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Exhibit 1.1
CENTRAL TRACTOR FARM & COUNTRY, INC.
___% SENIOR NOTES DUE 2007
UNDERWRITING AGREEMENT
March __, 1997
NationsBanc Capital Markets, Inc.
NationsBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Central Tractor Farm & Country, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to NationsBanc Capital Markets, Inc. (the
"Underwriter") $100.0 million principal amount of its ___% Senior Notes due 2007
(the "Securities"). The Securities are to be issued pursuant to the provisions
of an indenture dated as of March ___, 1997 (the "Indenture") between the
Company, as issuer, and Marine Midland Bank, as Trustee (the "Trustee").
SECTION 1. INTRODUCTION. The Securities are being issued and sold in
connection with the acquisition (the "Acquisition") of the Company by JWC
Acquisition I, Inc., a Delaware corporation ("JWCAC"), an indirect subsidiary of
▇.▇. Childs Equity Partners, L.P. ("Childs"), pursuant to a merger agreement,
dated November 27, 1996 (the "Merger Agreement") among the Company, JWCAC and
Childs. The Merger Agreement provides for (i) the purchase by JWCAC (the
"Initial Stock Purchase") of 1,048,214 shares of common stock, par value $.01
per share, of the Company ("Company Stock") owned by ▇▇▇▇▇▇ Capital Corporation
and its affiliates (collectively, the "Shareholder") at a price per share of
Company Stock of $14.00, (ii) following the expiration of all applicable
regulatory waiting periods, the purchase by Company (the "Additional Stock
Purchase") of (x) 5,783,515 shares of the Company Stock from the Shareholder at
a price per share of Company Stock of $14.00 and (y) warrants (the "Warrants")
to purchase 230,523 shares of Company Stock from the Shareholder at a price per
share of Company Stock of $14.00 (or approximately $10.40 per share net of the
exercise price), (iii) concurrently with the Additional Stock Purchase, the
retirement by the Company (the "Note Retirement") of the $16.0 million aggregate
principal amount 7% Convertible Subordinated Notes due 2002 (the "Convertible
Note") issued by the Company to the Shareholder at an aggregate price of $16.0
million, plus accrued interest, (iv) on January 2, 1997, the purchase by JWCAC
of 146,299 shares of Company Stock from certain members of senior management
(the "Management Stock Purchase" and, collectively with the Initial Stock
Purchase and the Additional Stock Purchase, the "Stock Purchase") of the Company
at a price per share of Company Stock of $14.00 and (v) on the Closing Date of
the Offering, the merger (the "Merger") of the Company and JWCAC, with the
Company surviving such Merger. Certain members of management of the Company have
agreed to exchange their equity securities in the Company (on the basis of
$14.00 per share) for equity securities in CT Holding, Inc., a Delaware
corporation ("Holding"), the parent corporation of JWCAC, in connection with the
consummation of the Merger. Pursuant to the Merger, each remaining share of
outstanding Company Stock will be converted into the right to receive $14.25.
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Approximately $14.7 million of funds have been used to consummate the
Initial Stock Purchase all of which has been provided through the issuance and
sale of common stock of Holding for cash, the proceeds of which were contributed
to the common equity of JWCAC (the "Initial Stock Purchase Financing").
Approximately $104.0 million in additional funds have been used to effect the
Additional Stock Purchase, the Management Stock Purchase and the Note
Retirement, to pay the costs and expenses related to the Additional Stock
Purchase and the Management Stock Purchase and to provide for ongoing debt
service after completion of the Additional Stock Purchase and the Management
Stock Purchase. Of such amount: (i) approximately $65.4 million has been
provided through the issuance and sale of equity of Holding of which (x)
approximately $55.4 million has been provided through the issuance and sale of
common stock of Holding (the net cash proceeds of which has been contributed the
common equity of JWCAC (the "Common Equity Financing"), and (y) approximately
$10.0 million has been provided through the issuance and sale for cash of
preferred stock of Holding (the "Preferred Equity Financing" and, collectively
with the Stock Purchase Financing and the Common Equity Financing, the "Equity
Financing"); and (ii) up to $38.0 million has been provided through revolving
loan facilities made available to the Company (such facilities being referred to
herein as the "New Credit Facility"). The Acquisition, the Stock Purchase, the
Note Retirement, the Merger, the Equity Financing and the New Credit Facility
are herein collectively referred to as the "Transaction."
The Merger Agreement and the documents entered into in connection therewith
including, without limitation, the agreements attached thereto as exhibits, are
herein collectively referred to as the "Merger Documents." This Agreement, the
Securities and the Indenture are herein collectively referred to as the
"Offering Documents." The Offering Documents, the New Credit Facility, the
Merger Documents and the documents pursuant to which the Equity Financing and
the Note Retirement have been and will be consummated are herein collectively
referred to as the "Transaction Documents." The time of the concurrent
consummation of the Merger and the Offering is referred to herein as the
"Effective Time."
