Exhibit 10.1
EXECUTION COPY
XXXXXX XXXXXXX CORPORATION
$550,000,000
9% Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
January 28, 1999
CHASE SECURITIES INC.
000 Xxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
CHASE MANHATTAN INTERNATIONAL LIMITED
000 Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxx, XX0X 0XX
England
Ladies and Gentlemen:
Xxxxxx Xxxxxxx Corporation, a Delaware corporation (the
"ISSUER"), proposes to issue and sell $550,000,000 aggregate principal amount of
9% Senior Subordinated Notes due 2009 (the "SECURITIES"). The Securities will be
issued pursuant to an Indenture to be dated as of February 2, 1999 (the
"INDENTURE"), among the Issuer, Xxxxxx Xxxxxxx Group Limited (the "COMPANY"),
Xxxxxx Xxxxxxx Partners ("USGP", and together with the Company, the
"GUARANTORS") and The Bank of New York, as trustee (the "TRUSTEE"). The
Securities will be guaranteed on an unsecured, senior subordinated basis by each
Guarantor and, following the Closing Date (as defined in Section 3), by certain
subsidiaries under the circumstances set forth in the Indenture (the "ADDITIONAL
GUARANTORS"). The Issuer and the Guarantors hereby confirm their agreement with
Chase Securities Inc. ("CSI") and Chase Manhattan International Limited
(collectively the "INITIAL PURCHASERS") concerning the purchase of the
Securities from the Issuer by the Initial Purchasers.
The Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), in reliance upon an exemption therefrom. The Company has
prepared a preliminary offering memorandum dated December 23, 1998 (the
"PRELIMINARY OFFERING MEMORANDUM") and will prepare an offering memorandum dated
the date hereof (the "OFFERING MEMORANDUM") setting forth information concerning
the Company, its Subsidiaries, its Associates and the Securities. Copies of the
Preliminary Offering Memorandum have been, and copies of the Offering Memorandum
will be, delivered by the Company to the Initial Purchasers pursuant to the
terms of this Agreement. Any references herein to the Preliminary Offering
Memorandum and the Offering Memorandum shall be deemed to include all amendments
and supplements thereto, unless otherwise noted. The Company hereby confirms
that it has authorized the use of the Preliminary Offering Memorandum and the
Offering Memorandum
2
in connection with the offering and resale of the Securities by the Initial
Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers
and their direct and indirect transferees) will be entitled to the benefits of
an Exchange and Registration Rights Agreement, substantially in the form
attached hereto as Annex A (the "REGISTRATION RIGHTS AGREEMENT"), pursuant to
which the Company, the Issuer and USGP will agree to file with the Securities
and Exchange Commission (the "COMMISSION") (i) a registration statement under
the Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") registering an
issue of senior subordinated notes of the Issuer (the "EXCHANGE SECURITIES")
that are identical in all material respects to the Securities (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions) and (ii) under certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "SHELF REGISTRATION
STATEMENT").
The proceeds from the sale of the Securities will be used
solely to refinance the loans outstanding under the Senior Subordinated Loan
Agreement dated as of November 19, 1998, among the Company, USGP, the Issuer,
the Lenders from time to time party thereto, The Chase Manhattan Bank, as
Administrative Agent and Chase Securities Inc., as Lead Arranger, and to pay
related fees and expenses, all as described in the Offering Memorandum.
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The Company,
USGP and the Issuer jointly and severally represent and warrant to, and agree
with, the several Initial Purchasers on and as of the date hereof and the
Closing Date that:
(a) As of its date and as of the Closing Date, the Offering
Memorandum did not and will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED that the Company, USGP and the
Issuer make no representation or warranty as to information contained in or
omitted from the Offering Memorandum in reliance upon and in conformity with
written information relating to the Initial Purchasers furnished to the Company
by or on behalf of any Initial Purchaser specifically for use therein (the
"INITIAL PURCHASERS' INFORMATION").
(b) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its respective date, contains all the information
that, if requested by a prospective purchaser, would be required to be provided
pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Each of the Company and each of its Restricted
Subsidiaries is (i) duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation, (ii) has all requisite
organizational power and authority to own, lease and operate its properties, and
to conduct its business as described in the Offering Memorandum and (iii) is
duly qualified to do business in each jurisdiction in which it owns or leases
real property or in which the conduct of its business requires such
qualification except where the failure to be so qualified would not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), business or results
3
of operations of the Company and its Subsidiaries taken as a whole (a "MATERIAL
ADVERSE EFFECT").
(d) As of September 30, 1998, all of the issued and
outstanding equity interests in the Company and each of its Restricted
Subsidiaries have been duly authorized and validly issued, were not issued in
violation of any preemptive or similar rights, and all equity interests in the
Company and each of its Restricted Subsidiaries are fully paid and
nonassessable; and the capital stock of the Company and its parent corporations
conform in all material respects to the description thereof contained in the
Offering Memorandum; except as described in the Offering Memorandum or as set
forth on Schedule 1, all of the outstanding equity interests in each of the
Company's Subsidiaries are owned, directly or indirectly, by the Company; all of
the outstanding equity interests in the Company and each of its Subsidiaries
owned by the Company are free and clear of all liens, encumbrances, equities and
claims or restrictions on transferability (other than those imposed by the
Securities Act and the securities or "Blue Sky" laws of certain jurisdictions)
or voting, other than those contained in the Senior Credit Facilities; except as
described in the Offering Memorandum, neither the Company nor any of its
Subsidiaries has outstanding any options to purchase or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or partnership interests, as the case may be, or any such
options, rights, convertible securities or obligations.
(e) The Issuer has all requisite corporate power and authority
to execute, deliver and perform each of its obligations under the Securities and
the Exchange Securities. The Securities, when issued, will be substantially in
the form contemplated by the Indenture. The Securities and the Exchange
Securities have been duly and validly authorized by the Issuer and, when issued,
authenticated and delivered in accordance with the provisions of the Indenture
(assuming due authorization, execution and delivery of the Indenture by the
Trustee) and, in the case of the Securities, when delivered to and paid for by
the Initial Purchasers in accordance with the terms of this Agreement and the
Indenture, and, in the case of the Exchange Securities, when issued and
delivered upon exchange for the Securities in accordance with the terms of the
Registration Rights Agreement and the Indenture and will constitute valid and
legally binding obligations of the Issuer, entitled to the benefits of the
Indenture, enforceable against the Issuer in accordance with their terms, except
to the extent that the enforcement of the Securities and the Exchange Securities
may be subject to (i) bankruptcy, fraudulent conveyance, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally and (ii) general principles
of equity (regardless of whether enforcement is in a proceeding at law or in
equity) and the discretion of the court before which any proceeding therefor may
be brought.
(f) The Company, the Issuer and USGP each have all requisite
power and authority to execute, deliver and perform their obligations under the
Indenture. The Indenture meets the requirements for qualification under the
Trust Indenture Act of 1939, as amended (the "TIA"). The Indenture has been duly
and validly authorized by the Company, the Issuer and USGP. Assuming the due
authorization, execution and delivery of the Indenture by the Trustee, the
Indenture, when executed and delivered by the Company, the Issuer and USGP, will
constitute a valid and legally binding agreement of the Company, the Issuer and
USGP, enforceable against the Company, the Issuer and USGP in accordance with
its terms, except to the extent that (A) the enforcement thereof may be subject
to (i) bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally and
4
(ii) general principles of equity (regardless of whether enforcement is in a
proceeding at law or in equity) and the discretion of the court before which any
proceeding therefor may be brought and (B) any rights to indemnity or
contribution thereunder may be limited by federal or state securities laws or
public policy considerations. With respect to the foregoing, the Company, the
Issuer and USGP make no representation or warranty with respect to the
indemnification provisions contained in the Indenture to the extent they are
deemed by a court of law to be contrary to public policy.
