EXHIBIT 4.3
INTERNATIONAL SPEEDWAY CORPORATION
$225,000,000
7-7/8% Senior Notes Due 2004
Purchase Agreement
New York, New York
October 1, 1999
Xxxxxxx Xxxxx Xxxxxx
First Union Securities, Inc.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
International Speedway Corporation, a corporation organized
under the laws of Florida (the "Company"), proposes to issue and sell to the
several parties named in Schedule I hereto (the "Initial Purchasers"), for whom
you (the "Representatives") are acting as representatives, $225,000,000
principal amount of its 7-7/8% Senior Notes Due 2004 (the "Securities"). The
Securities are to be issued under an indenture (the "Indenture") to be dated as
of October 6, 1999, between the Company and First Union National Bank, as
trustee (the "Trustee"). The Securities have the benefit of a Registration
Rights Agreement (the "Registration Rights Agreement"), to be dated as of
October 6, 1999, between the Company and the Initial Purchasers, pursuant to
which the Company has agreed to register the Securities under the Act subject to
the terms and conditions therein specified. To the extent there are no
additional parties listed on Schedule I other than you, the term Representatives
as used herein shall mean you as the Initial Purchasers, and the terms
Representatives and Initial Purchasers shall mean either the singular or plural
as the context requires. The use of the neuter in this Agreement shall include
the feminine and masculine wherever appropriate. Certain terms used herein are
defined in Section 17 hereof.
The sale of the Securities to the Initial Purchasers will be
made without
registration of the Securities under the Act in reliance upon exemptions from
the registration requirements of the Act.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated September 24, 1999 (as amended
or supplemented at the Execution Time, including any and all exhibits thereto
and any information incorporated by reference therein, the "Preliminary
Memorandum"), and a final offering memorandum, dated October 1, 1999 (as amended
or supplemented at the Execution Time, including any and all exhibits thereto
and any information incorporated by reference therein, the "Final Memorandum").
Each of the Preliminary Memorandum and the Final Memorandum sets forth certain
information concerning the Company and the Securities. The Company hereby
confirms that it has authorized the use of the Preliminary Memorandum and the
Final Memorandum, and any amendment or supplement thereto, in connection with
the offer and sale of the Securities by the Initial Purchasers. Unless stated to
the contrary, any references herein to the terms "amend", "amendment" or
"supplement" with respect to the Final Memorandum shall be deemed to refer to
and include any information filed under the Exchange Act subsequent to the
Execution Time which is incorporated by reference therein.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to each Initial Purchaser as set forth below in this Section 1 (it being
understood that the use of the term "Person" in this Section 1 shall be deemed
to exclude the Initial Purchasers and their respective Affiliates, as well as
any Person acting on their behalf at their direction).
(a) The Preliminary Memorandum, at the date thereof, did not
contain any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. At the Execution Time, on the
Closing Date (as defined below) and on any settlement date, the Final Memorandum
did not, and will not (and any amendment or supplement thereto, at the date
thereof, at the Closing Date and on any settlement date, will not), contain any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that the Company makes no
representation or warranty as to the information contained in or omitted from
the Preliminary Memorandum or the Final Memorandum, or any amendment or
supplement thereto, in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Initial Purchasers
through the Representatives specifically for inclusion therein.
(b) Neither the Company, nor any of its Affiliates, nor any
Person acting on its or their behalf has, directly or indirectly, made offers or
sales of any security, or solicited offers to buy any security, under
circumstances that would require the registration of the Securities under the
Act.
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(c) Neither the Company, nor any of its Affiliates, nor any
Person acting on its or their behalf has engaged in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with any offer or sale of the Securities in the United States.
(d) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(e) Neither the Company, nor any of its Affiliates, nor any
Person acting on its or their behalf has engaged in any directed selling efforts
(within the meaning of Regulation S) with respect to the Securities, and each of
them has complied with the offering restrictions requirement of Regulation S.
(f) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Final Memorandum will not be, an "investment company" within
the meaning of the Investment Company Act, without taking account of any
exemption arising out of the number of holders of the Company's securities.
(g) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
(h) The Company has not paid or agreed to pay to any Person
any compensation for soliciting another to purchase any of the Securities
(except as contemplated by this Agreement).
(i) The Company has not taken, directly or indirectly, any
action designed to cause or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(j) The information, if any, provided by the Company pursuant
to Section 5(h) hereof will not, at the date thereof, contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(k) Each of the Company and its Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction in which it is chartered or organized with full
corporate power and authority to own or lease, as the case may be, and to
operate its properties and conduct its business as described in the Final
Memorandum, and is duly qualified to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction which requires such
qualification, except where the failure to so exist or qualify would not have a
material adverse effect on the condition (financial or otherwise),
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prospects, earnings, business or properties of the Company and its Subsidiaries,
taken as a whole (a "Material Adverse Effect").
(l) All the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are fully paid
and nonassessable, and, except as otherwise set forth in the Final Memorandum,
all outstanding shares of capital stock of the Subsidiaries are owned by the
Company either directly or through wholly owned Subsidiaries free and clear of
any perfected security interest or any other security interests, claims, liens
or encumbrances.
(m) the Company's authorized equity capitalization is as set
forth in the Final Memorandum.
