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Exhibit 1.1
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NATIONSRENT, INC.
and
THE GUARANTORS NAMED ON THE SIGNATURE PAGES HERETO
$175,000,000
10 3/8% Senior Subordinated Notes due 2008
Purchase Agreement
December 8, 1998
BEAR, XXXXXXX & CO. INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
BT ALEX. XXXXX INCORPORATED
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
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NATIONSRENT, INC.
$175,000,000
10 3/8% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
December 8, 1998
New York, New York
BEAR, XXXXXXX & CO. INC.
NATIONSBANC XXXXXXXXXX SECURITIES LLC
BT ALEX. XXXXX INCORPORATED
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
X/X XXXX, XXXXXXX & XX. XXX.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
NationsRent, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to Bear, Xxxxxxx & Co. Inc., NationsBanc Xxxxxxxxxx Securities
LLC, BT Alex. Xxxxx Incorporated, and BancBoston Xxxxxxxxx Xxxxxxxx Inc. (each,
individually, an "INITIAL PURCHASER" and collectively, the "INITIAL PURCHASERS")
$175,000,000 aggregate principal amount of its 10 3/8% Senior Subordinated Notes
due 2008 (collectively with the Guarantees referred to below, the "SERIES A
NOTES"), subject to the terms and conditions set forth herein. The Series A
Notes will be issued pursuant to the provisions of an indenture dated December
11, 1998 (the "INDENTURE"), among the Company and The Bank of New York, as
trustee (the "TRUSTEE"). The Notes will be fully and unconditionally guaranteed
(the "GUARANTEES") as to payment of principal, interest, liquidated damages and
premium, if any, on a senior subordinated unsecured basis, jointly and
severally, by each of the Company's subsidiaries whose signature is attached
hereto (collectively, the "GUARANTORS"). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Offering
Memorandum referred to below or in the Indenture.
The Series A Notes will be offered and sold to the Initial Purchasers
without registration under the Securities Act of 1933, as amended (the "ACT"),
in reliance on an exemption from the registration requirements pursuant to
Section 4(2) of the Act. In connection with the sale of the Series A Notes, the
Company prepared a preliminary offering memorandum dated November 25, 1998 (the
"PRELIMINARY OFFERING MEMORANDUM") and a final offering memorandum dated
December 8, 1998 (the "OFFERING MEMORANDUM"), each setting forth certain
information concerning the Company and the Series A Notes. The Company hereby
confirms that it has authorized the use of
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the Preliminary Offering Memorandum and the Offering Memorandum in connection
with the offer and resale of the Series A Notes by the Initial Purchasers on the
terms and in the manner set forth in the Preliminary Offering Memorandum, the
Offering Memorandum and this Purchase Agreement (this "AGREEMENT"). Unless
stated to the contrary, all references herein to the Offering Memorandum are to
the Offering Memorandum at the date hereof, together with any amendment or
supplement thereto as of the date hereof.
The Company understands that the Initial Purchasers propose to make
offerings of the Series A Notes only on the terms and in the manner set forth in
the Offering Memorandum and Sections 2 and 3 hereof, as soon as the Initial
Purchasers deem advisable after this Agreement has been executed and delivered,
to persons in the United States and Canada whom the Initial Purchasers
reasonably believe to be qualified institutional buyers ("QIBS") as defined in
Rule 144A under the Act, as such rule may be amended from time to time ("RULE
144A"), in transactions meeting the requirements of Rule 144A.
1. ISSUANCE OF SECURITIES. The Company proposes, upon the terms and
subject to the conditions set forth herein, to issue and sell to the Initial
Purchasers an aggregate of $175,000,000 principal amount of Series A Notes.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Series A Notes
(and all securities issued in exchange therefor or in substitution thereof)
shall bear the following legend:
THIS SECURITY AND THE GUARANTEES HEREOF HAVE NOT BEEN REGISTERED UNDER
THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH BELOW. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL
NOT WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL
OF OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED INVESTOR (AS DEFINED
IN RULE 501(A) OF THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
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THIS SECURITY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE FOR THIS SECURITY), (C) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER
THE SECURITIES ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY AND THE GUARANTEES HEREOF ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY
TRANSFER OF THIS SECURITY WITHIN ONE YEAR AFTER THE ORIGINAL ISSUANCE
OF THIS SECURITY, IF THE PROPOSED TRANSFEREE IS AN ACCREDITED INVESTOR,
THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE TRUSTEE AND THE
COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
2. OFFERING. The Series A Notes will be offered and sold to the Initial
Purchasers pursuant to an exemption from the registration requirements under
Section 4(2) of the Act.
The Initial Purchasers have advised the Company that they propose to
offer the Series A Notes for resale (the "EXEMPT RESALES") on the terms and
conditions set forth in this Agreement and in the Offering Memorandum, as
amended or supplemented, solely to persons whom the Initial Purchasers
reasonably believe to be QIBs (the "ELIGIBLE PURCHASERS"). The Initial
Purchasers will offer the Series A Notes to such Eligible Purchasers initially
at a price equal to 100% of the principal amount thereof. Such price may be
changed at any time without notice.
The Initial Purchasers and other holders (including subsequent
transferees) of the Series A Notes will have the registration rights set forth
in the registration rights agreement relating thereto (the "REGISTRATION RIGHTS
AGREEMENT"), to be dated the Closing Date (as defined below) and substantially
in the form of EXHIBIT A hereto, for so long as such Notes constitute
"REGISTRABLE SECURITIES" (as defined in the Registration Rights Agreement).
Pursuant to the Registration Rights Agreement, the Company will agree to file
with the Securities and Exchange Commission (the "COMMISSION"), under the
circumstances set forth therein, (i) a registration statement under the Act (the
"EXCHANGE OFFER REGISTRATION STATEMENT") relating to the 10 3/8% Senior
Subordinated Notes due 2008 (collectively with the Guarantees, the "EXCHANGE
NOTES") to be offered in exchange for the
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Series A Notes (the "EXCHANGE OFFER") and (ii) a shelf registration statement
pursuant to Rule 415 under the Act (the "SHELF REGISTRATION STATEMENT") relating
to the resale by certain holders of the Series A Notes, and to use their best
efforts to cause such Registration Statements to be declared effective and to
consummate the Exchange Offer. The Series A Notes and the Exchange Notes are
collectively referred to herein as the "NOTES." This Agreement, the Notes, the
Indenture and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "OPERATIVE DOCUMENTS."
3. PURCHASE, SALE AND DELIVERY. (a) The Company agrees to issue and
sell to each Initial Purchaser, severally and not jointly, and, on the basis of
the representations, warranties and covenants contained in this Agreement and
subject to the terms and conditions set forth herein, each Initial Purchaser
agrees, severally and not jointly, to purchase from the Company, the aggregate
principal amount of Series A Notes set forth in EXHIBIT B opposite the name of
such Initial Purchaser. The purchase by any Initial Purchaser of any Series A
Notes shall require such Initial Purchaser to purchase the aggregate amount of
Series A Notes as set forth in EXHIBIT B. The purchase price for the Series A
Notes will be $970 per $1,000 principal amount of Series A Notes.
(b) Delivery of the Series A Notes shall be made, against payment of
the purchase price therefor, at the offices of Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., New York City time, on
December 11, 1998, or such other location, date and time as the Initial
Purchasers and the Company shall agree (such date and time of delivery and
payment for the Series A Notes being herein called the "CLOSING DATE").
(c) One or more of the Series A Notes in definitive form, registered in
the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"),
having an aggregate amount corresponding to the aggregate amount of the Series A
Notes sold pursuant to Exempt Resales to QIBs (the "GLOBAL NOTE"), shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct), against payment by the Initial Purchasers of the purchase price
therefor, by wire transfer of same day funds, to an account designated by the
Company, provided that the Company shall give at least two business days' prior
written notice to the Initial Purchasers of the information required to effect
such wire transfer. The Global Note shall be made available to the Initial
Purchasers for inspection not later than 9:30 a.m. New York City time on the
business day immediately preceding the Closing Date.
4. COVENANTS OF THE COMPANY. The Company covenants and agrees with the
Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if
requested by any of the Initial Purchasers, confirm such advice in
writing, (i) of the issuance to the Company's knowledge by any state
securities commission of any order suspending the qualification or
exemption from qualification of any Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose by
any state securities commission or other
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regulatory authority and (ii) of the occurrence of any event that makes
any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires the
making of any additions to or changes in the Preliminary Offering
Memorandum or the Offering Memorandum in order to make the statements
therein, in the light of the circumstances under which they are made,
not misleading. The Company shall make every reasonable effort to
prevent the issuance of any stop order or order suspending the
qualification or exemption of any Notes under any state securities or
"Blue Sky" laws and, if any such order is issued, to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) The Company will furnish to the Initial Purchasers,
counsel for the Initial Purchasers and those persons identified by the
Initial Purchasers to the Company, without charge, as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments or supplements thereto, as the Initial Purchasers and
their counsel may reasonably request. The Company consents 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 on the terms and in the manner set forth
in the Preliminary Offering Memorandum, the Offering Memorandum and
this Agreement.
(c) Before amending or supplementing the Preliminary Offering
Memorandum or the Offering Memorandum, to furnish to the Initial
Purchasers a copy of each such proposed amendment or supplement and not
to make any such proposed amendment or supplement to which the Initial
Purchasers reasonably object. The Company shall promptly prepare, upon
the Initial Purchasers' request, any amendment or supplement to the
Preliminary Offering Memorandum or the Offering Memorandum that may be
necessary or advisable in connection with Exempt Resales.
(d) If, after the date hereof and prior to completion of any
Exempt Resale by the Initial Purchasers to purchasers who are not
affiliated with any Initial Purchaser, any event shall occur or
condition shall exist as a result of which, in the judgment of the
Company or counsel for the Company or counsel for the Initial
Purchasers, it becomes necessary or advisable to amend or supplement
the Offering Memorandum so that it does not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances when
such Offering Memorandum is delivered to a purchaser, not misleading,
or if in the opinion of the Company or counsel for the Company or
counsel to the Initial Purchasers it is necessary or advisable to amend
or supplement the Offering Memorandum to comply with applicable law,
the Company will (i) notify the Initial Purchasers, in writing, to
suspend use of the Offering Memorandum as promptly as practicable, and
(ii) promptly prepare, at its own expense, an appropriate amendment or
supplement to such Offering Memorandum so that the statements therein
as so amended or supplemented will not include an untrue statement of a
material fact or omit
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to state a material fact necessary in order to make the statements
therein, in the light of the circumstances when it is so delivered to a
purchaser, not misleading, or so that such Offering Memorandum will
comply with applicable law.
