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EXHIBIT 4.1
VERITAS DGC INC.
$60,000,000 9 3/4% SENIOR NOTES DUE 2003, SERIES B
PURCHASE AGREEMENT
October 23, 1998
WARBURG DILLON READ LLC
as Initial Purchaser
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Veritas DGC Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to Warburg Dillon Read LLC (the "Initial Purchaser") $60,000,000
aggregate principal amount of its 9 3/4% Senior Notes due 2003, Series B (the
"Senior Notes"). The Senior Notes will be issued pursuant to an indenture (the
"Indenture"), to be dated the Closing Date (as defined below), by and between
the Company and State Street Bank and Trust Company, as trustee (the "Trustee").
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Indenture or the Offering Memorandum (as defined
below).
The Senior Notes will be offered and sold to the Initial Purchaser
pursuant to an exemption from the registration requirements under the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "Act"). The Company has prepared a final offering memorandum, dated and
available for distribution on the date hereof (the "Offering Memorandum"),
relating to the Company and the Senior Notes.
The Initial Purchaser has advised the Company that the Initial
Purchaser intends, as soon as it deems advisable after this Purchase Agreement
(the "Agreement") has been executed and delivered, to resell (the "Exempt
Resales") the Senior Notes purchased by the Initial Purchaser under this
Agreement in private sales exempt from registration under the Act on the terms
set forth in the Offering Memorandum, as amended or supplemented, solely to (i)
persons whom the Initial Purchaser reasonably believes to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBs"), in
compliance with Rule 144A and (ii) other eligible purchasers pursuant to offers
and sales that occur outside the U.S. within the meaning of Regulation S under
the Act. The persons specified in clauses (i) and (ii) of the preceding sentence
are sometimes collectively referred to herein as the "Eligible Purchasers," and
the offering and sale of the Senior Notes to the Initial Purchaser and Eligible
Purchasers are sometimes referred to herein as the "Offering."
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Holders (including subsequent transferees) of the Senior Notes will
have the registration rights set forth in the registration rights agreement, to
be dated the Closing Date (the "Registration Rights Agreement"), between the
Company and the Initial Purchaser, for so long as such Senior Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company agrees to
(a) file with the Securities and Exchange Commission (the "Commission"), under
the circumstances set forth in the Registration Rights Agreement, (i) a
registration statement under the Act (the "Exchange Offer Registration
Statement") relating to the Company's 9 3/4% Senior Notes due 2003, Series C to
be offered in exchange (the "Exchange Notes") for the Senior Notes (the
"Exchange Offer") and/or (ii) a shelf registration statement pursuant to Rule
415 under the 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 Senior Notes, and (b) use their best
efforts to cause such Registration Statements to be declared effective as soon
as practicable. This Agreement, the Senior Notes, the Exchange Notes, the
Indenture and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "Operative Documents."
Upon original issuance of the Senior Notes and until such time as the
same is no longer required under the applicable requirements of the Act, the
Senior Notes shall bear a legend substantially in the form provided in the
Offering Memorandum.
The net proceeds of the sale of the Senior Notes will be used in the
manner described in the Offering Memorandum.
The Company and the Initial Purchaser agree as follows:
1. SALE AND PURCHASE. Upon the basis of the representations, warranties
and covenants contained in this Agreement, and subject to the other terms and
conditions herein set forth, the Company agrees to issue and sell to the Initial
Purchaser, and the Initial Purchaser agrees to purchase from the Company at a
purchase price of 97.75% of the principal amount per Senior Note ("the purchase
price per Note") plus accrued interest, if any, from October 28, 1998 to the
date of the payment and delivery, the aggregate principal amount of the Senior
Notes.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Senior
Notes shall be made to the Company by wire transfer of immediately available
funds, to an account of the Company designated by the Company at least two
business days prior to the payment date, against delivery of the certificates
for the Senior Notes for the account of the Initial Purchaser. Delivery of, and
payment of the purchase price for, the Senior Notes shall be made at 9:00 a.m.,
New York City time, on the third business day following the date of this
Agreement (the "Closing Date") at the offices of Xxxxxx & Xxxxxx L.L.P., 0000
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. The Closing Date, and the location of
delivery of, and the form of payment for, the Senior Notes may be varied by
mutual agreement between the Initial Purchaser and the Company.
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One or more of the Senior Notes in global form registered in such names
as the Initial Purchaser may request upon at least one business day's notice
prior to the Closing Date, having an aggregate principal amount corresponding to
the aggregate principal amount of the Senior Notes sold pursuant to Exempt
Resales to QIBs and to other Eligible Purchasers shall be delivered by the
Company to the Initial Purchaser (or as the Initial Purchaser directs), against
payment by the Initial Purchaser of the purchase price therefor by means of
transfer of immediately available funds (including book transfer) reasonably
acceptable to the Initial Purchaser and the Company to the order of the Company.
The Senior Notes shall be made available to the Initial Purchaser for inspection
not later than 9:30 a.m. on the business day immediately preceding the Closing
Date.
3. CERTAIN AGREEMENTS OF THE COMPANY. The Company covenants and agrees
with the Initial Purchaser as follows:
(a) To furnish the Initial Purchaser and those persons identified by
the Initial Purchaser, without charge, with as many copies of the Offering
Memorandum, and any amendments or supplements thereto, as the Initial Purchaser
may reasonably request for purposes contemplated by the Act. The Company
consents to the use of the Offering Memorandum, and any amendments and
supplements thereto required pursuant to this Agreement, by the Initial
Purchaser in connection with Exempt Resales that are in compliance with Section
4(B) of this Agreement.
