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EXHIBIT 1.1
$125,000,000
FOODMAKER, INC.
8 3/8 % SENIOR SUBORDINATED NOTES DUE 2008
PLACEMENT AGREEMENT
April 8, 1998
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April 8, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
Salomon Brothers Inc
▇▇▇▇▇▇▇▇▇ & Company, Inc.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Foodmaker, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the several purchasers named in Schedule I hereto (the
"PLACEMENT AGENTS") $125,000,000 principal amount of its 8 3/8 % Senior
Subordinated Notes due 2008 (the "SECURITIES") to be issued pursuant to the
provisions of an Indenture dated as of April 14, 1998 (the "INDENTURE") among
the Company and CP Distribution Co., CP Wholesale Co., Foodmaker International
Franchising, Inc. and ▇▇▇▇ in the Box, Inc. (collectively, the "SUBSIDIARY
GUARANTORS") and First Union National Bank, as Trustee (the "TRUSTEE"). The
Securities will be guaranteed (the "SUBSIDIARY GUARANTEES") by each of the
Subsidiary Guarantors.
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act, in offshore transactions in reliance on
Regulation S under the Securities Act ("REGULATION S") and to institutional
accredited investors (as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) that deliver a letter in the form annexed to the Final
Memorandum (as defined below).
The Placement Agents and their direct and indirect transferees will be
entitled to the benefits of a Registration Rights Agreement dated the date
hereof between the Company and the Placement Agents (the "REGISTRATION RIGHTS
AGREEMENT").
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will
prepare a final offering memorandum (the "FINAL MEMORANDUM" and, with the
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Preliminary Memorandum, each a "MEMORANDUM") including or incorporating by
reference a description of the terms of the Securities, the terms of the
offering and a description of the Company. As used herein, the term "Memorandum"
shall include in each case the documents incorporated by reference therein. The
terms "SUPPLEMENT", "AMENDMENT" and "AMEND" as used herein with respect to a
Memorandum shall include all documents deemed to be incorporated by reference in
the Preliminary Memorandum or Final Memorandum that are filed subsequent to the
date of such Memorandum with the Securities and Exchange Commission (the
"COMMISSION") pursuant to the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT").
1. Representations and Warranties. The Company and the Subsidiary
Guarantors represent and warrant to, and agree with, you that:
(a) (i) Each document, if any, to be filed pursuant to the
Exchange Act and incorporated by reference in either Memorandum complied
or will comply when so filed in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder and (ii) the Preliminary Memorandum as of its date did not
contain and the Final Memorandum, in the form used by the Placement
Agents to confirm sales and on the Closing Date (as defined in Section
4), as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in either Memorandum based upon information relating to any
Placement Agent furnished to the Company in writing by such Placement
Agent through you expressly for use therein.
(b) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of Delaware, has the
corporate power and authority to own its property and to conduct its
business as described in each Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or
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be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(c) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority
to own its property and to conduct its business as described in each
Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital
stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims (other than liens, encumbrances, equities or claims
pursuant to the New Credit Facility, as defined in the Final
Memorandum).
(d) This Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors.
(e) The Securities have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Placement Agents in accordance with the
terms of this Agreement, will be the valid and binding obligation of the
Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity, and will be entitled
to the benefits of the Indenture and the Registration Rights Agreement
pursuant to which such Securities are to be issued.
(f) The Subsidiary Guarantees to be endorsed on the Securities by
each Subsidiary Guarantor have been duly authorized, executed and
delivered and, when the Securities have been executed and authenticated
in accordance with the provisions of the Indenture and delivered to and
paid for by the Placement Agents in accordance with the terms of this
Agreement, the Subsidiary Guarantee of each Subsidiary Guarantor thereon
will be the valid and binding obligation of each Subsidiary Guarantor,
enforceable in accordance with their terms, subject to
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applicable bankruptcy, insolvency or similar laws affecting creditors'
rights generally and general principles of equity, and will be entitled
to the benefits of the Indenture and the Registration Rights Agreement
pursuant to which such Securities are to be issued.
(g) Each of the Indenture and the Registration Rights Agreement
has been duly authorized, executed and delivered by, and is a valid and
binding agreement of, the Company and the Subsidiary Guarantors,
enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights Agreement
may be limited under applicable law.
