Exhibit 4.19
$250,000,000
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ COMPANY
9 3/4% Senior Secured Notes Due 2012
PURCHASE AGREEMENT
May 17, 2002
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the Several Purchasers,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Company, a Delaware corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to the several initial purchasers named in Schedule A hereto (the
"Purchasers"), U.S. $250,000,000 principal amount of its 9 3/4% senior secured
notes due 2012 ("Offered Securities") to be issued under an indenture, dated as
of May 22, 2002 (the "Indenture"), between the Company and Bank of New York, as
Trustee. The Company is a wholly owned subsidiary of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Holding
Company, Inc. (the "Holding Company"). The United States Securities Act of 1933
is herein referred to as the "Securities Act."
Holders (including subsequent transferees) of the Offered Securities will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date (as hereinafter
defined), in substantially the form of Exhibit I hereto, for so long as such
Offered Securities constitute "Transfer Restricted 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 Securities Act (the "Exchange Offer
Registration Statement") relating to the Company's 9 3/4% senior secured notes
in a like aggregate principal amount as the Company issued under the Indenture,
identical in all material respects to the Initial Securities and registered
under the Securities Act (the "Exchange Securities"), to be offered in exchange
for the Offered Securities (such offer to exchange being referred to as the
"Exchange Offer") and (ii) a shelf registration statement pursuant to Rule 415
under the Securities Act (the "Shelf Registration Statement" and, together with
the Exchange Offer Registration Statement, the "Registration Statements")
relating to the resale by certain holders of the Offered Securities and to use
its best efforts to cause such Registration Statements to be declared and remain
effective and usable for the periods specified in the Registration Rights
Agreement and the
Company will agree to consummate the Exchange Offer. The Offered Securities and
the Exchange Securities are referred to collectively as the "Securities".
On the Closing Date, the Company will enter into the "Security Documents"
(as defined in the Indenture), which will provide for the grant of Liens on all
of the right, title and interest of the Company in the "Collateral" (as defined
in the Indenture) to the Trustee, as secured party for itself and for the
benefit of the holders of the Securities (the "Secured Parties"). The Liens will
secure the payment and performance when due of all of the obligations of the
Company under the Indenture. On the Closing Date, the Holding Company, the
Company and the other parties to the Second Amended and Restated Credit
Agreement, dated as of April 12, 2002, will enter into an amendment thereto (the
"Bank Amendment," and together with any documents executed in connection
therewith, the "Bank Amendment Documents"). In addition, on the Closing Date,
the Trustee and Deutsche Bank Trust Company Americas, in its capacity as agent
for itself and the other lenders party to the Bank Credit Facility, will enter
into an intercreditor agreement (the "Intercreditor Agreement," and, together
with the Registration Rights Agreement, the Security Documents and the Bank
Amendment Documents, the "Additional Documents"). Capitalized terms used herein
but not defined have the meaning given to such terms in the Indenture.
The Company hereby agrees with the several Purchasers as follows:
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities to be offered by the Purchasers have been
prepared by the Company. Such preliminary offering circular (the
"Preliminary Offering Circular") and offering circular (the "Offering
Circular"), as supplemented as of the date of this Agreement, together with
the documents listed in Schedule B hereto are hereinafter collectively
referred to as the "Offering Document". The Preliminary Offering Circular
as of its date did not, the Offering Circular as of the date hereof does
not, and the Offering Document as of the Closing Date will not, include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Company by any
Purchaser through Credit Suisse First Boston Corporation ("CSFBC")
specifically for use therein, it being understood and agreed that the only
such information is that described as such in Section 7(b) hereof. Except
as disclosed in the Offering Document, on the date of this Agreement, the
Company's Annual Report on Form 10-K most recently, if any, filed with the
Securities and Exchange Commission (the "Commission") and all subsequent
reports (collectively, the "Exchange Act Reports") which have been filed by
the Company with the Commission or sent to shareholders pursuant to the
Securities Exchange Act of 1934 (the "Exchange Act") do not include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. Such documents, when they were
filed with the Commission, conformed in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
the requisite corporate power and authority to own its properties and
conduct its business as described in the Offering Document; and the Company
is duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification, except where the
failure to be so qualified would not, singularly or in the aggregate, have
a material
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adverse effect on the condition (financial or other), business,
properties, or results of operations of the Company and its
subsidiaries taken as a whole (a "Material Adverse Effect").
(c) The Company has an authorized capitalization as set forth in
the Preliminary Offering Circular and the Offering Circular under the
heading "Capitalization."
(d) Each subsidiary of the Company has been duly incorporated and
is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with the requisite corporate power
and authority to own its properties and conduct its business as
described in the Offering Document; and each subsidiary of the Company
is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not, singularly or
in the aggregate, have a Material Adverse Effect; all of the issued
and outstanding capital stock of each subsidiary of the Company has
been duly authorized and validly issued, is fully paid and
nonassessable; and the capital stock of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from Liens,
other than as described in the Offering Document. The entities listed
on Schedule C hereto are the only subsidiaries, direct or indirect, of
the Company.
(e) The Holding Company has been duly organized, is validly
existing as a corporation in good standing under the laws of the State
of Delaware and does not engage in any business or investment
activities other than owning 100% of the issued and outstanding
capital stock of the Company and supplying management services to the
Company pursuant to the terms of the Management Agreement, as
described in the Offering Circular.