(n) The statements in the Final Memorandum under the headings
"Description of the Notes" and "Exchange Offer; Registration Rights," and under
the heading "Risk Factors" describing certain legal proceedings affecting the
Company, fairly summarize the matters therein described.
(o) This Agreement has been duly authorized, executed and
delivered by the Company; the Indenture has been duly authorized and, assuming
due authorization, execution and delivery thereof by the Trustee, when executed
and delivered by the Company, will constitute a legal, valid, binding instrument
enforceable against the Company in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time to time
in effect and to general principles of equity, and subject, as to the
enforcement of rights of indemnity and contribution, to applicable federal and
state securities laws and principles of public policy); the Securities have been
duly authorized, and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Initial
Purchasers, will have been duly executed and delivered by the Company and will
constitute the legal, valid and binding obligations of the Company entitled to
the benefits of the Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, and subject, as to the enforcement of rights of indemnity and
contribution, to applicable federal and state securities laws and principles of
public policy); and the Registration Rights Agreement has been duly authorized
and, when executed and delivered by the Company, will constitute the legal,
valid, binding and enforceable instrument of the Company (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors' rights generally from time to time
in effect and to general principles of equity, and subject, as to the
enforcement of rights of indemnity and contribution, to applicable federal and
state securities laws and principles of public policy).
(p) No consent, approval, authorization, filing with or order
of any court or
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governmental agency or body is required to be obtained or filed, as applicable,
by the Company or any Subsidiary in connection with the transactions
contemplated herein or in the Indenture or the Registration Rights Agreement,
except such as will be obtained under the Act and the Trust Indenture Act and
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the Initial
Purchasers in the manner contemplated herein and in the Final Memorandum and the
Registration Rights Agreement.
(q) Neither the execution and delivery of the Indenture, this
Agreement or the Registration Rights Agreement, the issue and sale of the
Securities, nor the consummation of any other of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof or thereof will
conflict with, result in a breach or violation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
Subsidiaries pursuant to (i) the charter or by-laws of the Company or any of its
Subsidiaries; (ii) the terms of any indenture, contract, lease, mortgage, deed
of trust, note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company or any of its
Subsidiaries is a party or bound or to which its or their property is subject,
other than conflicts, breaches, violations or liens that, individually or in the
aggregate, would not have a Material Adverse Effect; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the Company or any of
its Subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the
Company or any of its Subsidiaries or any of its or their properties, other than
violations that, individually or in the aggregate, would not have a Material
Adverse Effect.
(r) (i) The selected financial data set forth under the
captions "Offering Memorandum Summary--Summary Financial Information" and
"Selected Financial Data" in the Final Memorandum fairly present, on the basis
stated in the Final Memorandum, the information included therein; (ii) the pro
forma financial statements included in the Final Memorandum include assumptions
that provide a reasonable basis for presenting the significant effects directly
attributable to the transactions and events described therein, the related pro
forma adjustments give appropriate effect to those assumptions, and the pro
forma adjustments reflect the proper application of those adjustments to the
historical financial statement amounts in the pro forma financial statements
included in the Final Memorandum; (iii) the pro forma financial statements
included in the Final Memorandum comply as to form in all material respects with
the applicable accounting requirements of Regulation S-X under the Act; and (iv)
the pro forma adjustments have been properly applied to the historical amounts
in the compilation of those statements.
(s) Except as set forth in or contemplated in the Final
Memorandum, no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
Subsidiaries or its or their property is pending or, to the best knowledge of
the Company, threatened that (i) could reasonably be expected to
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have a material adverse effect on the performance of this Agreement, the
Indenture or the Registration Rights Agreement, or the consummation of any of
the transactions contemplated hereby or thereby; or (ii) could reasonably be
expected to have a Material Adverse Effect, whether or not arising from
transactions in the ordinary course of business.
(t) Each of the Company and each of its Subsidiaries owns or
leases all such properties as are necessary to the conduct of its operations as
presently conducted.
(u) Neither the Company nor any Subsidiary is in violation or
default of (i) any provision of its charter or bylaws; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject, other than
violations or defaults that, individually or in the aggregate, would not have a
Material Adverse Effect; or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or such Subsidiary or any
of its properties, as applicable, other than violations or defaults that,
individually or in the aggregate, would not have a Material Adverse Effect.
(v) Each of Ernst & Young LLP, the accountants who have
certified certain financial statements of the Company and its consolidated
subsidiaries, and Deloitte & Touche LLP, the accountants who have certified
certain financial statements of Penske Motorsports, Inc. ("Penske") and its
consolidated subsidiaries, are independent public accountants with respect to
the Company within the meaning of the Act and the applicable published rules and
regulations thereunder.
(w) There are no stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in connection with
the execution and delivery of this Agreement or the issuance or sale by the
Company of the Securities.
(x) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not have a
Material Adverse Effect), whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or as would not have a Material Adverse Effect, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated in the Final Memorandum.
(y) No labor problem or dispute with the employees of the
Company or any of
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its Subsidiaries exists or, to the best knowledge of the Company, is threatened
or imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its Subsidiaries' principal
suppliers, contractors or customers, that could have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Final Memorandum.