(e) To cooperate with the Initial Purchasers and counsel for
the Initial Purchasers in connection with the qualification or
registration of the Notes for the offering and sale under the
securities or "Blue Sky" laws of such states and other jurisdictions as
the Initial Purchasers may request and to continue such qualification
in effect so long as required for the Exempt Resales; PROVIDED,
HOWEVER, that the Company shall not be required in connection therewith
to register or qualify as a foreign corporation where it is not now so
qualified or to take any action that would subject it to service of
process in suits or taxation, in each case, other than as to matters
and transactions relating to the Preliminary Offering Memorandum, the
Offering Memorandum or Exempt Resales, in any jurisdiction where it is
not now so subject. The Company shall promptly advise the Initial
Purchasers of the receipt of any notification with respect to the
suspension of the qualification or exemption from qualification of the
Notes for offering or sale in any jurisdiction or the institution, or,
to the Company's knowledge, the threat or contemplation, of any
proceeding for such purpose.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated, the Company hereby agrees to pay all costs, expenses, fees
and taxes incident to the performance of the obligations of the Company
hereunder, including in connection with: (i) the preparation, printing,
filing and distribution of the Preliminary Offering Memorandum and the
Offering Memorandum (including, without limitation, financial
statements) and all amendments and supplements thereto required
pursuant hereto, (ii) the issuance, transfer and delivery by the
Company of the Notes to the Initial Purchasers, (iii) the qualification
or registration of the Notes for offer and sale under the securities or
Blue Sky laws of the several states (including, without limitation, the
cost of preparing, printing and mailing a preliminary and final Blue
Sky Memorandum and the reasonable fees and disbursements of counsel for
the Initial Purchasers relating thereto) and the expenses related to
all other agreements, memoranda, correspondence and all other documents
prepared and delivered in connection herewith and with Exempt Resales,
(iv) furnishing such copies of the Preliminary Offering Memorandum and
the Offering Memorandum, and all amendments and supplements thereto, as
may be requested for use in connection with Exempt Resales, (v) the
preparation of certificates for the Notes (including, without
limitation, printing and engraving thereof), (vi) the fees,
disbursements and expenses of the Company's counsel and accountants,
(vii) all expenses and listing fees in connection with the application
for quotation of the Notes in the PORTAL market, (viii) all fees and
expenses (including fees and expenses of counsel) of the Company in
connection with the approval of the Notes by DTC for "book-entry"
transfer, (ix) rating the Notes by rating agencies, (x) the reasonable
fees and expenses of the Trustee and its counsel, (xi) the performance
by the Company of its other obligations under this Agreement
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and the other Operative Documents, and (xii) "roadshow" travel and
other expenses of the parties hereto (with the exception of the Initial
Purchasers and their Advisors) incurred in connection with the
marketing and sale of the Notes. Except as provided in this Section
4(f) and Sections 6, 7 and 10(d) hereof, the Initial Purchasers shall
pay all of their own costs and expenses, including the fees of their
counsel.
(g) The Company will apply the proceeds from the sale of the
Notes as set forth in the Offering Memorandum under the caption "Use of
Proceeds."
(h) The Company will not voluntarily claim, and will resist
actively any attempts to claim, the benefit of any usury laws against
the holders of any Notes.
(i) None of the Company, any of its subsidiaries or any of its
affiliates (as defined in Rule 501(b) under the Act) will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as defined in the Act) that could reasonably be expected
to be integrated with the sale of the Notes in a manner that would
require the registration of the Notes under the Act, or take any other
action that would result in the Exempt Resales not being exempt from
registration under the Act.
(j) The Company will, for so long as any of the Notes remain
outstanding and during any period in which the Company is not subject
to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and any holder of the Notes is still
relying on Rule 144A or another exemption from the registration
requirements of the Act, make available to any holder or beneficial
owner of Notes in connection with any sale thereof and any prospective
purchaser of such Notes from such holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Act.
(k) The Company will cause the Exchange Offer to be made in
the appropriate form to permit registered Exchange Notes to be offered
in exchange for the Notes and to comply with all applicable federal and
state securities laws in connection with the Exchange Offer.
(l) The Company will comply with all of the agreements set
forth herein and in the other Operative Documents and all agreements
set forth in the representation letters of the Company to DTC relating
to the approval of the Notes by DTC for "book-entry" transfer.
(m) The Company will use its best efforts to effect the
inclusion of the Notes in PORTAL and obtain approval of the Notes by
DTC for "book-entry" transfer.
(n) For so long as any of the Notes remain outstanding but in
no event beyond a period of three years following the Closing Date, the
Company will deliver without charge to the Initial Purchasers, as they
may reasonably request, promptly upon their becoming
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available, copies of (i) all reports or other publicly available
information that the Company shall mail or otherwise make available to
its stockholders, and (ii) all reports, financial statements and proxy
or information statements filed by the Company with the Commission or
any national securities exchange or market and such other publicly
available information concerning the Company or any of its
subsidiaries, including without limitation, press releases.
(o) Neither the Company nor any of its subsidiaries will take,
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 the Company in order to
facilitate the sale or resale of the Notes. Except as permitted by the
Act, the Company will not distribute any (i) preliminary offering
memorandum, including, without limitation, the Preliminary Offering
Memorandum, (ii) offering memorandum, including, without limitation,
the Offering Memorandum or (iii) other offering material in connection
with the offering and sale of the Notes.
(p) Neither the Company nor any of its affiliates (as defined
in Rule 501(b) under the Act) will solicit any offer to buy or offer or
sell the Series A Notes or the Exchange Notes by means of any form of
general solicitation or general advertising (as such 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, prior to the
effectiveness of a registration statement with respect to the Series A
Notes or the Exchange Notes, as applicable.
(q) On or before December 16, 1998, the Company will cause the
transfer agent for the Company's Common Stock to deliver to the holders
of the A-1 Notes (as defined herein), in exchange for the A-1 Notes
marked cancelled, certificates representing the shares of Common Stock
of the Company into which the A-1 Notes have been converted (the "A-1
Stock Certificates"). Prior to such delivery, the Company shall not
amend, modify or terminate the irrevocable instructions it has provided
to such transfer agent to effect such delivery or waive any provision
thereof without the prior written consent of Bear, Xxxxxxx and Co. Inc.
As used in this Agreement, "A-1 Notes" means the unsecured convertible
subordinated promissory notes in the aggregate principal amount of
$50,000,000 issued by the Company in connection with the acquisition of
A-1 Rentals.
(r) Each of the Company and the Guarantors will conduct its
business and financial affairs in such a manner as to ensure that it
will not become an "investment company" or an entity "controlled" by an
"investment company."
5. REPRESENTATIONS AND WARRANTIES.
(a) The Company and the Guarantors represent and warrant to,
and agree with, the Initial Purchasers that:
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(i) The Preliminary Offering Memorandum and the Offering
Memorandum have been prepared in connection with the Exempt Resales.
The Preliminary Offering Memorandum and Offering Memorandum do not, and
any supplement or amendment to them will not, contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. No representation and warranty is made in this
subsection (i), however, with respect to any information contained in
or omitted from the Preliminary Offering Memorandum or the Offering
Memorandum or any amendment thereof or supplement thereto in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any of the Initial Purchasers relating to
the Initial Purchasers expressly for use in connection with the
preparation thereof. The Company and the Guarantors acknowledge that
the statements set forth in the sixth full paragraph on page (ii) of
the Offering Memorandum, relating to possible stabilization
transactions, in the table listing Initial Purchasers under the caption
"Plan of Distribution" in the Offering Memorandum and in the fifth
paragraph under the caption "Plan of Distribution" in the Offering
Memorandum constitute the only information furnished in writing by or
on behalf of any Initial Purchaser expressly for use in the Offering
Memorandum.
(ii) Neither the Commission nor the "Blue Sky" or securities
authority of any jurisdiction has issued an order preventing or
suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, nor, to
the knowledge of the Company, has any of such authorities instituted or
threatened to institute any proceedings with respect to a stop order or
instituted or threatened to institute any order or in any way asserted
that any of the transactions contemplated by this Agreement is subject
to the registration requirements of the Act. As used in this Agreement,
"knowledge of the Company" means the knowledge of the senior officers
of the Company after reasonable inquiry under the circumstances.
(iii) Xxxxxx Xxxxxxxx LLP, who have certified the financial
statements included in the Offering Memorandum, are independent public
accountants with regard to the Company and its subsidiaries as required
by the Act and the regulations under the Act if the Offering were
required to be registered under the Act.
(iv) Subsequent to the respective dates as of which information
is given in the Offering Memorandum, except as otherwise set forth in
the Offering Memorandum, there has been no material adverse change, or
any development known to the Company or any Guarantor which is
reasonably expected to result in a material adverse change, in the
business, prospects, properties (whether or not insured), assets,
earnings, operations, condition (financial or other) or results of
operations of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business (any such event, a "MATERIAL ADVERSE EFFECT"). Since the date
of the latest balance sheet
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presented in the Offering Memorandum, except as expressly disclosed in
the Offering Memorandum, neither the Company nor any of its
subsidiaries has (i) incurred or undertaken any liabilities or
obligations, direct or contingent, not in the ordinary course of
business that could reasonably be expected to have a Material Adverse
Effect, (ii) entered into any material transaction not in the ordinary
course of business and consistent with past practice, (iii) entered
into any agreement or made any commitment binding on the Company to
acquire any company or business that could reasonably be expected to
have a Material Adverse Effect, or (iv) declared or paid any dividend
or made any distribution on any shares of its capital stock redeemed,
purchased or otherwise acquired or agreed to redeem, purchase or
otherwise acquire any shares of its capital stock.
(v) Each of the Company and the Guarantors has the requisite
corporate power and authority to enter into this Agreement and each of
the other Operative Documents to which it is a party, perform each of
its obligations hereunder and thereunder and issue, sell, deliver and
perform its obligations under the Series A Notes to be sold by it
hereunder. This Agreement and the transactions contemplated herein have
been duly and validly authorized by the Company and each of the
Guarantors and this Agreement has been duly and validly executed and
delivered by the Company and each of the Guarantors and is a legal,
valid and binding obligation of the Company and each of the Guarantors,
enforceable against the Company and each of the Guarantors in
accordance with its terms, except (i) as the enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and public policy.
(vi) The execution, delivery and performance by the Company and
each of the Guarantors of this Agreement and the other Operative
Documents, and the consummation by the Company and each of the
Guarantors of the transactions contemplated hereby (including the
issuance, sale and delivery of the Series A Notes and the Guarantees by
the Company and the Guarantors, respectively), do not and will not (i)
conflict with or result in a breach of any of the terms and provisions
of, or constitute a default (or an event which with notice or lapse of
time, or both, would constitute a default) under, give rise to any
right to accelerate the maturity or require the prepayment of any
material obligation of the Company or any of the Guarantors or require
any consent, or result in the creation or imposition of any material
lien, charge or encumbrance upon any property or assets of the Company
or any of the Guarantors, pursuant to the terms of any agreement,
instrument, franchise, license or permit to which the Company or any of
the Guarantors is a party or by which any of such corporations or their
respective properties or assets may be bound, or (ii) violate or
conflict with any provision of the certificate of incorporation or
by-laws of the Company or any of the Guarantors or any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the
Company or any of the Guarantors or any of their respective properties
or assets.
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(vii) No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having jurisdiction
over the Company or any of the Guarantors or any of their respective
properties or assets is required for the valid execution, delivery and
performance by the Company and each of the Guarantors of this Agreement
or any of the other Operative Documents to which it is a party or the
consummation of the transactions contemplated hereby and thereby,
including the issuance, sale and delivery of the Series A Notes to be
issued, sold and delivered by the Company and the Guarantors hereunder,
except such as have been obtained and made (or, in the case of the
Registration Rights Agreement, will be obtained or made) under the Act,
the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT"), and state securities or Blue Sky laws and regulations or such as
may be required by the National Association of Securities Dealers, Inc.
("NASD").
(viii) All of the outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and
non-assessable, were issued in compliance with all applicable United
States federal and state securities laws and were not issued and are
not now in violation of or subject to any preemptive rights, or, except
as disclosed in the Offering Memorandum, co-sale rights, registration
rights, repurchase rights, right of first refusal or any other similar
right. The Company had, at September 30, 1998, a duly authorized and
outstanding capitalization as set forth under the caption
"Capitalization" in the Offering Memorandum. On September 30, 1998,
after giving PRO FORMA effect to the issuance and sale of the Series A
Notes pursuant hereto and the other transactions referred to therein,
the Company would have had an authorized and outstanding capitalization
as set forth in the Offering Memorandum in the "Pro Forma As Adjusted"
column under the caption "Capitalization" in the Offering Memorandum.