The Company hereby agrees with the Underwriter as follows:
SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents and warrants to, and agrees with, the Underwriter that:
(a) It has prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-1 (No. 333-19613),
including a preliminary prospectus subject to completion, relating to the
Securities. The registration statement, as amended at the time it becomes
effective or, if a post-effective amendment is filed with respect thereto, as
amended by such post-effective amendment at the time of its effectiveness,
including in each case, financial statements and exhibits and the information
(if any) contained in a prospectus subsequently filed with the Commission
pursuant to Rule 424(b) under the Act and deemed to be a part of the
registration statement at the time of its effectiveness pursuant to Rule 430A
under the Act, is hereinafter referred to as the "Registration Statement;" and
the prospectus in the form first used to confirm sales of the Securities,
whether or not filed with the Commission pursuant to Rule 424(b) under the Act,
is hereinafter referred to as the "Prospectus."
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus was
filed with the Commission it (x)
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complied in all material respects with the requirements of the Act and (y)
did not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. When
the Registration Statement becomes effective and at all times subsequent
thereto up to the Closing Date (as defined herein), the Registration
Statement, the Prospectus and any amendments or supplements thereto, will
conform in all material respects with the requirements of the Act, and at
such effective time the Registration Statement will not include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and the Prospectus, as amended or supplemented at the Closing
Date, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
contained therein, in the light of the circumstances under which they were
made, not misleading; except that the foregoing does not apply to (i) that
part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of
1939, as amended (together with the rules and regulations thereunder, the
"1939 Act"), of the Trustee, and (ii) statements or omissions in the
Registration Statement or the Prospectus, as amended or supplemented if
applicable, based upon written information furnished to the Company by the
Underwriter specifically for use therein. When the Registration Statement
becomes effective, including at the date of any post-effective amendment,
at the date of the Prospectus and any amendment or supplement thereto (if
different) and at the Closing Date, the Indenture will have been qualified
under and will conform in all material respects to the requirements of the
1939 Act.
(c) Since the respective dates of the most recent financial statements
appearing in the Registration Statement and the Prospectus, except as
otherwise stated therein, (i) the Company has not and, at and as of the
Effective Time, will not have incurred any liabilities or obligations,
direct or contingent, or entered into or agreed to enter into any
transactions or contracts (written or oral) not in the ordinary course of
business which liabilities, obligations, transactions or contracts would,
individually or in the aggregate, be material to the condition, financial
or otherwise, earnings, affairs or business prospects of the Company, (ii)
the Company has not, and, at and as of the Effective Time, will not have
purchased any of its outstanding capital stock, nor declared, paid or
otherwise made any dividend or distribution of any kind on its capital
stock, except as otherwise set forth in the Registration Statement and the
Prospectus and (iii) there shall not have been any change in the capital
stock or long-term indebtedness of the Company, except for those changes in
capital stock and long-term indebtedness contemplated by the Transaction
Documents.
(d) The Company is and, after giving effect to the Transaction, will
be, duly incorporated, and validity existing as a corporation in good
standing under the laws of Delaware with corporate power and authority to
own, lease and operate its properties and conduct its businesses as
described in the Registration Statement; The Company is and, after giving
effect to the Transaction, will be, duly qualified as a foreign corporation
to transact business, and is, and, after giving effect to the Transaction
will be, in good standing in each jurisdiction in which either owns or
leases properties or in which the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified or
be in good standing would not (i) have a material adverse effect on the
assets, business, condition (financial or otherwise), results of operations
or prospects of the Company or (ii) materially and adversely affect the
offering of the Securities or any of the other transactions contemplated by
the Transaction Documents (any such event, a "Material Adverse Effect").
The Company has and at and as of the Effective Time, after giving effect to
the Transaction, no subsidiaries.
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(e) The Company has, and after giving effect to the Transaction, will
have the authorized, issued and outstanding capitalization set forth in the
Prospectus; all of the outstanding shares of capital stock of the Company
are and, after giving effect to the Transaction will be duly authorized and
validly issued, fully paid and nonassessable and not issued in violation of
any preemptive or similar rights.
(f) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of
capital stock of, or other ownership interest in, the Company, except as
otherwise disclosed in the Registration Statement. At and as of the
Effective Date, there will be no outstanding subscriptions, rights,
warrants options, calls, convertible securities, commitments of sale or
liens related to or entitling any person to purchase or otherwise to
acquire any shares of capital stock of, or other ownership interest in, the
Company except as otherwise disclosed in the Registration Statement.
(g) The Company is not, and after giving effect to the Transaction
will not be (i) in violation of its charter documents, (ii) in breach or
violation of any law, administrative regulation or administrative or court
decree or (iii) in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party or by which its respective properties may
be bound, other than with respect to clauses (ii) and (iii), breaches,
violations or defaults which would not have a Material Adverse Effect.
(h) No consent, approval, authorization or order of any court or
governmental authority or agency, or third party is required for the
performance of any of the Transaction Documents by the Company or the
consummation of the transactions contemplated by the Transaction Documents,
except such as may be required under state securities or Blue Sky laws. The
execution, delivery and performance by the Company of the Transaction
Documents and the consummation of the transactions contemplated thereby
will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company, pursuant to any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company is a party or by which it may be bound or
to which any of the property or assets of the Company is, or after giving
effect to the Transaction, will be subject, nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or
any law, rules, regulation or administrative or court decree.