(g) The Company, the Issuer and USGP each have all requisite
power and authority to execute, deliver and perform their obligations under the
Registration Rights Agreement. The Registration Rights Agreement has been duly
and validly authorized by the Company, the Issuer and USGP. Assuming the due
authorization, execution and delivery of the Registration Rights Agreement by
the Initial Purchasers, the Registration Rights Agreement, when executed and
delivered by the Company, the Issuer and USGP, will constitute a valid and
legally binding agreement of the Company, the Issuer and USGP, enforceable
against the Company, the Issuer and USGP in accordance with its terms, except to
the extent that (A) the enforcement thereof may be subject to (i) bankruptcy,
fraudulent conveyance, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforcement is in a proceeding at law or in equity) and the discretion of the
court before which any proceeding therefor may be brought and (B) any rights to
indemnity or contribution thereunder may be limited by federal or state
securities laws or public policy considerations.
(h) The Company, the Issuer and USGP each have all requisite
corporate power and authority to execute, deliver and perform their obligations
under this Agreement and to consummate the transactions contemplated hereby.
This Agreement and the consummation by the Company, the Issuer and USGP of the
transactions contemplated hereby have been duly authorized by the Company, the
Issuer and USGP and this Agreement has been duly executed and delivered by the
Company, the Issuer and USGP. The execution, delivery and performance by the
Company, the Issuer and USGP of this Agreement, the Indenture, the Registration
Rights Agreement and the Securities (collectively, the "TRANSACTION DOCUMENTS"),
the compliance by the Company, the Issuer and USGP with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents
will not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
its Restricted Subsidiaries pursuant to, (i) any of the terms or provisions of
any indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract, partnership, joint venture
agreement or other agreement or instrument to which the Company or any of its
Restricted Subsidiaries is a party or to which any of them or their respective
properties or assets is subject (collectively, "CONTRACTS"), (ii) the charter or
by-laws (or similar organizational document) of the Company or any of its
Restricted Subsidiaries or (iii) (assuming compliance with all applicable state
securities laws or "Blue Sky" laws) any statute, judgment, decree, order, rule
or regulation of any court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its Restricted Subsidiaries or any of
their respective properties or assets, except in the case of (i) or (iii) for
such breaches, violations or defaults which would not, either individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect; no
consent, approval, authorization or order of, or filing with, any court or
arbitrator or governmental agency or body is required for the execution,
delivery and performance by the Company, the Issuer or USGP of each of the
Transaction Documents or the consummation of the transactions
5
contemplated by the Transaction Documents, except such as (i) have been obtained
or made, (ii) may be required to comply with the provisions of the Registration
Rights Agreement or the Senior Credit Facilities or (iii) may be required under
state securities laws or "Blue Sky" laws.
(i) Each Transaction Document conforms in all material
respects to the description thereof contained in the Offering Memorandum.
(j) The audited consolidated financial statements of the
Company and its consolidated Subsidiaries, and the related notes thereto,
included in the Offering Memorandum present fairly in all material respects the
consolidated financial position of the Company and its consolidated
Subsidiaries, as of the respective dates of such financial statements, and the
results of operations and changes in financial position of the Company for the
respective periods covered thereby. Such financial statements comply in all
material respects with the requirements applicable to a registration statement
on Form F-1 under the Securities Act (except that certain supporting schedules
are omitted) and have been prepared in accordance with United Kingdom generally
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein. The summary and selected financial data set forth in
the Offering Memorandum under the captions "Summary--Summary Historical
Consolidated Financial Information of the Company", "Summary--Summary Unaudited
Pro Forma Consolidated Financial Information of the Company", "Capitalization",
"Unaudited Condensed Pro Forma Consolidated Financial Information", "Selected
Historical Consolidated Financial Data", "Summary Supplemental Financial Data"
and "Management's Discussion and Analysis of Financial Condition and Results of
Operations" fairly present in all material respects (subject to year-end audit
adjustments with respect to interim financial information) the information set
forth therein on the basis stated in the Offering Memorandum. The other
financial and statistical information and data set forth in the Preliminary
Offering Memorandum and the Offering Memorandum are based on or derived from
sources which the Company and the Subsidiaries believe to be reliable and
materially accurate. Ernst & Young, LLP are independent certified public
accountants with respect to the Company and its Subsidiaries within the meaning
of Rule 101 of the Code of Professional Conduct of the American Institute of
Certified Public Accountants ("AICPA") and its interpretations and rulings
thereunder.
(k) The pro forma consolidated condensed financial statements
and other pro forma financial information (including, without limitation, the
notes thereto) included in the Offering Memorandum (A) present fairly in all
material respects the information shown therein and (B) have been prepared in
accordance with applicable requirements of Regulation S-X promulgated under the
Exchange Act. The pro forma capitalization of the Company presented in the
Offering Memorandum under the heading "Capitalization" presents fairly in all
material respects the information shown therein. The assumptions used in the
preparation of the pro forma financial statements and other pro forma financial
information included in the Offering Memorandum (including, without limitation,
the information under the heading "Capitalization") are reasonable and the
adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein. The constant currency financial data included
in the Offering Memorandum (including, without limitation, the constant currency
financial data set forth in the section entitled "Summary Supplemental Financial
Data") have been prepared on the basis described in the Offering Memorandum and
present fairly in all material respects the information shown therein. The
assumptions used in the preparation of the constant currency information are
reasonable and appropriate for the purposes described therein.
6
(l) Neither the Company nor any of its Restricted Subsidiaries
is (i) in violation of its charter or by-laws (or similar organizational
document), (ii) in breach or violation of any statute, judgment, decree, order,
rule or regulation applicable to the Company or its Restricted Subsidiaries or
any of their properties or assets or (iii) in breach or default in the
performance of any Contract, except for any such violation, breach or default
that would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(m) Except as disclosed in the Offering Memorandum, there is
(i) no action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending, or to
the knowledge of the Company or any of its Restricted Subsidiaries threatened or
contemplated to which the Company or any of its Restricted Subsidiaries is or
may be a party or to which the business, property or assets of the Company or
any of its Restricted Subsidiaries is or may be subject, (ii) to the knowledge
of the Company and its Restricted Subsidiaries, no statute, rule, regulation or
order that has been enacted, adopted or issued by any governmental agency or
that has been proposed by any governmental body (other than "Blue Sky" laws,
regulations or orders), or (iii) no injunction, restraining order or order of
any nature by a federal or state court of competent jurisdiction to which the
Company or any of its Restricted Subsidiaries is or may be subject, issued and
outstanding that, in the case of clauses (i), (ii) or (iii) above, could
reasonably be expected to (x) have a Material Adverse Effect or (y) seek to
restrain, enjoin, interfere with or adversely affect the transactions
contemplated by the Transaction Documents in any material respect; and the
Company, the Issuer and USGP have each complied with any and all requests by any
securities authority in any jurisdiction for additional information to be
included in the Preliminary Offering Memorandum and the Offering Memorandum.