There is no commitment, plan or arrangement to issue, and no
outstanding option, warrant, security or other right or instrument
which requires, permits or provides for the issuance, subscription or
purchase of, any share of capital stock of the Company or any security
or other instrument which by its terms is convertible into, exercisable
for, or exchangeable for capital stock of the Company, except as
accurately described in all material respects in the Offering
Memorandum or as set forth in EXHIBIT C attached hereto. Except as
described in the Offering Memorandum or as may be required by
applicable securities laws, there are no restrictions on the voting or
transfer of any shares of capital stock of the Company.
(ix) Each of the Company and the Guarantors has been duly
organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation. Each of the
Company and the Guarantors is duly qualified and in good standing as a
foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature or
conduct of its business makes such qualification necessary, except for
those failures to be so qualified or in good standing which could not
reasonably be expected to, individually or the aggregate, have a
Material Adverse Effect and neither the Company nor any of the
Guarantors has received any claim or notice
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from any official in any jurisdiction that it is required to be
qualified or licensed to do business in any jurisdiction in which it is
not so qualified or licensed. Each of the Company and the Guarantors
has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications,
licenses and permits of and from all public, regulatory or governmental
agencies and bodies, to own, lease and operate its properties and
conduct its business as now being conducted and as described in the
Offering Memorandum and neither the Company nor any of the Guarantors
has received any notice of any proceedings relating to the revocation
or modification of any thereof, and no such consent, approval,
authorization, order, registration, qualification, franchise, license
or permit contains a materially burdensome restriction that is not
accurately disclosed in all material respects in the Offering
Memorandum.
(x) As of September 30, 1998 and as of the date hereof, all of
the outstanding shares of capital stock of each of the Guarantors have
been duly authorized and validly issued, are fully paid and
non-assessable and were not issued and are not now in violation of or
subject to any preemptive rights, co-sale rights, registration rights,
repurchase rights, rights of first refusal or any other similar right,
and are owned directly by the Company, free and clear of any lien,
pledge, encumbrance, claim, security interest, restriction on transfer,
stockholders' agreement, voting trust or other defect of title
whatsoever. Except for the wholly-owned subsidiaries of the Company set
forth in EXHIBIT D, each of which is a Guarantor and which together
constitute all of the Company's subsidiaries, the Company owns no
controlling interest in any other corporation, partnership or other
entity and does not directly or indirectly own any shares of stock or
any other securities of any corporation or have any equity interest in
any firm, partnership, association or other entity, other than minority
investments in marketable securities that may be made in the ordinary
course of business as a part of its investment of excess cash assets.
There is no commitment, plan or arrangement to issue, and no
outstanding option, warrant, security or other right or instrument
which requires, permits or provides for the issuance, subscription or
purchase of, any share of capital stock of any of the Guarantors or any
security or other instrument which by its terms is convertible into,
exercisable for, or exchangeable for capital stock of any of the
Guarantors. Except as may be required by applicable securities laws,
there are no restrictions on the voting or transfer of any shares of
capital stock of any of the Guarantors.
(xi) Except as described in the Offering Memorandum, there is no
action, suit, investigation or proceeding, governmental or otherwise,
to which the Company or any of the Guarantors is a party or to which
any property of the Company or any of the Guarantors is subject or
which is pending or, to the knowledge of the Company, contemplated
against the Company or any of the Guarantors which (i) if adversely
decided or concluded, could reasonably be expected to have a Material
Adverse Effect, (ii) would be required to be disclosed in a prospectus
pursuant to the Act, or (iii) seeks to restrain, enjoin, prevent the
consummation of, or otherwise challenge the issuance of, the Notes or
the Guarantees or the execution and delivery of this Agreement or any
of the other Operative Documents or any
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of the transactions contemplated hereby or thereby, or questions the
legality or validity of any such transactions or that seeks to recover
damages or obtain other relief in connection with any of such
transactions.
(xii) Except as provided for in this Agreement, neither the
Company nor any of the Guarantors has (A) taken and neither the Company
nor any Guarantor will take, directly or indirectly, any action
designed to cause or result in, or which constitutes or which might
reasonably be expected to constitute, the stabilization or manipulation
of the price of any security of the Company in order to facilitate the
sale or resale of the Notes or (B) since the date of the Preliminary
Offering Memorandum (y) sold, bid for, purchased or paid any person any
compensation for soliciting purchases of the Notes or (z) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(xiii) The financial statements, including the notes thereto and
supporting schedules included in the Offering Memorandum present fairly
the financial condition, results of operations, stockholders' equity
and cash flows and other information purported to be shown therein of
the Company, its subsidiaries and its predecessor and the businesses
acquired by the Company at the dates and for the periods indicated and
present fairly the information required to be stated therein. Such
financial statements and supporting schedules have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, and are in accordance in all
material respects with the books and records of the Company, its
subsidiaries and its predecessor and the businesses acquired by the
Company, respectively. No other financial statements or supporting
schedules would be required by Form S-1 to be included in the Offering
Memorandum if the Offering Memorandum were subject to the disclosure
requirements applicable to Form S-1. The financial data set forth in
the Offering Memorandum under the captions "Offering Memorandum Summary
-- Summary Consolidated Historical and Pro Forma Financial Data", "Risk
Factors -- Substantial Debt", "Capitalization", "Selected Consolidated
Historical and Pro Forma Financial Information and Operations Data" and
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" fairly present, on the basis stated in the
Offering Memorandum, the information set forth therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Offering Memorandum. The pro forma and "as
adjusted" financial information included under the captions "Offering
Memorandum Summary -- Summary Consolidated Historical and Pro Forma
Financial Data", "Capitalization", "Selected Consolidated Historical
and Pro Forma Financial Information and Operations Data" and
"Management's Discussion and Analysis of Financial Conditions and
Results of Operations" and elsewhere in the Offering Memorandum that
gives effect to the issuance of the Notes, the application of the net
proceeds therefrom and the other transactions and events specified
therein presents fairly the information contained therein, has been
properly compiled on the basis of the assumptions set forth with
respect thereto, and the assumptions used in the preparation thereof
are
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reasonable, the pro forma adjustments to the historical figures have
been properly applied to such figures and such pro forma financial
information complies in all material respects with Regulation S-X of
the Commission applicable to registration statements on Form S-1 under
the Act. All other financial information and statistical data set forth
in the Offering Memorandum are, in all material respects, accurately
presented and, in the case of such financial information, has been
prepared on an accounting basis consistent with the financial
statements included in the Offering Memorandum, PROVIDED that with
respect to statistical data derived from industry sources, the Company
has not made any independent investigation or verification of such
data, but nothing has come to the attention of the Company or any
Guarantor that leads it to believe that such statistical data is
inaccurate.
(xiv) Each of the Company and the Guarantors has good and
marketable title to all the properties and assets reflected as owned in
the financial statements (or elsewhere) in the Offering Memorandum,
subject to no lien, mortgage, pledge, charge or encumbrance of any kind
except (i) those, if any, reflected in the financial statements, or
(ii) those which are not material in amount and do not adversely affect
the use made and proposed to be made of such property by the Company
and the Guarantors. Each of the Company and the Guarantors holds its
leased properties under valid, subsisting and enforceable leases, with
such exceptions as are not, individually or in the aggregate, material
and do not, individually or in the aggregate, interfere with the use
made or proposed to be made of such properties by the Company or the
applicable Guarantor. Except as disclosed in the Offering Memorandum,
each of the Company and the Guarantors owns or leases all such
properties as are necessary to its operations as now conducted or as
proposed to be conducted.
(xv) None of the Company or any of the Guarantors is, nor upon
consummation of the transactions contemplated hereby will be, subject
to registration as an "investment company" or an entity "controlled by"
an "investment company" within the meaning of the Investment Company
Act of 1940 and the rules and regulations promulgated thereunder.
(xvi) The Company and each of the Guarantors owns or possesses
adequate licenses or other rights to use all patents, trademarks,
service marks, trade names, copyrights, technology and know-how
necessary to conduct the business now or proposed to be conducted by
the Company and each of the Guarantors as described in the Offering
Memorandum, except for those patents, trademarks, service marks, trade
names, copyrights, technology and know-how the failure to own or have
the right to use would not have a Material Adverse Effect and, except
as disclosed in the Offering Memorandum, neither the Company nor any of
the Guarantors has received any notice of infringement of or conflict
with (or knows of such infringement of or conflict with) rights of
others with respect to any patents, trademarks, service marks, trade
names, copyrights or know-how; and to the knowledge of the Company, the
Company and each of the Guarantors does not, in the conduct of their
business as now conducted or proposed to be conducted, infringe or
conflict with any such rights of any third party.
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(xvii) There are no contracts, indentures, mortgages, loan
agreements, notes, leases or other agreements or instruments or other
documents (collectively, "DOCUMENTS") required to be described or
referred to in a Registration Statement on Form S-1 other than those
described or referred to in the Offering Memorandum; all such
descriptions are accurate in all material respects and present fairly
the information required to be described therein. All such Documents to
which the Company or a Guarantor is a party have been duly authorized,
executed and delivered by the Company or such Guarantor, constitute
valid and binding agreements of the Company or such Guarantor and are
enforceable against the Company or such Guarantor in accordance with
the terms thereof, except as the enforceability thereof may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles.
(xviii) There are no outstanding loans, advances (except normal
advances for business expenses in the ordinary course of business), or
guarantees of indebtedness by the Company or any of the Guarantors to
or for the benefit of any of the executive officers or directors of the
Company or any of the Guarantors or any of the members of the families
of any of them, and there are no business relationships or
related-party transactions involving the Company or any Guarantor or
any other person required to be described in the Offering Memorandum
except as disclosed in the Offering Memorandum; all such descriptions
are accurate in all material respects and present fairly the
information required to be described in a Registration Statement on
Form S-1.
(xix) Each of the Company and the Guarantors maintains a system
of internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles 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 assets is compared with
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xx) Neither the Company nor any of the Guarantors is in
violation or breach of, or in default (nor has any event occurred which
with notice, or lapse of time, or both, would constitute a default)
under any contract, agreement, indenture, loan or other agreement,
instrument, mortgage, note, permit, lease, license, arrangement or
understanding to which the Company or any of the Guarantors is a party
or by which the Company, any of the Guarantors or any of their
respective properties may be bound where such default, either
individually or together with all such other defaults, could reasonably
be expected to have a Material Adverse Effect or a material adverse
effect on the ability of the Company or any Guarantor to perform its
obligations hereunder. Each material contract, agreement,
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indenture, loan or other agreement, instrument, mortgage, note, permit,
lease, license, arrangement and understanding to which the Company or
any of the Guarantors is a party or by which the Company, any of the
Guarantors or any of their respective properties may be bound is in
full force and effect and is the legal, valid, and binding obligation
of the Company or the Guarantor, as the case may be, and, to the
knowledge of the Company, the other parties thereto and is enforceable
against the Company or the Guarantor, as the case may be, and, to the
knowledge of the Company, against the other parties thereto in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles. Each of the Company and each of the Guarantors enjoys
peaceful and undisturbed possession under all material leases and
material licenses under which the Company and the Guarantors are
operating. Except as disclosed in the Offering Memorandum, neither the
Company nor any of the Guarantors is a party to or bound by any
contract, agreement, indenture, loan or other agreement, instrument,
mortgage, note, permit, lease, license, arrangement, or understanding,
or subject to any charter or other restriction, which has had or is
reasonably expected in the future to have a Material Adverse Effect.
Neither the Company nor any of the Guarantors is in violation or breach
of, or in default with respect to, any term of its respective
certificate of incorporation or bylaws. Neither the Company nor any of
the Guarantors is in violation of, or in default with respect to, any
law, rule, regulation, order, judgment or decree, except such as are
described in the Offering Memorandum or such as, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(xxi) Except as described in the Offering Memorandum, (i) no
labor dispute with the employees of the Company or any of the
Guarantors exists or, to the knowledge of the Company, is threatened
and (ii) the Company is not aware of any labor disturbance by the
employees of any of its significant manufacturers, suppliers, customers
or contractors, that could reasonably be expected, in the case of both
clauses (i) and (ii), to have a Material Adverse Effect.