(h) The execution and delivery by the Company and the Subsidiary
Guarantors of, and the performance by the Company and the Subsidiary
Guarantors of their respective obligations under, this Agreement, the
Indenture, the Securities, the Subsidiary Guarantees and the
Registration Rights Agreement, as applicable, will not contravene any
provision of applicable law or the certificate of incorporation or
by-laws of the Company or any of its subsidiaries or any agreement or
other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole,
or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company or the Subsidiary Guarantors of their respective obligations
under this Agreement, the Indenture, the Securities, the Subsidiary
Guarantees or the Registration Rights Agreement, as applicable, except
such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Securities
and by Federal and state securities laws with respect to the Company's
and each Subsidiary Guarantor's obligations under the Registration
Rights Agreement.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations
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of the Company and its subsidiaries, taken as a whole, from that set
forth in the Final Memorandum.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is subject other than proceedings accurately described in all material
respects in each Memorandum and proceedings that would not reasonably be
expected to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or have a material effect on the power
or ability of the Company or the Subsidiary Guarantors to perform their
respective obligations under this Agreement, the Indenture, the
Securities, the Subsidiary Guarantees or the Registration Rights
Agreement or to consummate the transactions contemplated by the Final
Memorandum.
(k) The Company and its subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(l) To the best knowledge of the Company, there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(m) The Company and its subsidiaries have good and marketable fee
simple title to all real property owned by them which is
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material to the business of the Company and its subsidiaries, free and
clear of all liens and defects other than (i) those described in the
Final Memorandum, (ii) such liens as do not materially affect the value
of such property and do not interfere with the use made and proposed to
be made of such property by the Company and its subsidiaries and (iii)
such liens as are contemplated or referenced in the New Credit Facility
(as defined in the Final Memorandum). The Company and each subsidiary
have a valid leasehold interest in all leases of real property and
buildings held by them under lease, free and clear of all liens, other
than (i) such liens as are not material and do not interfere with the
use made and proposed to be made of such real property and buildings by
the Company and its subsidiaries, (ii) such liens as are described in
the Final Memorandum and (iii) such liens as are contemplated or
referenced in the New Credit Facility.
(n) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, 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
("INTELLECTUAL PROPERTY") currently employed by them in connection with
the business now operated by them except where the failure to own or
possess or otherwise be able to acquire such intellectual property would
not, singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operation of the
Company and its subsidiaries, taken as a whole; and, neither the Company
nor any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any of such
intellectual property which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would reasonably be
expected to have a material adverse effect.
(o) The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof
as described in the Final Memorandum, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(p) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "AFFILIATE") of the
Company has directly, or through any agent (other than the Placement
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Agents, as to whom the Company makes no representation), (i) sold,
offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act) which is or
will be integrated with the sale of the Securities in a manner that
would require the registration under the Securities Act of the
Securities or the Subsidiary Guarantees or (ii) engaged in any form of
general solicitation or general advertising in connection with the
offering of the Securities, (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act.
(q) None of the Company, its Affiliates or any person acting on
its or their behalf has engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the
Securities and the Company and its Affiliates and any person acting on
its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S, except no representation,
warranty or agreement is made by the Company in this paragraph with
respect to the Placement Agents.
(r) Subject to compliance by the Placement Agents with the
representations and warranties and the procedures set forth in Section
7, it is not necessary in connection with the offer, sale and delivery
of the Securities to the Placement Agents in the manner contemplated by
this Agreement to register the Securities or the Subsidiary Guarantees
under the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended.
(s) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(t) The Company will use the net proceeds of this offering in the
manner set forth in each Memorandum under the caption "Use of Proceeds".
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to
the several Placement Agents, and each Placement Agent, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective principal amount Securities set forth in Schedule I
hereto opposite
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its name at a purchase price of 97.207% of the principal amount thereof (the
"Purchase Price") plus accrued interest, if any, to the Closing Date.
The Company hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated on behalf of the Placement Agents, it will
not, during the period beginning on the date hereof and continuing to and
including the Closing Date, offer, sell, contract to sell or otherwise dispose
of any debt of the Company or warrants to purchase debt of the Company
substantially similar to the Securities (other than the sale of the Securities
under this Agreement).