(n) The descriptions in the Offering Memorandum of statutes,
legal and governmental proceedings and contracts and other documents are
accurate and fairly present in all material respects the information that would
be required to be described in a registration statement under the Securities Act
or in a document incorporated by reference therein.
(o) The Company and each of its Subsidiaries have good and
marketable title, free and clear of all liens, claims, encumbrances and
restrictions, to all property and assets described in the Offering Memorandum as
being owned by it and good title to all leasehold estates in the real property
described in the Offering Memorandum as being leased by it except for (i) liens
for taxes not yet due and payable, (ii) such liens and encumbrances as are
contemplated by the Senior Credit Facilities, (iii) such liens, claims,
encumbrances and restrictions as do not materially interfere with the use made
and proposed to be made of such properties (including, without limitation,
purchase money mortgages), and (iv) to the extent the failure to have such title
or the existence of such liens, claims, encumbrances and restrictions would not
have a Material Adverse Effect.
(p) Since the respective dates as of which information is
given in the Offering Memorandum and, in the case of clauses (i) and (ii) below,
other than intercompany loans and dividends that would have been permitted by
the Indenture if it had been in effect at the time that such intercompany loans
were made and such dividends were paid: (i) the Company and its Restricted
Subsidiaries have not incurred any material liabilities or obligations, direct
or contingent, or entered into any material agreement or other material
transaction, which is not in the ordinary course of business; (ii) the Company
has not paid or declared any dividends or other distributions with respect to
its capital stock and the Company and its Restricted Subsidiaries are not in
default in the payment of principal or
7
interest on any outstanding debt obligations; and (iii) there has not been any
change in the condition (financial or otherwise), business or results of
operations of the Company and its Restricted Subsidiaries, taken as a whole,
which could have a Material Adverse Effect.
(q) Each of the Company and its Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and have made all declarations and filings with, all
appropriate federal, state, local, foreign and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals, presently
required or necessary to own or lease, as the case may be, and to operate their
respective properties and to carry on the business of the Company and its
Subsidiaries as now conducted as set forth in the Offering Memorandum, the lack
of which would have a Material Adverse Effect ("PERMITS"); each of the Company
and its Subsidiaries has fulfilled and performed all of its respective material
obligations with respect to such Permits and, to the best knowledge of the
Company, no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other
impairment of the rights of the holder of any such Permit, except where the
failure to fulfill or perform such obligations or such impairment, would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and neither of the Company nor any of its Subsidiaries has
received any notice of any proceeding relating to revocation or modification of
any such Permit except where such revocation or modification would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(r) The Company and each of its Subsidiaries own or possess
adequate licenses or other rights to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including, without limitation,
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) and copyrights necessary to
conduct the business described in the Offering Memorandum, except where the
failure to own or possess or have the ability to acquire any of the foregoing
would not have a Material Adverse Effect, and neither the Company nor any of its
Subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any patents, trademarks, service
marks, trade names or copyrights which, if such assertion of infringement or
conflict were sustained, would have a Material Adverse Effect.
(s) Neither the Company nor any Restricted Subsidiary has any
material liability for any prohibited transaction or funding deficiency or any
complete or partial withdrawal liability with respect to any pension, profit
sharing or other plan which is subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), to which it makes or ever has made a
contribution and in which any employee of it is or has ever been a participant.
With respect to such plans, the Company and each Restricted Subsidiary is in
compliance in all material respects with all applicable provisions of ERISA. In
addition, the Company has caused (i) all pension schemes maintained by or for
the benefit of any of its Subsidiaries organized under the laws of England and
Wales and/or any of its employees to be maintained and operated in all material
respects in accordance with all applicable laws from time to time and (ii) all
such pension schemes to be funded in accordance with the governing provisions of
such schemes, except to the extent failure to do so could not reasonably be
expected to have a Material Adverse Effect.
(t) Except as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, to the best knowledge
of the Company, the Company and its Restricted Subsidiaries are in material
compliance with all applicable existing federal, state, local and foreign laws
and regulations relating to the protection of
8
human health or the environment or imposing liability or requiring standards of
conduct concerning any Hazardous Materials ("ENVIRONMENTAL LAWS"). The term
"HAZARDOUS MATERIAL" means (a) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act 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 under or
within the meaning of any other Environmental Law. Neither the Company nor any
of its Subsidiaries has received any written notice and there is no pending or,
to the best knowledge of the Company and its Restricted Subsidiaries, threatened
action, suit or proceeding before or by any court or governmental agency or body
alleging liability (including, without limitation, alleged or potential
liability for investigatory costs, cleanup costs, governmental response costs,
natural resources damages, property damages, personal injuries, or penalties) of
the Company or any of its Restricted Subsidiaries arising out of, based on or
resulting from (i) the presence or release into the environment of any Hazardous
Material at any location owned by the Company or any Restricted Subsidiary, or
(ii) any violation or alleged violation of any Environmental Law, in either case
(x) which alleged or potential liability would be required to be described in a
registration statement under the Securities Act, or (y) which alleged or
potential liability, singly or in the aggregate, would reasonably be expected to
have a Material Adverse Effect.
(u) Each of the Company and its Subsidiaries has filed all
necessary federal, state and foreign (including, without limitation, United
Kingdom) income and franchise tax returns required to be filed to the date
hereof, except where the failure to so file such returns would not, individually
or in the aggregate, have a Material Adverse Effect, and has paid all material
taxes shown as due thereon; and other than tax deficiencies which the Company or
any Subsidiary is contesting in good faith and for which the Company or such
Subsidiary has provided adequate reserves, there is no tax deficiency that has
been asserted against the Company or any of the Subsidiaries that would have,
individually or in the aggregate, a Material Adverse Effect.
(v) None of the Company or any of its Subsidiaries or any of
their respective Affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act) has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any "security"
(as defined in the Securities Act) which is or reasonably could be integrated
with the sale of the Securities in a manner that would require the registration
under the Securities Act of the Securities or (ii) engaged in any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) in connection with the offering of the
Securities or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act. Assuming (i) the accuracy of the Initial
Purchasers' representations in Section 2 hereof and their compliance with the
agreements set forth therein, (ii) compliance by the Initial Purchasers with the
offering and transfer restrictions described in the Offering Memorandum and
(iii) the accuracy of the representations, warranties and agreements of each of
the purchasers to whom the Initial Purchasers initially resells the Securities
in compliance with Section 2 hereof, it is not necessary in connection with the
offer, sale and delivery of the Securities to the Initial Purchasers in the
manner contemplated by this Agreement to register any of the Securities under
the Securities Act or to qualify the Indenture under the TIA.
(w) No securities of the Company, the Issuer or USGP are of
the same class (within the meaning of Rule 144A under the Securities Act) as the
Securities or are listed or
9
are on a national securities exchange registered under Section 6 of the Exchange
Act, or quoted in a U.S. automated inter-dealer quotation system.
(x) None of the Company, the Issuer or USGP is an "investment
company" or "promoter" or "principal underwriter" for an "investment company"
under the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
(y) The Company and each of its Restricted Subsidiaries
maintain insurance insuring against such losses and risks as the Company
reasonably believes is adequate to protect the Company and each of its
Restricted Subsidiaries and their respective businesses, except where the
failure to maintain such insurance would not reasonably be expected to have a
Material Adverse Effect.