(z) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in which they
are engaged; all policies of insurance and fidelity or surety bonds insuring the
Company or any of its Subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the Company and
its Subsidiaries are in compliance with the terms of such policies and
instruments in all material respects; and there are no claims by the Company or
any of its Subsidiaries under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause, other than claims that, individually or in the aggregate, if so
denied, would not have a Material Adverse Effect; neither the Company nor any
such Subsidiary has been refused any insurance coverage sought or applied for;
and neither the Company nor any such Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a Material
Adverse Effect, except as set forth in or contemplated in the Final Memorandum.
(aa) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary's property or assets to the Company or any
other subsidiary of the Company, except as described in or contemplated by the
Final Memorandum.
(bb) The Company and its Subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, except where the failure to possess any of the foregoing
would not have a Material Adverse Effect, and neither the Company nor any such
Subsidiary has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect, except as set forth in or contemplated in
the Final Memorandum.
(cc) The Company and each of its Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
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accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(dd) The Company and its Subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"); (ii) have received and are in compliance
with all permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses; and (iii) have not
received notice of any actual or potential liability for the investigation or
remediation of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in the Final
Memorandum; and, except as set forth in the Final Memorandum, neither the
Company nor any of the Subsidiaries has been named as a "potentially responsible
party" under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(ee) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties); on the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not, singly or in the aggregate, have a Material Adverse Effect, except as
set forth in or contemplated in the Final Memorandum.
(ff) Each of the Company and its Subsidiaries has fulfilled
its obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the regulations and published interpretations thereunder with
respect to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company and its
Subsidiaries are eligible to participate and each such plan is in compliance in
all material respects with the presently applicable provisions of ERISA and such
regulations and published interpretations; the Company and its Subsidiaries have
not incurred any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or to any such
plan under Title IV of ERISA.
(gg) The Company and its Subsidiaries have implemented a
comprehensive,
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detailed program to analyze and address the risk that the computer hardware and
software used by them may be unable to recognize and properly execute
date-sensitive functions involving certain dates prior to and any dates after
December 31, 1999 (the "Year 2000 Problem"), and have determined that such risk
will be remedied on a timely basis without material expense and will not have a
material adverse effect upon the financial condition and results of operations
of the Company and its Subsidiaries, taken as a whole; and the Company believes,
after due inquiry, that each material supplier, vendor, customer or financial
service organization used or serviced by the Company and its Subsidiaries has
remedied or will remedy on a timely basis the Year 2000 Problem, except to the
extent that a failure to remedy by any such supplier, vendor, customer or
financial service organization would not have a Material Adverse Effect. The
Company is in compliance with the Commission's staff legal bulletin No. 5 dated
January 12, 1998 related to Year 2000 compliance.
(hh) The Company and its Subsidiaries own or possess all
patent, trademarks, trademark registration, service marks, service xxxx
registrations, trade names, copyrights, licenses, inventions, trade secrets and
rights described in the Final Memorandum as being owned by them, or any of them,
or necessary for the conduct of their respective businesses, and the Company is
not aware of any claim to the contrary or any challenge by any other Person to
the rights of the Company or any of its Subsidiaries with respect to the
foregoing.
(ii) The Company has complied with all provisions of Florida
Statutes 517.075, relating to issuers doing business with Cuba.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Initial
Purchaser.
2. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company, at a purchase price of
99.245% of the principal amount thereof, the principal amount of Securities set
forth opposite such Initial Purchaser's name in Schedule I hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities
shall be made at 10:00 A.M., New York City time, on October 6, 1999, or at such
time on such later date (not later than October 15, 1999) as the Representatives
shall designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Initial Purchasers against payment by
the several Initial Purchasers through the Representatives of the purchase price
thereof to or upon the order of the
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Company by wire transfer payable in same-day funds to the account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. OFFERING BY INITIAL PURCHASERS. Each Initial Purchaser, severally
and not jointly, represents and warrants to and agrees with the Company that:
(a) It has not offered or sold, and will not offer or sell,
any Securities except (i) to those it reasonably believes to be qualified
institutional buyers (as defined in Rule 144A under the Act) and that, in
connection with each such sale, it has taken or will take reasonable steps to
ensure that the purchaser of such Securities is aware that such sale is being
made in reliance on Rule 144A; (ii) to other institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D) who
provide to it and to the Company a letter in the form of Exhibit A hereto; or
(iii) in accordance with the restrictions set forth in Exhibit B hereto.
(b) Neither it nor any Person acting on its behalf has made or
will make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States or under circumstances that would require
registration of the Securities under the Act.
5. AGREEMENTS. The Company agrees with each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to
counsel for the Initial Purchasers, without charge, during the period referred
to in paragraph (c) below, as many copies of the Final Memorandum and any
amendments and supplements thereto as it may reasonably request.
(b) The Company will not amend or supplement the Final
Memorandum, other than by filing documents under the Exchange Act that are
incorporated by reference therein, without the prior written consent of the
Representatives; PROVIDED, HOWEVER, that, prior to the completion of the
distribution of the Securities by the Initial Purchasers (as determined by the
Representatives), the Company will not file any document under the Exchange Act
that is incorporated by reference in the Final Memorandum unless, prior to such
proposed filing, the Company has furnished the Representatives with a copy of
such document for their review and the Representatives have not reasonably
objected to the filing of such document. The Company will promptly advise the
Representatives when any document filed under the Exchange Act that is
incorporated by reference in the Final Memorandum shall have been filed with the
Commission.