3. Terms of Offering. You have advised the Company that the Placement
Agents will make an offering of the Securities purchased by the Placement Agents
hereunder on the terms to be set forth in the Final Memorandum, as soon as
practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Securities shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Securities for the respective accounts of the several Placement
Agents at 10:00 a.m., New York City time, on April 14, 1998, or at such other
time on the same or such other date, as shall be designated in writing by you.
The time and date of such payment are hereinafter referred to as the "Closing
Date."
Certificates for the Securities shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates evidencing the Securities shall
be delivered to you on the Closing Date for the respective accounts of the
several Placement Agents, with any transfer taxes payable in connection with the
transfer of the Securities to the Placement Agents duly paid, against payment of
the Purchase Price therefor plus accrued interest, if any, to the date of
payment and delivery.
5. Conditions to the Placement Agents' Obligations. The several
obligations of the Placement Agents to purchase and pay for the Securities on
the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
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(i) there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Final Memorandum (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the
Securities on the terms and in the manner contemplated in the
Final Memorandum.
(b) The Placement Agents shall have received on the Closing Date
a certificate, dated the Closing Date and signed by an executive officer
of the Company and each of the Subsidiary Guarantors, to the effect set
forth in Section 5(a)(i) and to the effect that the representations and
warranties of the Company and each of the Subsidiary Guarantors
contained in this Agreement are true and correct as of the Closing Date
and that the Company and each of the Subsidiary Guarantors has complied
with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing
Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Placement Agents shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, outside counsel for the
Company, dated the Closing Date, to the effect set forth in Exhibit A.
Such opinion shall be rendered to the Placement Agents at the request of
the Company and shall so state therein.
(d) The Placement Agents shall have received on the Closing Date
a reliance letter from ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP addressed to the
Placement Agents and the Trustee allowing them to rely on the opinion of
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▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP dated April 1, 1998 issued in connection
with the New Credit Facility.
(e) The Placement Agents shall have received on the Closing Date
an opinion (satisfactory to the Placement Agents and counsel for the
Placement Agents) of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President and
Secretary of the Company, dated the Closing Date, (i) to the effect that
the statements in the Final Memorandum under the caption "Legal
Proceedings," insofar as such statements constitute summaries of the
legal matters or documents referred to therein, fairly summarize the
matters referred to therein and (ii) containing a statement
substantially similar to the last paragraph set forth in Exhibit A.
(f) The Placement Agents shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Placement Agents, dated
the Closing Date, to the effect set forth in Exhibit B.
(g) The Placement Agents shall have received on each of the date
hereof and the Closing Date a letter, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Placement Agents, from KPMG Peat Marwick, LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Final Memorandum; provided that the letter
delivered on the Closing Date shall use a "cut-off date" not earlier
than the date hereof.
6. Covenants of the Company and the Subsidiary Guarantors. In further
consideration of the agreements of the Placement Agents contained in this
Agreement, the Company and the Subsidiary Guarantors, jointly and severally,
covenant with each Placement Agent as follows:
(a) To furnish to you in New York City, without charge, prior to
3:00 p.m. New York City time on the business day next succeeding the
date of this Agreement and during the period mentioned in Section 6(c),
as many copies of the Final Memorandum, any documents incorporated by
reference therein and any supplements and amendments thereto as you may
reasonably request.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement
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and not to use any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the date hereof and prior to the
date on which all of the Securities shall have been sold by the
Placement Agents, any event shall occur or condition exist as a result
of which it is necessary to amend or supplement the Final Memorandum in
order to make the statements therein, in the light of the circumstances
when the Final Memorandum is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Placement Agents, it is
necessary to amend or supplement the Final Memorandum to comply with
applicable law, forthwith to prepare and furnish, at its own expense, to
the Placement Agents, either amendments or supplements to the Final
Memorandum so that the statements in the Final Memorandum as so amended