(z) Neither the Company nor any of its Subsidiaries has taken
nor will it take, directly or indirectly, any action designed to or that might
be reasonably expected to cause or result in stabilization or manipulation of
the price of the Securities or to facilitate the sale or resale of the
Securities.
(aa) None of the Company, any of its affiliates or any person
acting on its or their behalf has engaged or will engage in any directed selling
efforts (as such term is defined in Regulation S under the Securities Act
("REGULATION S")), and all such persons have complied and will comply with the
offering restrictions requirement of Regulation S to the extent applicable.
(bb) Other than as contemplated by this Agreement there is no
broker, finder or other party that is entitled to receive from the Company or
the Initial Purchasers any brokerage or finder's fee or other fee or commission
as a result of any of the transactions contemplated hereby or thereby.
(cc) Neither the issuance, sale and delivery of the
Securities, nor the application of the proceeds thereof by the Issuer as set
forth in the Offering Memorandum, will violate Regulations T, U or X promulgated
by the Board of Governors of the Federal Reserve System.
(dd) Other than the Registration Rights Agreement, there are
no contracts, agreements or understandings between the Company, the Issuer or
USGP and any person granting such person the right to require the Company, the
Issuer or USGP to file a registration statement under the Securities Act with
respect to any debt securities of the Company, the Issuer or USGP owned or to be
owned by such person or to require the Company, the Issuer or USGP to include
such debt securities in the securities registered pursuant to an Exchange Offer
Registration Statement or Shelf Registration Statement, or with any other
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(ee) None of the Company, the Issuer or USGP has distributed,
nor will the Company, the Issuer or USGP distribute, any offering material in
connection with the offering and sale of the Securities other than the Offering
Memorandum and the other materials permitted by the Securities Act.
(ff) Neither the Company nor any of its Restricted
Subsidiaries is involved in any material labor dispute nor, to the best of the
knowledge of the Company and its
10
Subsidiaries, is any material labor dispute threatened which, if such dispute
were to occur, would reasonably be expected to have a Material Adverse Effect.
(gg) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
(hh) No stamp duty, stock exchange tax, value-added tax,
withholding or any other similar duty or tax is payable in the United States,
the United Kingdom or any other jurisdiction in which either the Company or any
of its Subsidiaries is organized or engaged in business for tax purposes or, in
each case, any political subdivision thereof or any authority having power to
tax, in connection with the authorization, issuance, sale and delivery of the
Securities by the Issuer to the Initial Purchasers and resales thereof by the
Initial Purchasers in the manner contemplated by this Agreement and the Offering
Memorandum.
(ii) Under current laws and regulations (and interpretations
thereof) of the United Kingdom and any political subdivision thereof (or of any
other jurisdiction from or through which payment is to be made), all payments of
principal made on the Securities and the Exchange Securities by the Company
pursuant to its guarantee to Holders thereof who are non-residents of the United
Kingdom (or such other jurisdiction) and do not have a branch, agency or
permanent establishment nor carry on a trade in the United Kingdom (or such
other jurisdiction) to which the holding of the Securities or Exchange
Securities is attributable, will not be subject to income, withholding or other
taxes under laws and regulations of the United Kingdom or any political
subdivision or taxing authority thereof or therein (or of such other
jurisdiction) and will otherwise be free and clear of any other tax, duty,
withholding or deduction in the United Kingdom or any political subdivision or
taxing authority thereof or therein (or such other jurisdiction) and without the
necessity of obtaining any governmental authorization in the United Kingdom (or
of such other jurisdiction) or any political subdivision or taxing authority
thereof or herein.
(jj) Neither the Company nor any of its Restricted
Subsidiaries, and none of their respective properties or assets, has any
immunity from the jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, executing or otherwise) under the laws of the United States or the
United Kingdom.
(kk) To ensure the legality, validity, enforceability and
admissibility into evidence of each of this Agreement, the Exchange and
Registration Rights Agreement, the Indenture, the Securities and any other
document to be furnished hereunder or thereunder in the United Kingdom, it is
not necessary that this Agreement, the Exchange and Registration Rights
Agreement, the Indenture, the Securities or such other document be filed or
recorded with any court or other authority in the United Kingdom or that any
stamp of similar tax be paid in the United Kingdom on or in respect of this
Agreement, the Exchange and Registration Rights Agreement, the Indenture, the
Securities or any such other document.
(ll) On and immediately after the Closing Date, the Company,
the Issuer and USGP (after giving effect to the issuance of the Securities and
the Transactions) will not be insolvent or unable to pay their debts as they
fall due and could not be deemed to be unable to pay their debts for the purpose
of (i) the Uniform Fraudulent Transfer Act; (ii) the Uniform Fraudulent
Conveyance Act or (iii) Section 123(1) or (2) of the U.K. Insolvency Xxx 0000
(for this purpose omitting the words "proved to the satisfaction of the court"
from Section 123(1)(e)).
11
(mm) The Company has complied in all material respects with
the Financial Services Xxx 0000 and the Companies Xxx 0000 and all other
applicable laws and regulations relevant in the context of the Transactions and
has complied in all material respects with the City Code on Takeovers and
Mergers.
(nn) Application has been made to list the Securities on the
Luxembourg Stock Exchange and, in connection therewith, the Company has caused
to be prepared and submitted to the Luxembourg Stock Exchange an initial listing
application with respect to the Securities (the "LISTING APPLICATION"). The
Company will use its commercially reasonable efforts to (i) cause the Listing
Application to comply in all material respects with the requirements of the
Luxembourg Stock Exchange, (ii) submit the final Listing Application to the
Luxembourg Stock Exchange and (iii) cause the final Listing Application to be
approved by the Luxembourg Stock Exchange as promptly as practicable following
the Closing Date (and in no event later than 30 days following the Closing Date,
PROVIDED that the Company shall not be required to disclose any confidential
information not otherwise disclosed in the Offering Memorandum). To the
Company's knowledge, there is no requirement of the Luxembourg Stock Exchange to
deliver the Listing Application or any document other than the Offering
Memorandum to prospective purchasers or purchasers of Securities from the
Initial Purchasers in connection with the offer and sale by the Initial
Purchasers of the Securities in the manner contemplated by this Agreement and
the Offering Memorandum.
2. PURCHASE AND RESALE OF THE SECURITIES. (a) On the basis of
the representations, warranties and agreements contained herein, and subject to
the terms and conditions set forth herein, the Issuer agrees to issue and sell
to each of the Initial Purchasers, severally and not jointly, and each of the
Initial Purchasers, severally and not jointly, agrees to purchase from the
Issuer, the aggregate principal amount of Securities set forth opposite the name
of such Initial Purchaser on Schedule 2 hereto at a purchase price equal to
97.25% of the principal amount thereof (subject to the partial credit set forth
in the fee letter (the "FEE LETTER") dated September 1, 1998, among Trinity
Acquisition plc, The Chase Manhattan Bank and Chase Securities Inc.). The Issuer
shall not be obligated to deliver any of the Securities except upon payment for
all of the Securities to be purchased as provided herein. If Chase Manhattan
International Limited shall default in its obligation hereunder to purchase from
the Issuer the aggregate principal amount of Securities set forth opposite its
name on Schedule 2 hereto, CSI shall purchase such Securities.