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the Representatives), any
event occurs as a result of which
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the Final Memorandum, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it should be necessary to amend or supplement
the Final Memorandum to comply with applicable law, the Company promptly (i)
will notify the Representatives of any such event; (ii) subject to the
requirements of paragraph (b) of this Section 5, will prepare an amendment or
supplement that will correct such statement or omission or effect such
compliance; and (iii) will supply any supplemented or amended Final Memorandum
to the several Initial Purchasers and counsel for the Initial Purchasers without
charge in such quantities as you may reasonably request.
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers under the
laws of such jurisdictions as the Representatives may designate and will
maintain such qualifications in effect so long as required for the sale of the
Securities; PROVIDED that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject. The Company will promptly advise the
Representatives of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) The Company will not, and will not permit any of its
Affiliates to, resell any Securities that have been acquired by any of them.
(f) Neither the Company, nor any of its Affiliates, nor any
Person acting on its or their behalf at its or their direction will, directly or
indirectly, make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of the
Securities under the Act.
(g) Neither the Company, nor any of its Affiliates, nor any
Person acting on its or their behalf at its or their direction will engage in
any form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the Securities in the
United States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, the Company
will, during any period in which it is not subject to and in compliance with
Section 13 or 15(d) of the Exchange Act or it is not exempt from such reporting
requirements pursuant to and in compliance with Rule 12g3-2(b) under the
Exchange Act, provide to each holder of such restricted securities and to each
prospective purchaser (as designated by such holder) of such restricted
securities, upon the request of such holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the Act. This
covenant is intended to be for the benefit of the holders, and the prospective
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purchasers designated by such holders, from time to time of such restricted
securities.
(i) Neither the Company, nor any of its Affiliates, nor any
Person acting on its or their behalf at its or their discretion will engage in
any directed selling efforts (within the meaning of Regulation S) with respect
to the Securities, and each of them will comply with the offering restrictions
requirement of Regulation S.
(j) The Company will cooperate with the Representatives and
use its best efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(k) The Company will not for a period of 7 days following the
Execution Time, without the prior written consent of Xxxxxxx Xxxxx Xxxxxx,
offer, sell or contract to sell, or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition
due to cash settlement or otherwise) by the Company or any Affiliate of the
Company or any Person in privity with the Company or any Affiliate of the
Company), directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the Securities).
(l) The Company will not take, directly or indirectly, any
action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(m) In connection with any disposition of Securities pursuant
to a transaction made in compliance with paragraph 6(a), paragraph 6(d) or
paragraph 6(f) of Exhibit A, the Company will reissue certificates evidencing
such Securities without the legend referred to in paragraph 5 of Exhibit A
(provided, in the case of a transaction made in compliance with paragraph 6(f)
of Exhibit A, that the legal opinion referred to therein so permits).
(n) The Company agrees to pay the costs and expenses relating
to the following matters: (i) the preparation of the Indenture and the
Registration Rights Agreement, the issuance of the Securities and the fees of
the Trustee; (ii) the preparation, printing or reproduction of the Preliminary
Memorandum and Final Memorandum and each amendment or supplement to either of
them; (iii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of the
Preliminary Memorandum and Final Memorandum, and all amendments or supplements
to either of them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iv) the preparation,
printing, authentication, issuance and delivery of certificates for the
Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Securities; (v) the printing (or reproduction)
and delivery of this Agreement, any blue
-12-
sky memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (vi) any
registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of one counsel for the Initial Purchasers relating
to such registration and qualification); (vii) admitting the Securities for
trading in the PORTAL Market; (viii) the transportation and other expenses
incurred by or on behalf of Company representatives (which shall not include the
Representatives or the Initial Purchasers) in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; and (x) all other costs and expenses incident
to the performance by the Company of its obligations hereunder.