(f) The Indenture has been duly authorized; the Offered
Securities have been duly authorized; and when the Offered Securities
are delivered and paid for pursuant to this Agreement on the Closing
Date (as defined below), the Indenture will have been duly executed
and delivered, such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the
description thereof contained in the Offering Document and the
Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company, enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles. On the Closing Date, the Indenture will
conform in all material respects to the requirements of the Trust
Indenture Act of 1939, as amended (the "TIA" or "Trust Indenture
Act"), and the rules and regulations of the Commission applicable to
an indenture which is qualified thereunder.
(g) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Purchaser for a brokerage commission, finder's fee or other like
payment.
(h) On the Closing Date, the Exchange Securities will have been
duly authorized by the Company; and when the Exchange Securities are
issued, executed and authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Exchange Securities will be
entitled to the benefits of the Indenture and will be the valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
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(i) The Additional Documents have been duly authorized by the
Holding Company and the Company party thereto and, on the Closing
Date, will have been duly executed and delivered by the Holding
Company and the Company party thereto. When the Additional Documents
have been duly executed and delivered, each will be a valid and
binding agreement of the Holding Company and the Company party
thereto, enforceable against the Holding Company and the Company party
thereto in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles. On the Closing
Date, the Additional Documents will conform in all material respects
to the description thereof in the Offering Circular.
(j) Upon: (i) execution and delivery of the Security Documents
and the issuance of the Offered Securities; and (ii) completion of the
filings or recordings necessary to perfect the Liens granted under the
Security Documents, the Security Documents will create, in favor of
the Secured Parties, legal, valid, and enforceable Liens on all of the
right, title and interest of the Company in the Collateral. As of the
Closing Date, such Liens will be valid and perfected to the extent
that such security interests can be perfected by such filings and
recordings, and will be subject to no Liens and no arrangements having
the effect of a Lien (or agreement to enter into any of the
foregoing), other than: (x) the security interests granted under the
Security Documents; and (y) Permitted Liens.
(k) The Mortgages will be effective to grant a legal, valid and
enforceable mortgage lien on all of the mortgagor's right, title and
interest in the Mortgaged Properties. When the Mortgages are duly
recorded in the proper recorders' offices and the mortgage recording
fees and taxes in respect thereof are paid and compliance is otherwise
had with the formal requirements of state law applicable to the
recording of real estate mortgages generally, each such Mortgage shall
constitute a validly perfected, first-priority security interest in
the related Mortgaged Property, for the ratable benefit of the holders
of the Offered Securities, subject only to the encumbrances and
exceptions to title expressly set forth therein and except as: (A)
enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and (B) the priority is subject to
Permitted Liens.
(l) To the Company's knowledge, the Mortgaged Properties under
the Mortgages and the buildings and improvements thereon comply in all
material respects with all applicable setback requirements, zoning
codes, ordinances, laws and regulations, except where non-compliance
would not, individually or in the aggregate, have a Material Adverse
Effect.
(m) There are no pending or, to the Company's knowledge,
threatened condemnation proceedings, lawsuits, or administrative
actions relating to the Mortgaged Properties under the Mortgages that
would have, individually or in the aggregate, a Material Adverse
Effect.
(n) Neither the Holding Company nor the Company nor any of its
subsidiaries is (i) in violation of its respective charter or by-laws,
(ii) or in default in the performance of any obligation, agreement,
covenant or condition contained in any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which the Holding
Company or the Company or any of its subsidiaries is a party or by
which the Holding Company or the Company or any of its subsidiaries or
their respective property is bound, except, in the case of (ii), where
such defaults have been waived or where such defaults would not be
reasonably likely to have, singularly or in the aggregate, a Material
Adverse Effect.
(o) Except for the Registration Rights Agreement, there are no
contracts, agreements or understandings between the Holding Company,
the Company and any person granting such person the
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right to require the Holding Company or the Company to file a
registration statement under the Securities Act with respect to any
securities of the Holding Company or the Company or to require the
Holding Company or the Company to include such securities with the
Securities registered pursuant to any Registration Statement.
(p) Neither the Holding Company nor the Company nor any of its
subsidiaries nor any agent thereof acting on the behalf of them has
taken, and none of them will take, any action that might cause this
Agreement or the issuance or sale of the Offered Securities to violate
Regulation T, Regulation U or Regulation X of the Board of Governors
of the Federal Reserve System.
(q) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act: (i) has imposed (or has informed the Company that it
is considering imposing) any condition (financial or otherwise) on the
Company's retaining any rating assigned to the Company, any securities
of the Company or; (ii) has indicated to the Company that it is
considering: (a) the downgrading, suspension, or withdrawal of, or any
review for a possible change that does not indicate the direction of
the possible change in, any rating so assigned; or (b) any change in
the outlook for any rating of the Company or any securities of the
Company.
(r) No form of general solicitation or general advertising (as
defined in Regulation D under the Securities Act) was used by the
Company or any of their respective representatives (other than the
Purchasers, as to whom the Company make no representation) in
connection with the offer and sale of the Offered Securities
contemplated hereby, 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 Offered Securities have been issued and sold by the Company
within the six-month period immediately prior to the date hereof.
(s) Neither the Company nor any of its affiliates or any person
acting on its or their behalf (other than the Purchasers, as to whom
the Company make no representation) has engaged or will engage in any
directed selling efforts within the meaning of Regulation S under the
Securities Act ("Regulation S") with respect to the Offered
Securities.
(t) The Offered Securities offered and sold in reliance on
Regulation S have been and will be offered and sold only in "offshore
transactions," as defined in Regulation S.
(u) The sale of the Offered Securities pursuant to Regulation S
is not part of a plan or scheme to evade the registration provisions
of the Securities Act.