(i) The Company possesses, and after giving effect to the Transaction
will possess adequate certificates, authorities, permits or other
authorizations (collectively, "Permits") including, without limitation,
under any applicable Environmental Laws (as defined herein), issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct its business as now or proposed to be conducted as set
forth in the Prospectus. The Company has, and after giving effect to the
Transaction will have fulfilled and performed all of its obligations with
respect to such Permits in all material respects. The Company has, and
after giving effect to the Transaction will not have received any notice or
proceedings relating to the revocation or modification of any such Permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
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(j) There are no legal or governmental proceedings involving or
affecting the Company or any of its properties or assets which are required
to be described in a prospectus pursuant to the Act that are not described
in the Prospectus, nor are there any material contracts or other documents
which are required to be described in a prospectus pursuant to the Act that
are not described in the Prospectus. There are no material contracts or
other documents which are required to be filed as exhibits to the
Registration Statement by the Act which have not been so filed. Except as
set forth in the Prospectus, there is not pending or, to the knowledge of
the Company threatened any action, suit or proceeding before or by any
court or governmental agency or body, domestic or foreign, to which after
the Company (both before and after giving effect to the Transaction) is a
party, which affects the Company or, after giving effect to the
Transaction, will effect the Company, which, if the subject of an
unfavorable decision, ruling or finding, would have a Material Adverse
Effect.
(k) The Company has, and after giving effect to the Transaction, will
have good and marketable title in fee simple to all real property and good
and marketable title to all personal property owned by it and necessary in
the conduct of its business in each case free and clear of all liens,
encumbrances and defects except (i) such as are referred to in the
Prospectus, (ii) sales of inventory in the ordinary course of business or
(iii) such as do not materially adversely affect the value of such property
to it, and do not materially interfere with the use made and proposed to be
made of such property by it. All leases, contracts and agreements to which
the Company is, and after giving effect to the Transaction, will be a party
or by which it is bound are valid and enforceable against it and are valid
and enforceable against the other party or parties thereto and are in full
force and effect with only such exceptions as would not, individually or in
the aggregate, have a Material Adverse Effect.
(l) The Company has, and after giving effect to the Transaction, will
own or possess adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights, know-how and other
intellectual property (collectively, "Trademarks") necessary to conduct the
business now or proposed to be operated by it as described in the
Prospectus, except as would not, individually or in the aggregate, have a
Material Adverse Effect; and the consummation of the transactions
contemplated hereby and by the Prospectus will not alter or impair any such
rights, except for such alterations or impairments as would not have a
Material Adverse Effect. The Company has not and, after giving effect to
the Transaction, will not have received any notice of infringement of or
conflict with (or know of any such infringement of or conflict with)
alleged rights of others with respect to any Trademarks (or questioning the
validity or effectiveness of any license or other agreement or instrument
relating thereto) which, if such alleged infringement or conflict were
sustained, would have a Material Adverse Effect; and to the best knowledge
of the Company, there is no valid basis for any such claim and the use of
such Trademarks by the Company does not infringe on the rights of any
person.
(m) The Company has, and after giving effect to the Transaction, will
have all the requisite corporate power and authority to executive, deliver
and perform its obligations under each of the Transaction Documents (other
than the Offering Documents); the Merger Agreement has been duly and
validly authorized, executed and delivered by the Company and, each of the
Transaction Documents and at and as of the Effective Time, will have been
duly and validly authorized, executed and delivered by the Company and will
constitute a valid and legally binding obligation of the Company
enforceable against the Company, in accordance with its terms; and the
Transaction has been duly authorized by the stockholders of the Company.
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(n) The Company has and, after giving effect to the Transaction, will
have, all requisite corporate power and authority to execute, deliver and
perform its obligations under the Offering Documents, as applicable, and to
authorize, issue, sell and deliver the Securities as provided herein and
therein.
(o) There exists as of the date hereof and will exist on the Closing
Date, after giving effect to the transactions contemplated by each of the
Transaction Documents, no event or condition which would constitute a
default or an event of default or other violation or breach of any
Transaction Document. Each of the representations and warranties of the
Company contained in each of the Transaction Documents (other than the
Offering Documents) are true and correct in all material respects. Each of
the Transaction Documents conforms to the description thereof in the
Registration Statement in all material respects.
(p) Except as disclosed in the Prospectus, and except as would not
individually or in the aggregate have a Material Adverse Effect, (w) the
Company is in compliance with all applicable Environmental Laws (as defined
below), (x) the Company has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with
their requirements, (y) there are no pending or, to the best knowledge of
the Company, threatened Environmental Claims (as defined below) against the
Company and (z) the Company does not have knowledge of any circumstances
with respect to any of its properties or operations that could reasonably
be anticipated to form the basis of an Environmental Claim against the
Company or any of its properties or operations and the business operations
relating thereto. For purposes of this Agreement, the following terms shall
have the following meanings: "Environmental Law" means, with respect to any
person, any federal, state, local or municipal statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any published
judicial or administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment binding on such person or
any of its subsidiaries, relating to the environment, health, safety or any
chemical, material or substance, exposure to which is prohibited, limited
or regulated by any such governmental authority. "Environmental Claims"
means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigations or proceedings relating in any way to any
Environmental Law.