(xxii) Except as described in the Offering Memorandum, (i) neither
the Company nor any Guarantor is a party to or bound by any
stockholders agreements or voting trusts with respect to any securities
of the Company or any Guarantor and (ii) there are no contracts,
agreements or understandings between the Company or any of the
Guarantors and any person or entity granting such person or entity the
right to require the Company or any Guarantor to file a registration
statement under the Act with respect to any securities of the Company
or any Guarantor owned or to be owned by such person or entity or to
require the Company or any Guarantor to include such securities in the
securities to be registered in the Exchange Offer.
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(xxiii) Except as disclosed in the Offering Memorandum, neither the
Company nor any of the Guarantors is in material violation of any
federal, state or local law or regulation relating to occupational
safety and health or to pollution or protection of human health or the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including
without limitation, laws, codes and regulations relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous materials or
substances, solid or hazardous wastes, petroleum and petroleum products
(collectively, "MATERIALS OF ENVIRONMENTAL CONCERN"), or otherwise
relating to the manufacture, processing, distribution, use, generation,
treatment, storage, disposal, transport or handling of Materials of
Environment Concern, underground or above ground storage tanks and
related piping, and emissions, discharges, releases or threatened
releases therefrom and damages to natural resources (collectively,
"ENVIRONMENTAL LAWS"), which violation includes, but is not limited to,
noncompliance with any permits or other governmental authorizations
required for the operation of the business of the Company or the
Guarantors under applicable Environmental Laws, or noncompliance with
the terms and conditions thereof, nor has the Company or any of the
Guarantors received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that
alleges that the Company or any of the Guarantors is in violation of
any Environmental Law; (ii) there is no claim, action or cause of
action filed with a court or governmental authority, no investigation
with respect to which the Company has received written notice, and no
written notice by any person or entity alleging potential liability for
investigatory costs, clean-up costs, governmental responses costs,
natural resources damages, property damages, personal injuries,
attorneys' fees or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Material of
Environmental Concern at any location owned, leased, controlled or
operated by the Company or any of the Guarantors, now or in the past
(collectively, "ENVIRONMENTAL CLAIMS"), pending or, to the knowledge of
the Company, threatened against the Company or any of the Guarantors or
any person or entity whose liability for any Environmental Claim the
Company or any of the Guarantors has retained or assumed either
contractually or by operation of law; (iii) to the knowledge of the
Company, there are no past or present actions, activities,
circumstances, conditions, events or incidents, including, without
limitation, the release, emission, discharge, presence or disposal of
any Material of Environmental Concern, that reasonably could result in
a violation of any Environmental Law or form the basis of a potential
Environmental Claim against the Company or any of the Guarantors or
against any person or entity whose liability for any Environmental
Claim the Company or any of the Guarantors has retained or assumed
either contractually or by operation of law; (iv) the Company and each
of the Guarantors have received all permits, licenses or other
approvals required under applicable federal, state and local
occupational safety and health and Environmental Laws and regulations
to conduct their respective businesses; and (v) the Company and each of
the Guarantors is in compliance with all terms and conditions of any
such permits, licenses or approvals, except any such violation of law
or regulation, failure to receive required permits,
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licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals which could not,
individually or together with all such other violations or failures,
have a Material Adverse Effect.
(xxiv) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and the Guarantors,
in the course of which it identifies and evaluates associated costs and
liabilities (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). On the basis of such review and the amount of its
established reserves, the Company has reasonably concluded that such
associated costs and liabilities would not, individually or in the
aggregate, have a Material Adverse Effect.
(xxv) The Company, either directly or through one or more the
Guarantors, maintains reasonably adequate insurance with respect to its
business and properties and the business and properties of the
Guarantors.
(xxvi) The Company has complied and will comply with all
provisions of Florida Statutes Section 517.075 (Chapter 92-198, Laws of
Florida). Neither the Company nor any affiliate thereof does business
with the government of Cuba or with any person or affiliate located in
Cuba.
(xxvii) Each of the Company and the Guarantors has (i) filed all
federal, state and local and foreign tax returns which are required to
be filed through the date hereof, and all such tax returns are true,
complete and accurate in all material respects, or (ii) received valid
extensions thereof and has paid all taxes shown on such returns and all
assessments received by it except (A) for such taxes as are being
contested in good faith and as to which adequate reserves have been
provided, or (B) where, in the case of state and local and foreign tax
returns, the failure to file in clause (ii), or extend the due date of
or pay the same in clause (ii), in the aggregate, could not reasonably
be expected to have a Material Adverse Effect; the Company has no
knowledge of any tax deficiency which has been or might be asserted
against the Company or any of the Guarantors which could have a
Material Adverse Effect; to the Company's knowledge, all tax
liabilities are adequately provided for on the consolidated books of
the Company.
(xxviii) The Company and the Guarantors and any "employee benefit
plan" (as defined under the Employee Retirement Income Security Act of
1974, as amended, and the regulations and published interpretations
thereunder (collectively, "ERISA")) established or maintained by the
Company, any of the Guarantors or their "ERISA Affiliates" (as defined
below) are in compliance in all material respects with ERISA. "ERISA
AFFILIATE" means, with respect to the Company or a Guarantor, any
member of any group of organizations
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described in Sections 414(b),(c),(m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "CODE") of which the Company or such
Guarantor is a member. No "reportable event" (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, any
Guarantor or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, any of the Guarantors or any
of their ERISA Affiliates, if such "employee benefit plan" were
terminated, would have any "amount of unfunded benefit liabilities" (as
defined under ERISA). Neither the Company, any Guarantor nor any of
their ERISA Affiliates has incurred or reasonably expects to incur any
liability under (i) Title IV of ERISA with respect to termination of,
or withdrawal from, any "employee benefit plan" or (ii) Sections 412,
4971, 4975 or 4980B of the Code. Each "employee benefit plan"
established or maintained by the Company, any of the Guarantors or any
of their ERISA Affiliates that is intended to be qualified under
Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, which would cause the loss of such
qualification.
(xxix) The Company has made in all material respects in the
Offering Memorandum all disclosures required by the Commission's Staff
Legal Bulletin No. 5 (as amended or otherwise modified through the date
of this Agreement) related to Year 2000 compliance.
(xxx) The Company has not incurred any liability for any finder's
fees or similar payments in connection with the transactions herein
contemplated.
(xxxi) When the Notes are issued and delivered pursuant to this
Agreement, no Note will be of the same class (within the meaning of
Rule 144A under the Act) as securities of the Company 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
inter-dealer quotation system.
(xxxii) The Indenture and the transactions contemplated therein
have been duly and validly authorized by the Company and the Guarantors
and, when duly and validly executed and delivered by the Company and
the Guarantors (assuming the due execution and delivery thereof by the
Trustee), will be the legal, valid and binding obligation of the
Company and each of the Guarantors, enforceable against the Company and
each of the Guarantors in accordance with its terms except as the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles and public policy. The Indenture meets the
requirements for qualification under the Trust Indenture Act. The
Offering Memorandum contains a summary of the terms of the Indenture
which is accurate in all material respects.
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(xxxiii) The Registration Rights Agreement and the transactions
contemplated therein have been duly and validly authorized by the
Company and the Guarantors and, when duly and validly executed and
delivered by the Company and the Guarantors (assuming the due execution
and delivery thereof by the Initial Purchasers), will be the legal,
valid and binding obligation of the Company and each of the Guarantors,
enforceable against the Company and each of the Guarantors in
accordance with its terms, except as the enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general equitable
principles and public policy. The Offering Memorandum contains a
summary of the terms of the Registration Rights Agreement which is
accurate in all material respects.
(xxxiv) The Series A Notes and the Guarantees have been duly and
validly authorized by the Company and each of the Guarantors for
issuance and sale to the Initial Purchasers pursuant to this Agreement
and, when executed, issued and authenticated in accordance with the
terms of the Indenture and delivered against payment therefor in
accordance with the terms hereof and thereof, will be the legal, valid
and binding obligations of the Company and the Guarantors,
respectively, enforceable against the Company and each of the
Guarantors in accordance with their terms and entitled to the benefits
of the Indenture, except as the enforceability thereof may be limited
by rights of acceleration or by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles and public policy. The Offering Memorandum contains a
summary of the terms of the Series A Notes which is accurate in all
material respects.
(xxxv) The Exchange Notes and the Guarantees have been duly and
validly authorized for issuance by the Company and each of the
Guarantors and, when duly and validly executed, issued and
authenticated in accordance with the terms of the Exchange Offer and
the Indenture, will be the legal, valid and binding obligations of the
Company and each of the Guarantors, respectively, enforceable against
the Company and the Guarantors in accordance with their terms and
entitled to the benefits of the Indenture, except as the enforceability
thereof may be limited by rights of acceleration or by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles and public policy. The Offering
Memorandum contains a summary of terms of the Exchange Notes which is
accurate in all material respects.
(xxxvi) No registration of the Notes is required under the Act for
the sale of the Series A Notes to the Initial Purchasers as
contemplated hereby or for the Exempt Resales assuming (A) that the
purchasers who buy the Series A Notes in the Exempt Resales are QIBs
and (B) the accuracy of the Initial Purchasers' representations
regarding the absence of general solicitation in connection with the
sale of Series A Notes to the Initial Purchasers and Exempt Resales
contained herein. No form of general solicitation or general
advertising (as
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those terms are used in Regulation D under the Act) was used by the
Company or any of its representatives (other than the Initial
Purchasers, as to which the Company makes no representation or
warranty) in connection with the offer and sale of any of the Series A
Notes 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
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. No securities of the same class as
the Series A Notes have been issued and sold by the Company or any of
the Guarantors within the six-month period immediately prior to the
date hereof.
(xxxvii) None of the execution, delivery and performance of this
Agreement, the issuance and sale of the Notes, the application of the
proceeds from the issuance and sale of the Notes or the consummation of
the transactions contemplated thereby as set forth in the Offering
Memorandum, will violate Regulations G, T, U or X promulgated by the
Board of Governors of the Federal Reserve System.
(xxxviii) The Company (i) has provided written notice to the holders
of the A-1 Notes in connection with the conversion by the Company of
the A-1 Notes into shares of Common Stock of the Company, (ii) has
delivered irrevocable instructions to the transfer agent for the
Company's Common Stock to issue and deliver the A-1 Stock Certificates
to the holders of the A-1 Notes in exchange for the A-1 Notes marked
"canceled" on or before December 16, 1998 and (iii) has taken all
corporate and other action required by it to effect the conversion of
the A-1 Notes, subject only to the issuance and delivery by such
transfer agent of the A-1 Stock Certificates.
(xxxix) Neither the Company nor any Guarantor intends to, nor
believes that it will, incur debts beyond its ability to pay such debts
as they mature. The present fair saleable value of the assets of the
Company and each Guarantor exceeds the amount that will be required to
be paid on or in respect of its existing debts and other liabilities
(including contingent liabilities) as they become absolute and matured.
The assets of the Company and each Guarantor do not constitute
unreasonably small capital to carry on its business as now conducted or
as proposed to be conducted. Upon the issuance of the Notes and the
Guarantees, the present fair saleable value of the assets of the
Company and each Guarantor will exceed the amount that will be required
to be paid on or in respect of its existing debts and other liabilities
(including contingent liabilities) as they become absolute and matured.
Upon the issuance of the Notes and the Guarantees, the assets of the
Company and each Guarantor will not constitute unreasonably small
capital to carry on its business as not conducted, including the
capital needs of the Company and each Guarantor, taking into account
the projected capital requirements and capital availability.