(b) Not to amend or supplement the Offering Memorandum prior to the
Closing Date unless the Initial Purchaser shall previously have been advised of,
and shall not have objected to (any such objection not to be unreasonable), such
amendment or supplement within a reasonable time, but in any event not longer
than five days after being furnished with a copy of such amendment or
supplement. The Company shall promptly prepare, upon the Initial Purchaser's
reasonable request, any amendment or supplement to the Offering Memorandum that
may be necessary or advisable in connection with Exempt Resales.
(c) If, during the time that an Offering Memorandum is required to be
delivered in connection with any Exempt Resales or market-making transactions
after the date of this Agreement and prior to the consummation of the Exchange
Offer, any event shall occur that, in the judgment of the Company or in the
judgment of counsel to the Initial Purchaser, makes any statement of a material
fact in the Offering Memorandum untrue or that requires the making of any
additions to or changes in the Offering Memorandum in order to make the
statements in the Offering Memorandum, in the light of the circumstances under
which they are made, not misleading, or if it is necessary to amend or
supplement the Offering Memorandum to comply with all applicable laws, the
Company shall promptly notify the Initial Purchaser of such event and prepare an
appropriate amendment or supplement to the Offering Memorandum so that (i) the
statements in the Offering Memorandum as amended or supplemented will, in the
light of the circumstances at the time that the Offering Memorandum is delivered
to prospective Eligible Purchasers, not be misleading and (ii) the Offering
Memorandum will comply with applicable law.
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(d) To furnish such information as may be required and otherwise to
cooperate with the Initial Purchaser and counsel to the Initial Purchaser in
qualifying the Senior Notes and Exchange Notes for offering and sale under the
securities or Blue Sky laws of such jurisdictions as the Initial Purchaser may
request and to maintain such qualification in effect so long as required for the
Exempt Resales; provided that the Company shall not be required to qualify as a
foreign partnership, limited liability company or corporation in any
jurisdiction in which it is not so qualified or to file a general consent to
service of process in any such jurisdiction or subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not then
so subject (except service of process with respect to the offering and sale of
the Senior Notes and Exchange Notes).
(e) To advise the Initial Purchaser promptly and, if requested by the
Initial Purchaser, to confirm such advice in writing, of the issuance by any
securities commission of any stop order or notification suspending the
qualification or exemption from qualification of any of the Senior Notes for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purpose by any state securities commission or other regulatory authority.
The Company shall use its reasonable best efforts (unless otherwise agreed by
the Initial Purchaser) to prevent the issuance of any stop order or order
suspending the qualification or exemption of any of the Senior Notes under any
state securities or Blue Sky laws, and if at any time any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption of any of the Senior Notes under any state securities
or Blue Sky laws, the Company shall use its reasonable best efforts (unless
otherwise agreed by the Initial Purchaser) to obtain the withdrawal or lifting
of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement becomes effective or is terminated, to pay all
costs, expenses, fees, disbursements (including fees, expenses and disbursements
of counsel) and stamp, documentary or similar taxes incident to and in
connection with: (i) the preparation, printing, filing and distribution of the
Offering Memorandum (including, without limitation, financial statements) and
all amendments and supplements thereto, (ii) the preparation and delivery of the
Operative Documents and all other agreements, memoranda, correspondence and
documents prepared and delivered in connection with this Agreement and with the
Exempt Resales, (iii) the issuance, transfer and delivery by the Company of the
Senior Notes to the Initial Purchaser, (iv) the qualification or registration of
the Senior Notes for offer and sale under the securities or Blue Sky laws of the
several states (including, without limitation, the cost of printing and mailing
a preliminary and final Blue Sky memorandum and the fees and disbursements of
counsel to the Initial Purchaser relating thereto), (v) the furnishing of such
copies of the Offering Memorandum, and all amendments and supplements thereto,
as may be reasonably requested for use in connection with Exempt Resales, (vi)
the preparation of certificates for the Senior Notes and Exchange Notes
(including, without limitation, printing and engraving thereof), (vii) the
application for eligibility of the Senior Notes for trading in the Private
Offerings, Resales and Trading through Automated Linkages ("PORTAL") market of
the National Association of Securities Dealers, Inc. ("NASD"), including, but
not limited to, all application fees and expenses, (viii) the approval of the
Senior Notes and Exchange Notes by The Depository Trust Company ("DTC") for
"book-entry" transfer, (ix) the rating of the Senior Notes and Exchange Notes
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by rating agencies, (x) the fees and expenses of the Trustee and its counsel and
(xi) the performance by the Company of its other obligations under the Operative
Documents, including, but not limited to, the fees, disbursements and expenses
of the Company's counsel and accountants.
(g) To use the proceeds from the sale of the Senior Notes in the manner
described in the Offering Memorandum under the caption "Use of Proceeds."
(h) To do and perform all things required to be done and performed
under this Agreement by it prior to or after the Closing Date and to satisfy all
conditions precedent on its part to the delivery of the Senior Notes.
(i) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Senior Notes in a manner that would require the
registration under the Act of the sale of the Senior Notes to the Initial
Purchaser or any Eligible Purchasers.
(j) During the period of two years after the Closing Date or, if
earlier, until such time as the Senior Notes are no longer restricted securities
(as defined in Rule 144 under the Act), not to, and not to permit any of its
affiliates (as defined in Rule 144 under the Act) to, resell any of the Senior
Notes that have been reacquired by any of them.