6. CONDITIONS TO THE OBLIGATIONS OF THE INITIAL PURCHASERS. The
obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company contained herein at the Execution Time, the Closing Date and any
settlement date pursuant to Section 3 hereof, to the accuracy of the statements
of the Company made in any certificates pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Company shall have requested and caused Xxxxxxxxx
Traurig, P.A., counsel for the Company, to furnish to the Representatives its
opinion, dated the Closing Date and addressed to the Representatives, to the
effect that:
(i) the Company and each of its Subsidiaries
(individually, a "Subsidiary" and collectively, the
"Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized, with
full corporate power and authority to own or lease, as the
case may be, and to operate its properties and conduct its
business as described in the Final Memorandum, and, to the
knowledge of such counsel, is duly qualified to do business as
a foreign corporation and is in good standing under the laws
of each jurisdiction which requires such qualification, except
where the failure so to qualify would not have, individually
or in the aggregate, a Material Adverse Effect;
(ii) all the outstanding shares of capital stock of
the Company and each Subsidiary have been duly and validly
authorized and issued and are fully paid and nonassessable,
and, except as otherwise set forth in the Final Memorandum,
all outstanding shares of capital stock of the Subsidiaries
are owned by the Company either directly or through wholly
owned Subsidiaries, to the knowledge of such counsel, free and
clear of any security interest and, to the knowledge of such
counsel, after due inquiry, any other security interests,
claims, liens or
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encumbrances;
(iii) the Company's authorized equity capitalization
is as set forth in the Final Memorandum;
(iv) the Indenture has been duly authorized, executed
and delivered, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with
its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, and
subject, as to the enforcement of rights of indemnity or
contribution, to applicable federal or state securities laws
or principles of public policy); the Securities have been duly
and validly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers under this
Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, and
subject, as to the enforcement of rights of indemnity or
contribution, to applicable federal or state securities laws
or principles of public policy); the Registration Rights
Agreement has been duly authorized, executed and delivered and
constitutes the legal, valid, binding and enforceable
instrument of the Company (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general
principles of equity, and subject, as to the enforcement of
rights of indemnity or contribution, to applicable federal or
state securities laws or principles of public policy); and the
statements set forth under the heading "Description of the
Notes" and "Exchange Offer/ Registration Rights" in the Final
Memorandum, insofar as such statements purport to summarize
certain provisions of the Securities, the Indenture and the
Registration Rights Agreement, provide a fair summary of such
provisions;
(v) to the knowledge of such counsel, there is no
pending or threatened action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its Subsidiaries or
its or their property that (A) is not adequately disclosed in
the Final Memorandum, except in each case for such proceedings
that, if the subject of an unfavorable decision, ruling or
finding would not singly or in the aggregate, result in a
Material Adverse Effect, or (B) challenges any of the
trademarks or service marks of the Company or its Subsidiaries
described in the Final
-14-
Memorandum;
(vi) such counsel has no reason to believe that at
the Execution Time and on the Closing Date the Final
Memorandum contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (in
each case, other than the financial statements and other
financial information and statistical data contained therein,
as to which such counsel need express no opinion);
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) no consent, approval, authorization, filing
with or order of any court or governmental agency or body is
required to be obtained or filed, as applicable, by the
Company or any Subsidiary in connection with the transactions
contemplated herein or in the Indenture and the Registration
Rights Agreement, except such as will be obtained under the
Act and the Trust Indenture Act and such as may be required
under the blue sky or securities laws of any jurisdiction in
connection with the purchase and sale of the Securities by the
Initial Purchasers in the manner contemplated in this
Agreement and the Final Memorandum and the Registration Rights
Agreement and such other approvals (specified in such opinion)
as have been obtained (it being understood that such counsel
need not express any opinion regarding blue sky or state
securities laws);
(ix) neither the execution and delivery of the
Indenture, this Agreement or the Registration Rights
Agreement, the issue and sale of the Securities, nor the
consummation of any other of the transactions herein or
therein contemplated, nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach or violation
of, or imposition of any lien, charge or encumbrance upon any
property or asset of the Company or its Subsidiaries pursuant
to, (i) the charter or by-laws of the Company or its
Subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement
or other agreement, obligation, condition, covenant or
instrument to which, to the knowledge of such counsel, the
Company or any of its Subsidiaries is a party or bound or to
which its respective property is subject, which breach,
violation or imposition, individually or in the aggregate,
would have a Material Adverse Effect; or (iii) any statute,
law, rule, regulation (assuming compliance with applicable
blue sky and state securities laws), judgment, order or decree
applicable to the Company or any of its Subsidiaries of any
court, regulatory body, administrative agency, governmental
body, arbitrator or other authority
-15-
having jurisdiction over the Company, any of its Subsidiaries
or any of their respective properties, which breach, violation
or imposition, individually or in the aggregate, would have a
Material Adverse Effect;
(x) assuming the accuracy of the representations and
warranties and compliance with the agreements contained
herein, no registration of the Securities under the Act, and
no qualification of an indenture under the Trust Indenture
Act, are required for the offer and sale by the Initial
Purchasers of the Securities in the manner contemplated by
this Agreement; and
(xi) the Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Final Memorandum,
will not be an "investment company" as defined in the
Investment Company Act without taking account of any exemption
arising out of the number of holders of the Company's
securities.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
jurisdiction of incorporation of the Company, the State of New York or the
Federal laws of the United States, to the extent they deem proper and specified
in such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Initial
Purchasers; and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
References to the Final Memorandum in this Section 6(a) include any amendment or
supplement thereto at the Closing Date.
(b) The Representatives shall have received from Akerman,
Senterfitt & Xxxxxx, P.A., counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Securities, the Indenture, the
Registration Rights Agreement, the Final Memorandum (as amended or supplemented
at the Closing Date) and other related matters as the Representatives may
reasonably require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to pass
upon such matters.
(c) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Final Memorandum, any amendment or supplement to the Final
Memorandum and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct in all material
respects on and as of the Closing Date with the same effect as
if made on the Closing Date, and the Company has
-16-
complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included in the Final Memorandum, there has been no
material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company and its Subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business,
except as set forth in or contemplated by the Final
Memorandum.