(b) Each of the Initial Purchasers represents and warrants (as
to itself only) that it is a qualified institutional buyer ("QUALIFIED
INSTITUTIONAL BUYER") as defined in Rule 144A under the Securities Act ("RULE
144A"). The Initial Purchasers have advised the Issuer that they propose to
offer the Securities for resale upon the terms and subject to the conditions set
forth herein and in the Offering Memorandum. Each Initial Purchaser, severally
and not jointly, represents, warrants and agrees that (i) it is purchasing the
Securities pursuant to a private sale exempt from registration under the
Securities Act and the Securities may not be offered or sold within the United
States unless the Securities are registered under the Securities Act or an
exemption from the registration requirements of the Securities Act is available,
(ii) it has not solicited offers for, or offered or sold, and will not solicit
offers for, or offer or sell, the Securities by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D under the Securities Act ("REGULATION D") or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (iii) it has solicited and will solicit offers for the Securities only
from, and has offered or sold and will offer, sell or deliver the Securities, as
part of their initial offering, only (A) within the United States to persons
whom
12
it reasonably believes to be Qualified Institutional Buyers, 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 it that
each such account is a Qualified Institutional Buyer 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 in accordance with Rule 144A and (B) outside the
United States to persons other than U.S. persons in reliance on Regulation S
under the Securities Act ("REGULATION S").
(c) In connection with the offer and sale of Securities in
reliance on Regulation S, each Initial Purchaser, severally and not jointly,
represents, warrants and agrees that:
(i) it has and will comply with all applicable laws and
regulations in each jurisdiction in which it acquires, offers, sells or
delivers Securities or has in its possession or distributed the
Preliminary Offering Memorandum or Offering Memorandum at its own
expense;
(ii) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except pursuant
to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act;
(iii)it has offered and sold the Securities, and will offer
and sell the Securities, (A) as part of their distribution at any time
and (B) otherwise until 40 days after the later of the commencement of
the offering of the Securities and the Closing Date, only in accordance
with Regulation S or Rule 144A or any other available exemption from
registration under the Securities Act;
(iv) neither the Initial Purchaser nor any of its affiliates
or any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities,
and all such persons have complied and will comply with the offering
restriction requirements of Regulation S;
(v) at or prior to the confirmation of sale of any Securities
sold in reliance on Regulation S, it will have sent to each
distributor, dealer or other person receiving a selling concession, fee
or other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons (i) as
part of their distribution at any time or (ii) otherwise until
40 days after the later of the commencement of the offering of
the Securities and the date of original issuance of the
Securities, except in accordance with Regulation S or Rule
144A or any other available exemption from registration under
the Securities Act. Terms used above have the meanings given
to them by Regulation S."
(vi) it has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution of
the Securities, except with its affiliates or with the prior written
consent of the Company or the Issuer.
13
Terms used in this Section 2(c) have the meanings given to them by Regulation S.
(d) Each Initial Purchaser, severally and not jointly,
represents, warrants and agrees that (i) it has not offered or sold and prior to
the date six months after the Closing Date will not offer or sell any Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 and the Public Offers
of Securities Regulations 1995 with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom; and (iii)
it has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
(e) Each Initial Purchaser, severally and not jointly, agrees
that, prior to or simultaneously with the confirmation of sale by such Initial
Purchaser to any purchaser of any of the Securities purchased by such Initial
Purchaser from the Issuer pursuant hereto, such Initial Purchaser shall furnish
to that purchaser a copy of the Offering Memorandum (and any amendment or
supplement thereto that the Company shall have furnished to such Initial
Purchaser prior to the date of such confirmation of sale). In addition to the
foregoing, each Initial Purchaser acknowledges and agrees that the Company and,
for purposes of the opinions to be delivered to the Initial Purchasers pursuant
to Sections 5(a) and (b), counsel for the Company and for the Initial
Purchasers, respectively, may rely upon the accuracy of the representations and
warranties of the Initial Purchasers and their compliance with their agreements
contained in this Section 2, and each Initial Purchaser hereby consents to such
reliance.
(f) The Issuer acknowledges and agrees that the Initial
Purchasers may sell Securities to any of its affiliates and that any such
affiliate may sell Securities purchased by it to the Initial Purchasers.
(g) The Initial Purchasers agree to notify the Issuer of the
completion of the initial distribution of the Securities.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. (a) Delivery of
and payment for the Securities shall be made at the offices of Cravath, Swaine &
Xxxxx, New York, New York, or at such other place as shall be agreed upon by the
Initial Purchasers and the Issuer, at 10:00 A.M., New York City time, on
February 2, 1999, or at such other time or date, not later than seven full
business days thereafter, as shall be agreed upon by the Initial Purchasers and
the Issuer (such date and time of payment and delivery being referred to herein
as the "CLOSING DATE").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to the Issuer by wire or book-entry transfer of
same-day funds to such account or accounts as the Issuer shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Initial Purchasers of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations
14
of the Initial Purchasers hereunder. Upon delivery, the Securities shall be in
global form, registered in such names and in such denominations as CSI on behalf
of the Initial Purchasers shall have requested in writing not less than two full
business days prior to the Closing Date. The Issuer agrees to make one or more
global certificates evidencing the Securities available for inspection by CSI on
behalf of the Initial Purchasers in New York, New York at least 24 hours prior
to the Closing Date.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company, the
Issuer and USGP each agree with the several Initial Purchasers:
(a) at any time prior to being advised by the Initial
Purchasers of the completion of the initial distribution of Securities, to
advise the Initial Purchasers promptly and, if requested, confirm such advice in
writing, of the happening of any event which makes any statement of a material
fact made in the Offering Memorandum untrue or which requires the making of any
additions to or changes in the Offering Memorandum (as amended or supplemented
from time to time) in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; to advise the Initial
Purchasers promptly of any order preventing or suspending the use of the
Preliminary Offering Memorandum or the Offering Memorandum, of any suspension of
the qualification of the Securities for offering or sale in any jurisdiction and
of the initiation or threatening of any proceeding for any such purpose; and to
use its reasonable best efforts to prevent the issuance of any such order
preventing or suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum or suspending any such qualification and, if any such
suspension is issued, to obtain the lifting thereof at the earliest possible
time;
(b) to cooperate with the Initial Purchasers in arranging for
the qualification of the Securities for offering and sale under the securities
or "Blue Sky" laws of such jurisdictions as the Initial Purchasers may designate
and will continue such qualifications in effect for as long as may be necessary
to complete the resale of the Securities; PROVIDED, HOWEVER, that in connection
therewith, none of the Company, the Issuer or USGP shall be required to qualify
as a foreign corporation or to execute a general consent to service of process
in any jurisdiction or subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject;
(c) if, at any time prior to completion of the resale of the
Securities by the Initial Purchasers, any event shall occur or condition exist
as a result of which it is necessary, in the opinion of counsel for the Initial
Purchasers or counsel for the Company, to amend or supplement the Offering
Memorandum in order that the Offering Memorandum will not include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances existing at
the time it is delivered to a purchaser, not misleading, or if it is necessary
to amend or supplement the Offering Memorandum to comply with applicable law, to
promptly prepare such amendment or supplement as may be necessary to correct
such untrue statement or omission or so that the Offering Memorandum, as so
amended or supplemented, will comply with applicable law;
(d) prior to making any amendment or supplement to the
Offering Memorandum, to furnish a copy thereof each of the Initial Purchasers