or supplemented will not, in the light of the circumstances when the
Final Memorandum is delivered to a purchaser, be misleading or so that
the Final Memorandum, as amended or supplemented, will comply with
applicable law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel and the Company's accountants in
connection with the issuance and sale of the Securities and all other
fees or expenses in connection with the preparation of each Memorandum
and all amendments and supplements thereto, including all printing costs
associated therewith, and the delivering of copies thereof to the
Placement Agents, in the quantities herein above specified, (ii) all
costs and expenses related to the transfer and delivery of the
Securities to the Placement Agents, including any transfer or other
taxes payable thereon, (iii) the cost of printing or producing any Blue
Sky or legal investment memorandum in connection with the offer and sale
of the Securities under state securities laws and all expenses in
connection with the qualification of the Securities for offer and sale
under state securities laws as provided in Section 6(d) hereof,
including filing fees and the reasonable fees and disbursements of
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counsel for the Placement Agents in connection with such qualification
and in connection with the Blue Sky or legal investment memorandum, (iv)
any fees charged by rating agencies for the rating of the Securities,
(v) the fees and expenses, if any, incurred in connection with the
admission of the Securities for trading in PORTAL or any appropriate
market system, (vi) the costs and charges of the Trustee and any
transfer agent, registrar or depositary, (vii) the cost of the
preparation, issuance and delivery of the Securities, (viii) the costs
and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering
of the Securities, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses
of any consultants engaged in connection with the road show
presentations with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with
the road show, and (ix) all other cost and expenses incident to the
performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood,
however, that except as expressly provided in this Section, Section 8,
and the last paragraph of Section 10, the Placement Agents will pay all
of their costs and expenses, including fees and disbursements of their
counsel, transfer taxes payable on resale of any of the Securities by
them and any advertising expenses connected with any offers they may
make.
(f) Neither the Company nor any Affiliate will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner which would require the
registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities"
within the meaning of the Securities Act, to make available, upon
request, to any seller of such Securities the information specified in
Rule
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144A(d)(4) under the Securities Act, unless the Company is then subject
to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use its best efforts to permit the
Securities to be designated PORTAL securities in accordance with the
rules and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL Market.
(j) None of the Company, its Affiliates or any person acting on
its or their behalf (other than the Placement Agents) will engage in any
directed selling efforts (as that term is defined in Regulation S) with
respect to the Securities, and the Company and its Affiliates and each
person acting on its or their behalf (other than the Placement Agents)
will comply with the offering restrictions requirement of Regulation S.
(k) During the period of two years after the Closing Date, the
Company will not, and will not permit any of its affiliates (as defined
in Rule 144A under the Securities Act) to resell any of the Securities
which constitute "restricted securities" under Rule 144A that have been
reacquired by any of them.
7. Offering of Securities; Restrictions on Transfer. (a) Each Placement
Agent, severally and not jointly, represents and warrants that such
Placement Agent is a qualified institutional buyer as defined in Rule
144A under the Securities Act (a "QIB"). Each Placement Agent, severally
and not jointly, agrees with the Company that (i) it will not solicit
offers for, or offer or sell, such Securities by any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act
and (ii) it will solicit offers for such Securities only from, and will
offer such Securities only to, persons that it reasonably believes to be
(A) in the case of offers inside the United States, (I) QIBs or (2)
other institutional accredited investors (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED
INVESTORS") that, prior to their purchase of the Securities, deliver to
such Initial Purchaser a letter containing the representations and
agreements set forth in Appendix A to the Memorandum and (B) in the case
of offers outside the United States, to persons other than U.S. persons
("FOREIGN PURCHASERS"), which term shall include dealers or other
professional fiduciaries in the United States acting
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on a discretionary basis for foreign beneficial owners (other than an
estate or trust)) in reliance upon Regulation S under the Securities Act
that, in each case, in purchasing such Securities are deemed to have
represented and agreed as provided in the Final Memorandum under the
caption "Transfer Restrictions".