(q) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on its business,
operations and properties of the Company, in the course of which it
identifies and evaluates associate 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 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.
(r) The Company has not and, after giving effect to the Transaction,
will not have violated any foreign, federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable foreign, federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case would singly or in
the aggregate, have a Material Adverse Effect.
(s) There is (i) no unfair labor practice complaint pending against
the Company or, to the best knowledge of the Company, threatened against
it, before the National Labor Relations
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Board or any state or local labor relations board, and no significant
grievance or more significant arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against the Company
or, to the best knowledge of the Company, threatened against it, and (ii)
no significant strike, labor dispute, slowdown or stoppage pending against
the Company or, to the best knowledge of the Company, threatened against
it.
(t) The Company carries and, after giving effect to the Transaction,
will carry reasonably adequate insurance (including self-insurance) in such
amounts and covering such risks as would be obtained by companies in the
same or similar businesses in the ordinary course for the conduct of its
business and the value of its properties.
(u) Ernst & Young LLP are independent public accountants of the
Company as required by the Act.
(v) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial position
of the Company and its former subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and
data set forth in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) is, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements, except as otherwise stated therein. The statistical and
market-related data (including, without limitation, the estimated cost
savings information) included in the Registration Statement and the
Prospectus are based on or derived from sources which the Company believes
to be reliable and accurate.
(w) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included in the Prospectus
(i) comply as to form in all material respects with the applicable
requirements of Regulation S-X promulgated under the Exchange Act, (ii)
have been prepared in accordance with the Commission's rules and guidelines
with respect to pro forma financial statements and (iii) have been properly
computed on the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma financial
information included in the Prospectus are reasonable in all material
respects and the adjustments used therein are appropriate in all material
respects to give effect to the transactions or circumstances referred to
therein.
(x) The Company is not, and after giving effect to the Transaction,
will not be an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
(y) No holder of any security of the Company has any right to require
registration of shares of common stock or any other security of the
Company. At and as of the Effective Date, no holder of any security of the
Company will have any right to require registration of shares of common
stock or any other security of the Company.
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(z) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(aa) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements that conform with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(bb) The Company has and, after giving effect to the Transaction, will
have filed all necessary federal, state and foreign income and franchise
tax returns required to be filed, other than those filings being contested
in good faith, and all material taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due pursuant to
such returns or pursuant to any assessment received by the Company have
been, and after giving effect to the Transaction, will be paid, other than
those being contested in good faith and for which adequate reserves have
been provided.
(cc) Except as stated in the Prospectus, the Company does not know of
any outstanding claims for services, either in the nature of a finder's
fee, financial advisory fee, origination fee or similar fee, with respect
to the transactions contemplated hereby.
(dd) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors generally
and subject to general principles of equity and except insofar as the
enforceability and the indemnity and contribution provisions contained in
this Agreement may be limited by federal or state securities laws and the
public policy underlying such laws.
(ee) The Indenture has been duly qualified under the 1939 Act and has
been duly authorized, and when executed and delivered by the Company, will
be a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting
the rights of creditors generally and subject to general principles of
equity.
(ff) The Securities have been duly authorized by the Company, and,
when executed and authenticated in accordance with the provisions of the
Indenture, will conform in all material respects to the description thereof
in the Prospectus and when delivered to and paid for by the Underwriter in
accordance with this Agreement, will be valid and binding obligations of
the Company, entitled to the benefits of the Indenture and will be
enforceable against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to
general principles of equity.
(gg) Neither the Company nor any agent thereof acting on the behalf of
its behalf has taken, and none of them will take, any action that might
cause the New Credit Facility, this
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Agreement or the issuance or sale of the Securities pursuant to the
terms of this Agreement to violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System.
(hh) Immediately after the consummation of the Transaction, the fair
value and present fair saleable value of the assets of the Company will
exceed the sum of its stated liabilities and identified contingent
liabilities; and the Company is not, nor will the Company after giving
effect to the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby be,
(i) left with unreasonably small capital with which to carry on its
business as it is proposed to be conducted, (ii) unable to pay its debts
(contingent or otherwise) as they mature or (iii) otherwise insolvent.
SECTION 3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF JWCAC. JWCAC
represents and warrants to, and agrees with, the several Underwriters that:
(a) JWCAC has been duly incorporated, and JWCAC is validity existing
as a corporation in good standing under the laws of Delaware.
(b) All of the outstanding shares of capital stock of JWCAC are duly
authorized and validly issued, fully paid and nonassessable and not issued
in violation of any preemptive or similar rights.