and counsel for the Initial Purchasers and not to effect any such amendment or
supplement to which the Initial Purchasers shall reasonably object by notice to
the Company after a reasonable period to review;
15
(e) at any time prior to being advised by the Initial
Purchasers of the completion of the initial distribution of Securities, furnish,
without charge, to the Initial Purchasers and their counsel as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum or any amendment
or supplement thereto as the Initial Purchasers may from time to time reasonably
request. The Company consents to the use, in accordance with the provisions of
the Securities Act and with the securities or "Blue Sky" laws of the
jurisdictions in which the Securities are offered by the several Initial
Purchasers and by dealers, of each Preliminary Offering Memorandum and Offering
Memorandum furnished by the Company;
(f) to apply the net proceeds from the sale of the Securities
as set forth in the Offering Memorandum under the heading "Use of Proceeds";
(g) for so long as any of the Securities remain outstanding,
the Company will furnish to the Initial Purchasers, upon request, copies of all
reports and other communications (financial or otherwise) furnished by the
Company, the Issuer or USGP to the Trustee or to the holders of the Securities
and, as soon as available, copies of any reports or financial statements
furnished to or filed by the Company, the Issuer or USGP with the Commission or
any national securities exchange on which any class of securities of the
Company, the Issuer or USGP may be listed;
(h) not to and to cause its affiliates not to sell, offer for
sale or solicit offers to buy or otherwise negotiate in any respect of any
"security" (as defined in the Securities Act) which could be integrated with the
sale of the Securities in a manner which would require the registration under
the Securities Act of the Securities;
(i) except following the effectiveness of the Exchange Offer
Registration Statement and any Shelf Registration Statement, not to, and not to
permit any of its affiliates to, engage in any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) in connection with the offering of the Securities or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act; and not to offer, sell, contract to sell or otherwise dispose
of, directly or indirectly, any securities under circumstances where such offer,
sale, contract or disposition would cause the exemption afforded by Section 4(2)
of the Securities Act to cease to be applicable to the offering and sale of the
Securities as contemplated by this Agreement and the Offering Memorandum;
(j) to assist the Initial Purchasers in arranging for the
Securities to be designated Private Offerings, Resales and Trading through
Automated Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
("NASD") relating to trading in the PORTAL Market and for the Securities to be
eligible for clearance and settlement through
The Depository Trust Company ("DTC");
(k) for a period of 90 days from the date of the Offering
Memorandum, without the prior consent of the Initial Purchasers (which consent
shall not be unreasonably withheld), not to, directly or indirectly, sell, offer
to sell, contract to sell, or announce or file a registration statement for the
offering of any debt securities of the Company, the Issuer or USGP designed to
be traded or distributed in the public or private securities markets (other than
the Securities and the Exchange Securities and other than in respect of
borrowings under the Senior Credit Facilities);
16
(l) during the period from the Closing Date until two years
after the Closing Date, without the prior written consent of the Initial
Purchasers, not to, and not permit any of its affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Securities that have been
reacquired by them, except for Securities purchased by the Company, the Issuer
or any of their affiliates and resold in a transaction registered under the
Securities Act;
(m) in connection with the offering of the Securities, until
CSI on behalf of the Initial Purchasers shall have notified the Company or the
Issuer of the completion of the resale of the Securities, not to, and to cause
its affiliated purchasers (as defined in Regulation M under the Exchange Act)
not to, either alone or with one or more other persons, bid for or purchase, for
any account in which it or any of its affiliated purchasers has a beneficial
interest, any Securities, or attempt to induce any person to purchase any
Securities; and not to, and to cause its affiliated purchasers not to, make bids
or purchase for the purpose of creating actual, or apparent, active trading in
or of raising the price of the Securities;
(n) in connection with the offering of the Securities, to make
its officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
(o) at any time prior to being advised by the Initial
Purchasers of the completion of the initial distribution of Securities, upon
request of any holder of the Securities, to furnish to such holder, and to any
prospective purchaser or purchasers of the Securities designated by such holder,
information satisfying the requirements of subsection (d)(4) of Rule 144A under
the Securities Act. This covenant, except for the indemnification provisions of
Section 9, is intended to be for the benefit of the holders from time to time of
the Securities, and prospective purchasers of the Securities designated by such
holders.
5. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The
respective obligations of the several Initial Purchasers hereunder are subject
to the accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of the Company, the Issuer and USGP contained
herein, to the accuracy of the statements of the Company, the Issuer and USGP
and its officers made in any certificates delivered pursuant hereto, to the
performance by the Company, the Issuer and USGP of their respective obligations
hereunder, and to each of the following additional terms and conditions:
(a) Each of Xxxxxxx Xxxxxxx & Xxxxxxxx, Xxxxxxxx Chance and
Xxxxxxxx, Xxxxxx & Finger shall have furnished to the Initial Purchasers their
written opinion, as counsel to the Issuer, the Company and USGP, respectively,
addressed to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers.
(b) Xxxx Xxxxxxxx, General Counsel to the Company, and Xxxxxxx
Xxxxxx, head of the Company's U.K. legal department, shall have furnished to the
Initial Purchasers written opinions addressed to the Initial Purchasers and
dated the Closing Date, in form and substance reasonably satisfactory to the
Initial Purchasers.
(c) The Initial Purchasers shall have received from Cravath,
Swaine & Xxxxx, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Initial Purchasers
may reasonably require, and the
17
Company shall have furnished to such counsel such documents and information as
they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Initial Purchasers
a letter (the "INITIAL LETTER") of Ernst & Young LLP, addressed to the Initial
Purchasers and dated the date hereof, in form and substance reasonably
satisfactory to the Initial Purchasers.
(e) The Company shall have furnished to the Initial Purchasers
a letter (the "Bring-Down Letter") of Ernst & Young LLP, addressed to the
Initial Purchasers and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Company and its Subsidiaries
within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA
and its interpretations and rulings thereunder, (ii) stating, as of the date of
the Bring-Down Letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more than
three business days prior to the date of the Bring-Down Letter), that the
conclusions and findings of such accountants with respect to the financial
information and other matters covered by the Initial Letter are accurate and
(iii) confirming in all material respects the conclusions and findings set forth
in the Initial Letter.
(f) Each of the Company, the Issuer and USGP shall have
furnished to the Initial Purchasers a certificate or certificates, dated the
Closing Date, of Xxxxxxx Xxxxxx, Company Secretary of the Company, Xxxxxx
Xxxxxxxx, Group Finance Director of the Company and Xxxx Xxxxxxxx, Senior Vice
President, Secretary and General Counsel of the Issuer, stating that (A) such
officers have carefully examined the Offering Memorandum and to the extent
deemed advisable by such officers, have discussed portions of the Offering
Memorandum with officers of the Company or the Issuer having responsibility for
the matters in question, including, when appropriate, Xxxx Xxxxx, the Executive
Chairman of the Company, (B) in their opinion, the Offering Memorandum, as of
its date, did not include any untrue statement of a material fact and did not
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and since the date of the Offering
Memorandum, no event has occurred which should have been set forth in a
supplement or amendment to the Offering Memorandum so that the Offering
Memorandum (as so amended or supplemented) would not include any untrue
statement of a material fact and would not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (C) as of the Closing Date, the representations and warranties of
the Company, the Issuer and USGP in this Agreement are true and correct in all
material respects, each of the Company, the Issuer and USGP, as the case may be,
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder on or prior to the Closing Date, and subsequent
to the date of the most recent financial statements contained in the Offering
Memorandum, there has been no event or development that can reasonably be
expected to result in a Material Adverse Effect.
