21-
Purchaser pursuant to this Agreement exceeds the amount of any damages that such
Initial Purchaser has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each person,
if any, who controls any Initial Purchaser within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Initial Purchasers, and each person, if any, who controls an
Issuer within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and each director, officer, employee and agent of an Issuer shall
have the same rights to contribution as the Issuers. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may be
made against another party or parties under this Section 7, notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 7 or
otherwise; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under Section 6 for
purposes of indemnification. Anything in this section to the contrary
notwithstanding, no party shall be liable for contribution with respect to any
action or claim settled or compromised, or with respect to which the other
parties to such action or claim have consented to the entry of any judgment
without its written consent; provided, however, that such written consent was
not unreasonably withheld.
8. Conditions of Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the
Securities, as provided for in this Agreement, shall be subject to
satisfaction (or waiver by the Initial Purchasers in their sole
discretion) of the following conditions prior to or concurrently with
such purchase:
(a) All of the representations and warranties of the Issuers
contained in this Agreement shall be true and correct on the date of
this Agreement and on the Closing Date. The Issuers shall have
performed or complied with all of the agreements and covenants
contained in this Agreement and required to be performed or complied
with by them at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers on the date of this Agreement or
at such later date as the Initial Purchasers may determine. No stop
order suspending the qualification or exemption from qualification 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 threatened.
(c) Since the execution of this Agreement, there shall not have
been any decrease in the rating of any debt or preferred stock of
either Issuer or any Subsidiary by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any notice given or public announcement of
any intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change, or that such organization has under surveillance or
review, with possible negative implications, its rating of any debt or
preferred stock of either Issuer.
-22-
(d) The Initial Purchasers shall have received certificates from
each Issuer, dated the Closing Date, signed by the chief executive
officer and chief financial officer of the respective Issuer,
certifying as to the matters set forth in paragraphs (a), (b) (with
respect to the second sentence), (c) and (e) of this Section 8 and as
to such other matters as the Initial Purchasers may reasonably request.
(e) (i) Neither Parent nor any Subsidiary shall have sustained
since the date of the latest audited financial statements included in
the Offering Memorandum any loss or interference with their respective
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in or
contemplated by the Offering Memorandum, and (ii) since the respective
dates as of which information is given in the Offering Memorandum there
shall not have been any event or development in respect of the
business, general affairs, management, prospects or condition
(financial or other) of Parent or any Subsidiary nor any change in the
capital stock or long-term debt of Parent or any Subsidiary, otherwise
than as set forth in or contemplated by the Offering Memorandum, the
effect of which, in any such case described in clause (i) or (ii), is
in the judgment of the Representative so material and adverse as to
make it impracticable or inadvisable to proceed with the offering or
the delivery of the Securities on the terms and in the manner
contemplated in this Agreement and in the Offering Memorandum;
(f) The Initial Purchasers shall have received on the Closing
Date (i) opinions dated the Closing Date, addressed to the Initial
Purchasers, of (x) ▇▇▇▇▇▇ & Bird LLP, counsel to the Issuers, and (y)
the general counsel or assistant general counsel of Parent,
substantially in the form of Exhibits B-1 and B-2 attached hereto, and
(ii) copies of any opinions delivered in connection with any of the
other Transactions together with reliance letters relating to such
opinions in form and substance satisfactory to the Representative and
counsel to the Initial Purchasers.
(g) The Initial Purchasers shall have received on the Closing
Date an opinion dated the Closing Date of Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, counsel to the Initial Purchasers, in form and substance
satisfactory to the Representative. Such counsel shall have been
furnished with such certificates and documents as they may reasonably
request to enable them to review or pass upon the matters referred to
in this Section 8 and in order to evidence the accuracy, completeness
or satisfaction in all material respects of any of the representations,
warranties or conditions contained in this Agreement.
(h) On the date hereof, the Initial Purchasers shall have
received a "comfort letter" from KPMG LLP, the independent public
accountants for Parent, and Deloitte & Touche LLP, the former
independent public accountants for Parent, dated the date of this
Agreement, addressed to the Initial Purchasers and in form and
substance satisfactory to the Representative and counsel to the Initial
Purchasers (it being understood that if the Offering Memorandum is not
printed on the date hereof, such comfort letter shall, on the date
hereof, contain excerpts from the Preliminary Offering Memorandum
indicating the procedures performed by such independent public
accountants on the financial data included in the Preliminary Offering
Memorandum and that, within twenty-four hours after the Offering
Memorandum becomes available in final form (electronically or
-23-
otherwise), the Initial Purchasers shall receive replacement excerpts
from the Offering Memorandum indicating the procedures performed by
such independent public accountants on the financial data included
therein in form and substance satisfactory to the Representative and
counsel to the Initial Purchasers). In addition, the Initial
Purchasers shall have received a "bring-down comfort letter" from the
independent public accountants for Parent, dated as of the Closing
Date, addressed to the Initial Purchasers and in form and substance
satisfactory to the Representative and counsel to the Initial
Purchasers.