(k) Not to engage, or allow any of its affiliates, or any person acting
on its behalf (other than in any case the Initial Purchaser, as to whom the
Company makes no covenant) to engage, in any form of general solicitation or
general advertising (within the meaning of Regulation D under the Act) in
connection with any offer or sale of the Senior Notes.
(l) Not to engage, or allow any of its affiliates, or any person acting
on its behalf (other than in any case the Initial Purchaser, as to whom the
Company makes no covenant), to engage in any directed selling effort with
respect to the Senior Notes, and agrees to comply with the offering restrictions
requirement of Regulation S under the Act. Terms used in this paragraph have the
meanings given to them by Regulation S.
(m) In connection with the Offering, until the Initial Purchaser shall
have notified the Company of the completion of the resale of the Senior Notes,
not to, and not to permit any of its affiliates to, either along 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 in any Senior Notes; 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 Senior
Notes.
(n) During the period of two years after the Closing Date or, if
earlier, until such time as the Senior Notes are no longer restricted securities
(as defined in Rule 144 under the Act), not to be or become an investment
company required to be registered, but not registered, under the Investment
Company Act of 1940, as amended (the "Investment Company Act").
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(o) From and after the Closing Date, for so long as any of the Senior
Notes remain outstanding and are "restricted securities" within the meaning of
Rule 144(a)(3) under the Act 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"), to make available the information required by Rule
144A(d)(4) under the Act to (i) any holder or beneficial owner of Senior Notes
in connection with any sale of such Senior Notes and (ii) any prospective
purchaser of such Senior Notes from any such holder or beneficial owner
designated by the holder or beneficial owner.
(p) To comply with all of its agreements set forth in the Registration
Rights Agreement and all agreements set forth in the representations letter of
the Company to DTC relating to the approval of the Senior Notes by DTC for
"book-entry" transfer.
(q) To use its best efforts to effect the eligibility of the Senior
Notes for trading in the PORTAL market and to obtain approval of the Senior
Notes by DTC for "book-entry" transfer.
(r) From and after the Closing Date, for so long as any of the Senior
Notes remain outstanding, to deliver without charge to the Initial Purchaser,
promptly upon their becoming available, copies of (i) all reports and other
communications (financial or otherwise) that the Company shall mail or otherwise
make available to its security holders, (ii) all reports or financial statements
furnished to or filed by the Company with the Commission or any national
securities exchange and (iii) such other information as the Initial Purchaser
may reasonably request regarding the Company and its subsidiaries.
(s) Prior to the Closing Date, to furnish to the Initial Purchaser, as
soon as they have been prepared by the Company, a copy of any regularly prepared
internal financial statements of the Company for any period subsequent to the
period covered by the financial statements appearing in the Offering Memorandum
and prior to the Closing Date.
(t) Not to distribute prior to the Closing Date any offering material
in connection with the offer and sale of the Senior Notes other than the
Offering Memorandum.
4. REPRESENTATIONS AND WARRANTIES.
(A) The Company represents and warrants to the Initial Purchaser that:
(1) The Offering Memorandum has been prepared in connection with the
Exempt Resales. Neither the Offering Memorandum nor any supplement or amendment
thereto contains any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that the Company makes no representation or warranty with respect to information
contained in or omitted from the Offering Memorandum, as supplemented or
amended, in reliance upon and in conformity with information relating to the
Initial Purchaser furnished in writing to the Company by the Initial Purchaser
expressly for use in the Offering Memorandum or
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any supplement or amendment thereto. No order prohibiting the use of the
Offering Memorandum or asserting that any of the transactions contemplated by
this Agreement are subject to the registration requirements of the Act has been
issued or threatened.
(2) All of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid and
non-assessable. The Operative Documents conform in all material respects to
their respective descriptions thereof contained in the Offering Memorandum.
(3) The only subsidiaries of the Company are the subsidiaries on
Schedule B attached hereto (the "Subsidiaries"). The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware and each of its Subsidiaries has been duly
incorporated and is validly existing under the laws of its respective
jurisdiction of incorporation. Each of the Company and its Subsidiaries has full
power and authority to own its properties and conduct its business as described
in the Offering Memorandum.
(4) The Company and each of its Subsidiaries are duly qualified or
licensed by and are in good standing in each jurisdiction in which they conduct
their respective businesses and in which the failure, individually or in the
aggregate, to be so licensed or qualified could have a material adverse effect
on the business, condition (financial or other), properties, assets,
liabilities, results of operations or prospects of the Company and its
Subsidiaries, taken as a whole ("Material Adverse Effect"). The Company and each
of its Subsidiaries are in compliance in all material respects with the laws,
orders, rules, regulations and directives issued or administered by such
jurisdictions.
(5) Neither the Company nor any of its Subsidiaries is in breach of, or
in default under (nor has any event occurred which with notice, lapse of time,
or both would constitute a breach of, or default under), its respective charter
or by-laws or in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which any of them is bound, and the
execution, delivery and performance of the Operative Documents and the
consummation of the transactions contemplated hereby and thereby will not
conflict with, nor result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its Subsidiaries
pursuant to, or result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would constitute
a breach of, or default under), or result in the acceleration of any obligation
under, any provisions of the charter or by-laws, of the Company or any of its
Subsidiaries or under any provision of any license, indenture, mortgage, deed of
trust, bank loan or credit agreement or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which any of them or
their respective properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries.
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(6) The Company has all requisite power and authority to execute,
deliver and perform all of its obligations under the Operative Documents and to
consummate the transactions contemplated by the Operative Documents and, without
limitation, the Company has all requisite power and authority to issue, sell and
deliver the Senior Notes and the Exchange Notes.