(b) Each Placement Agent, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United
States that:
(i) such Placement Agent understands that no action has
been or will be taken in any jurisdiction by the Company that
would permit a public offering of the Securities, or possession
or distribution of either Memorandum or any other offering or
publicity material relating to the Securities, in any country or
jurisdiction where action for that purpose is required;
(ii) such Placement Agent will comply with all applicable
laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Securities or has in its possession or
distributes either Memorandum or any such other material, in all
cases at its own expense;
(iii) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons
except in accordance with Rule 144A or Regulation S under the
Securities Act or pursuant to another exemption from the
registration requirements of the Securities Act;
(iv) such Placement Agent has offered the Securities and
will offer and sell the Securities (A) as part of their
distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering and the Closing
Date, only in accordance with Rule 903 of Regulation S or as
otherwise permitted in Section 7(a); accordingly, neither such
Placement Agent, its Affiliates nor any persons acting on its or
their behalf have engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the
Securities, and any such Placement Agent, its Affiliates and any
such persons have
15
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complied and will comply with the offering restrictions
requirement of Regulation S;
(v) such Placement Agent has (A) not offered or sold and,
prior to the date six months after the Closing Date, will not
offer or sell any Securities to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (B)
complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it
in relation to the Securities in, from or otherwise involving the
United Kingdom, and (C) only issued or passed on and will only
issue or pass on in the United Kingdom any document received by
it in connection with the issue of the Securities to a person who
is of a kind described in Article 11(3) of the Financial Services
▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996 or
is a person to whom such document may otherwise lawfully be
issued or passed on;
(vi) such Placement Agent understands that the Securities
have not been and will not be registered under the Securities and
Exchange Law of Japan, and represents that it has not offered or
sold, and agrees not to offer or sell, directly or indirectly,
any Securities in Japan or for the account of any resident
thereof except pursuant to any exemption from the registration
requirements of the Securities and Exchange Law of Japan and
otherwise in compliance with applicable provisions of Japanese
law; and
(vii) such Placement Agent agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to
each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities
from it during the restricted period a confirmation or notice to
substantially the following effect:
16
17
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in this Section 7(b) have the meanings given to them by Regulation S.
8. Indemnity and Contribution. (a) The Company and each Subsidiary
Guarantor agrees to indemnify and hold harmless each Placement Agent and
each person, if any, who controls any Placement Agent within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in either Memorandum (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any 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, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Placement Agent furnished to the Company in writing by such
Placement Agent through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any
Preliminary Memorandum shall not inure to the benefit of any Placement
Agent from whom the person asserting any such losses, claims, damages or
liabilities purchased Securities, or any person controlling such
Placement Agent, if a copy of the Final Memorandum (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Placement Agent to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Final Memorandum (as so amended or
supplemented) would have cured the defect giving rise to such losses,
17
18
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Placement Agent agrees, severally and not jointly, to
indemnify and hold harmless the Company and each of the Subsidiary
Guarantors, its directors, its officers and each person, if any, who
controls the Company and each of the Subsidiary Guarantors within the
meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the
Company and each of the Subsidiary Guarantors to such Placement Agent,
but only with reference to information relating to such Placement Agent
furnished to the Company in writing by such Placement Agent through you
expressly for use in either Memorandum or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a) or 8(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying
party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for all such indemnified parties and that
all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, in the case of parties indemnified
18
19
pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify
the indemnified party from and against any loss or liability by reason
of such settlement or judgment. 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 the second and third sentences of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject
matter of such proceeding.
(d) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and
each of the Subsidiary Guarantors on the one hand and the Placement
Agents on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause 8(d)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Company and the Subsidiary Guarantors on the one
hand and of the Placement Agents on the other hand in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Subsidiary Guarantors on the one hand and the Placement Agents
19
20
on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Securities (before deducting expenses)
received by the Company and the total discounts and commissions received
by the Placement Agents, in each case as set forth in the Final
Memorandum, bear to the aggregate offering price of the Securities. The
relative fault of the Company and the Subsidiary Guarantors on the one
hand and of the Placement Agents 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 the Company
and the Subsidiary Guarantors, on the one hand, or by the Placement
Agents, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Placement Agents' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the
respective principal amount of Securities they have purchased hereunder,
and not joint.
(e) The Company and the Subsidiary Guarantors, and the Placement
Agents agree that it would not be just or equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even
if the Placement Agents were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(d). The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 8(d) shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Placement Agent
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities resold by it in the
initial placement of such Securities were offered to investors exceeds
the amount of any damages that such Placement Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 8 are not exclusive and shall not
20
21
limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of
the Company and the Subsidiary Guarantors contained in this Agreement
shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on
behalf of any Placement Agent or any person controlling any Placement
Agent or by or on behalf of the Company and the Subsidiary Guarantors,
its officers or directors or any person controlling the Company and the
Subsidiary Guarantors and (iii) acceptance of and payment for any of the
Securities.