(d) At the Execution Time and at the Closing Date, the Company
shall have requested and caused Ernst & Young LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time and as of
the Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the applicable rules and regulations thereunder, that
they have performed a review of the unaudited interim financial information of
the Company for the six-month period ended May 31, 1999 and as at May 31, 1999,
and stating in effect that:
(i) in their opinion the pro forma financial
statements included or incorporated in the Final Memorandum
and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations
thereunder;
(ii) on the basis of a reading of the latest
unaudited financial statements made available by the Company
and its subsidiaries; their limited review in accordance with
the standards established under Statement on Auditing
Standards No. 71, of the unaudited interim financial
information for the six-month period ended May 31, 1999, and
as at May 31, 1999, as indicated in their report dated October
1, 1999; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
stockholders, directors and any committees of the Company and
the Subsidiaries; and inquiries of certain officials of the
Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to November 30, 1998, nothing came to
their attention which caused them to believe that:
(A) any unaudited financial statements
included or incorporated in the Final Memorandum do
not comply in form in all material respects with
applicable accounting requirements and with the
published rules and regulations of the Commission
with respect to financial statements
-17-
included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited financial statements included or incorporated
in the Final Memorandum; or
(B) with respect to the period subsequent to
May 31, 1999, there were any changes, at a specified
date not more than five days prior to the date of the
letter, in the long-term debt of the Company and its
subsidiaries or capital stock of the Company or
decreases in the consolidated net current assets or
shareholders' equity of the Company and its
subsidiaries as compared with the amounts shown on
the May 31, 1999 unaudited pro-forma consolidated
balance sheet included or incorporated in the Final
Memorandum, or for the period from June 1, 1999 to
such specified date there were any decreases, as
compared with the corresponding period in the
preceding year, in consolidated net sales or in the
total or per share amounts of net income of the
Company and its subsidiaries, except in all instances
for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an
explanation by the Company as to the significance
thereof unless said explanation is not deemed
necessary by the Representatives; or
(C) the information included under the
headings "Offering Memorandum Summary--Summary
Financial Information" and "Selected Financial Data"
is not in conformity with the disclosure requirements
of Regulation S-K;
(iii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of the
Company and its subsidiaries) set forth in the Final
Memorandum, including the information set forth under the
captions "Offering Memorandum Summary--Summary Financial
Information," "Capitalization," Selected Financial Data," "Pro
Forma Financial Data" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in
the Final Memorandum, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation;
(iv) on the basis of a reading of the unaudited pro
forma financial statements (the "pro forma financial
statements") included or incorporated in the
-18-
Final Memorandum; carrying out certain specified procedures;
inquiries of certain officials of the Company and Penske who
have responsibility for financial and accounting matters; and
proving the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of such
statements.
References to the Final Memorandum in this Section 6(d)
include any amendment or supplement thereto at the date of the applicable
letter.
(e) At the Execution Time and at the Closing Date, the Company
shall have requested and caused Deloitte & Touche LLP to furnish to the
Representatives letters, dated respectively as of the Execution Time and as of
the Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the Act
and the Exchange Act and the applicable rules and regulations thereunder, that
they have performed a review of the unaudited interim financial information of
Penske for the six-month period ended June 30, 1999 and as at June 30, 1999, and
stating in effect that:
(i) in their opinion the pro forma financial
statements included or incorporated in the Final Memorandum
and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the
Exchange Act and the related published rules and regulations
thereunder;
(ii) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature
(which is limited to accounting, financial or statistical
information derived from the general accounting records of
Penske and its subsidiaries) set forth in the Final
Memorandum, including the information set forth under the
captions "Offering Memorandum Summary--Summary Financial
Information," "Capitalization," Selected Financial Data," "Pro
Forma Financial Data" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in
the Final Memorandum, agrees with the accounting records of
the Company and its subsidiaries, excluding any questions of
legal interpretation;
(iii) on the basis of a reading of the unaudited pro
forma financial statements (the "pro forma financial
statements") included or incorporated in the Final Memorandum;
carrying out certain specified procedures; inquiries of
certain officials of the Company and Penske who have
responsibility for financial and
-19-
accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical
amounts in the pro forma financial statements, nothing came to
their attention which caused them to believe that the pro
forma financial statements do not comply in form in all
material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Final Memorandum in this Section 6(e)
include any amendment or supplement thereto at the date of the applicable
letter.
(f) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been (i) any change or
decrease specified in the letter or letters referred to in paragraph (d) of this
Section 6; or (ii) any change, or any development involving a prospective
change, in or affecting the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its Subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Final Memorandum
(exclusive of any amendment or supplement thereto) the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the sole judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to market the Securities as contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(g) Subsequent to the Execution Time, there shall not have
been any decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating that does
not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
-20-
The documents required to be delivered by this Section 6 will
be delivered at the office of counsel for the Company in New York, New York, on
the Closing Date.