(7) This Agreement has been duly and validly authorized, executed and
delivered by the Company. The Indenture has been duly and validly authorized by
the Company and, when duly executed and delivered by the Company, will be a
legal, valid and binding agreement of the Company enforceable in accordance with
its terms, subject to applicable laws of bankruptcy, insolvency or similar laws
relating to creditors' rights generally and to general principles of equity
(whether applied in a proceeding in law or equity).
(8) The Senior Notes have been duly and validly authorized for issuance
and sale to the Initial Purchaser by the Company pursuant to this Agreement and,
when issued, authenticated and delivered to the Initial Purchaser against
payment therefor in accordance with the terms of this Agreement and the
Indenture, the Senior Notes will be legal, valid and binding obligations of the
Company, entitled to the benefits of the Indenture and enforceable against the
Company in accordance with their terms, subject to applicable laws of
bankruptcy, insolvency or similar laws relating to creditors' rights generally
and to general principles of equity (whether applied in a proceeding in law or
equity).
(9) The Exchange Notes have been duly and validly authorized for
issuance and, when issued, authenticated and delivered by the Company in
accordance with the terms of the Exchange Offer and the Indenture, the Exchange
Notes will be legal, valid and binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable against the Company in accordance
with their terms, subject to applicable laws of bankruptcy, insolvency or
similar laws relating to creditors' rights generally and to general principles
of equity (whether applied in a proceeding in law or equity).
(10) The Registration Rights Agreement has been duly and validly
authorized by the Company and, when duly executed and delivered by the Company,
will be a legal, valid and binding agreement of the Company enforceable in
accordance with its terms, subject to applicable laws of bankruptcy, insolvency
or similar laws relating to creditors' rights generally and to general
principles of equity and subject to limitations on the enforceability of
provisions provided therein relating to indemnity or contribution under federal
and state securities laws.
(11) No approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the execution, delivery and
performance of this Agreement or any of the other Operative Documents, or any of
the transactions contemplated thereby other than the registration of the offer
and sale of the Exchange Notes under the Act pursuant to the Registration Rights
Agreement and any necessary qualification under the securities or blue sky laws
of the various
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jurisdictions in which the Senior Notes and the Exchange Notes are being offered
by the Initial Purchaser.
(12) Each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary authorizations, consents and approvals from
other persons, in order to conduct its respective business. Neither the Company
nor any of its Subsidiaries is in violation of, or in default under, any such
license, authorization, consent or approval or any federal, state, local or
foreign law, regulation or rule or any decree, order or judgment applicable to
the Company or any of its Subsidiaries the effect of which could have a Material
Adverse Effect.
(13) There are no legal or governmental proceedings, contracts or
documents of a character that would be required to be summarized or described in
the Offering Memorandum if it were a prospectus filed under the Act that are not
described in the Offering Memorandum.
(14) There are no actions, suits or proceedings pending or threatened
against the Company or any of its Subsidiaries or any of their respective
properties, at law or in equity, or before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or agency
which could result in a judgment, decree or order having a Material Adverse
Effect.
(15) Subsequent to the respective dates as of which information is
given in the Offering Memorandum, and except as may be otherwise stated in the
Offering Memorandum, there has not been (A) any material and unfavorable change,
financial or otherwise, in the business, properties, prospects, regulatory
environment, results of operations or condition (financial or otherwise),
present or prospective, of the Company and its Subsidiaries taken as a whole,
(B) any transaction, which is material to the Company and its Subsidiaries taken
as a whole, contemplated or entered into by the Company or any of its
Subsidiaries or (C) any obligation, contingent or otherwise, directly or
indirectly incurred by the Company or any of its Subsidiaries which is material
to the Company and its Subsidiaries taken as a whole.
(16) The Foreign Restricted Subsidiaries (as defined in the Offering
Memorandum) owned in the aggregate less than 6% of the consolidated assets of
the Company and its Subsidiaries, taken as a whole, as of July 31, 1998 and had
in the aggregate less than 6% of the consolidated revenues of the Company and
its Subsidiaries, taken as a whole, for the year ended July 31, 1998 (as
reflected in the Consolidated Financial Statements contained in the Offering
Memorandum). Except for the Foreign Restricted Subsidiaries, the Company
directly or indirectly through one or more wholly-owned Subsidiaries owns
beneficially and of record all of the issued and outstanding shares of capital
stock of the Subsidiaries.
(17) The Company's significant subsidiaries named in Schedule C (the
"Significant Subsidiaries") owned in the aggregate more than 90% of the
consolidated assets of the Company and its Subsidiaries, taken as a whole, as of
July 31, 1998 and had in the aggregate more than 90% of the
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consolidated revenues of the Company and its Subsidiaries, taken as a whole, for
the year ended July 31, 1998 (as reflected in the Consolidated Financial
Statements contained in the Offering Memorandum).
(18) The Company and each of its Subsidiaries have obtained all
material environmental permits, licenses and other authorizations required by
federal, state, foreign and local law in order to conduct their businesses as
described in the Offering Memorandum. The Company and each of its Subsidiaries
are conducting their businesses in substantial compliance with such permits,
licenses and authorizations and with applicable environmental laws, except where
the failure to be in compliance would not have a Material Adverse Effect; and,
except as described in the Offering Memorandum, the Company is not in violation
of any federal, state, foreign or local law or regulation relating to the
storage, handling, disposal, release or transportation of hazardous or toxic
materials.