(i) The Issuers and the Trustee shall have executed and
delivered the Indenture and the Initial Purchasers shall have received
copies thereof. The Issuers shall have executed and delivered the
Registration Rights Agreement and the Initial Purchasers shall have
received executed counterparts thereof.
(j) The Initial Purchasers shall have been furnished with wiring
instructions for the application of the proceeds of the Securities in
accordance with this Agreement and such other information as they may
reasonably request.
(k) The Securities shall be eligible for trading in Portal upon
issuance. All agreements set forth in the representation letter of the
Issuers to DTC relating to the approval of the Securities by DTC for
"book-entry" transfer shall have been complied with.
(l) Parent shall have received the Requisite Consents (as
defined in the Tender Offer Documents) or has discharged the indentures
relating to the 11 1/4% Notes and the 12 3/4% Notes.
(m) Each of the other Transactions shall have been, or shall
substantially simultaneously be, consummated without any amendment or
waiver of any of the Transaction Documents (other than any such
amendment or waiver approved by the Representative, such approval not
to be unreasonably withheld), and the Initial Purchasers shall have
received satisfactory evidence thereof.
If any of the conditions specified in this Section 8 shall not
have been fulfilled when and as required by this Agreement to be fulfilled (or
waived by the Initial Purchasers), this Agreement may be terminated by the
Initial Purchasers on notice to the Company at any time at or prior to the
Closing Date, and such termination shall be without liability of any party to
any other party.
The documents required to be delivered by this Section 8 will
be delivered at the office of counsel for the Initial Purchasers on the Closing
Date.
9. Initial Purchasers Information. The Issuers and the Initial
Purchasers severally acknowledge that the statements relating to stabilization
set forth in the first two sentences of the sixth paragraph and the seventh
paragraph under "Plan of distribution" in the Preliminary Offering Memorandum
and the Offering Memorandum constitute the only information furnished in writing
by or behalf of any Initial Purchaser expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.
-24-
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements contained in this
Agreement, including, without limitation, the agreements contained in Sections
4(f) and 11(d), the indemnity agreements contained in Section 6 and the
contribution agreements contained in Section 7, shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
the Initial Purchasers or any controlling person thereof or by or on behalf of
the Issuers or any controlling person thereof, and shall survive delivery of and
payment for the Original Notes to and by the Initial Purchasers. The agreements
contained in Sections 4(f), 6, 7, 9 and 11(d) shall survive the termination of
this Agreement, including pursuant to Section 11.
11. Effective Date of Agreement; Termination. (a) This Agreement
shall become effective upon execution and delivery of a counterpart hereof by
each of the parties hereto.
(b) The Initial Purchasers shall have the right to terminate
this Agreement at any time prior to the Closing Date by notice to the Issuers
from the Initial Purchasers, without liability (other than with respect to
Sections 6 and 7) on the Initial Purchasers' part to the Issuers or any
affiliate thereof if, on or prior to such date, (i) either of the Issuers shall
have failed, refused or been unable to perform any agreement on its part to be
performed under this Agreement when and as required; (ii) any other condition to
the obligations of the Initial Purchasers under this Agreement to be fulfilled
by the Issuers pursuant to Section 8 is not fulfilled when and as required;
(iii) trading in any securities of either Issuer shall be suspended or limited
by the Commission or the OTC Bulletin Board, or trading in securities generally
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market shall have been suspended or materially limited, or minimum
prices shall have been established thereon by the Commission, or by such
exchange or other regulatory body or governmental authority having jurisdiction;
(iv) a general moratorium shall have been declared by either Federal or New York
State authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States shall have occurred;
(v) there is an outbreak or escalation of hostilities or national or
international calamity in any case involving the United States, on or after the
date of this Agreement, or if there has been a declaration by the United States
of a national emergency or war or other national or international calamity or
crisis (economic, political, financial or otherwise), making it, in the
Representative's judgment, impracticable or inadvisable to proceed with the
offering or delivery of the Securities on the terms and in the manner
contemplated in the Offering Memorandum; or (vi) there shall have been such a
material adverse change in general economic, political or financial conditions
or the effect (or potential effect if the financial markets in the United States
have not yet opened) of international conditions on the financial markets in the
United States shall be such as, in the Representative's judgment, to make it
impracticable or inadvisable to proceed with the offering or delivery of the
Securities on the terms and in the manner contemplated in the Offering
Memorandum.