9. Termination. This Agreement shall be subject to termination by notice
given by you to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the National Association of
Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses 9(a)(i) through 9(a)(iv), such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the Final
Memorandum.
10. Effectiveness; Defaulting Placement Agents. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Placement Agents shall
fail or refuse to purchase Securities that it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Placement Agent or Placement Agents agreed but failed or refused
to purchase is not more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date, the other Placement Agents shall be
obligated severally in the proportions that the principal amount of Securities
set
21
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forth opposite their respective names in Schedule I bears to the aggregate
principal amount of Securities set forth opposite the names of all such
non-defaulting Placement Agents, or in such other proportions as you may
specify, to purchase the Securities which such defaulting Placement Agent or
Placement Agents agreed but failed or refused to purchase on such date; provided
that in no event shall the principal amount of Securities that any Placement
Agent has agreed to purchase pursuant to this Agreement be increased pursuant to
this Section 10 by an amount in excess of one-ninth of such principal amount of
Securities without the written consent of such Placement Agent. If, on the
Closing Date any Placement Agent or Placement Agents shall fail or refuse to
purchase Securities which it or they have agreed to purchase hereunder on such
date and the aggregate principal amount of Securities with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of
Securities to be purchased on such date, and arrangements satisfactory to you
and the Company for the purchase of such Securities are not made within 36 hours
after such default, this Agreement shall terminate without liability on the part
of any non-defaulting Placement Agent or of the Company. In any such case either
you or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Final Memorandum or in any other documents or arrangements may be effected.
Any action taken under this paragraph shall not relieve any defaulting Placement
Agent from liability in respect of any default of such Placement Agent under
this Agreement.
If this Agreement shall be terminated by the Placement Agents, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company and the Subsidiary Guarantors will reimburse the
Placement Agents or such Placement Agents as have so terminated this Agreement
with respect to themselves, severally, for all out-of-pocket expenses (including
the fees and disbursements of their counsel) reasonably incurred by such
Placement Agents in connection with this Agreement or the offering contemplated
hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
22
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12. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
FOODMAKER, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CP DISTRIBUTION CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
CP WHOLESALE CO.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Controller
FOODMAKER INTERNATIONAL FRANCHISING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
23
24
▇▇▇▇ IN THE BOX, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
Salomon Brothers Inc
▇▇▇▇▇▇▇▇▇ & Company, Inc.
Acting severally on behalf of themselves and
the several Placement Agents named in
Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
24
25
▇▇▇▇ IN THE BOX, INC.
By:
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
Salomon Brothers Inc
▇▇▇▇▇▇▇▇▇ & Company, Inc.
Acting severally on behalf of themselves and
the several Placement Agents named in
Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
24
26
SCHEDULE I
--------------------------------------------------------------------------------
PLACEMENT PRINCIPAL AMOUNT OF
SECURITIES TO BE PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated................. $ 75,000,000
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC............. $ 25,000,000
Salomon Brothers Inc.............................. $ 18,750,000
▇▇▇▇▇▇▇▇▇ & Company, Inc.......................... $ 6,250,000
------------
$125,000,000
Total:.................................... ============
27
EXHIBIT A
OPINION OF COUNSEL FOR THE COMPANY
The opinion of the counsel for the Company, to be delivered
pursuant to Section 5(c) of the Placement Agreement shall be to the effect that:
A. The Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of Delaware, has the corporate
power and authority to own its property and to conduct its business as described
in the Final Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
B. Each Subsidiary Guarantor of the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Final Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole;
all of the issued shares of capital stock of each Subsidiary Guarantor have been
duly and validly authorized and issued, are fully paid and non-assessable, and
are owned directly by the Company, free and clear of all liens, encumbrances,
equities or claims (other than liens, encumbrances, equities or claims pursuant
to the New Credit Facility, as defined in the Final Memorandum).
C. The Placement Agreement has been duly authorized, executed and
delivered by the Company and each of the Subsidiary Guarantors.