(g) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement executed by the Company, the Issuer
and USGP and, assuming due execution and delivery by the Initial Purchasers,
such agreement shall be in full force and effect.
(h) The Indenture shall have been duly executed and delivered
by the Company, the Issuer and USGP and duly authorized, executed and delivered
by the Trustee,
18
and the Securities shall have been duly executed and delivered by the Issuer and
duly authenticated by the Trustee.
(i) If any event shall have occurred that requires the Company
under Section 4(c) to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the Initial
Purchasers shall have been given a reasonable opportunity to comment thereon,
and copies thereof shall have been delivered to the Initial Purchasers
reasonably in advance of the Closing Date.
(j) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the Exchange
Act by the Commission or any amendment or proposed amendment thereof by the
Commission which in the judgment of the Initial Purchasers would materially
impair the ability of the Initial Purchasers to purchase, hold or effect resales
of the Securities as contemplated hereby.
(k) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall not
have been any event or development that can reasonably be expected to result in
a Material Adverse Effect or any change specified in the letters referred to in
paragraphs (d) and (e) of this section, the effect of which, in any such case
described above, is, in the judgment of the Initial Purchasers, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale or
delivery of the Securities on the terms and in the manner contemplated by this
Agreement and the Offering Memorandum (exclusive of any amendment or supplement
thereto).
(l) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Securities; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance or sale of the Securities.
(m) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the Securities or
any of the Issuer's or the Company's other debt securities or preferred stock by
any "nationally recognized statistical rating organization", as such term is
defined by the Commission for purposes of Rule 436(g)(2) of the rules and
regulations of the Commission under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or
review (other than an announcement with positive implications of a possible
upgrading), its rating of the Securities or any of the Issuer's, the Company's
or USGP's other debt securities or preferred stock.
(n) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the London Stock Exchange, the New York Stock Exchange, the
American Stock Exchange or the over-the-counter market shall have been suspended
or limited, or minimum prices shall have been established on any such exchange
or market by the Commission, by any such exchange or by any other regulatory
body or governmental authority having jurisdiction, or trading in any securities
of the Issuer, the Company or USGP on any exchange or in the over-the-counter
market shall have been suspended or (ii) any moratorium on commercial banking
activities shall have been declared by United Kingdom or United States federal
or New York state
19
authorities or (iii) an outbreak or escalation of hostilities in the United
States or the United Kingdom or a declaration by the United States or the United
Kingdom of a national emergency or war or (iv) a material adverse change in
general economic, political or financial conditions in the United States or the
United Kingdom (or the effect of international conditions on the financial
markets in the United States or the United Kingdom shall be such) the effect of
which, in the case of this clause (iv), is, in the reasonable judgment of the
Initial Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the sale or the delivery of the Securities on the
terms and in the manner contemplated by this Agreement and in the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(o) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this Agreement
or at such other date and time as to which the Initial Purchasers may agree; and
no stop order suspending the sale of the Securities in any jurisdiction shall
have been issued and no proceeding for that purpose shall have been commenced or
shall be pending or threatened.
(p) None of the Initial Purchasers shall have discovered and
disclosed to the Company on or prior to the Closing Date that the Offering
Memorandum or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of counsel for the Initial Purchasers, is
material or omits to state any fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(q) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of the Transaction Documents and
the Offering Memorandum, and all other legal matters relating to the Transaction
Documents and the transactions contemplated thereby, shall be satisfactory in
all material respects to the Initial Purchasers, and the Company, the Issuer and
USGP shall have furnished to the Initial Purchasers all documents and
information that they or their counsel may reasonably request to enable them to
pass upon such matters.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
6. TERMINATION. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers, in their absolute
discretion, by notice given to and received by the Company or the Issuer prior
to delivery of and payment for the Securities if, prior to that time, any of the
events described in Section 5(k), (l), (m) or (n) shall have occurred and be
continuing.
7. REIMBURSEMENT OF INITIAL PURCHASERS' EXPENSES. If this
Agreement is terminated pursuant to Section 6 or if for any reason the purchase
of the Securities by the Initial Purchasers is not consummated, each of the
Company, the Issuer and USGP shall remain responsible (except to a defaulting
Initial Purchaser) for the expenses to be paid or reimbursed by it pursuant to
Section 12 and the respective obligations of the Company and the Initial
Purchasers pursuant to Sections 9 and 10 shall remain in effect. In addition, if
the purchase of the Securities by the Initial Purchasers is not consummated
because any condition to the obligations of the Initial Purchasers set forth in
Section 5 hereof (other than Section 5(n)) is not satisfied or because of any
refusal, inability or failure on the part of the
20
Company, the Issuer or USGP to perform any agreement herein or comply with any
provision hereof other than by reason of a default by the Initial Purchasers,
the Company, the Issuer or USGP shall reimburse the Initial Purchasers upon
demand accompanied by reasonable supporting documentation for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with this Agreement and the
proposed purchase and sale of the Securities.
8. INDEMNIFICATION. (a) The Company, the Issuer and USGP
shall, jointly and severally, indemnify and hold harmless each Initial
Purchaser, its affiliates, officers, directors, employees, representatives and
agents, and each person, if any, who controls any Initial Purchaser within the
meaning of the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 8(a) and Section 9 as an Initial Purchaser), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of the Securities), to which
that Initial Purchaser may become subject, whether commenced or threatened,
under the Securities Act, the Exchange Act, any other federal or state statutory
law or regulation, at common law or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto or in any information provided by the Company, the Issuer
or USGP pursuant to Section 4(o) or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse each Initial Purchaser
promptly upon demand for any legal or other expenses reasonably incurred by that
Initial Purchaser in connection with investigating or defending or preparing to
defend against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred;
PROVIDED, HOWEVER, that none of the Company, the Issuer or USGP shall be liable
in any such case to the extent that any such loss, claim, damage, liability or
action 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 any Initial Purchasers' Information; and
PROVIDED, FURTHER, that with respect to any such untrue statement in or omission
from the Preliminary Offering Memorandum, the indemnity agreement contained in
this Section 8(a) shall not inure to the benefit of any such Initial Purchaser
to the extent that the sale to the person asserting any such loss, claim,
damage, liability or action was an initial resale by such Initial Purchaser and
any such loss, claim, damage, liability or action of or with respect to such
Initial Purchaser results from the fact that both (A) a copy of the Offering
Memorandum was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person and (B) the untrue
statement in or omission from the Preliminary Offering Memorandum was corrected
in the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Company with Section
4(e).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 8(b) and
Section 9 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject, whether commenced or threatened, under the
Securities Act, the Exchange Act, any other federal or state statutory law or
regulation, at common law or otherwise,
21
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any Initial
Purchasers' Information, and shall reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending or preparing to defend against or appearing as a third party witness
in connection with any such loss, claim, damage, liability or action as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 8(a) or 8(b), notify the indemnifying
party in writing of the claim or the commencement of that action; PROVIDED,
HOWEVER, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 8 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, PROVIDED, FURTHER, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 8. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the indemnified
party to assume the defense of such action within a reasonable time after
receiving notice of the commencement of the action, in each of which cases the
reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 8(a) and 8(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected
22
without its written consent (which consent shall not be unreasonably withheld),
but if settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), 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.