7. REIMBURSEMENT OF EXPENSES. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Initial Purchasers set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Initial Purchasers, the Company will reimburse the Initial Purchasers
severally through Xxxxxxx Xxxxx Xxxxxx on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser, the directors, officers, employees and agents of each Initial
Purchaser and each Person who controls any Initial Purchaser within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Memorandum, the Final Memorandum (or in any
supplement or amendment thereto) or any information provided by the Company to
any holder or prospective purchaser of Securities pursuant to Section 5(h), or
in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Preliminary Memorandum or the Final Memorandum, or in any amendment thereof
or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Initial Purchasers
through the Representatives specifically for inclusion therein. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers, and each Person who
-21-
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each Initial
Purchaser, but only with reference to written information relating to such
Initial Purchaser furnished to the Company by or on behalf of such Initial
Purchaser through the Representatives specifically for inclusion in the
Preliminary Memorandum or the Final Memorandum (or in any amendment or
supplement thereto). This indemnity agreement will be in addition to any
liability which any Initial Purchaser may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the cover
page regarding the delivery of the Securities and, under the heading "Plan of
Distribution", (i) the sentences related to concessions and reallowances; (ii)
the paragraph related to the delivery of the Securities; and (iii) the paragraph
related to stabilization, syndicate covering transactions and penalty bids in
the Preliminary Memorandum and the Final Memorandum, constitute the only
information furnished in writing by or on behalf of the Initial Purchasers for
inclusion in the Preliminary Memorandum or the Final Memorandum (or in any
amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate
-22-
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Initial Purchasers agree
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Initial Purchasers may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and by the Initial Purchasers on the other from the offering of the
Securities; PROVIDED, HOWEVER, that in no case shall any Initial Purchaser
(except as may be provided in any agreement among the Initial Purchasers
relating to the offering of the Securities) be responsible for any amount in
excess of the purchase discount or commission applicable to the Securities
purchased by such Initial Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Initial Purchasers shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Initial Purchasers on the other in connection
with the statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions in each case set forth on the cover of the Final Memorandum.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company on the one hand or the Initial Purchasers on the other, the intent of
the parties and their relative knowledge, 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 contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each Person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each Person who controls the Company within the
-23-
meaning of either the Act or the Exchange Act and each officer and director of
the Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. DEFAULT BY AN INITIAL PURCHASER. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Initial Purchasers)
the Securities which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the
aggregate amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Initial
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Initial
Purchasers do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Initial Purchaser or the Company. In the
event of a default by any Initial Purchaser as set forth in this Section 9, the
Closing Date shall be postponed for such period, not exceeding five Business
Days, as the Representatives shall determine in order that the required changes
in the Final Memorandum or in any other documents or arrangements may be
effected. Nothing contained in this Agreement shall relieve any defaulting
Initial Purchaser of its liability, if any, to the Company or any nondefaulting
Initial Purchaser for damages occasioned by its default hereunder.
10. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the Nasdaq National Market, or trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or limited or minimum prices shall have been established on such
Exchange or the Nasdaq National Market; (ii) a banking moratorium shall have
been declared either by Federal or New York State authorities; or (iii) there
shall have occurred any outbreak or escalation of hostilities, declaration by
the United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Securities as contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
11. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and
-24-
of the Initial Purchasers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of the Initial Purchasers or the Company or any of the officers,
directors or controlling Persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof shall survive the termination or cancellation of this Agreement.
12. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, (i) if sent to the Representatives, will be
mailed, delivered or telefaxed to Xxxxxxx Xxxxx Barney at 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, telecopy: (000) 000-0000, Attention: General Counsel,
with a copy to Akerman, Senterfitt & Xxxxxx, P.A., 000 Xxxx Xxx Xxxx Xxxxxxxxx,
Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000-0000, telecopy: (000) 000-0000,
Attention: Xxxx X. Xxxxxx, Esq.; or (ii) if sent to the Company, will be mailed,
delivered or telefaxed to the Company at 0000 X. Xxxxxxxxxxxxx Xxxxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000, telecopy: (000) 000-0000, Attention:
Xxxxxxx X. France, Chairman of the Board and Chief Executive Officer, with a
copy to Xxxxxxxxx Traurig, P.A., 0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxx 00000,
telecopy: (000) 000-0000, Attention: Xxxxx X. Xxxxxxxxxx, Esq.
13. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling Persons referred to in Section 8 hereof, and,
except as expressly set forth in Section 5(h) hereof, no other Person will have
any right or obligation hereunder.
14. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed within the State of New York.
15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. HEADINGS. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or
-25-
obligated by law to close in The City of New York.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Person" shall mean any individual, corporation, company
(including any limited liability company), association, partnership,
joint venture, trust, unincorporated organization, government or any
agency or political subdivision thereof or any other entity.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"Subsidiary" or "Subsidiaries" shall have the meaning ascribed
to the term "Restricted Subsidiary" in the Indenture, but shall only
include any "Restricted Subsidiary" in existence as of the Execution
Time.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
promulgated thereunder.
[SIGNATURES ON FOLLOWING PAGE]
-26-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Initial Purchasers.
Very truly yours,
INTERNATIONAL SPEEDWAY
CORPORATION
By: /S/ XXXXX X. FRANCE
------------------------------
Name: XXXXX X. FRANCE
-----------------------
Title: PRESIDENT
----------------------
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
XXXXXXX XXXXX BARNEY INC.
FIRST UNION SECURITIES, INC.
By: XXXXXXX XXXXX XXXXXX INC.
By: /S/ XXXXXXX X. XXXXXXXX
---------------------------------
Name: XXXXXXX X. XXXXXXXX
-------------------------
Title: MANAGING DIRECTOR
------------------------
-27-
SCHEDULE I
PRINCIPAL
AMOUNT OF NOTES
INITIAL PURCHASERS TO BE PURCHASED
------------------ ---------------
Xxxxxxx Xxxxx Barney Inc. .......................................$112,500,000
First Union Securities, Inc......................................$ 78,750,000
Banc One Capital Markets, Inc....................................$ 11,250,000
Xxxxxxx Xxxxx & Associates, Inc..................................$ 11,250,000
SunTrust Equitable Securities Corporation........................$ 11,250,000
Total ...........................................................$225,000,000
-28-
EXHIBIT A
Non-Distribution Letter for Institutional Accredited Investors
________________, 1999
Xxxxxxx Xxxxx Barney
First Union Securities, Inc.