(19) None of the assets, liabilities, revenues or expenses of the
Company's Subsidiaries other than the Significant Subsidiaries (as hereinafter
defined), when each such financial statement item is considered separately but
aggregated for all such non-Significant Subsidiaries, is material to the assets,
liabilities, revenues or expenses, respectively, of the Company and its
Subsidiaries, taken as a whole.
(20) No forward looking statement within the meaning to Section 27A of
the Act and Section 21E of the Exchange Act contained in the Offering Memorandum
has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(21) No registration under the Act of the Senior Notes is required for
the sale of the Senior Notes to the Initial Purchaser as contemplated by this
Agreement or for the Exempt Resales, assuming in each case (a) the purchasers
who buy the Senior Notes in the Exempt Resales are Eligible Purchasers and (b)
the accuracy of and compliance with the Initial Purchaser's representations,
warranties and covenants contained in Section 4(B) of this Agreement. No form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) was used by the Company or any of its
representatives in connection with the offer and sale of any of the Senior Notes
or in connection with Exempt Resales, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine or similar
medium or broadcast over television or radio, or any seminar or meeting whose
attendees have been invited by any general solicitation or general advertising.
Neither the Company nor any of its affiliates has entered into, and none of the
Company or its affiliates will enter into, any contractual arrangement with
respect to the distribution of the Senior Notes except for this Agreement.
(22) The execution and delivery of this Agreement, the other Operative
Documents and the sale of the Senior Notes and the Exchange Notes to be
purchased by the Eligible Purchasers will not involve any prohibited transaction
within the meaning of Section 406(a) of ERISA or Section 4975(c)(1)(A)-(D) of
the Code. The representation made by the Company in the preceding sentence is
made in reliance upon and subject to the accuracy of, and compliance with, the
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representations and covenants made or deemed made by the Eligible Purchasers as
set forth in the Offering Memorandum under the caption "Transfer Restrictions."
(23) The Offering Memorandum, as of its date, and each amendment or
supplement thereto, as of its date, contains the information specified in, and
meets the requirements of, Rule 144A(d)(4) under the Act.
(24) None of the Company or its subsidiaries is an "investment company"
or a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"), or
analogous foreign laws and regulations.
(25) None of the Company, its subsidiaries, or their Affiliates (as
defined in Rule 501(b) of Regulation D under the Act) has (a) taken, directly or
indirectly, any action designed to, or that might reasonably be expected to,
cause or result in stabilization or manipulation of the price of any security of
the Company or any of its subsidiaries to facilitate the sale or resale of the
Senior Notes or (b) since commencement of the Offering (i) sold, bid for,
purchased or paid any person any compensation for soliciting purchases of the
Senior Notes in a manner that would require registration of the Senior Notes
under the Act or (ii) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company or any of its
subsidiaries in a manner that would require registration of the Senior Notes
under the Act.
(26) Neither the Company nor any of the Company's Subsidiaries (nor any
agent acting on behalf of the Company or the Company's Subsidiaries) has taken,
and none of them will take, any action that might cause this Agreement or the
issuance or sale of the Senior Notes or Exchange Notes to violate Regulation G
(12 C.F.R. Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System or analogous foreign laws and regulations, in each case
as in effect, or as the same may hereafter be in effect, on the Closing Date.
(27) The accountants who have certified the financial statements
included as part of the Offering Memorandum are independent accountants within
the meaning of the Act. The historical financial statements of the Company
comply as to form in all material respects with the requirements applicable to
registration statements on Form S-1 under the Act and present fairly in all
material respects the consolidated financial position and results of operations
of the Company at the respective dates and for the respective periods indicated
as if the Company were formed at the beginning of such periods. Such financial
statements have been prepared in accordance with United States generally
accepted accounting principles applied on a consistent basis throughout the
periods presented and comply as to form with the rules and regulations
promulgated under the Act.
The Company acknowledges that the Initial Purchaser and, for purposes
of the opinions to be delivered to the Initial Purchaser pursuant to Section 7
of this Agreement, the various law firms acting as counsel to the Company and
counsel to the Initial Purchaser will rely upon the accuracy and truth of the
foregoing representations and the Company hereby consents to such reliance.
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(B) The Initial Purchaser represents, warrants and covenants to the
Company that it 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 securities. The Initial Purchaser represents, warrants and
agrees with the Company that (i) it has not and will not solicit offers for, or
offer or sell, the Senior Notes by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the Act
and (ii) it has and will solicit offers for the Senior Notes only from, and will
offer the Senior Notes only to, (x) persons whom the Initial Purchaser
reasonably believes to be QIBs or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to the Initial Purchaser that each such
account is a QIB to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, and, in each case, in transactions under
Rule 144A, or (y) persons other than U.S. persons outside the U.S. in reliance
on Regulation S.
The Initial Purchaser represents and warrants that the source of funds
being used by it to acquire the Senior Notes does not include the assets of any
"employee benefit plan" (within the meaning of Section 3 of ERISA) or any "plan"
(within the meaning of Section 4975 of the Code).
The Initial Purchaser understands that the Company and, for purposes of
the opinion to be delivered to them pursuant to Section 7(f) hereof, counsel to
the Company will rely upon the accuracy and truth of the foregoing
representations, and the Initial Purchaser hereby consents to such reliance.
5. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless the Initial Purchaser, each person, if any, who controls the Initial
Purchaser within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, the agents, employees, officers and directors of the Initial
Purchaser and the agents, employees, officers and directors of any such
controlling person from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including but not limited to reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in
settlement of any claim or litigation) to which they or any of them may become
subject under the Act, the Securities Exchange Act of 1934, as amended or
otherwise insofar as such losses, liabilities, claims, damages 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 Offering
Memorandum, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that 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 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 relating to the Initial Purchaser
furnished to the Company by the Initial Purchaser expressly for use therein.