The obligations of the Company, the Issuer, USGP and the
Initial Purchasers in this Section 8 and in Section 9 are in addition to any
other liability that the Company, the Issuer, USGP or the Initial Purchasers, as
the case may be, may otherwise have, including, without limitation, in respect
of any breaches of representations, warranties and agreements made herein by any
such party.
9. CONTRIBUTION. If the indemnification provided for in
Section 8 is unavailable or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on the one hand and the
Initial Purchasers on the other from the offering of the 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 Initial Purchasers on the other with respect to the
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Initial Purchasers on the other with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Securities purchased under this Agreement (before deducting expenses)
received by or on behalf of the Company, on the one hand, and the total
discounts and commissions received by the Initial Purchasers with respect to the
Securities purchased under this Agreement, on the other, bear to the total gross
proceeds from the sale of the Securities under this Agreement, in each case as
set forth in the table on the cover page of the Offering Memorandum. 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 the Company or information
supplied by the Company on the one hand or to any Initial Purchasers'
Information on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Initial Purchasers agree that
it would not be just and equitable if contributions pursuant to this Section 9
were to be determined by PRO RATA allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 8 shall be deemed to include, for purposes of this Section
9, any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim. Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discounts and commissions received by such Initial Purchaser
with respect to the Securities
23
purchased by it under this Agreement exceeds the amount of any damages which
such Initial Purchaser has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
10. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Company, the Issuer and USGP and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except as provided in Sections 8 and 9 with respect to affiliates, officers,
directors, employees, representatives, agents and controlling persons of the
Company and the Initial Purchasers and in Section 4(o) with respect to holders
and prospective purchasers of the Securities. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 10, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
11. EXPENSES. The Company, the Issuer and USGP, jointly and
severally agree with the Initial Purchasers to pay (a) the costs incident to the
authorization, issuance, sale, preparation and delivery of the Securities; (b)
the costs incident to the preparation, printing and distribution of the
Preliminary Offering Memorandum, the Offering Memorandum and any amendments or
supplements thereto; (c) the costs of reproducing and distributing each of the
Transaction Documents; (d) the costs incident to the preparation, printing and
delivery of the certificates evidencing the Securities, including, without
limitation, stamp duties and transfer taxes, if any, payable upon issuance of
the Securities; (e) the fees and expenses of the Company's independent
accountant; (f) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(b) and of
preparing, printing and distributing Blue Sky Memoranda (including, without
limitation, related fees and expenses of counsel for the Initial Purchasers);
(g) any fees charged by rating agencies for rating the Securities; (h) the fees
and expenses of the Trustee and any paying agent (including, without limitation,
related fees and expenses of any counsel to such parties); (i) all expenses and
application fees incurred in connection with the application for the inclusion
of the Securities on the PORTAL Market and the approval of the Securities for
book-entry transfer by DTC; and (j) all other costs and expenses incident to the
performance of the obligations of the Company, the Issuer and USGP under this
Agreement which are not otherwise specifically provided for in this Section 11;
PROVIDED, HOWEVER, that except as provided in this Section 11 and Section 7, the
Initial Purchasers shall pay their own costs and expenses.
12. SURVIVAL. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company, the
Issuer, USGP and the Initial Purchasers contained in this Agreement or made by
or on behalf of the Company, the Issuer, USGP or the Initial Purchasers pursuant
to this Agreement or any certificate delivered pursuant hereto shall survive the
delivery of and payment for the Securities and shall remain in full force and
effect, regardless of any termination or cancelation of this Agreement or any
investigation made by or on behalf of any of them or any of their respective
affiliates, officers, directors, employees, representatives, agents or
controlling persons.
13. NOTICES, ETC.. All statements, requests, notices and
agreements hereunder shall be in writing, and:
24
(a) if to the Initial Purchasers, shall be delivered or sent
by mail or telecopy transmission to Chase Securities Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Legal Department; or
(b) if to the Company, the Issuer or USGP, shall be delivered
or sent by mail or telecopy transmission to the address of the Company set forth
in the Offering Memorandum, Attention: Company Secretary;
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof.
14. DEFINITION OF TERMS. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "Subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
15. INITIAL PURCHASERS' INFORMATION. The parties hereto
acknowledge and agree that, for all purposes of this Agreement, the Initial
Purchasers' Information consists solely of the following information in the
Preliminary Offering Memorandum and the Offering Memorandum: (i) the last two
bullet points on the front cover page concerning the terms of the offering by
the Initial Purchasers; and (ii) the statements concerning the Initial
Purchasers contained in the first, second, third, fifth, sixth, ninth, tenth,
eleventh, twelfth and thirteenth paragraphs under the heading "Plan of
Distribution".
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
17. COUNTERPARTS. This Agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
18. AMENDMENTS. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
19. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Issuer, USGP
and the several Initial Purchasers in accordance with its terms.
Very truly yours,
XXXXXX XXXXXXX CORPORATION,
By______________________________
Name:
Title:
XXXXXX XXXXXXX GROUP LIMITED,
By______________________________
Name:
Title:
XXXXXX XXXXXXX PARTNERS,
By Xxxxxx Xxxxxxx Group Limited,
Its General Partner
By______________________________
Name:
Title:
Accepted:
CHASE SECURITIES INC.,
By____________________________
Authorized Signatory
CHASE MANHATTAN
INTERNATIONAL LIMITED,
By____________________________
Authorized Signatory
SCHEDULE 1
EQUITY INTERESTS OF CERTAIN SUBSIDIARIES OF THE COMPANY
Company Name Owned
------------ -----
Willis National Holdings Limited 51%
ANIFA Limited 100%
Xxxxxx Xxxxxxx Financial Planning Limited 100%
Willis National Limited 100%
Gibraltar Insurance (Barbados) Limited 90%
Xxxxxx Xxxxxxx Polska 70%
S&C Xxxxxx Xxxxxxx Correduria de Seguros y Reaseguros SA 60%
S&C e IC Xxxxxx Xxxxxxx Correduria de Seguros SA 100%
Xxxxxx Xxxxxxx Assurand0rgruppen 85%
KSA Vof 50%
Xxxxxx Xxxxxxx Belgium S.A. 80%
Xxxxxx Xxxxxxx Holdings (New Zealand) Limited 99%
Xxxxxx Xxxxxxx Limited 100%
Xxxxxx Xxxxxxx XxXxxxxx Limited 100%
Xxxxxx Xxxxxxx Hungary Kft 80%
Xxxxxx Xxxxxxx AB 75%
OY Xxxxxx Xxxxxxx AB 100%
Xxxxxx Xxxxxxx Professional & Financial Risks AB 85%
Xxxxxx Xxxxxxx Gothia AB 78%
Xxxxxx Xxxxxxx I Orebro AB 51%
Xxxxxx Xxxxx (Middle East) X.X.X. 51%
Xxxxxx Xxxxxxx Hellas (Insurance Brokers) SA 80%
Xxxxxx Xxxxxxx Italia S.p.A. 50%
XXX Xxxxxx Corroon Rischi Speciali S.R.L. 100%
XXX Xxxxxx Xxxxxxx Xxxxx S.R.L. 100%
SCHEDULE 2
Initial Purchasers Principal Amount of Securities
------------------ ------------------------------
Chase Securities Inc. $225,000,000
Chase Manhattan International Limited $225,000,000
------------
Total $550,000,000
ANNEX A
[Form of Exchange and Registration Rights Agreement]