As Representatives of the
Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
International Speedway Corporation
0000 Xxxx Xxxxxxxxxxxxx Xxxxxxxx, Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Re: Purchase of $________ principal amount
of 7_% Senior Notes Due 2004 (the "Securities")
of International Speedway Corporation (the "Company")(1)
Ladies and Gentlemen:
In connection with our purchase of the Securities we confirm that:
1. We understand that the Securities are not being and will not be
registered under the Securities Act of 1933, as amended (the "Act"), and are
being sold to us in a transaction that is exempt from the registration
requirements of the Act.
2. We acknowledge that (a) neither the Company, nor the Initial
Purchasers (as defined in the Offering Memorandum dated October 1, 1999 relating
to the Securities (the "Final
--------
(1) Each U.S. purchaser, or account for which each U.S. purchaser is acting,
should purchase at least $250,000 of Securities.
A-1
Memorandum")) nor any person acting on behalf of the Company or the Initial
Purchasers has made any representation to us with respect to the Company or the
offer or sale of any Securities; and (b) any information we desire concerning
the Company and the Securities or any other matter relevant to our decision to
purchase the Securities (including a copy of the Final Memorandum) is or has
been made available to us.
3. We have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Securities, and we are (or any account for which we are purchasing under
paragraph 4 below is) an institutional "accredited investor" (within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Act) able to bear
the economic risk of investment in the Securities.
4. We are acquiring the Securities for our own account (or for accounts
as to which we exercise sole investment discretion and have authority to make,
and do make, the statements contained in this letter) and not with a view to any
distribution of the Securities, subject, nevertheless, to the understanding that
the disposition of our property will at all times be and remain within our
control.
5. We understand that (a) the Securities will be in registered form
only and that any certificates delivered to us in respect of the Securities will
bear a legend substantially to the following effect:
"These Securities have not been registered under the
Securities Act of 1933. Further offers or sales of these Securities are subject
to certain restrictions, as set forth in the Offering Memorandum dated October
1, 1999 relating to these Securities."
and (b) the Company has agreed to reissue such certificates
without the foregoing legend only in the event of a disposition of the
Securities in accordance with the provisions of paragraph 6 below (provided, in
the case of a disposition of the Securities in accordance with paragraph 6(f)
below, that the legal opinion referred to in such paragraph so permits), or at
our request at such time as we would be permitted to dispose of them in
accordance with paragraph 6(a) below.
6. We agree that in the event that at some future time we wish to
dispose of any of the Securities, we will not do so unless such disposition is
made in accordance with any applicable securities laws of any state of the
United States and:
(a) the Securities are sold in compliance with Rule 144(k)
under the Act; or
(b) the Securities are sold in compliance with Rule 144A under
the Act; or
(c) the Securities are sold in compliance with Rule 904 of
Regulation S under the Act; or
A-2
(d) the Securities are sold pursuant to an effective
registration statement under the Act; or
(e) the Securities are sold to the Company or an affiliate (as
defined in Rule 501(b) of Regulation D) of the Company; or
(f) the Securities are disposed of in any other transaction
that does not require registration under the Act, and we theretofore have
furnished to the Company or its designee an opinion of counsel experienced in
securities law matters to such effect or such other documentation as the Company
or its designee may reasonably request.
Very truly yours,
By:____________________________________
(Authorized Officer)
A-3
EXHIBIT B
SELLING RESTRICTIONS FOR OFFERS AND
SALES OUTSIDE THE UNITED STATES
(1) (a) The Securities have not been and will not be registered under
the Act and may not be offered or sold within the United States or to, or for
the account or benefit of, U.S. persons except in accordance with Regulation S
under the Act or pursuant to an exemption from the registration requirements of
the Act. Each Initial Purchaser represents and agrees that, except as otherwise
permitted by Section 4(a)(i) or (ii) of the Agreement to which this is an
exhibit, it has offered and sold the Securities, and will offer and sell the
Securities, (i) as part of their distribution at any time; and (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 of Regulation S under the Act.
Accordingly, each Initial Purchaser represents and agrees that neither it, nor
any of its Affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts with respect to the Securities,
and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that, at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(a)(i) or (ii) of the Agreement to which this is
an exhibit), it shall have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Securities from
it during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "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 and October 6,
1999, except in either case in accordance with Regulation S or
Rule 144A under the Act. Terms used above have the meanings
given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it
has not entered 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.
(c) Terms used in this section have the meanings given to them
by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it has not
offered or sold, and will not offer or sell, in the United Kingdom, by means of
any document, any Securities other than to persons whose ordinary business it is
to buy or sell shares or debentures, whether
B-1
as principal or as agent (except in circumstances which do not constitute an
offer to the public within the meaning of the Companies Xxx 0000 of Great
Britain); (ii) it has complied and will comply with all applicable provisions of
the Financial Services Xxx 0000 of the United Kingdom 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 9(3)
of the Financial Services Xxx 0000 (Investment Advertisements) (Exemptions)
Order 1996 or is a person to whom the document may otherwise lawfully be issued
or passed on.
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