D. The Securities have been duly authorized by the Company and,
when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Placement Agents in accordance
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with the terms of the Placement Agreement, will be valid and binding obligation
of the Company, enforceable in accordance with their terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the benefits
of the Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
E. The Subsidiary Guarantees to be endorsed on the Securities by
each Subsidiary Guarantor have been duly authorized, executed and delivered and,
when the Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Placement
Agents in accordance with the terms of this Agreement, the Subsidiary Guarantee
of each Subsidiary Guarantor thereon will be valid and binding obligations of
each Subsidiary Guarantor, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the benefits
of the Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
F. Each of the Indenture and Registration Rights Agreement has
been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company and each of the Subsidiary Guarantors, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles of
equity and except as rights to indemnification and contribution under the
Registration Rights Agreement may be limited under applicable law.
G. The execution and delivery by the Company and each of the
Subsidiary Guarantors of, and the performance by the Company and each of the
Subsidiary Guarantors of its respective obligations under, the Placement
Agreement, the Indenture, the Registration Rights Agreement, the Securities and
the Subsidiary Guarantees, as applicable, will not contravene (i) any of (a)
that certain Credit Agreement dated as of April 1, 1998 by and among the
Company, certain lenders, NationsBank of Texas, N.A., as agent and Nationsbanc
▇▇▇▇▇▇▇▇▇▇ Securities, LLC as arranger, (b) the Indenture with respect to the
Senior Notes, (c) the Indenture with respect to the Existing Senior Subordinated
Notes, (d) the Master Lease by and between CRC-I Limited Partnership, as lessor,
and the Company, as lessee, dated as of December 15, 1993, (e) the Deed of
A-2
29
Trust, Security Agreement and Fixture Filing, dated December 15, 1993, by and
between the Company, as trustor, and Chicago Title Insurance Company, as
trustee, in favor of FM 1993A Corp., as beneficiary, (f) the Purchase Agreements
dated as of January 22, 1987 between the Company and FFCA/IIP 1985 Property
Company and FFCA/IIP 1986 Property Company and (g) the Land Purchase Agreements
dated as of February 18, 1987, by and between the Company and FFCA/IPI 1984
Property Company and FFCA/IPI 1985 Property Company and Letter Agreement
relating thereto, or (ii) the charter documents or bylaws of any of the Company
of any of the Subsidiary Guarantors, or (iii) any statute or regulation of the
United States, California or New York law or the General Corporation law of the
State of Delaware or any judgment, decree or order of any court or other
governmental authority or any arbitrator known to such counsel and applicable to
the Company or any of the Subsidiary Guarantors, except with respect to clauses
(i) and (iii), for such matters that would not, individually or in the
aggregate, have a material adverse effect on the Company and its subsidiaries,
taken as a whole, and would not adversely affect the ability of the Company and
the Subsidiary Guarantors to perform their obligations under the Placement
Agreement, the Indenture, the Registration Rights Agreement and the Securities;
and no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company and
each of the Subsidiary Guarantors of its respective obligations under the
Placement Agreement, the Indenture, the Registration Rights Agreement, the
Securities or the Subsidiary Guarantees, as applicable, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Securities and by Federal and state securities
laws with respect to the Company's and each Subsidiary Guarantor's obligations
under the Registration Rights Agreement.
H. To the best of knowledge of such counsel there are no legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject other than proceedings summarized in the
Final Memorandum and proceedings which such counsel believes are not likely to
have a material adverse effect on the Company and its subsidiaries, taken as a
whole, or on the power or ability of the Company and the Subsidiary Guarantors
to perform their respective obligations under the Placement Agreement, the
Indenture, the Registration Rights Agreement, the Securities or the Subsidiary
Guarantees, as
A-3
30
applicable, or to consummate the transactions contemplated by the Final
Memorandum.
I. The Company is not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds thereof as
described in the Final Memorandum, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
J. The statements in the Final Memorandum under the captions
"Description of Notes", "Private Placement" and "Transfer Restrictions," insofar
as such statements constitute summaries of the legal matters or documents
referred to therein, fairly summarize the matters referred to therein.