The Company acknowledges that the Initial Purchasers and, for purposes
of the opinions to be delivered to the Initial Purchasers pursuant to Section 8
hereof, counsel for the Company and
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counsel for the Initial Purchasers, will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance.
(b) Each Initial Purchaser as to itself represents, warrants
and covenants to the Company and agrees that:
(i) Such Initial Purchaser is a QIB, with such knowledge and
experience in financial and business matters as are necessary in order
to evaluate the merits and risks of an investment in the Series A
Notes.
(ii) Such Initial Purchaser (A) is not acquiring the Series A
Notes with a view to any distribution thereof that would violate the
Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (B) will be reoffering and reselling
the Series A Notes only to QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A in a private
placement exempt from the registration requirements of the Act.
(iii) No form of general solicitation or general advertising has
been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of any of the
Series A Notes, 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 any seminar or meeting
whose attendees have been invited by any general solicitation or
general advertising.
(iv) Such Initial Purchaser agrees that, in connection with the
Exempt Resales, it will solicit offers to buy the Series A Notes only
from, and will offer to sell the Series A Notes only to, QIBs. Such
Initial Purchaser further agrees (A) that it will offer to sell the
Series A Notes only to, and will solicit offers to buy the Series A
Notes only from QIBs who in purchasing such Series A Notes will be
deemed to have represented and agreed that they are purchasing the
Series A Notes for their own accounts or accounts with respect to which
they exercise sole investment discretion and that they or such accounts
are QIBs and (B) that, in the case of such QIBs, acknowledges and
agrees that such Series A Notes will not have been registered under the
Act and may be resold, pledged or otherwise transferred only (x)(i) to
a person who the seller reasonably believes is a QIB in a transaction
meeting the requirements of Rule 144A, (ii) in a transaction meeting
the requirements of Rule 144, (iii) outside the United States to a
foreign person in a transaction meeting the requirements of Rule 904
under the Act, (iv) to an institutional Accredited Investor (as defined
in Rule 501(a)(1), (2), (3) or (7) under the Act) that, prior to such
transfer, furnishes the Trustee a signed letter containing certain
representations and agreements relating to the registration of transfer
of such Series A Notes and an opinion of counsel acceptable to the
Company that such transfer is in compliance with the Act or (v) in
accordance with another exemption from the registration requirements of
the Act (and based upon an opinion of counsel if the
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Company requests), (y) to the Company, (z) pursuant to an effective
registration statement under the Act and, in each case, in accordance
with any applicable securities laws of any state of the United States
or any other applicable jurisdiction and (C) that the holder will, and
each subsequent holder is required to, notify any purchaser of the
security evidenced thereby of the resale restrictions set forth in (B)
above.
Each Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 8 hereof, counsel for the Company and counsel for the Initial Purchasers
will rely upon the accuracy and truth of the foregoing representations and
hereby consents to such reliance.
6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser and 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, against any and all losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act, any state securities or Blue Sky law or otherwise, such losses,
liabilities, claims, damages, obligations, penalties, judgments, awards, costs,
disbursements or expenses (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 any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; PROVIDED, HOWEVER, that (i) the Company will not be
liable in any such case to the extent, but only to the extent, that any such
loss, liability, claim, damage, obligation, penalty, judgment, award, cost,
disbursement or expense arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Initial Purchaser expressly for use therein and
(ii) the indemnity agreement contained in this Section 6(a) with respect to the
Preliminary Offering Memorandum (or the Offering Memorandum) shall not inure to
the benefit of any Initial Purchaser (or to the benefit of any person
controlling such Initial Purchaser) from whom the person asserting any such
losses, liabilities, claims, damages or expenses purchased the Notes which is
the subject thereof (or to the benefit of any person controlling such Initial
Purchaser) if at or prior to the written confirmation of the sale of such Notes
a copy of the Offering Memorandum (or the Offering Memorandum as amended or
supplemented) was not sent or delivered to such person and the untrue statement
or omission of a material fact contained in such Preliminary Offering Memorandum
(or the Offering Memorandum) was corrected in the Offering Memorandum (or the
Offering Memorandum as amended or supplemented) and delivery of such Offering
Memorandum (or the Offering
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Memorandum as amended or supplemented) would have eliminated any such loss,
liability, claim, damage or expense unless the failure is the result of
non-compliance by the Company with Section 4(b) hereof. This indemnity agreement
will be in addition to any liability which the Company may otherwise have,
including under this Agreement.
(b) Each Initial Purchaser severally, and not jointly, agrees
to indemnify and hold harmless the Company, each of the directors of the Company
and each other person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
are based solely 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
required to be stated therein or necessary in order to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Initial Purchaser
expressly for use therein; PROVIDED, HOWEVER, that in no case shall any Initial
Purchaser be liable or responsible for any amount in excess of the discounts and
commissions applicable to the Notes purchased by such Initial Purchaser
hereunder. This indemnity will be in addition to any liability which any Initial
Purchaser may otherwise have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any 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 thereof (but the
failure to so notify an indemnifying party shall not relieve it from any
liability which it may 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 thereof, the indemnifying party will be entitled to participate
therein, 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 thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case provided that in connection with any indemnification
hereunder, the indemnifying party shall not be liable for the expenses of more
than one separate counsel for all indemnified parties, but the fees and expenses
of such counsel shall be at the expense of such indemnified party or parties
unless (i) the employment of such counsel shall have been authorized in writing
by one
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of the indemnifying parties in connection with the defense of such action, (ii)
the indemnifying parties shall not have employed counsel to have charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to one or all of the indemnifying parties
(in which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties.
Anything in this subsection to the contrary notwithstanding, an indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent; PROVIDED, HOWEVER, that such consent was not
unreasonably withheld.
7. CONTRIBUTION. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 6 hereof is for any reason
unavailable from any indemnifying party or is insufficient to hold harmless a
party indemnified thereunder, then each indemnifying party shall contribute to
the aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including without limitation any
investigation, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, any contribution received by
the Company from persons, other than the Initial Purchasers, who may also be
liable for contribution, including persons who control the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, and
directors of the Company) as incurred to which the Company and the Initial
Purchasers may be subject, in such proportions as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Initial
Purchasers, on the other hand, from the offering of the Notes or, 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 Company, on the one hand, and the Initial Purchasers,
on the other hand, in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, 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 (net of discounts and commissions but before deducting expenses)
received by the Company, and (y) the discounts and commissions received by the
Initial Purchasers, in each case as set forth on the cover page of the Offering
Memorandum, bear to the aggregate offering price of the Notes. The relative
fault of the Company, 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 the Company
or the Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company 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 (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable
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considerations referred to above. Notwithstanding the provisions of this Section
7, (i) in no case shall any Initial Purchaser be liable or responsible for any
contribution obligation imposed on all Initial Purchasers in excess of its pro
rata share of the total discounts and commissions set forth on the cover page of
the Offering Memorandum, based on the amount of Notes purchased as compared to
the amount of Notes purchased by all Initial Purchasers who do not default on
their obligations under this Section 7, 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 an 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
such Initial Purchaser, and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of the immediately
preceding sentence. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties, notify each 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. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
PROVIDED, HOWEVER, that such consent was not unreasonably withheld.
8. CONDITIONS TO THE PARTIES' OBLIGATIONS. The obligations of the
Initial Purchasers to purchase and pay for the Notes, as provided herein, shall
be subject, in the Initial Purchasers' discretion, to the satisfaction of the
following conditions precedent:
(a) All of the representations and warranties of the Company
contained in this Agreement shall be true and correct on the date
hereof and on the Closing Date with the same force and effect as if
made on and as of the date hereof and the Closing Date, respectively.
The Company shall have performed or complied with all of the agreements
herein contained and required to be performed or complied with by it at
or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers not later than 10:00 a.m., New
York City time, on the day following the date of this Agreement or at
such later date and time as to which the Initial Purchasers may agree,
and no stop order suspending the qualification or exemption from
qualification of the Notes in any jurisdiction referred to in Section
4(e) shall have been issued and no proceeding for that purpose shall
have been initiated or threatened.
(c) The Company and the Guarantors shall not have sustained,
(i) since the date of the most recent financial statements included in
the Offering Memorandum, any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or
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decree otherwise than as set forth or expressly contemplated in the
Offering Memorandum which loss or interference is material to the
Company and the Guarantors taken as a whole and (ii) since the
respective dates as of which information is given in the Offering
Memorandum, there shall not have been any change in the capital stock
(other than as disclosed in the Offering Memorandum) or in the
long-term or short-term debt of the Company or the Guarantors or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company or the
Guarantors, otherwise than as set forth or expressly contemplated in
the Offering Memorandum, the effect of which, in any such case
described in clauses (i) or (ii) of this Section 8(c), in the Initial
Purchasers' reasonable judgment, makes it impracticable or inadvisable
to proceed with the Offering or the delivery of the Notes being
delivered on the Closing Date on the terms and in the manner
contemplated in the Offering Memorandum.
(d) The Initial Purchasers shall have received a certificate,
dated the Closing Date, executed on behalf of the Company by the Chief
Executive Officer and Chief Financial Officer, in form and substance
satisfactory to the Initial Purchasers, confirming, as of the Closing
Date, the matters set forth in paragraphs (a) and (b) of this Section 8
and that, as of the Closing Date, the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed and
subsequent to the respective dates as of which information is given in
the Preliminary Offering Memorandum and the Offering Memorandum, there
has not been any Material Adverse Effect, or any development involving
a prospective material adverse change, on the Company, except in each
case as described in the Offering Memorandum.
(e) The Initial Purchasers shall have received on the Closing
Date an opinion dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers, of Akerman, Senterfitt & Xxxxxx, counsel for the Company
and the Guarantors, to the effect set forth in EXHIBIT E hereto. In
rendering such opinion such counsel (i) need not express any opinion
with regard to the application of laws of any jurisdiction other than
the Federal law of the United States, the General Corporation Law of
the State of Delaware and the law of the State of Florida and (ii) may
rely as to factual matters upon representations or certificates of
officers of the Company and public officials.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers, of New York counsel to the Company and the Guarantors to
the effect set forth in EXHIBIT F hereto. In rendering such opinion,
such counsel (i) may rely, with the consent of Akerman, Senterfitt &
Xxxxxx, on such counsel's opinion with respect to the application of
the General Corporation Law of the State of Delaware and the law of the
State of Florida and (ii) may rely as to factual matters upon
representations or certificates of officers of the Company and public
officials.
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(g) The Initial Purchasers shall have received on the Closing
Date an opinion dated the Closing Date, in form and substance
satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers, of local counsel to the Guarantors listed on EXHIBIT H to
the effect set forth in EXHIBIT G hereto. In rendering such opinion,
such counsel (i) may rely, with the consent of Akerman, Senterfitt &
Xxxxxx, on such counsel's opinion with respect to the application of
the General Corporation Law of the State of Delaware and the law of the
State of Florida, (ii) may rely, with the consent of New York counsel
to the Company, on such counsel's opinion with respect to the
application of the law of the State of New York and (iii) may rely as
to factual matters upon representations or certificates of officers of
the Company and public officials.
(h) At the time this Agreement is executed and at the Closing
Date, the Initial Purchasers shall have received a letter from each of
Xxxxxx Xxxxxxxx LLP and Ernst & Young LLP, independent public
accountants for the Company and the Guarantors, dated as of the date of
this Agreement and as of the Closing Date, customary comfort letters
addressed to the Initial Purchasers and in form and substance
satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers with respect to the financial statements and certain
financial information of the Company and its subsidiaries contained in
the Offering Memorandum.
(i) The Initial Purchasers shall have received an opinion,
dated the Closing Date, in form and substance reasonably satisfactory
to the Initial Purchasers, of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP,
counsel for the Initial Purchasers, with respect to certain matters set
forth in EXHIBIT H hereto.