(v) No registration under the Securities Act of the Offered
Securities is required for the sale of the Offered Securities to the
Purchasers as contemplated hereby or for the transfer of the Offered
Securities as described in the Offering Circular assuming the accuracy
of the Purchaser's representations set forth in Section 4 hereof.
(w) Assuming the accuracy of the representations of the
Purchasers contained in this Agreement, no consent, approval,
authorization, or order of, or filing with, any governmental agency or
body or any court is required for the consummation of the transactions
contemplated by this Agreement or the Additional Documents in
connection with the issuance and sale of the Offered Securities by the
Company except for: (i) the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf Registration
Statement (each as defined in the Registration Rights Agreement)
effective; or (ii) filings or recordings necessary to perfect the
Liens on all of the right, title and interest of the Company in the
Collateral granted under the Security Documents.
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(x) The execution, delivery and performance of the Indenture,
this Agreement and the Additional Documents, and the issuance and sale
of the Offered Securities and compliance with the terms and provisions
thereof will not result in a breach or violation of any of the terms
and provisions of, constitute a default under, or result in the
creation of a Lien under (other than Liens in favor of the Secured
Parties under the Security Documents): (i) any statute, any rule,
regulation or order of any governmental agency or body or any court,
domestic or foreign, having jurisdiction over the Holding Company, the
Company or any subsidiary of the Company or any of their properties;
or (ii) any agreement or instrument to which the Holding Company, the
Company or any such subsidiary is a party or by which the Holding
Company, the Company or any such subsidiary is bound or to which any
of the properties of the Holding Company, the Company or any such
subsidiary is subject; or (iii) the charter or by-laws of the Holding
Company, the Company or any such subsidiary, and the Company has the
requisite corporate power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement, except where
such default or breach or violation of clauses (i) or (ii) of this
paragraph would not have, singularly or in the aggregate, a Material
Adverse Effect.
(y) This Agreement has been duly authorized, executed and
delivered by the Company.
(z) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good title to all real properties and good
title to all other properties and assets owned by them, in each case
free from Liens, except Permitted Liens, that would materially affect
the value thereof or materially interfere with the use made or to be
made thereof by them; and except as disclosed in the Offering
Document, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be
made thereof by them.
(aa) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(bb) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent
that might have a Material Adverse Effect.
(cc) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(dd) Except as disclosed in the Preliminary Offering Memorandum
and the Offering Memorandum and as would not, singly or in the
aggregate, have a Material Adverse Effect: (i) the Company is in
compliance with all laws and regulations relating to protection of
human health or environment or imposing liability or standards of
conduct concerning any Materials of Environmental Concern (as defined
below) ("Environmental Laws"), including, without limitation,
possession of required permits and compliance with the terms of
conditions thereof, and there are no circumstances known to the
Company that will prevent such compliance in the future; (ii) the
Company has not received any notice and there is no pending or
threatened action, suit or proceeding before or by any
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court of governmental agency or body ("Environmental Claim") alleging
potential liability (including, but not limited to, investigatory,
cleanup or governmental response costs, natural resources or property
damages, personal injuries, or penalties) of the Company or any person
or entity for whom the Company has contractually retained or assumed
responsibility, arising out of, based on, or resulting from the
presence, or release, discharge, emission or disposal into the
environment, of any Material of Environmental Concern at or from any
location, owned or operated by the Company or any violation or alleged
violation of any Environmental Law, including (without consideration
of whether such claim would singly or in the aggregate have a Material
Adverse Effect, notwithstanding the opening proviso to this Section
2(dd)) any Environmental Claim that the Company reasonably believes
will result in monetary sanctions of more than $100,000; and (iii) to
the best of the Company's knowledge, there are no past or present
actions, activities, conditions, events or incidents that could be
reasonably expected to form the basis of any such Environmental Claim.
The term "Materials of Environmental Concern" means (a) any hazardous
substance" as defined by the Comprehensive Environmental Response,
Compensation and Liability of 1980, as amended, (b) any "hazardous
waste" as defined by the Resource Conservation and Recovery Act, as
amended, (c) any petroleum or petroleum product, (d) any
polychlorinated biphenyl, and (e) any pollutant or contaminant or
hazardous, dangerous, or toxic chemical, material, waste or substance
regulated or defined under any other Environmental Law;
(ee) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting the Holding
Company, the Company or any of its subsidiaries or any of their
respective properties that, if determined adversely to the Company or
any of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under the Indenture,
this Agreement or the Additional Documents or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are, to the Holding Company or the
Company's knowledge, threatened or contemplated.
(ff) The historical financial statements, together with the notes
thereto, included in the Offering Document present fairly the
financial position of the Company and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for
the periods shown, and, except as otherwise disclosed in the Offering
Document, such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States
applied on a consistent basis; and the assumptions used in preparing
the pro forma financial statements included in the Offering Document
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(gg) The Company and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(hh) All indebtedness of the Company that will be repaid with the
proceeds of the issuance and sale of the Offered Securities was
incurred, and the indebtedness represented by the Offered
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Securities is being incurred, for proper purposes and in good faith, and
the Company was, at the time of the incurrence of such indebtedness that
will be repaid with the proceeds of the issuance and sale of the Offered
Securities, and will be on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Offered Securities),
solvent, and had at the time of the incurrence of such indebtedness that
will be repaid with the proceeds of the issuance and sale of the Offered
Securities, and will have on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Offered Securities),
sufficient capital for carrying on its business and was, at the time of the
incurrence of such indebtedness that will be repaid with the proceeds of
the issuance and sale of the Offered Securities, and will be on the Closing
Date (after giving effect to the application of the proceeds from the
issuance and sale of the Offered Securities), able to pay its debts as they
become due.