(c) This Agreement has been duly authorized, executed and delivered by
JWCAC. JWCAC has all the requisite corporate power and authority to
executive, deliver and perform its obligations under each of the
Transaction Documents to which it is a party; the Merger Agreement has been
duly and validly authorized, executed and delivered by JWCAC and, each of
the Transaction Documents to which it is a party will, as of the Closing
Date, have been duly and validly authorized, executed and delivered by
JWCAC and, each of the Transaction Documents to which JWCAC is a party
constitute or will, as of the Closing Date, constitute a valid and legally
binding obligation of JWCAC, enforceable against JWCAC in accordance with
its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity.
(d) No consent, approval, authorization or order of any court or
governmental authority or agency, or third party is required for the
performance of any of the Transaction Documents by JWCAC or the
consummation by JWCAC of the transactions contemplated by the Transaction
Documents, except those which have been obtained. The execution, delivery
and performance by JWCAC, to the extent it is a party thereto, of the
Transaction Documents and the consummation of the transactions contemplated
therein will not conflict with or constitute a breach of, or default under,
any material contract to which JWCAC is a party or by which it may be
bound, nor will such action result in any violation of the provisions of
the charter or by-laws of JWCAC or, except as would not have a Material
Adverse Effect, any law, rule, regulation or administrative or court
decree.
(e) JWCAC was formed solely for the purpose of consummating the
Transaction. JWCAC has no material assets or liabilities, conducts no
business and is a party to no material agreements other than this Agreement
and as described in the Prospectus.
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(f) Except as stated in the Prospectus, JWCAC does not know of any
outstanding claims for services, either in the nature of a finder's fee,
financial advisory fee, origination fee or similar fee, with respect to the
transactions contemplated hereby.
SECTION 4. PURCHASE, SALE AND DELIVERY OF SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to issue and sell to
the Underwriter, and the Underwriter agrees to purchase from the Company at a
purchase price of __% of the principal amount thereof $100,000,000 principal
amount of Securities.
The Company will deliver the Securities to you for the accounts of the
Underwriter, against payment of the purchase price therefor by same day funds
drawn to the order of the Company or delivered by wire transfer in accordance
with the Company's instructions, at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, New York,
New York at 10:00 A.M., New York time, on March ___, 1997 or at such other place
or time not later than seven full business days thereafter as you and the
Company determine, such time being referred to herein as the "Closing Date."
The certificates for all the Securities so to be delivered will be in such
denominations and registered in such names as you request two full business days
prior to the Closing Date and will be made available at the office of
NationsBanc Capital Markets, Inc., Charlotte, North Carolina or, upon your
request, through the facilities of The Depository Trust Company, for checking
and packaging at least one full business day prior to the Closing Date.
SECTION 5. OFFERING BY THE UNDERWRITER. After the Registration Statement
becomes effective the Underwriter will offer the Securities for sale to the
public on the terms as set forth in the Prospectus. The price at which the
Securities will be sold to the public shall not be higher than the maximum price
recommended by ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. acting as a "qualified independent
underwriter" (the "QIU"), within the meaning of Section (b)(15) of Rule 2720 of
the Conduct Rules of the National Association of Securities Dealers, Inc. (the
"NASD") with respect to the offering and sale of the Securities.
SECTION 6. CERTAIN COVENANTS. The Company covenants and agrees with the
Underwriter that:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Securities may
commence, the Company will endeavor to cause the Registration Statement or
such post-effective amendment to become effective as soon as possible and
will advise you promptly and, if requested by you, will confirm such advice
in writing, when the Registration Statement or such post-effective
amendment has become effective.
(b) The Company will not file any amendment to the Registration
Statement or make any amendment or supplement to the Prospectus, of which
you shall not previously have been advised or to which, after you shall
have received a copy of the document proposed to be filed, you shall
reasonably object.
(c) The Company will advise you promptly and, if requested by you,
will confirm such advice in writing: (i) when the Registration Statement
has become effective, if and when the Prospectus is sent for filing
pursuant to Rule 424 under the Act and when any post-effective amendment to
the Registration Statement becomes effective; (ii) of any request by the
Commission
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for amendment of or a supplement to the Registration Statement, any
preliminary prospectus or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Securities for offering or sale in any jurisdiction or
the initiation of any proceeding for such purpose; and (iv) during such
period as in the opinion of counsel for the Underwriter a Prospectus is
required by the Act to be delivered in connection with sales by the
Underwriter or any dealer, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or results
of operations, or of the happening of any event, which makes any statement
of a material fact made in the Registration Statement or the Prospectus (as
then amended or supplemented) untrue or which requires the making of any
additions to or changes in the Registration Statement or the Prospectus (as
then amended or supplemented) in order to state a material fact required by
the Act to be stated therein or necessary in order to make the statements
therein not misleading, or of the necessity to amend or supplement the
Prospectus (as then amended or supplemented) to comply with the Act or any
other law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company
will make every reasonable effort to obtain the withdrawal of such order at
the earliest possible time.