(j) Paul, Hastings, Xxxxxxxx & Xxxxxx LLP shall have been
furnished with such documents, in addition to those set forth above, as
they may reasonably require for the purpose of enabling 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 herein
contained.
(k) Prior to the Closing Date, the Company shall have
furnished to the Initial Purchasers such further information,
certificates and documents as the Initial Purchasers may reasonably
request.
(l) The Company and the Trustee shall have entered into and
delivered the Indenture and the Initial Purchasers shall have received
a counterpart thereof, conformed as executed. The Indenture shall be in
full force and effect.
(m) The Company shall have entered into the Registration
Rights Agreement and the Initial Purchasers shall have received a
counterpart thereof, conformed as executed. The Registration Rights
Agreement shall be in full force and effect.
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(n) After the execution and delivery of this Agreement, there
shall not have been (i) any downgrading by Standard & Poor's Ratings
Group ("S&P") or Xxxxx'x Investors Service Inc. ("MOODY'S") in the
rating of the Notes; or (ii) any notice given by S&P or Moody's of any
intended or potential downgrading in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
The obligations of the Company and the Guarantors to issue,
sell and deliver the Notes and the Guarantees, as provided herein, shall be
subject in the Company's discretion, to the condition that all of the
representations and warranties of each of the Initial Purchasers contained in
this Agreement shall be true and correct on the date hereof and on the Closing
Date with the same force and effect as if made on and as of the date hereof and
the Closing Date, respectively.
All opinions, certificates, letters and other documents
required by this Section 8 to be delivered by the Company will be in compliance
with the provisions hereof only if they are reasonably satisfactory in form and
substance to the Initial Purchasers. The Company will furnish the Initial
Purchasers with such conformed copies of such opinions, certificates, letters
and other documents as it shall reasonably request.
If any condition specified above in this Section 8 shall not
have been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Initial Purchasers by notice to the Company, and such
termination shall be without liability of any party to any other party except as
provided in Section 4(f); PROVIDED, HOWEVER, that notwithstanding any such
termination, the provisions of Sections 6, 7 and 11 through 16 shall remain in
effect. Notice of such cancellation shall be given to the Company in writing by
personal delivery or facsimile transmission or by telephone promptly confirmed
in writing.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Initial Purchasers and the Company
and the Guarantors contained in this Agreement, including the agreements
contained in Sections 4(f) and 10(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 any Initial Purchaser or any controlling person thereof or by or
on behalf of the Company, any Guarantor, any of their officers and directors or
any controlling person thereof, and shall survive delivery of and payment for
the Notes to and by the Initial Purchasers. The representations contained in
Section 5 and the agreements contained in Sections 4(f), 6, 7 and 10(d) hereof
shall survive the termination of this Agreement, including any termination
pursuant to Section 10 hereof.
10. 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.
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(b) The Initial Purchasers shall have the right to terminate
this Agreement at any time prior to the Closing Date by notice to the
Company from the Initial Purchasers, without liability (other than with
respect to Sections 6 and 7 hereof) on the part of any Initial
Purchaser to the Company if, on or prior to such date, (i) the Company
shall have failed, refused or been unable to perform in any material
respect any agreement on its part to be performed hereunder; (ii) any
other condition to the obligations of the Initial Purchasers hereunder
as provided in Section 8 is not fulfilled when and as required in any
material respect; (iii) trading in securities on the New York or
American Stock Exchanges or over-the-counter market shall have been
suspended or materially limited, or minimum or maximum prices shall
have been established, or maximum price ranges for prices for
securities shall have been required, on the New York or American Stock
Exchanges or in the over-the-counter market by the Commission, or by
such exchange or other regulatory body or governmental authority having
jurisdiction; (iv) a general banking moratorium shall have been
declared by a federal or state authority or any new restriction
materially and adversely affecting the Notes shall have become
effective; (v) there shall have occurred an outbreak or escalation of
armed hostilities involving the United States on or after the date
hereof, or if there has been a declaration by the United States of a
national emergency or war, the effect of which shall be, in the Initial
Purchasers' judgment, to make it inadvisable or impracticable to
proceed with the Offering or the sale and delivery of the Notes on the
terms and in the manner contemplated in the Offering Memorandum; (vi)
there shall have occurred such a material adverse change since the
respective dates as of which information is given in the Preliminary
Offering Memorandum or the Offering Memorandum in the condition
(financial or other), of the Company and its subsidiaries, taken as a
whole, whether or not arising in the ordinary course of business other
than as set forth in the Offering Memorandum, such as, in the judgment
of Bear, Xxxxxxx & Co. Inc., makes it inadvisable or impracticable to
proceed with the Offering or the sale and delivery of the Notes as
contemplated hereby and by the Offering Memorandum; (vii) there shall
have occurred such a material adverse change in general economic,
political or financial conditions or if the effect of international
conditions on the financial markets in the United States shall be such
as, in the judgment of Bear, Xxxxxxx & Co. Inc., makes it inadvisable
or impracticable to proceed with the Offering or the sale and delivery
of the Notes as contemplated hereby and by the Offering Memorandum; or
(viii) any domestic or international event or act or occurrence has
materially disrupted, or in the opinion of the Initial Purchasers will
in the immediate future materially disrupt, the market for the
Company's securities or for securities in general. The right of the
Initial Purchasers to terminate this Agreement will not be waived or
otherwise relinquished by their failure to give notice of termination
prior to the time that the event giving rise to the right to terminate
shall have ceased to exist, provided that notice is given prior to the
Closing Date.
(c) Any notice of termination pursuant to this Section 10
shall be by telephone, telex, telephonic facsimile, or telegraph,
confirmed promptly in writing by letter.
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(d) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to Section 10(b) (except
clauses (i) and (ii) thereof)), or if the sale of the Notes provided
for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth herein is not satisfied or because
of any refusal, inability or failure on the part of the Company or the
Guarantors to perform any agreement herein or comply with any provision
hereof, the Company will reimburse the Initial Purchasers for all
reasonable out-of-pocket expenses (including the fees and expenses of
the Initial Purchasers' counsel), incurred by the Initial Purchasers in
connection herewith.
11. NOTICES. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to the Initial
Purchasers shall be mailed, delivered, or telexed, telegraphed or telecopied and
confirmed in writing to Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Corporate Finance Department, telecopy number: (212)
272-3092, with a copy to Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxx, Esq., telecopy number (212)
319-4090; and if sent to the Company, shall be mailed, delivered or telexed,
telegraphed or telecopied and confirmed in writing to NationsRent, Inc. 000 Xxxx
Xxx Xxxx Xxxxxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxx X. Xxxx,
Chairman and Chief Executive Officer, telecopy number: (000) 000-0000, with a
copy to Akerman, Senterfitt & Xxxxxx, P.A. Attention: Xxxxxxx X. Xxxxxxxxxxx,
Esq., telecopy number: 000-000-0000.
12. PARTIES. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Initial Purchasers and the Company and the Guarantors
and the controlling persons, directors, officers, employees and agents referred
to in Sections 6 and 7 hereof, 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.
In all dealings hereunder, Bear, Xxxxxxx & Co. Inc. shall act
on behalf of each of the Initial Purchasers, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any of the Initial Purchasers made or given by Bear, Xxxxxxx & Co.
Inc. on behalf of the Initial Purchasers.
13. 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.
14. GOVERNING LAW; CONSTRUCTION. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York,
without giving effect to any provisions relating to conflicts of laws. TIME IS
OF THE ESSENCE IN THIS AGREEMENT.
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15. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of shall be deemed to be
an original, but all such counterparts shall together constitute one and the
same instrument.
16. PARTIAL INVALIDITY. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
[Remainder of page intentionally left blank]
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If the foregoing correctly sets forth the understanding among the
Initial Purchasers, the Company and the Guarantors, please so indicate in the
space provided below for that purpose, whereupon this letter shall constitute a
binding agreement among us.
Very truly yours,
NATIONSRENT, INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
GUARANTORS:
A-ACTION RENTAL, INC. (doing business as
A-ACTION RENTAL & SALES, INC.)
A TO Z RENTS IT, INC.
A TO Z RENTS IT, INC. #2
ACME RENTAL, INC.
CENTRAL ALABAMA RENTAL CENTER, INC.
XXXXXXX TRAILER MANUFACTURING
COMPANY, INC.
GOLD COAST AERIAL LIFT, INC.
HIGH REACH COMPANY, INC.
NATIONSRENT OF ALABAMA, INC.
NATIONSRENT OF CALIFORNIA, INC.
NATIONSRENT OF FLORIDA, INC.
NATIONSRENT OF GEORGIA, INC.
NATIONSRENT OF INDIANA, INC.
NATIONSRENT OF KENTUCKY, INC.
NATIONSRENT OF LOUISIANA, INC.
NATIONSRENT OF MICHIGAN, INC.
NATIONSRENT OF NEW HAMPSHIRE, INC.
NATIONSRENT OF OHIO, INC.
NATIONSRENT OF TENNESSEE, INC.
NATIONSRENT OF TEXAS, INC.
NATIONSRENT OF WEST VIRGINIA, INC.
NRI/LEC MERGER CORP., INC.
XXXXXXX EQUIPMENT CO. (doing
business as JOBS RENTAL)
35
SAM'S EQUIPMENT RENTAL, INC. (a
subsidiary of Xxxxxxx Trailer Manufacturing
Company, Inc.)
SOUTHEAST RENTAL & LEASING, INC.
TENNESSEE TOOL AND SUPPLY, INC.
THE XXXX-XXXX COMPANY
THE X. XXXXX CO., INC.
TITAN RENTALS, INC.
By its authorized officer:
/s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
36
Accepted and agreed to as
of the date first above
written:
BEAR, XXXXXXX & CO. INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Managing Director
NATIONSBANC XXXXXXXXXX
SECURITIES LLC
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Managing Director
BT ALEX. XXXXX INCORPORATED
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
BANCBOSTON XXXXXXXXX XXXXXXXX INC.
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
37
EXHIBIT A
Form of Registration Rights Agreement
(Filed separately as Exhibit 4.5
to this Registration Statement)
38
EXHIBIT B
Principal Amount of Senior Subordinated
Initial Purchaser Notes to be Purchased
----------------- ---------------------------------------
Bear, Xxxxxxx & Co. Inc. $ 87,500,000
NationsBanc Xxxxxxxxxx Securities LLC $ 35,000,000
BT Alex. Xxxxx Incorporated $ 35,000,000
BancBoston Xxxxxxxxx Xxxxxxxx Inc. $ 17,500,000
39
EXHIBIT C
Commitments, Plans or Arrangements to Issue, Etc.
1. Reference is made to the description of warrants and options under the
heading "Description of Capital Stock - Warrants and Options" in the
Company's Prospectus dated August 7, 1998 relating to the Company's
initial public offering of Common Stock.
2. In connection with the acquisition of Xxxxx Equipment Corp., Action
Equipment Company, Inc., Action Supply Co., Inc., River City Rentals
and the other businesses that the Company currently has under letters
of intent, the Company intends to issue convertible subordinated
promissory notes as part of the consideration to the sellers and
shareholders of such businesses in accordance with the terms of the
definitive acquisition agreements and letters of intent with respect
thereto.
3. In connection with the acquisition of Xxxxx Equipment Corp., the
Company has agreed to assume outstanding options granted to certain
employees of Xxxxx, which options will be converted into options to
acquire shares of NationsRent Common Stock in accordance with the terms
of the definitive acquisition agreement with respect thereto.
4. The Company has granted and intends to grant in the future options to
acquire shares of its Common Stock to its employees and other eligible
persons in the ordinary course of business pursuant to its 1998 Stock
Option Plan which reserves an aggregate of 5,000,000 shares of Common
Stock for issuance pursuant to options granted thereunder.