(ii) Except as disclosed in the Offering Document, since the date of
the latest audited financial statements included in the Offering Document
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Offering Document, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(jj) Each of the Holding Company and the Company is not an open-end
investment company, unit investment trust or face-amount certificate
company that is or is required to be registered under Section 8 of the
United States Investment Company Act of 1940 (the "Investment Company
Act"); and each of the Holding Company and the Company is not and, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Offering Document,
will not be an "investment company" as defined in the Investment Company
Act.
(kk) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed
on any national securities exchange registered under Section 6 of the
United States Securities Exchange Act of 1934 ("Exchange Act") Exchange Act
or quoted in a U.S. automated inter-dealer quotation system.
(ll) Assuming the accuracy of the representations of the Purchasers in
this Agreement, the offer and sale of the Offered Securities by the Company
to the Purchasers in the manner contemplated by this Agreement and the
Offering Circular will be exempt from the registration requirements of the
Securities Act by reason of Rule 144A thereof and Regulation S thereunder
and it is not necessary to qualify an indenture in respect of the Offered
Securities under the Trust Indenture Act.
(mm) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf: (i) has, within the six-month period prior
to the date hereof, offered or sold in the United States or to any U.S.
person (as such terms are defined in Regulation S under the Securities Act)
the Offered Securities or any security of the same class or series as the
Offered Securities; or (ii) has offered or will offer or sell the Offered
Securities: (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under
the Securities Act; or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S, by means of any directed selling
efforts within the meaning of Rule 902(c) of Regulation S. The Company, its
affiliates and any person acting on its or their behalf have complied and
will comply in all material respects with the offering restrictions
requirement of Regulation S. The Company has not entered and will not enter
into any contractual arrangement with respect to the distribution of the
Offered Securities except for this Agreement.
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(nn) There is no "substantial U.S. market interest" as defined in Rule
902(j) of Regulation S in the Company's debt securities.
(oo) The Company is subject to the reporting requirements of either
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering,
Analysis, and Retrieval (▇▇▇▇▇) system.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at a purchase price of 100% of the principal amount thereof
plus accrued interest from May 22, 2002 to the Closing Date (as hereinafter
defined), the respective principal amounts of Securities set forth opposite the
names of the several Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the Offered
Securities in the form of one or more permanent global Securities in definitive
form (the "Global Securities") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent global Securities will be held only
in book-entry form through DTC, except in the limited circumstances described in
the Offering Document. Payment for the Offered Securities shall be made by the
Purchasers in Federal (same day) funds by wire transfer to an account at a bank
acceptable to CSFBC at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at
10:00 A.M. (New York time), on May 22, 2002 , or at such other time not later
than seven full business days thereafter as CSFBC and the Company determine,
such time being herein referred to as the "Closing Date", against delivery to
the Trustee as custodian for DTC of the Global Securities representing all of
the Securities. The Global Securities will be made available for checking at the
above office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at least 24 hours prior
to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption
from the registration requirements of the Securities Act. Each Purchaser
severally represents and agrees that it has offered and sold the Offered
Securities, and will offer and sell the Offered Securities: (i) as part of
its distribution at any time; and (ii) otherwise until 40 days after the
later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A under the Securities Act ("Rule
144A"). Accordingly, neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Offered Securities, and such
Purchaser, its affiliates and all persons acting on its or their behalf
have complied and will comply with the offering restrictions requirement of
Regulation S. Each Purchaser severally agrees that, at or prior to
confirmation of sale of the Offered Securities, other than a sale pursuant
to Rule 144A, such Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases the Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities Act")
and may not be offered or sold
9
within the United States or to, or for the account or
benefit of, U.S. persons: (i) as part of their distribution
at any time; or (ii) otherwise until 40 days after the later
of the date of the commencement of the offering and the
closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the
Securities Act. Terms used above have the meanings given to
them by Regulation S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with
respect to the distribution of the Offered Securities except for any such
arrangements with the other Purchasers or affiliates of the other
Purchasers or with the prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means
of any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act, including, but not limited
to (i) any advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over television or
radio, or (ii) any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. Each Purchaser severally
agrees, with respect to resales made in reliance on Rule 144A of any of the
Offered Securities, to deliver either with the confirmation of such resale
or otherwise prior to settlement of such resale a notice to the effect that
the resale of such Offered Securities has been made in reliance upon the
exemption from the registration requirements of the Securities Act provided
by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that: (i)
it has not offered or sold and prior to the date six months after the date
of issue of the Offered Securities will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995; (ii) it has
only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection
with the issue or sale of any notes in circumstances in which section 21(1)
of the FSMA does not apply to the Company; and (iii) it has complied and
will comply with all applicable provisions of the FSMA with respect to
anything done by it in relation to the notes in, from or otherwise
involving the United Kingdom.
Each of the Purchasers acknowledges that the Company and counsel to the
Company will rely upon the truth and accuracy of the forgoing representations
and consents to such reliance.
5. Certain Agreements of the Company. The Company agrees with the several
Purchasers that:
(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent, which will not be unreasonably
withheld or delayed. If, at any time prior to the completion of the resale
of the Offered Securities by the Purchasers, any event occurs as a result
of which the Offering Document as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, the
Company promptly will notify
10
CSFBC of such event and promptly will prepare, at its own expense, an
amendment or supplement which will correct such statement or omission.