This indemnity agreement will
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be in addition to any liability that the Company may otherwise have, including,
but not limited to, liability under this Agreement.
If any action is brought against the Initial Purchaser or any such
person with respect to which indemnity may be sought against the Company
pursuant to the foregoing paragraph, the Initial Purchaser or such person shall
promptly notify the indemnifying party in writing of the institution of such
action and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses, provided, however, that the omission
to so notify the indemnifying party shall not relieve the indemnifying party
from any liability which they may have to the Initial Purchaser or any such
person or otherwise. The Initial Purchaser shall have the right to employ its
own counsel in any such case, but the fees and expenses of such counsel shall be
at the expense of the Initial Purchaser unless the employment of such counsel
shall have been authorized in writing by the indemnifying party in connection
with the defense of such action or the indemnifying party shall not have
employed counsel to have charge of the defense of such action or 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 the indemnifying party (in which case the indemnifying party 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 party and paid as incurred (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with appropriate local
counsel) in any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). The
indemnifying party shall not be liable for any settlement of any such claim or
action effected without its written consent but if settled with the written
consent of the indemnifying party, the indemnifying party agrees to indemnify
and hold harmless the Initial Purchaser and any such person from and against any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(b) The Initial Purchaser agrees to indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and each of its agents,
employees, officers and directors and the agents,
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employees, officers and directors of such controlling person from and against
any losses, liabilities, claims, damages and expenses whatsoever (including but
not limited to reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever and any and all
reasonable amounts paid in settlement of any claim or litigation) to which they
or either 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) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in 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 to make the statements therein,
in the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information relating to the Initial
Purchaser furnished to the Company by the Initial Purchaser in writing expressly
for use therein. The Company and the Initial Purchaser acknowledge that the
information set forth in Section 8 is the only information furnished in writing
by the Initial Purchaser to the Company expressly for use in the Offering
Memorandum.
If any action is brought against the Company or any such person with
respect to which indemnity may be sought against the Initial Purchaser pursuant
to the foregoing paragraph, the Company or such person shall promptly notify the
Initial Purchaser in writing of the institution of such action and the Initial
Purchaser shall assume the defense of such action, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses, provided, however, that the omission to so notify the Initial
Purchaser shall not relieve the Initial Purchaser from any liability which they
may have to the Company or any such person or otherwise. The Company or such
person shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of the Company or such
person unless the employment of such counsel shall have been authorized in
writing by the Initial Purchaser in connection with the defense of such action
or the Initial Purchaser shall not have employed counsel to have charge of the
defense of such action or 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 the Initial Purchaser (in
which case the Initial Purchaser shall not have the right to direct the defense
of such action on behalf of the indemnified party or parties, but the Initial
Purchaser may employ counsel and participate in the defense thereof but the fees
and expenses of such counsel shall be at the expense of the Initial Purchaser),
in any of which events such fees and expenses shall be borne by the Initial
Purchaser and paid as incurred (it being understood, however, that the Initial
Purchaser shall not be liable for the expenses of more than one separate counsel
in any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). Anything
in this paragraph to the contrary notwithstanding, the Initial Purchaser shall
not be liable for any settlement of any such claim or action effected without
the written consent of the Initial Purchaser but if settled with the written
consent of the Initial Purchaser, the Initial Purchaser agrees to indemnify and
hold harmless
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the Company and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (a) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (b) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (c) such indemnified party shall have
given the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
6. CONTRIBUTION. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 5 of this Agreement is for
any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under Section 5 of this
Agreement, the Company and the Initial Purchaser shall contribute to the amount
paid or payable by such indemnified party as a result of such aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action or
any claims asserted) to which the Company and the Initial Purchaser may be
subject (a) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Initial Purchaser, on
the other hand, from the Offering or, (b) if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (a) above but also the relative fault of
the Company, on the one hand, and the Initial Purchaser, on the other hand, in
connection with the statements or omissions that 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 Purchaser, on the other hand, shall be deemed to be in
the same proportion as (i) the total proceeds from the Offering (net of
discounts and commissions but before deducting expenses) received by the Company
and (ii) the total discounts and commissions received by the Initial Purchaser
as set forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Company, on the one hand, and the Initial Purchaser, 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 Purchaser and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission.
The Company and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation or by any other method
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of allocation that does not take into account the equitable considerations
referred to above. Notwithstanding the provisions of this Section 6, (a) in no
case shall the Initial Purchaser be required to contribute any amount in excess
of the amount by which the total discount and commissions applicable to the
Senior Notes pursuant to this Agreement exceeds the amount of any damages that
the Initial Purchaser have otherwise been required to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission and (b) 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 6,
each person, if any, who controls the Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchaser, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Company,
respectively, where applicable, subject in each case to clauses (a) and (b) of
this paragraph. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action against such party in respect of which a
claim for contribution may be made against another party or parties under this
Section 6, notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 6 or otherwise; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 5 for purposes of indemnification. No party shall
be liable for contribution with respect to any action or claim settled without
its written consent, provided, however, that such written consent was not
unreasonably withheld.
7. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of
the Initial Purchaser hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof and
at the time of purchase, the performance by the Company of their obligations
hereunder and to the following conditions:
(a) All of the representations and warranties of the Company contained
in this Agreement shall be true and correct on the date of this Agreement and on
the Closing Date. The Company shall have performed or complied with all of the
agreements contained in this Agreement and required to be performed or complied
with by them at or prior to the Closing Date.