40
EXHIBIT D
SUBSIDIARIES
A-Action Rental, Inc., a Pennsylvania corporation
Acme Rental, Inc., a Michigan corporation
A to Z Rents It, Inc., a Texas corporation
A to Z Rents It, Inc. #2, a Texas corporation
Central Alabama Rental Center, Inc., an Alabama corporation
Xxxxxxx Trailer Manufacturing Company, Inc., an Ohio corporation
Gold Coast Aerial Lift, Inc., a Florida corporation
High Reach Company, Inc., a Florida corporation
NationsRent of Alabama, Inc., a Delaware corporation
NationsRent of California, Inc., a Delaware corporation
NationsRent of Florida, Inc., a Delaware corporation
NationsRent of Georgia, Inc., a Delaware corporation
NationsRent of Indiana, Inc., a Delaware corporation
NationsRent of Kentucky, Inc., a Delaware corporation
NationsRent of Louisiana, Inc., a Delaware corporation
NationsRent of Michigan, Inc., a Delaware corporation
NationsRent of New Hampshire, Inc., a Delaware corporation
NationsRent of Ohio, Inc., a Delaware corporation
NationsRent of Tennessee, Inc., a Delaware corporation
NationsRent of Texas, Inc., a Delaware corporation
NationsRent of West Virginia, Inc., a Delaware corporation
NRI/LEC Merger Corp., Inc., a Delaware corporation
Xxxxxxx Equipment Company, a Kentucky corporation
Sam's Equipment Rental, Inc., an Ohio corporation
Southeast Rental & Leasing, Inc., a Florida corporation
Tennessee Tool & Supply, Inc., a Tennessee corporation
The Xxxx-Xxxx Company, an Ohio corporation
The X. Xxxxx Co., Inc., a Michigan corporation
Titan Rentals, Inc., a West Virginia corporation
41
EXHIBIT E
Form of Opinion of Akerman, Senterfitt
& Xxxxxx
1. To such counsel's knowledge, neither the Commission nor the
"Blue Sky" or securities authority of any jurisdiction has issued an order
preventing or suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, nor has any of such
authorities instituted or threatened to institute any proceedings with respect
to an order or instituted or threatened to institute any proceedings with
respect to an order or instituted or threatened to institute any order or in any
way asserted that any of the transactions contemplated by the Purchase Agreement
is subject to the registration requirements of the Act.
2. The Company and each of the Guarantors which is organized
in the State of Delaware or Florida (A) has been duly organized and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, (B) is duly qualified and in good standing as a foreign
corporation in each jurisdiction where the character or location of its
properties (owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so qualified
or in good standing which would not, individually or in the aggregate, have a
Material Adverse Effect, and (C) has all requisite power and authority to own,
lease and operate its properties and to conduct its business as now being
conducted and as described in the Offering Memorandum.
3. All of the outstanding shares of capital stock of the
Company, as reflected in the Company's corporate records, are duly authorized,
validly issued, fully paid and non-assessable, were issued in compliance with
all applicable United States federal and state securities laws and, to the
knowledge of such counsel, were not issued in violation of or subject to any
preemptive rights, or, except as disclosed in the Offering Memorandum, co-sale
rights, registration rights, repurchase rights, rights of first refusal or any
other similar right. The Company has authorized capital stock as set forth in
the Offering Memorandum under the caption "Capitalization."
4. All of the outstanding shares of capital stock of each of
the Guarantors which is incorporated in the State of Delaware or Florida are
duly authorized and validly issued, are fully paid and non-assessable and, to
the knowledge of such counsel, were not issued and are not now in violation of
or subject to any preemptive rights, co-sale rights, registration rights,
repurchase rights, rights of first refusal or any other similar right, and are
owned directly by the Company, free and clear of any lien, pledge, encumbrance,
claim, security interest, restriction on transfer, stockholders' agreement,
voting trust or other defect of title whatsoever other than liens granted
pursuant to the Credit Agreement (as defined in the Indenture).
X-0
00
0. Except as described in the Offering Memorandum, to such
counsel's knowledge, there is no commitment, plan or arrangement to issue, and
no outstanding option, warrant, security or other right or instrument which
requires, permits or provides for the issuance, subscription or purchase of, any
share of capital stock of the Company or any security or other instrument which
by its terms is convertible into, exercisable for, or exchangeable for capital
stock of the Company. Except as described in the Offering Memorandum or as may
be required by applicable securities laws, to such counsel's knowledge there are
no restrictions on the voting or transfer of any shares of capital stock of the
Company.
6. To such counsel's knowledge, there is no commitment, plan
or arrangement to issue, and no outstanding option, warrant, security or other
right or instrument which requires, permits or provides for the issuance,
subscription or purchase of, any share of capital stock of any of the Guarantors
or any security or other instrument which by its terms is convertible into,
exercisable for, or exchangeable for capital stock of any of the Guarantors.
Except as may be required by applicable securities laws, to such counsel's
knowledge there are no restrictions on the voting or transfer of any shares of
capital stock of any of the Guarantors which is incorporated in the State of
Delaware or Florida.
7. When the Series A Notes are issued and delivered pursuant
to the Purchase Agreement, no Series A Note will be of the same class (within
the meaning of Rule 144A under the Act) as securities of the Company 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 inter-dealer
quotation system.
8. Each of the Company and the Guarantors which is organized
in the State of Delaware or Florida has the requisite corporate power and
authority to enter into the Purchase Agreement and each of the other Operative
Documents to which it is a party, perform each of its obligations thereunder and
issue, sell, deliver and perform its obligations under the Series A Notes to be
sold by it under the Purchase Agreement.
9. The Purchase Agreement and the transactions contemplated
therein have been duly and validly authorized by the Company and each of the
Guarantors which is organized in the State of Delaware or Florida and the
Purchase Agreement has been duly and validly executed and delivered by the
Company and each of such Guarantors.
10. The Indenture and the transactions contemplated therein
have been duly and validly authorized, executed and delivered by the Company and
the Guarantors.
11. The Registration Rights Agreement and the transactions
contemplated therein have been duly and validly authorized, executed and
delivered by the Company and the Guarantors.
X-0
00
00. The Offering Memorandum contains a summary of the terms of
the Indenture, the Series A Notes, the Exchange Notes and the Registration
Rights Agreement which is accurate in all material respects.
13. The Series A Notes and the Guarantees have been duly and
validly authorized by the Company and the Guarantors for issuance and sale to
the Initial Purchasers pursuant to the Purchase Agreement.
14. The Exchange Notes and the Guarantees of the Exchange
Notes have been duly and validly authorized for issuance by the Company and each
of the Guarantors.
15. To such counsel's knowledge, neither the Company nor any
of the Guarantors is in violation or breach of, or in default (nor has any event
occurred which with notice, or lapse of time, or both, would constitute a
default) under any contract, agreement, indenture, loan or other agreement,
instrument, mortgage, note, permit, lease, license, arrangement or understanding
to which the Company or any of the Guarantors is a party or by which the
Company, any of the Guarantors or any of their respective properties may be
bound where such default either individually, or together with all such other
defaults, could reasonably be expected to have a Material Adverse Effect on the
ability of the Company or any Guarantor to perform its obligations under the
Purchase Agreement. To such counsel's knowledge, neither the Company nor any of
the Guarantors which is incorporated in the State of Delaware or Florida is in
violation or breach of, or in default with respect to, any term of its
certificate of incorporation or bylaws.
16. The execution, delivery and performance by the Company and
each of the Guarantors of the Purchase Agreement and the other Operative
Documents and the consummation of the transactions contemplated thereby
(including the issuance, sale and delivery of the Series A Notes and the
Guarantees by the Company and the Guarantors) do not and will not (i) conflict
with or result in a breach of any of the terms and provisions of, or constitute
a default ( or an event which with notice or lapse of time, or both, would
constitute a default) under, give rise to any right to accelerate the maturity
or require the prepayment of any material obligation known to such counsel of
the Company or any of the Guarantors or require any consent, or result in the
creation or imposition of any material lien, charge or encumbrance upon any
property or assets of the Company or any of the Guarantors, pursuant to the
terms of any agreement, instrument, franchise, license or permit known to such
counsel to which the Company or any of the Guarantors is a party or by which any
of such corporations or their respective properties or assets may be bound, (ii)
violate or conflict with any provision of the certificate of incorporation or
by-laws of the Company or any of the Guarantors or (iii) to the knowledge of
such counsel, violate or conflict with any judgment, decree, order, statute,
rule or regulation of any court of any public, governmental or regulatory agency
or body having jurisdiction over the Company or any of the Guarantors or any of
their respective properties or assets (except for such violations or conflicts
that would not have a Material Adverse Effect).
E-3
44
Assuming compliance with applicable state securities and Blue
Sky laws, as to which such counsel need express no opinion, and except for the
filing of a registration statement under the Act and qualification of the
Indenture under the Trust Indenture Act, or in connection with the Registration
Rights Agreement, no consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body of the United States or the State of
Florida having jurisdiction over the Company or any of the Guarantors or any of
their respective properties or assets or under the Delaware General Corporation
Law is required for the valid execution, delivery and performance by the Company
and each of the Guarantors of this Agreement or any of the other Operative
Documents to which it is a party or the consummation of the transactions
contemplated thereby, including the issuance, sale and delivery of the Series A
Notes to be issued, sold and delivered by the Company and the Guarantors under
the Purchase Agreement, except (a) such as have been obtained or made (or, in
the case of the Registration Rights Agreement, will be obtained or made) under
the Act or the Trust Indenture Act of 1939, as amended or (b) such as may be
required under state securities or Blue Sky laws and regulations or such as may
be required by the National Association of Securities Dealers, Inc. in
connection with the purchase and distribution of the Series A Notes by the
Initial Purchasers ( as to which such counsel need not express an opinion).
17. To such counsel's knowledge, there is no action, suit,
investigation or proceeding, governmental or otherwise, before any court or
before or by any public, regulatory or governmental agency or body pending or
threatened against, or involving the properties or business of, the Company or
any of the Guarantors which, (i) is of a character required to be disclosed in
the Preliminary Offering Memorandum and the Offering Memorandum which has not
been properly disclosed therein.
18. None of the Company nor any of the Guarantors is, nor upon
consummation of the transactions contemplated in the Purchase Agreement will be,
subject to registration as an "investment company" or any entity "controlled by
an investment company" within the meaning of the Investment Company Act of 1940
and the rules and regulations promulgated thereunder.
19. Except as described in the Offering Memorandum to such
counsel's knowledge, (i) neither the Company nor any Guarantor is a party to or
bound by any stockholders agreement or voting trusts with respect to any
securities of the Company or any Guarantor and (ii) there are no contracts,
written agreements or written understandings between the Company or any of the
Guarantors and any person or entity granting such person or entity the right to
require the Company or any Guarantor to file a registration statement under the
Act with respect to any securities of the Company or any Guarantor or to be
owned by such person or entity or to require the Company or any Guarantor to
include such securities in the securities to be registered in the Exchange
Offer.
20. Assuming (i) the accuracy of, and compliance with, the
representations, warranties, covenants and agreements of the Company and the
Initial Purchasers contained in the
X-0
00
Xxxxxxxx Xxxxxxxxx, (xx) the accuracy of, and compliance with, the
representations, warranties, covenants and agreements of each of the persons to
whom the Initial Purchasers initially resell or otherwise transfer the Notes, as
specified in the Offering Memorandum, and (iii) the compliance by the Initial
Purchasers with the offering and transfer procedures and restrictions described
in the Offering Memorandum, it is not necessary in connection with the offer,
sale and delivery of the Notes to the Initial Purchasers or in connection with
the initial resale of the Notes by the Initial Purchasers in the manner
contemplated by the Purchase Agreement and the Offering Memorandum to register
the sale of the Notes to the Initial Purchasers or the Exempt Resales under the
Act (it being understood that such counsel need not express any opinion as to
any subsequent reoffers, resales or other transfers of any Notes), or to qualify
the Indenture under the Trust Indenture Act of 1939, as amended.