Neither CSFBC's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements
to such documents, in each case as soon as available and in such quantities
as CSFBC reasonably requests, and the Company will furnish to CSFBC on the
date hereof three copies of the Offering Document signed by a duly
authorized officer of the Company, one of which will include the
independent accountants' reports therein manually signed by such
independent accountants. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act and the Offered Securities continue
to be "restricted securities" under Rule 144, the Company will promptly
furnish or cause to be furnished to CSFBC (and, upon request, to each of
the other Purchasers) and, upon request of holders and prospective
purchasers of the Offered Securities, to such holders and purchasers,
copies of the information required to be delivered to holders and
prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by
such holders of the Offered Securities. The Company will pay the expenses
of printing and distributing to the Purchasers all such documents.
(c) The Company, in cooperation with the Purchasers and their counsel,
will arrange for the qualification of the Offered Securities for sale and
the determination of their eligibility for investment under the laws of
such jurisdictions in the United States and Canada as CSFBC designates and
will continue such qualifications in effect so long as required for the
resale of the Offered Securities by the Purchasers, provided that the
Company will not be required to qualify as a foreign corporation or to file
a general consent to service of process in any such state.
(d) During the period of two years after the Closing Date, the Company
will, upon request, furnish to each of the other Purchasers and any holder
of Offered Securities a copy of the restrictions on transfer applicable to
the Offered Securities.
(e) During the period of two years after the Closing Date, the Company
will not, and will not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that
have been reacquired by any of them.
(f) During the period of two years after the Closing Date, the Company
will not be or become, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
(g) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement, the Indenture, and the Additional
Documents, including: (i) the fees and expenses of the Trustee and its
professional advisers; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Offered
Securities; and, as applicable, the Exchange Securities (as defined in the
Registration Rights Agreement), the preparation and printing of this
Agreement, the Indenture, the Offered Securities, the Offering Document and
the Additional Documents and amendments and supplements thereto, and any
other document relating to the issuance, offer, sale and delivery of the
Offered Securities and as applicable, the Exchange Securities; (iii) the
cost of listing the Offered Securities and qualifying the Offered
Securities for trading in The PortalSM Market ("PORTAL") and any expenses
incidental thereto; (iv) the cost of any advertising approved by the
Company in connection with the issue of the Offered Securities; (v) for any
expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered
11
Securities or the Exchange Securities for sale under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and the
printing of memoranda relating thereto; (vi) for any fees charged by
investment rating agencies for the rating of the Offered Securities or the
Exchange Securities; (vii) for expenses incurred in distributing the
Preliminary Offering Circular and the Offering Document (including any
amendments and supplements thereto) to the Purchasers; and (viii) the costs
of perfecting the Liens on all of the right, title and interest of the
Company in the Collateral and other costs associated with the preparation,
review or due diligence investigation of the Collateral. The Company will
also pay or reimburse the Purchasers (to the extent incurred by them) for
reasonable travel expenses of the Purchasers and the Company's officers and
employees and other reasonable expenses of the Purchasers and the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(h) In connection with the offering, until CSFBC shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or
will, either alone or with one or more other persons, bid for or purchase
for any account in which it or any of its affiliates has a beneficial
interest any Offered Securities or attempt to induce any person to purchase
any Offered Securities, and neither it nor any of its affiliates will make
bids or purchases for the purpose of creating actual, or apparent, active
trading in, or of raising the price of, the Offered Securities.
(i) For a period of 180 days after the date of the initial offering of
the Offered Securities by the Purchasers, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
any United States dollar-denominated debt securities issued or guaranteed
by the Company and having a maturity of more than one year from the date of
issue except issuances of Offered Securities pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date hereof, grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Offered Securities pursuant to the exercise of
such options. The Company will not at any time offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, pledge, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
(j) The Company will use its best efforts to have the Offered
Securities admitted to trading on PORTAL and to maintain the listing of the
Offered Securities on PORTAL for so long as the Offered Securities are
outstanding.
(k) The Company hereby agrees to use commercially reasonable efforts
to do and perform all things required to be done and performed under the
Security Documents prior to, on and after the Closing Date.