K. The statements in the Final Memorandum under the caption
"Certain Federal Income Tax Considerations," insofar as such statements
constitute a summary of the United States federal tax laws referred to therein,
are accurate and fairly summarize in all material respects the United States
federal tax laws referred to therein.
L. Based upon the representations, warranties and agreements of
the Company in Sections 1(p), 1(q), 1(s), 6(f), 6(g) and 6(j) of the Placement
Agreement and of the Placement Agents in Section 7 of the Placement Agreement,
it is not necessary in connection with the offer, sale and delivery of the
Securities to the Placement Agents under the Placement Agreement or in
connection with the initial resale of such Securities by the Placement Agents in
accordance with Section 7 of the Placement Agreement to register the Securities
under the Securities Act of 1933 or to qualify the Indenture under the Trust
Indenture Act of 1939, it being understood that no opinion is expressed as to
any subsequent resale of any Security.
In addition, such counsel shall state that they have participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Placement Agents and counsel for the Placement Agents, at
which conferences the contents of the Final Memorandum and related matters were
discussed. Because the purpose of such counsel's professional engagement was not
to establish or confirm factual matters and because the scope of such counsel's
examination of the affairs of the Company is not designed to verify the
A-4
31
accuracy, completeness or fairness of the statements set forth in the Final
Memorandum, such counsel need not pass upon, and need not assume any
responsibility for the accuracy, completeness or fairness of the statements set
forth in the Final Memorandum (except to the extent set forth in paragraphs J
and K above). Such counsel shall state that, on the basis of the foregoing, no
facts have come to the attention of such counsel which lead such counsel to
believe that the Final Memorandum, on the date thereof or the date hereof,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they were made, not misleading (it being
understood that such counsel need not express a view with respect to the
financial statements and the notes thereto and the other financial, accounting
and statistical data included in the Memorandum).
A-5
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EXHIBIT B
OPINION OF ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
The opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ to be delivered pursuant to Section 5(f)
of the Placement Agreement shall be to the effect that:
A. The Placement Agreement has been duly authorized, executed and
delivered by the Company and each of the Subsidiary Guarantors.
B. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Placement Agents in accordance with the
terms of the Placement Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
C. The Subsidiary Guarantees to be endorsed on the Securities have been
duly authorized, executed and delivered by each Subsidiary Guarantor and, when
the Securities have been executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Placement
Agents in accordance with the terms of this Agreement, the Subsidiary Guarantee
of each Subsidiary Guarantor thereon will be valid and binding obligations of
each Subsidiary Guarantor, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity, and will be entitled to the benefits
of the Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
D. Each of the Indenture and Registration Rights Agreement has been duly
authorized, executed and delivered by, and is a valid and binding agreement of,
the Company and each of the Subsidiary Guarantors, enforceable in accordance
with its terms, subject to applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally and general principles of equity and
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except as rights to indemnification and contribution under the Registration
Rights Agreement may be limited under applicable law.
E. The statements in the Final Memorandum under the captions
"Description of Notes", "Private Placement" and "Transfer Restrictions", insofar
as such statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly summarize the matters referred to
therein.
F. Based upon the representations, warranties and agreements of the
Company in Sections 1(p), 1(q), 1(s), 6(f), 6(g) and 6(j) of the Placement
Agreement and of the Placement Agents in Section 7 of the Placement Agreement,
it is not necessary in connection with the offer, sale and delivery of the
Securities to the Placement Agents under the Placement Agreement or in
connection with the initial resale of such Securities by the Placement Agents in
accordance with Section 7 of the Placement Agreement to register the Securities
under the Securities Act of 1933 or to qualify the Indenture under the Trust
Indenture Act of 1939, it being understood that no opinion is expressed as to
any subsequent resale of any Security.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company, counsel to
the Company, representatives of the independent public accountants for the
Company, and representatives of the Placement Agents, at which the contents of
the Offering Memorandum and related matters were discussed and, although they
are not passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum
(except as specified in paragraph E) and have not made any independent check or
verification thereof, during the course of such participation, no facts came to
their attention that caused them to believe that the Offering Memorandum, as of
its date, contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, it being understood
that they express no belief with respect to the financial statements or other
financial data included or incorporated by reference in, or omitted from, the
Offering Memorandum.
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