21. None of the execution, delivery and performance of the
Purchase Agreement, the issuance and sale of the Notes, the application of the
proceeds from the issuance and sale of the Notes or the consummation of the
transactions contemplated thereby as set forth in the Offering Memorandum, will
violate Regulations G, T, U or X promulgated by the Board of Governors of the
Federal Reserve System.
22. The statements in the Preliminary Offering Memorandum and
the Offering Memorandum under the headings "Offering Memorandum Summary -- The
Offering," and "Description of Notes," insofar as such statements constitute
summaries of the legal matters and documents referred to therein, fairly
summarize such legal matters and documents in all material respects.
23. The statements in the Preliminary Offering Memorandum and
the Offering Memorandum under the heading "Certain Federal Income Tax
Consequences", insofar as it constitutes a summary of matters of United States
federal tax law and regulations or legal conclusions with respect thereto,
constitute fair and accurate summaries of the matters described therein in all
material respects.
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company,
representatives of the independent certified public accountants of the Company
and representatives of the Initial Purchasers and its counsel at which the
contents of the Offering Memorandum and related matters were discussed and,
although it has not undertaken to investigate or independently verify, and does
not assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Preliminary Offering Memorandum or the Offering
Memorandum or any amendment thereof or supplement thereto (except as indicated
above), on the basis of the foregoing, and, relying as to factual matters on
certificates of officers and other representatives of the Company, no facts have
come to its attention which lead it to believe that the Offering Memorandum, as
of its date or the Closing Date, contained an untrue statement of a material
fact or omitted to state any fact required to be stated therein in order to or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading (except as to financial
statements and schedules and other financial data included therein, as to which
counsel need not express any opinion).
X-0
00
XXXXXXX X
Form of Opinion of New York Counsel of the Company
1. Assuming that the Indenture has been duly authorized,
executed and delivered by the Company, the Guarantors and the Trustee, the
Indenture is a legal, valid and binding agreement of the Company and the
Guarantors, enforceable against each of them in accordance with its terms,
except that (a) the enforceability thereof may be (I) limited by rights of
acceleration and (ii) subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or hereafter in
effect relating to creditors' rights generally, (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought and (c) the stay, extension and usury
waivers therein may be deemed unenforceable.
2. Assuming the Notes have been duly and validly authorized by
the Company and the Guarantors for sale to the Initial Purchases pursuant to the
Purchase Agreement, when executed and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the Purchase Agreement, the Notes will be validly issued and
will constitute legal, valid and binding obligations of the Company and the
Guarantors, entitled to the benefits of the Indenture and enforceable against
each of them in accordance with their terms, except that (a) the enforceability
thereof may be (I) limited by rights of acceleration and (ii) subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (b) the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceedings therefor may be brought and (c) the
stay, extension and usury waivers therein may be deemed unenforceable.
3. Assuming that the Registration Rights Agreement and the
transactions contemplated therein have been duly and validly authorized,
executed and delivered by the Company and the Guarantors, the Registration
Rights Agreement is a legal, valid and binding agreement of the Company and the
Guarantors, enforceable against each of them in accordance with its terms,
except (a) that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors' rights generally, (b)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceedings therefor may be brought, (c) that the
enforceability of provisions imposing liquidated damages, penalties or an
increase in interest rate upon the occurrence of a default may be limited in
certain circumstances and (d) to the extent that rights of indemnification and
contribution thereunder may be limited by federal or state securities laws or
public policy relating thereto.
X-0
00
0. Assuming that the Purchase Agreement and the transactions
contemplated thereby have been duly authorized, executed and delivered by the
Company and the Guarantors, the Purchase Agreement is a legal, valid and binding
obligation of the Company and the Guarantors, enforceable against each of them
in accordance with its terms, except (a) that enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
creditors' rights generally, (b) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought and (c) to the extent that rights of indemnification and
contribution thereunder may be limited by federal or state securities laws or
public policy relating thereto.
F-2
48
EXHIBIT G
Form of Opinion of Local Counsel to each of the Guarantors
Listed Below
1. The Guarantor (A) has been duly organized and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, (B) is duly qualified and in good standing as a foreign
corporation in each jurisdiction where the character or location of its
properties (owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so qualified
or in good standing which would not, individually or in the aggregate, have a
Material Adverse Effect, and (C) has all requisite power and authority to own,
lease and operate its properties and to conduct its business as now being
conducted and as described in the Offering Memorandum.
2. All of the outstanding shares of capital stock of the
Guarantor are duly authorized and validly issued, are fully paid and
non-assessable and to the knowledge of such counsel were not issued and are not
now in violation of or subject to any preemptive rights, co-sale rights,
registration rights, repurchase rights, rights of first refusal or any other
similar right, and are owned directly by the Company, free and clear of any
lien, pledge, encumbrance, claim, security interest, restriction on transfer,
stockholders' agreement, voting trust or other defect of title whatsoever.
3. Except as may be required under applicable securities laws,
there are no restrictions on the voting or transfer of any shares of capital
stock of the Guarantor.
4. The Guarantor has the requisite corporate power and
authority to enter into the Purchase Agreement and each of the other Operative
Documents to which it is a party, perform each of its obligations thereunder and
issue, sell, deliver and perform its obligations under the Guarantees to be sold
by it under the Purchase Agreement.
5. The Purchase Agreement and the transactions contemplated
therein have been duly and validly authorized by the Guarantor and the Purchase
Agreement has been duly and validly executed and delivered by the Guarantor and
(assuming the due execution and delivery by the Initial Purchasers) is a legal,
valid and binding obligation of the Guarantor.
6. The Indenture and the transactions contemplated therein
have been duly and validly authorized, executed and delivered by the Guarantor,
and, assuming the due execution and delivery thereof by the Trustee, is a legal,
valid and binding obligation of the Guarantor.
7. The Registration Rights Agreement and the transactions
contemplated therein have been duly and validly authorized, executed and
delivered by the Guarantor and, assuming the
G-1
49
due execution and delivery thereof by the Initial Purchasers, is a legal valid
and binding obligation of the Guarantor.
8. The Guarantees of the Series A Notes have been duly and
validly authorized by the Guarantor for issuance and sale to the Initial
Purchasers pursuant to the Purchase Agreement and, when executed, issued and
authenticated in accordance with the terms of the Indenture and delivered
against payment therefor in accordance with the terms hereof and thereof, will
be the legal, valid and binding obligations of the Guarantor.
9. The Guarantees of the Exchange Notes have been duly and
validly authorized for issuance by the Guarantor and, when duly and validly
executed, issued and authenticated in accordance with the terms of the Exchange
Offer and the Indenture, will be the legal, valid and binding obligations of the
Guarantors.
10. To such counsel's knowledge, the Guarantor is not in
violation or breach of, or in default with respect to, any term of its
certificate of incorporation or bylaws.
11. The execution, delivery and performance by the Guarantor
of the Purchase Agreement and the other Operative Documents and the consummation
of the transactions contemplated hereby and thereby (including the issuance,
sale and delivery of the Guarantees by the Guarantor) do not and will not (i)
violate or conflict with any provision of the certificate of incorporation or
by-laws of the Guarantor or (ii) to the knowledge of such counsel, violate or
conflict with any judgment, decree, order, statute, rule or regulation of any
court of any public, governmental or regulatory agency or body having
jurisdiction over the Guarantor or any of its properties or assets (except for
such violations or conflicts that would not have a Material Adverse Effect).
Assuming compliance with applicable state securities and Blue Sky laws, as to
which such counsel need express no opinion, and except for the filing of a
registration statement under the Act and qualification of the Indenture under
the Trust Indenture Act, or in connection with the Registration Rights
Agreement, no consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body of the State of having
jurisdiction over the Guarantor or any of its properties or assets is required
for the valid execution, delivery and performance by the Guarantor of the
Purchase Agreement or any of the other Operative Documents to which it is a
party or the consummation of the transactions contemplated hereby and thereby,
including the issuance, sale and delivery of the Guarantees to be issued, sold
and delivered by the Guarantor under the Purchase Agreement, except (a) such as
have been obtained or made (or, in the case of the Registration Rights
Agreement, will be obtained or made) under the Act or the Trust Indenture Act of
1939, as amended or (b) such as may be required under state securities or Blue
Sky laws and regulations or such as may be required by the National Association
of Securities Dealers, Inc. in connection with the purchase and distribution of
the Series A Notes by the Initial Purchasers (as to which such counsel need not
express an opinion).
G-2
50
EXHIBIT H
Form of Opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
1. Assuming that the Indenture has been duly authorized,
executed and delivered by the Company, the Guarantors and the Trustee, the
Indenture is a legal, valid and binding agreement of the Company and the
Guarantors, enforceable against each of them in accordance with its terms,
except that (a) the enforceability thereof may be (i) limited by rights of
acceleration and (ii) subject to bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws now or hereafter in
effect relating to creditors' rights generally, (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceedings therefor may be brought and (c) the stay, extension and usury
waivers therein may be deemed unenforceable.
2. Assuming that the Notes have been duly authorized by the
Company and the Guarantors, when executed and authenticated in accordance with
the terms of the Indenture and delivered to and paid for by you in accordance
with the Purchase Agreement, the Notes will be validly issued and will
constitute legal, valid and binding obligations of the Company and the
Guarantors, entitled to the benefits of the Indenture and enforceable against
each of them in accordance with their terms, except that (a) the enforceability
thereof may be (i) limited by rights of acceleration and (ii) subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (b) the remedy of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion
of the court before which any proceedings therefor may be brought and (c) the
stay, extension and usury waivers therein may be deemed unenforceable.
3. Assuming that the Registration Rights Agreement has been
duly authorized, executed and delivered by the Company and the Guarantors, the
Registration Rights Agreement is a legal, valid and binding agreement of the
Company and the Guarantors, enforceable against each of them in accordance with
its terms, except (a) that the enforceability thereof may be subject to
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally, (b) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings therefor may be brought,
(c) that the enforceability of provisions imposing liquidated damages, penalties
or an increase in interest rate upon the occurrence of a default may be limited
in certain circumstances and (d) to the extent that rights of indemnification
and contribution thereunder may be limited by federal or state securities laws
or public policy relating thereto.
4. The Notes and the Indenture conform in all material
respects to the descriptions thereof in the Offering Memorandum under the
caption "Description of Notes."
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5. The Purchase Agreement has been duly authorized, executed
and delivered by the Company and the Guarantors and constitutes a legal, valid
and binding obligation of the Company and the Guarantors, enforceable against
each of them in accordance with its terms, except (a) that enforceability
thereof may be subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally, (b) that the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceedings
therefor may be brought and (c) to the extent that rights of indemnification and
contribution thereunder may be limited by federal or state securities laws or
public policy relating thereto.
We have participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants of the Company, representatives of the Company's counsel, and your
representatives at which conferences the contents of the Offering Memorandum and
related matters were discussed and, although we have not independently verified
and are not passing upon and assume no responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum
(except to the extent provided in paragraph 4 above), on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts have come to our
attention which lead us to believe that the Offering Memorandum, on the date
thereof or on the date hereof contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements contained therein, in the light of
the circumstance under which they were made, not misleading; it being understood
that we express no view with respect to the financial statements, notes and
schedules thereto, and the other information of a financial, statistical and
accounting nature included or incorporated by reference therein or which should
have been included or incorporated by reference therein.
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