(d) As soon after the execution and delivery of this Agreement as
practicable and thereafter from time to time for such period as in the
opinion of counsel for the Underwriter a Prospectus is required by the Act
to be delivered in connection with sales by the Underwriter or any dealer,
the Company will expeditiously deliver to the Underwriter and each dealer,
without charge, as many copies of the Prospectus (and of any amendment or
supplement thereto) as you may request. The Company consents to the use of
the Prospectus (and of any amendment or supplement thereto), in accordance
with the provisions of the Act and with the securities or Blue Sky laws of
the jurisdictions in which the Securities are offered by the Underwriter
and by all dealers to whom the Securities may be sold, both in connection
with the offering and sale of the Securities and for such period of time
thereafter as the Prospectus is required by the Act to be delivered in
connection with sales by the Underwriter or any dealer. If during such
period of time any event shall occur that in the judgment of the Company or
in the opinion of counsel for the Underwriter is required to be set forth
in the Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it is
necessary to supplement or amend the Prospectus in order to comply with the
Act or any other law, the Company will forthwith prepare and, subject to
the provisions of paragraph (b) above, file with the Commission an
appropriate supplement or amendment thereto (or to such document), and will
expeditiously furnish to the Underwriter and any dealers a reasonable
number of copies thereof. In the event that the Company and the Underwriter
agree that the Prospectus should be amended or supplemented, the Company,
if requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or
supplement.
(e) The Company will mail and make generally available to its security
holders as soon as practicable an earnings statement covering a period of
at least twelve months after the effective date of the Registration
Statement (but in no event commencing later than 90 days after such date)
which shall satisfy the provisions of Section 11(a) of the Act (including
Rule 158). The Company will also advise you in writing when such statement
has been so made available.
(f) The Company will deliver to you as many signed and conformed
copies of the registration statement (as originally filed) and of each
amendment thereto (including exhibits filed
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therewith) as you may reasonably request and will also deliver to you a
conformed copy of the Registration Statement and each amendment thereto for
the Underwriter.
(g) The Company will endeavor, in cooperation with you, to qualify the
Securities for offering and sale under the applicable securities laws of
such states and other jurisdictions of the United States as you may
designate, and will maintain such qualifications in effect for as long as
may be required for the distribution of the Securities. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Securities have been qualified as above provided.
(h) During the period of two years hereafter or for such period of
time as in the opinion of counsel for the Underwriter, a Prospectus is
required by the Act to be delivered in connection with sales by the
Underwriter or any dealer, the Company will furnish to you as soon as
practicable after the end of each fiscal year, a copy of its annual report
to stockholders, if any, for such year, and the Company will furnish to you
(i) as soon as available, a copy of each report (including, without
limitation, quarterly reports containing the Company's consolidated balance
sheet, a consolidated statement of operations and a consolidated statement
of cash flows) or definitive proxy statement of the Company filed with the
Commission under the Exchange Act or mailed to stockholders, and (ii) from
time to time, such other information concerning the Company as you may
reasonably request.
(i) If Rule 430A of the Act is employed, the Company will timely file
the Prospectus pursuant to Rule 424(b) under the Act and will advise you of
the time and manner of such filing. The Company will timely complete all
required filings and otherwise fully comply in a timely manner with all
provisions of the Exchange Act.
(j) During the period beginning on the date hereof and continuing to
and including the Closing Date, the Company will not offer, sell contract
to sell or otherwise dispose of any debt securities of the Company or
warrants to purchase debt securities of the Company substantially similar
to the Securities (other than the Securities), without your prior written
consent.
(k) The Company will use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Securities.
(l) The Company will apply the net proceeds from the sale of the
Securities (together with any other net proceeds received pursuant to the
Transaction) as set forth under "Use of Proceeds" in the Prospectus.
SECTION 7. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITER. The
obligations of the Underwriter to purchase and pay for the Securities on the
Closing Date will be subject to satisfaction of each of the following
conditions:
(a) Each of the representations and warranties on the part of the
Company and JWCAC contained herein shall be true and correct in all
material respects on the date herein and on the Closing Date with the same
force and effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective (or if a
post-effective amendment is required to be filed pursuant to Rule 430A
under the Act, such post-effective
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amendment shall have become effective) not later than 5:00 P.M. New York
time, on the date of this Agreement, or such later time or date as shall
have been consented to by you, and all filings, if any, required by Rules
424 and 430A under the Act shall have been timely made; and prior to the
Closing Date no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted, or to the knowledge of the Company or you, shall be
contemplated by the Commission, and any request of the Commission for
additional information (to be included in the registration statement or the
Prospectus or otherwise) shall have been complied with to your
satisfaction.
(c) You shall not have advised the Company that the Registration
Statement or Prospectus, or any amendment or supplement thereto, contains
an untrue statement of fact or omits to state a fact which, you have
concluded, is material and in the case of an omission is required to be
stated therein or is necessary to make the statements therein not
misleading.
(d) (i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, affairs or business prospects, whether or not arising in the
ordinary course of business, of the Company, (ii) since the date of the
latest balance sheet included in the Registration Statement and the
Prospectus there shall not have been any change, or any development
involving a prospective material adverse change, in the capital stock or in
the long-term debt of the Company from that set forth in the Registration
Statement and Prospectus, (iii) the Company shall have no liability or
obligation, direct or contingent, which is material to it, other than those
reflected in the Registration Statement and the Prospectus and (iv) on the
Closing Date you shall have received a certificate of the Company, dated
the Closing Date, signed on its behalf by (x) the president or any vice
president and (y) a principal financial or accounting officer of the
Company confirming, as of the Closing Date, the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 7 and confirming that the
representations and warranties contained in Section 2 are true and correct
with the same force and effect as though made on and as of the Closing
Date.