(b) No stop order suspending the qualification or exemption from
qualification of the Senior Notes in any jurisdiction shall have been issued and
no proceeding for that purpose shall have been commenced or shall be pending or
threatened.
(c) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency that
would, as of the Closing Date, prevent the issuance of the Senior Notes or the
Exchange Offer; no action, suit or proceeding shall have been commenced and be
pending against or affecting or, to the best knowledge of the Company,
threatened against the Company before any court or arbitrator or any
governmental body, agency or official that, if adversely determined, would
result in a Material Adverse Effect.
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(d) Since the date as of which information is given in the Offering
Memorandum and up to the Closing Date, except as otherwise expressly set forth
in the Offering Memorandum, (i) none of the Company or its subsidiaries has (A)
incurred any liabilities or obligations, direct or contingent, that would,
either individually or in the aggregate, result in a Material Adverse Effect or
(B) entered into any material transaction not in the ordinary course of
business, and (ii) there has not been any event or development in respect of the
business, development or financial condition of the Company or any of its
subsidiaries that would, either individually or in the aggregate, result in a
Material Adverse Effect.
(e) The Initial Purchaser shall have received certificates, dated the
Closing Date, signed by (i) the Chief Executive Officer and (ii) the chief
financial or accounting officer of the Company confirming, as of the Closing
Date, the matters set forth in paragraphs (a), (b), (c) and (d) of this Section
7.
(f) The Initial Purchaser shall have received on the Closing Date an
opinion dated the Closing Date, addressed to the Initial Purchaser, of Xxxxxx &
Xxxxxx, L.L.P., counsel to the Company, in form and substance as set forth in
Exhibit A hereto.
(g) The Initial Purchaser shall have received on the Closing Date an
opinion (satisfactory in form and substance to the Initial Purchaser) dated the
Closing Date of Xxxxxx & Xxxxxx L.L.P., special counsel to the Initial
Purchaser, covering substantially such matters as are customarily covered in
such opinions.
(h) The Initial Purchaser shall have received a "comfort letter" from
each of Deloitte & Touche L.L.P. and PricewaterhouseCoopers LLP, independent
public accountants for the Company, dated as of the date of this Agreement,
addressed to the Initial Purchaser and in form and substance satisfactory to the
Initial Purchaser and counsel to the Initial Purchaser. In addition, as of the
Closing Date, the Initial Purchaser shall have received "bring-down comfort
letters" from Deloitte & Touche L.L.P. and PricewaterhouseCoopers LLP in form
and substance satisfactory to the Initial Purchaser and counsel to the Initial
Purchaser covering the same items and matters as covered in the "comfort
letters" but as of a date that is not more than three days prior to the date
thereof.
(i) The Company and the Trustee shall have entered into the Indenture,
in a form satisfactory to the Initial Purchaser, and the Initial Purchaser shall
have received counterparts, conformed as executed, thereof.
(j) The Company shall have entered into the Registration Rights
Agreement, in a form satisfactory to the Initial Purchaser, and the Initial
Purchaser shall have received counterparts, conformed as executed, thereof.
(k) The Senior Notes shall have been approved as eligible for trading
in the PORTAL market.
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(l) The Senior Notes shall have initially been assigned ratings, if
any, of BB+ and B1 or higher by Standard & Poor's Rating Services and Xxxxx'x
Investors Services, Inc., respectively, and there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate an improvement in the rating accorded the Senior Notes.
(m) The Initial Purchaser shall have been furnished with certified
copies of such other documents as it may reasonably request.
(n) Xxxxxx & Xxxxxx L.L.P., counsel to the Initial Purchaser, shall
have been furnished with such documents as it may reasonably request to enable
it to review or pass upon the matters referred to in this Section 7 and in order
to evidence the accuracy, completeness or satisfaction in all material respects
of any of the representations, warranties or conditions contained in this
Agreement.
If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by the Initial Purchaser on notice to the Company at
any time at or prior to the Closing Date, and such termination shall be without
liability of any party to any other party except that the Company shall
reimburse the Initial Purchaser for all of the reasonable out-of-pocket
expenses, including the reasonable expense of Initial Purchaser's counsel,
incurred by the Initial Purchaser in connection with this Agreement.
Notwithstanding any such termination, the provisions of Sections 3(f), 5, 6, 9,
10(d), 13, 14 and 15 shall remain in effect.
The Company's obligation under this Agreement to sell the Senior Notes
to the Initial Purchaser on the Closing Date is subject to the Initial Purchaser
purchasing and paying for all of the Senior Notes.
8. INITIAL PURCHASER'S INFORMATION. The Company and the Initial
Purchaser severally acknowledge that the statements in the Offering Memorandum
set forth in (a) the last paragraph on the front cover page concerning the forms
of the offering by the Initial Purchaser; (b) the first paragraph on page 2
concerning stabilization activities by the Initial Purchaser; and (c) the
statements concerning the Initial Purchaser contained in the fifth paragraph
under the caption "Plan of Distribution" in the Offering Memorandum constitute
the only information furnished in writing by the Initial Purchaser expressly for
use in the Offering Memorandum.
9. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements contained in this Agreement, including the
agreements contained in Sections 3(f) and 10(d), the indemnity agreements
contained in Section 5 and the contribution agreements contained in Section 6
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchaser or any controlling
person thereof or by or on behalf of the Company, and shall survive delivery of
and payment for the Senior Notes to and by the Initial Purchaser. The
representations contained in Section 4 and the agreements
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contained in Sections 3(f), 5, 6, 9, 10(d), 13, 14 and 15 shall survive the
termination of this Agreement, including pursuant to Sections 7 and 10.