6. Conditions of the Obligations of the Purchasers. The obligations of the
several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein in all material respects in the case of any representation or
warranty without any materiality or Material Adverse Effect qualification, and
in all respects in the case of any representation or warranty with any
materiality or Material Adverse Effect qualification, to the accuracy of the
statements of officers of the Company made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Ernst & Young LLP in agreed form confirming that they
are independent auditors within the meaning of the
12
Securities Act and the applicable published rules and regulations
thereunder ("Rules and Regulations") and to the effect that:
(i) in their opinion, except for the omission of financial
statement schedule II: "Valuation and Qualifying Accounts and
Reserves", the financial statements examined by them and included in
the Offering Document comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and the
related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) at the date of the latest available consolidated
balance sheet read by such accountants, or at a subsequent
specified date not more than three business days prior to the
date of this Agreement, there was any change in the capital stock
or any increase in long-term debt of the Company or, at the date
of the latest available consolidated balance sheet read by such
accountants, there was any decrease in consolidated net current
assets, or stockholders' equity, as compared with amounts shown
on the latest consolidated balance sheet included in the Offering
Document; or
(B) for the period from the closing date of the latest
income statement included in the Offering Document to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in total operating
revenues, income from operations or net income;
except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the Offering Document disclose
have occurred or may occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Offering Document and the Exchange Act Reports (in
each case to the extent that such dollar amounts, percentages and
other financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived directly
from such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting records
and other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred: (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as one enterprise which, in the judgment of a majority
in interest of the Purchasers including CSFBC, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating
13
organization" (as defined for purposes of Rule 436(g) under the Securities
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any change in U.S. or international financial, political or economic
conditions or currency exchange rates or exchange controls as would, in the
judgment of a majority in interest of the Purchasers including CSFBC, be
likely to prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities, whether in the primary market or in
respect of dealings in the secondary market; (iv) any material suspension
or material limitation of trading in securities generally on the New York
Stock Exchange or PORTAL, or any setting of minimum prices for trading on
such exchange or PORTAL or any suspension of trading of any securities of
the Company on any exchange, PORTAL or in the over-the-counter market; (v)
any banking moratorium declared by U.S. Federal or New York authorities;
(vi) any major disruption of settlements of securities or clearance
services in the United States; or (vii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States
or any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority in
interest of the Purchasers including CSFBC, the effect of any such attack,
outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the offering or
sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Company, that:
(i) Each of the Holding Company and the Company has been duly
incorporated and is an existing corporation in good standing under the
laws of the State of Delaware;
(ii) The Company has the requisite corporate power and authority
to own its properties and conduct its business as described in the
Offering Document; and the Company is duly qualified to do business as
a foreign corporation in good standing in all jurisdictions listed in
the schedule to such opinion;
(iii) The Indenture has been duly authorized, executed and
delivered; the Offered Securities have been duly authorized, executed,
issued and delivered and conform to the description thereof contained
in the Offering Document; and the Indenture and the Offered Securities
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iv) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act, and the rules and regulations
of the Commission applicable to an indenture which is qualified
thereunder.
(v) Each of the Holding Company and the Company is not and,
after giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in the
Investment Company Act;
(vi) Assuming the accuracy of the representations of the
Purchasers contained in this Agreement, no consent, approval,
authorization or order of, or filing with, any
14
governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or the
Additional Documents in connection with the issuance or sale of the
Offered Securities by the Company, except such as may be required
under state securities laws except for: (i) the order of the
Commission declaring the Exchange Offer Registration Statement or the
Shelf Registration Statement effective; or (ii) filings or recordings
necessary to perfect the Liens granted on all of the right, title and
interest of the Company in the Collateral under the Security
Documents;
(vii) Such counsel shall confirm that, based solely upon a
review of a search of the dockets of the: (a) Los Angeles Superior
Court, Central District; (b) Delaware Supreme Courts; (c) United
States District Courts of Delaware and the Central District of
California; and (d) United States Courts of Appeals in Delaware and
California, copies of which are attached hereto as Exhibit A and
inquiries of appropriate officers of the Company to such counsel's
knowledge, there are no actions or proceedings against the Company, or
any of its subsidiaries, pending or overtly threatened in writing,
before any court, governmental agency or arbitrator, which: (i) seek
to affect the enforceability of this Agreement, the Registration
Rights Agreement, the Offered Securities or the Indenture; or (ii) are
required to be described in the Offering Circular which are not
described as required, as if the Offering Circular were a prospectus
subject to the requirements of the Securities Act;
(viii) Neither (i) the offer, sale or delivery of the Offered
Securities in the manner contemplated in the Offering Circular and
this Agreement nor (ii) the execution, delivery or performance by the
Company of this Agreement, the Registration Rights Agreement or the
Indenture, compliance by the Company with the provisions thereof nor
consummation by the Company of the transactions contemplated thereby,
will (a) violate the Certificate of Incorporation or by-laws of the
Company or the Holding Company, (b) result in a material breach of, or
constitute a material default under, any material contract,
instrument, agreement, indenture, lease or other instrument filed by
the Company with the Commission pursuant to its reporting under the
Exchange Act (collectively, "Material Contracts"), or (c) other than
as described in the Offering Circular with respect to the Liens in
connection with the Security Agreement, Bank Agreements and the
Holding Notes (as defined in the Offering Circular), will result in
the creation or imposition of any Lien, charge or encumbrance upon any
property or assets of the Company or its subsidiaries, pursuant to the
terms of any Material Contract, nor will any such action result in any
violation in any material respect of any law, regulation, judgment,
injunction, order or decree known to such counsel and applicable to
the Company or any of its subsidiaries or any of its properties;
(ix) Such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
the Purchasers and their counsel and representatives of the
independent public accountants for the Company, at which conferences
the contents of the Offering Circular, and related matters were
discussed, and, although such counsel does not pass upon and do not
assume any responsibility for the accuracy, completeness or fairness
of the statements in the Offering Circular, any amendment thereof or
supplement thereto (except as expressly provided in such opinion), 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 (other than the financial statements and related
notes thereto and other financial information contained therein, as to
which such counsel need not express a belief) have come to the
attention of such counsel in the course of such participation or
representation of the Company to lead such counsel to believe that the
Offering Circular, or any amendment thereof, as of their dates or as
of the date hereof, contains any untrue statement of material fact or
omits to state a material fact
15
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(x) This Agreement has been duly authorized, executed and
delivered by the Company;
(xi) The Exchange Securities have been duly authorized by the
Company; and when the Exchange Securities are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and
the Indenture, the Exchange Securities will be entitled to the
benefits of the Indenture and will be the valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
(xii) The Additional Documents have been duly authorized,
executed and delivered by the Holding Company and the Company party
thereto, and are a valid and binding agreements of the Holding Company
and the Company party thereto, and the Additional Documents (excluding
the Mortgages) are enforceable against the Holding Company and the
Company party thereto in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(xiii) Assuming the due execution and delivery of the Security
Agreement, the Security Agreement is in full force and effect and the
provisions of the Security Agreement are effective to create in favor
of the Trustee, a valid and enforceable Lien in the Company's rights
in that portion of the Collateral which is subject to the UCC as in
effect in the State of New York;
(xiv) Upon the filing of the financing statements to be filed
in the office of the Secretary of State of the State of Delaware (the
"Filing Office"), assuming that the representations made by the
Company in the Security Documents with respect to the location and
character of the Collateral are true and correct, all filings,
registrations and recordings necessary to perfect the security
interest granted to the Secured Parties under the Security Agreement
in respect to all of the Collateral will have been made, to the extent
that security interests therein can be perfected by filing financing
statements under the Uniform Commercial Code as in effect in the State
of Delaware (the "Delaware UCC");
(xv) Each of the Holding Company and the Company is a
"registered organization" for purposes of and as defined in the
Delaware UCC;
(xvi) To the knowledge of such counsel, except as described in
the Offering Circular, no holder of any securities of the Company
(except for the holders of the Notes) or any other person has the
right to have any securities of the Company included in any
registration statement contemplated by the Registration Rights
Agreement.