(e) As of the Closing Date, the Company will have delivered to the
Underwriter true and correct executed copies of the Transaction Documents
in the form as originally executed, together with all related documents,
instruments and agreements and all schedules or exhibits thereto; there
will have been no amendments, alterations, modifications or waivers thereto
or in the exhibits or schedules thereto other than those as to which the
Underwriter shall previously have been advised and shall not have
reasonably objected after being furnished a copy thereof.
(f) On the Closing Date, the Underwriter and the QIU shall have
received a certificate, dated the Closing Date, of JWCAC, signed on behalf
of such party by (x) the president or any vice president and (y) any other
officer confirming, as of the Closing Date, the matters set forth in
paragraph (a) of this Section 7 (as to JWCAC) and confirming that the
representations and warranties of JWCAC contained in Section 3 are true and
correct with the same force and effect as though made on and as of the
Closing Date.
(g) None of the issuance and sale of the Securities pursuant to this
Agreement, the Acquisition or any of the other transactions contemplated by
any of the Transaction Documents or the Prospectus shall be enjoined
(temporarily or permanently) and no restraining order or other injunctive
order shall have been issued or any action, suit or proceeding shall have
been commenced with respect to this Agreement, the Merger Agreement, the
New Credit Facility, the
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Acquisition or any of the other transactions contemplated by the
Transaction Documents or the Prospectus, before any court or governmental
authority.
(h) On the Closing Date, the Underwriter and the QIU shall have
received copies of all opinions delivered by any counsel, consultants or
advisors to JWCAC or any of its affiliates, and such other certificates,
documents and opinions reasonably obtainable by JWCAC or any of its
affiliates delivered to any party under the Transaction Documents, in each
case, together with letters addressed to the Underwriter and QIU, stating
that the Underwriter and the QIU may rely on such certificates, documents
and opinions as if they had been addressed to the Underwriter and the QIU.
(i) The Underwriter and the QIU shall have received a favorable
opinion of ▇▇▇▇▇▇▇▇ & Worcester LLP, counsel for the Company, dated the
Closing Date to the effect that:
(i) The Company is duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware with corporate
power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement; and
is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which it owns or leases
property or in which the conduct of its business requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a Material Adverse
Effect.
(ii) The Company has the authorized, issued and outstanding
capital stock as set forth in the Prospectus; all of the outstanding
shares of capital stock of the Company has been duly authorized and
validly issued, are fully paid and nonassessable and were not, to the
best of such counsel's knowledge, issued in violation of any
preemptive or similar rights.
(iii) To the knowledge of such counsel, there are, and after
giving effect to the Transaction, will be, no outstanding
subscriptions, rights, warrants, calls, commitments of sale or options
to acquire, or instruments convertible into or exchangeable for, any
such shares of capital stock or other equity interest of the Company,
except as described in the Prospectus.
(iv) The Company has all the requisite corporate power and
authority to execute, deliver and perform its respective obligations
under each of the Transaction Documents to which it is a party.
(v) The Company has duly authorized, executed and delivered each
of the Transaction Documents to which it is party.
(vi) The Company has duly and validly authorized this Agreement
and the consummation by the Company of the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the
Company.
(vii) The Indenture has been duly qualified under the 1939 Act.
The Company has duly and validly authorized, executed and delivered
the Indenture, and the Indenture constitutes a valid and binding
agreement of, the Company enforceable against it in accordance with
its terms except that (a) the obligations, rights and remedies of
parties
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may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, marshaling or other similar laws affecting generally
creditors' rights and remedies, and (ii) general principles of equity
(regardless of whether considered in a proceeding at law or in
equity), including, without limitation, the discretion of any court of
competent jurisdiction in granting specific performance or other
equitable relief.
(viii) The Company has, and after giving effect to the
Transaction, will have duly authorized the Securities, which, when
executed and authenticated in accordance with the provisions of the
Indenture, and delivered to and paid for by the Underwriter in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Company enforceable against the Company (both
before and after giving effect to the Transaction) in accordance with
their terms except that (a) the obligations, rights and remedies of
parties may be limited by (i) bankruptcy, insolvency, reorganization,
moratorium, marshaling or other similar laws affecting generally
creditors' rights and remedies, and (ii) general principles of equity
(regardless of whether considered in a proceeding at law or in
equity), including, without limitation, the discretion of any court of
competent jurisdiction in granting specific performance or other
equitable relief, and will be entitled to the benefits of the
Indenture.
(ix) The Indenture and the Securities conform in all material
respects to the descriptions thereof contained in the Prospectus.
(x) JWCAC has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware.
(xi) All of the outstanding shares of capital stock of JWCAC have
been duly authorized and validly issued, are fully paid and
nonassessable and were not, to the best of such counsel's knowledge,
issued in violation of any preemptive or similar rights.