10. EFFECTIVE DATE OF AGREEMENT.
(a) This Agreement shall become effective upon execution and delivery
of a counterpart hereof by each of the parties hereto.
(b) The Initial Purchaser shall have the right to terminate this
Agreement at any time prior to the Closing Date by notice to the Company from
the Initial Purchaser, without liability (other than with respect to Sections 5
and 6) on the Initial Purchaser 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 under this Agreement, (ii) any other
condition of the obligations of the Initial Purchaser under this Agreement as
provided in Section 7 is not fulfilled when and as required in any material
respect, (iii) trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or NASDAQ shall have been suspended or materially
limited, or minimum prices shall have been established on such exchange 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 U.S. federal, New York, or if a moratorium in foreign exchange
trading by major international banks or persons, shall have been declared, (v)
there is an outbreak or escalation of military action, hostilities or other
national or international calamity on or after the date of this Agreement, or if
there has been a declaration by the United States of a national emergency or
war, the effect of which shall be, in the Initial Purchaser's judgment, to make
it inadvisable or impracticable to proceed with the offering or delivery of the
Senior Notes on the terms and in the manner contemplated in the Offering
Memorandum or (vi) there shall have been such a change in general economic,
governmental, political or financial conditions or the effect (or potential
effect if the financial markets in the United States have not yet opened) of
international conditions on the financial markets in the United States shall be
such, as, in the Initial Purchaser's judgment, make it inadvisable or
impracticable to proceed with the offering or delivery of the Senior Notes on
the terms and in the manner contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 10 shall be
given at the address specified in Section 11 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any clause of
Section 10(b), or if the sale of the Senior Notes provided for in this Agreement
is not consummated because any condition to the obligations of the Initial
Purchaser set forth in this Agreement is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement in this Agreement or comply with any provision of this Agreement, the
Company will, subject to demand by the Initial Purchaser, reimburse the Initial
Purchaser for all of its reasonable out-of-pocket expenses (including the
reasonable fees and expenses of the Initial Purchaser's counsel) incurred in
connection with this Agreement.
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11. NOTICES. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchaser, shall be mailed,
delivered, or telexed, telegraphed or telecopied and confirmed in writing to
Warburg Dillon Read LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telephone: (000) 000-0000), Attention: Corporate Finance Department, telecopy
number: (000) 000-0000; and if sent to the Company, shall be mailed, delivered
or telexed, telegraphed or telecopied and confirmed in writing to Veritas DGC
Inc., 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxx (telephone: (000) 000-0000, Attention:
Chief Financial Officer, telecopy number: (000) 000-0000.
All such notices and communications shall be deemed to have been duly
given: (a) at the time delivered by hand, if personally delivered; (b) five
business days after being deposited in the mail, postage prepaid, if mailed; (c)
when answered back, if telexed; (d) when receipt acknowledged if telecopied; and
(e) on the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
12. PARTIES. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Initial Purchaser and the Company and the controlling
persons and agents referred to in Sections 5 and 6, 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 Senior
Notes from the Initial Purchaser.
13. CONSTRUCTION. This Agreement shall be construed in accordance with
the internal laws of the State of New York (without giving effect to any
provisions thereof relating to conflicts of law that would result in the
application of the laws of another jurisdiction).
14. SUBMISSION TO JURISDICTION. The Company irrevocably submits to the
nonexclusive jurisdiction of any state or federal court sitting in New York over
any suit, action or proceeding arising out of or relating to this Agreement. The
Company irrevocably waives, to the fullest extent permitted by law, any
objection it may now or thereafter have to the laying of venue of any such court
and any claim that any such suit, action or proceeding brought in such a court
has been brought in an inconvenient forum. The Company agrees that a final
judgment in any such suit, action or proceeding brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts to the jurisdiction of which the Company is or may be subject, by suit
upon such judgment. The Company hereby appoints, without power of revocation, CT
Corporation System as their agent to accept and acknowledge on its behalf
service of any and all process which may be served in any suit, action or
proceeding arising out of or relating to this letter. Nothing herein shall
affect the right to serve process in any other manner permitted by law or shall
limit the right of the Initial Purchaser to bring proceedings against the
Company in the courts of any other jurisdiction.
15. 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.
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16. COUNTERPARTS. This Agreement may be executed in various
counterparts and by the parties to this Agreement in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
17. MISCELLANEOUS. Warburg Dillon Read LLC, an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS AG. Because Warburg Dillon Read LLC
is a separately incorporated entity, it is solely responsible for its own
contractual obligations and commitments, including obligations with respect to
sales purchases of securities. Securities sold, offered or recommended by
Warburg Dillon Read LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
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If the foregoing correctly sets forth the understanding between the
Company and the Initial Purchaser, please so indicate in the space provided
below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement between the Company and the Initial Purchaser.
VERITAS DGC INC.
By: /s/ XXXXXXX XXXXXXX
---------------------------------------
Xxxxxxx Xxxxxxx
Executive Vice President
Chief Financial Officer and
Treasurer
Confirmed and accepted as of the date first above written:
WARBURG DILLON READ LLC
By: /s/ XXX XXXXXXX
--------------------------------------
Name: Xxx Xxxxxxx
-----------------------------------
Title: Executive Director
----------------------------------
Leveraged Finance
By: /s/ [ILLEGIBLE]
--------------------------------------
Name: [ILLEGIBLE]
-----------------------------------
Title: Associate Director
----------------------------------
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