(c) Any notice of termination pursuant to this Section 11 shall
be given at the address specified in Section 12 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to Section
11(b), or if the sale of the Securities provided for in this Agreement is not
consummated because of any refusal, inability or failure on the part of the
Issuers to satisfy any condition to the obligations of the Initial Purchasers
-25-
set forth in this Agreement to be satisfied or because of any refusal, inability
or failure on the part of the Issuers to deliver the Securities for any reason
(other than as set forth in Section 11(e) below) or perform any agreement in
this Agreement or comply with any provision of this Agreement, the Issuers,
jointly and severally, will reimburse the Initial Purchasers for all of their
reasonable out-of-pocket expenses (including, without limitation, the fees and
expenses of the Initial Purchasers' counsel) incurred in connection with this
Agreement and the transactions contemplated hereby.
(e) If any one or more Initial Purchasers shall fail to purchase
and pay for any of the Securities agreed to be purchased by such Initial
Purchaser hereunder and such failure to purchase shall constitute a default in
the performance of its or their obligations under this Agreement, the remaining
Initial Purchasers shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Securities set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all the remaining Initial
Purchasers) the Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting Initial
Purchaser or Initial Purchasers agreed but failed to purchase shall exceed 10%
of the aggregate principal amount of Securities set forth in Schedule I hereto,
the remaining Initial Purchasers shall have the right to purchase all, but shall
not be under any obligation to purchase any, of the Securities, and if such
nondefaulting Initial Purchasers do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Initial
Purchaser or the Issuers. In the event of a default by any Initial Purchaser as
set forth in this Section 11(e), the Closing Date shall be postponed for such
period, not exceeding seven Business Days, as the Representative shall determine
n order that the required changes in the Offering Memorandum or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Initial Purchaser of its liability, if any, to the
Issuers or any nondefaulting Initial Purchaser for damages occasioned by its
default hereunder.
12. Notice. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchasers, shall be mailed,
delivered or telegraphed or telecopied and confirmed in writing to c/o UBS
Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (fax number:
▇▇▇-▇▇▇-▇▇▇▇), Attention: High Yield Syndicate Department, with a copy for
information purposes only to (i) UBS Securities LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (fax number: ▇▇▇-▇▇▇-▇▇▇▇), Attention: Legal and Compliance
Department and (ii) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, (telephone: (▇▇▇) ▇▇▇-▇▇▇▇, fax:
(▇▇▇) ▇▇▇-▇▇▇▇), Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.; and if sent to the
Issuers, shall be mailed, delivered or telegraphed or telecopied and confirmed
in writing to ▇▇▇▇▇'▇ Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (telephone: (▇▇▇) ▇▇▇-▇▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇), Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy for information purposes only to ▇▇▇▇▇▇ & Bird
LLP, Bank of America Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (telephone: (▇▇▇) ▇▇▇-▇▇▇▇, fax: (▇▇▇) ▇▇▇-▇▇▇▇), Attention:
▇▇▇▇ ▇. ▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged by telecopier machine, if telecopied; and one business day after
being timely delivered to a next-day air courier.
-26-
13. Parties. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Initial Purchasers, the Issuers and the other
indemnified parties referred to in Sections 6 and 7, and their respective
successors and assigns, and no other person shall have or be construed to have
any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained. The term "successors
and assigns" shall not include a purchaser, in its capacity as such, of Notes
from the Initial Purchasers.
14. Construction. This Agreement shall be construed in
accordance with the internal laws of the State of New York, including, without
limitation, Sections 5-1401 and 5-1402 of the New York General Obligations Law
and New York Civil Practice Laws and Rules 327(b).
15. Submission to Jurisdiction; Waiver of Jury Trial. No
proceeding related to this Agreement or the transactions contemplated hereby
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Issuers
hereby consent to the jurisdiction of such courts and personal service with
respect thereto. The Issuers hereby waive all right to trial by jury in any
proceeding (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Issuers agree that a final judgment in
any such proceeding brought in any such court shall be conclusive and binding
upon the Issuers and may be enforced in any other courts in the jurisdiction of
which the Issuers are or may be subject, by suit upon such judgment.
16. Captions. The captions included in this Agreement are
included solely for convenience of reference and are not to be considered a part
of this Agreement.
17. Counterparts. This Agreement may be executed in various
counterparts that together shall constitute one and the same instrument.
[Signature Page Follows]
If the foregoing Purchase Agreement correctly sets forth the
understanding among the Issuers and the Initial Purchasers, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Issuers and the
Initial Purchasers.
▇▇▇▇▇'▇ HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and Treasurer
▇▇▇▇▇'▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President,
General Counsel and Secretary
Confirmed and accepted as of the date first above written:
UBS SECURITIES LLC
▇▇▇▇▇▇▇, SACHS & CO.
BANC OF AMERICA SECURITIES LLC
By: UBS SECURITIES LLC
as Representative of the several Initial Purchasers
By: /s/ ▇.▇. ▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Associate Director