(xvii) No registration under the Securities Act of the Offered
Securities is required for the purchase and distribution of the
Offered Securities as contemplated hereby assuming: (i) the accuracy
of the Purchaser's representations set forth in Section 4 hereof; (ii)
the accuracy of representations of the Company herein; (iii) the
Purchasers due performance of their covenants herein; (iv) compliance
by the Purchasers with the offering and transfer procedures for the
Offered Securities as described in the Offering Circular; and
16
(v) the purchasers to whom the Purchasers initially resell the Offered
Securities having received a copy of the Offering Circular.
The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as described in Section 6(c)
above shall be rendered to you at the request of the Company and the Holding
Company and shall so state therein.
(d) The Purchasers shall have received from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or opinions,
dated the Closing Date, with respect to the incorporation of the Company,
the validity of the Offered Securities, the Offering Circular, the
exemption from registration for the offer and sale of the Offered
Securities by the Company to the several Purchasers and the resales by the
several Purchasers as contemplated hereby and other related matters as
CSFBC may require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass
upon such matters with reference to same in the Offering Circular. In
rendering such opinion, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP may rely
as to the incorporation of the Company and all other matters governed by
Delaware law upon the opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ referred to
above.
(e) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation and in their
capacity as such officers on behalf of the Company, shall state that the
representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied, in all material respects, with
all agreements and satisfied, in all material respects, all conditions on
its part to be performed or satisfied hereunder at or prior to the Closing
Date, and that, subsequent to the dates of the most recent financial
statements in the Offering Document there has been no material adverse
change, nor any development or event that would reasonably likely result in
a material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Offering
Document or as described in such certificate.
(f) The Purchasers shall have received a letter, dated the Closing
Date, of Ernst & Young LLP which meets the requirements of subsection (a)
of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to the Closing
Date for the purposes of this subsection.
(g) This Agreement, the Indenture and the Additional Documents will
have been executed by each of the parties thereto on terms substantially as
described in the Offering Circular and will be in full force and effect.
The Company will deliver true and correct, conformed copies of this
Agreement, the Indenture and the Additional Documents and any related
documents, including any security agreements, to the Purchasers on or prior
to the Closing Date.
(h) The Purchaser shall have received true and correct copies of the
Security Documents duly executed by the Company, as applicable, together
with:
(i) duly executed financing statements or other documents under
the provisions of the UCC or any other applicable state law in proper
form for filing in each office where such filing is necessary or
appropriate to grant to the Trustee the security interest of the
character and priority contemplated by the Security Documents;
(ii) certified copies of a similar search reports, dated a date
reasonably near (but prior to), the Closing Date, listing all
effective financing statements, which name such party
17
as the debtor and which are filed in the jurisdictions in which
filings are to be made pursuant to this Agreement and the other
Security Documents, together with copies of such financing statements
(none of which (other than financing statements (1) filed in favor of
the Trustee, if such search report is current enough to list such
financing statements, (2) being terminated pursuant to termination
statements that are to be delivered to the Trustee, or (3) in respect
of Permitted Liens) cover any of the Collateral described in the
Security Agreement); and
(iii) evidence that all other actions necessary to perfect and
protect the Liens created by the Security Documents have been taken;
the following documents and instruments with regard to each Mortgaged
Property, providing for first priority mortgages:
(1) a Mortgage or other instrument or instruments
in recordable form sufficient to grant to the Trustee for
the benefit of the Secured Parties: (A) substantially the
same rights and remedies in respect of such real property
as granted thereto under the Mortgages executed and
delivered on the date of the Indenture; and (B) a valid
first-priority mortgage Lien on such real property
subject to no Liens other than Permitted Liens;
(2) either pro forma title insurance policies
setting forth the contemplated form of the mortgagee
policies of title insurance or title commitments for each
▇▇▇▇▇▇▇▇▇ Real Property, insuring the Mortgage as a first
lien on the ▇▇▇▇▇▇▇▇▇ Real Property covered thereby;
(3) Uniform Commercial Code financing statements
necessary or desirable to perfect the valid,
first-priority lien granted by each Mortgage, subject to
no liens other than Permitted Liens; and
(4) policies or certificates of insurance with
respect to the insurance required to be maintained in
respect of the property covered by each Mortgage pursuant
to the terms of this Indenture and the other Note
Documents, naming the Trustee as loss payee and/or
additional named insured, as appropriate; and
(5) such other agreements, instruments, approvals,
consents, opinions or documents that are necessary in
order to perfect the grant by the Company of a
first-priority Lien in all the right, title and interest
of the Company in the Collateral.
(i) The Offered Securities shall have been listed and admitted
to trading on PORTAL.
Documents described as being "in the agreed form" are documents which are
in the forms which have been initialed for the purpose of identification by
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, copies of which are held by the
Company and CSFBC, with such changes as CSFBC may approve.
The Company will use its reasonable commercial efforts to obtain the
documents described in Section 1108 of the Indenture.
18
The Company will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Purchaser, its
affiliates, partners, directors and officers and each person, if any, who
controls such Purchaser within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities, joint or several,
to which such Purchaser may become subject, under the Securities Act or the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Offering Document, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, including any losses, claims, damages or liabilities arising
out of or based upon the Company's failure to perform its obligations under
Section 5(a) of this Agreement, and will reimburse each Purchaser for any
legal or other expenses reasonably incurred by such Purchaser in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company
will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only
such information consists of the information described as such in
subsection (b) below.
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act or the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such Purchaser through
CSFBC specifically for use therein, and will reimburse any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Purchaser consists of:
(i) the following information in the Offering Document furnished
on behalf of each Purchaser: the information concerning over-allotment
and stabilizing transactions appearing in the eighth paragraph under
the caption "Plan of Distribution"; and
(ii) the following information in the Offering Document furnished
on behalf of the Purchasers:
19
"Certain of the initial purchasers and their affiliates have
performed investment banking, financial advisory and/or lending
services for us and our affiliates from time to time, for which
they have received customary compensation, and may do so in the
future. Deutsche Bank Securities Inc. is lead arranger and sole
book runner under our credit facility and may act in other
capacities thereunder. DBTCA, an affiliate of Deutsche Bank
Securities Inc., is the Agent for our credit facility. DLJ
Capital Funding, Inc., an affiliate of Credit Suisse First Boston
Corporation, is syndication agent for the lenders under our term
loan. We will use the proceeds from this offering to repay our
term loan and pay structuring and commitment fees to DBTCA, in
connection with the amendment of our credit facility, among other
things. See "Use of Proceeds."
The decision of the initial purchasers to distribute the notes
was made independently of the affiliates of the initial
purchasers that are lenders under our credit facility and term
loan, which lenders had no involvement in determining whether or
when to distribute the notes under this offering or the terms of
this offering. The initial purchasers will not receive any
benefit from this offering other than the initial purchasers'
discount to be provided by us or otherwise described herein;"
provided, however, that the Purchasers shall not be liable for any losses,
claims, damages or liabilities arising out of or based upon the Company's
failure to perform its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, unless and to the extent that such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless: (i) the indemnifying party and the indemnified party shall have
mutually agreed to the contrary; (ii) the indemnifying party has failed
within a reasonable time to retain counsel reasonably satisfactory to the
indemnified party; (iii) the indemnified party shall have reasonably
concluded that there may be legal defenses available to it that are
different from or in addition to those available to the indemnifying party;
or (iv) the named parties in any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood and agreed that all fees and expenses shall be reimbursed to the
indemnifed party by the indemnifying party as they are incurred. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a
party and indemnity could have been sought
20
hereunder by such indemnified party unless such settlement includes:
(x) an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action; and
(y) does not include a statement as to or an admission of fault,
culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand
and the Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and
the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Purchasers on
the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the
Purchasers from the Company under this Agreement. The relative fault
shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or the Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the
amount by which the total discounts, fees and commissions received by
such Purchaser exceeds the amount of any damages which such Purchaser
has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The
Purchasers' obligations in this subsection (d) to contribute are
several in proportion to their respective purchase obligations and not
joint.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Purchaser within the meaning of the Securities
Act or the Exchange Act; and the obligations of the Purchasers under
this Section shall be in addition to any liability which the respective
Purchasers may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the principal amount of Offered
Securities with respect
21
to which such default or defaults occur exceeds 10% of the aggregate principal
amount of Offered Securities and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Purchaser or the Company, except as
provided in Section 9. As used in this Agreement, the term "Purchaser" includes
any person substituted for a Purchaser under this Section. Nothing herein will
relieve a defaulting Purchaser from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company and of the several Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of any Purchaser,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If this Agreement is terminated pursuant to Section 8 or if for any
reason the purchase of the Offered Securities by the Purchasers is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Purchasers pursuant to Section 7 shall remain in effect. If the
purchase of the Offered Securities by the Purchasers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or the occurrence of any event specified in clause (iii), (iv),
(v), (vi) or (vii) of Section 6(b), the Company will reimburse the Purchasers
for all out-of-pocket expenses (including fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ; provided, however, that any notice to a Purchaser pursuant
to Section 7 will be mailed, delivered or telegraphed and confirmed to such
Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
22
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Company
By_______________________________
Name:
Title:
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Acting on behalf of themselves
and as the Representatives of
the several Purchasers
By: Credit Suisse First Boston Corporation
By__________________________
Name:
Title:
SCHEDULE A
Principal Amount of
Offered Securities
$250,000,000
Manager
-------
Credit Suisse First Boston Corporation $100,000,000
Deutsche Bank Securities Inc. $100,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 50,000,000
------------
Total $250,000,000
============
SCHEDULE B
Indenture
Regulation Rights Agreement
Security Documents
Intercreditor Agreement
Bank Amendment Documents
SCHEDULE C
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Canada), Inc.
Stainless Insurance, Ltd.
EXHIBIT I