(xii) JWCAC has, both before and after giving effect to the
Transaction, all the requisite corporate power and authority to
execute, deliver and perform its obligations under each of the
Transaction Documents to which it is a party.
(xiii) JWCAC has duly authorized, executed and delivered each of
the Transaction Documents to which it is a party.
(xiv) The Transaction Documents constitute valid and legally
binding obligations of JWCAC, enforceable against JWCAC (to the extent
JWCAC is a party thereto), in accordance with its terms, except that
(a) the obligations, rights and remedies of parties may be limited by
(i) bankruptcy, insolvency, reorganization, moratorium, marshaling or
other similar laws affecting generally creditors' rights and remedies,
and (ii) general principles of equity (regardless of whether
considered in a proceedings at law or in equity), including, without
limitation, the discretion of any court of competent jurisdiction in
granting specific performance or other equitable relief.
(xv) No consent, approval, authorization or order of any court or
governmental authority or agency, or third party is required (which
has not been obtained) for the performance of any of the Transaction
Documents by JWCAC (to the extent JWCAC is a party thereto) or the
consummation by JWCAC of the transactions contemplated by the
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Transaction Documents, except as may be required under state
securities or Blue Sky laws. To the best of their knowledge and
information, the execution, delivery and performance by JWCAC of the
Transaction Documents to which it is a party and the consummation of
the transactions contemplated thereby will not conflict with or
constitute a breach of, or default under (or an event which with
notice or passage of time or both would constitute or a default under)
or violation of any of (A) any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which is a party or
by which it may be bound or to which any of its property or assets is,
and at and as of the Effective Time will be subject, (B) the
provisions of the charter or by-laws of JWCAC, or (C) (assuming
compliance with all applicable state securities or Blue Sky laws) any
law, administrative regulation or administrative or court decree
applicable to JWCAC or any of its properties or assets, except for any
such breach or violation which would not, individually or in the
aggregate, have a Material Adverse Effect.
(xvi) The Registration Statement is effective under the Act and,
to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Act or proceedings therefor initiated or threatened
by the Commission.
(xvii) No consent, approval, authorization or order of any court
or governmental authority or agency, or third party is required (which
has not been obtained) in connection with the consummation by the
Company of the transactions contemplated by the Transaction Documents,
except such as may be required under state securities or Blue Sky
laws. To the best of their knowledge and information, the execution,
delivery and performance by the Company of the Transaction Documents
and the consummation of the transactions contemplated thereby will not
conflict with or constitute a breach of, or default under (or an event
which with notice or passage of time or both would constitute or a
default under) or violation of any of (A) any material contract,
indenture, mortgage, loan agreement, note, lease or other instrument
to which is a party or by which it may be bound or to which any of its
property or assets is, and at and as of the Effective Time will be
subject, (B) the provisions of the charter or by-laws of the Company,
or (C) (assuming compliance with all applicable state securities or
Blue Sky laws) any law, administrative regulation or administrative or
court decree applicable to the Company or any of its properties or
assets, except for any such breach or violation which would not,
individually or in the aggregate, have a Material Adverse Effect.
(xviii) To the best of their knowledge and information, the
execution, delivery and performance by the Company of the Transaction
Documents and the consummation of the transactions contemplated
thereby will not conflict with or constitute a breach of, or default
under (or an event which with notice or passage of time or both would
constitute or a default under) or violation of any of (A) any material
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which is a party or by which it may be bound or to which
any of its property or assets is, and at and as of the Effective Time
will be subject, (B) the provisions of the charter or by-laws of the
Company, or (C) (assuming compliance with all applicable state
securities or Blue Sky laws) any law, administrative regulation or
administrative or court decree applicable to the Company or any of its
properties or assets, except for any such breach or violation which
would not, individually or in the aggregate, have a Material Adverse
Effect.
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(xix) The Company is not, and after giving effect to the
Acquisition to will not be in violation of its charter documents.
(xx) After due inquiry, such counsel does not know of any legal
or governmental proceeding pending or threatened to which the Company
is, and after giving effect to the Acquisition will be a party or to
which any of its properties is or will be subject that is required to
be described in the Registration Statement or the Prospectus and is
not so described or of any material contract or other document that is
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
that is not so described or filed as required.
(xxi) To such counsel's knowledge, no legal or governmental
proceedings are pending or threatened to which the Company is, or
after giving effect to the Acquisition, will be a party or to which
any of its properties is subject which, if determined adversely to
such party would result, individually or in the aggregate, in a
Material Adverse Effect, or which seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance and sale of
the Securities or the consummation of the other transactions
contemplated by the Transaction Documents.
(xxii) The Company is not, and after giving effect to the
Acquisition will not be an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(xxiii) Neither the consummation of the transactions contemplated
by the New Credit Facility and this Agreement nor the issuance or sale
of the Securities will violate Regulation G (12 C.F.R. Part 207),
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221)
or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the
Federal Reserve System.
(xxiv) Such counsel is of the opinion that the Registration
Statement (other than the financial statements and other financial
information included therein, as to which no opinion need be
expressed) complies as to form in all material respects with the
requirements of the Act and the Rules and Regulations.
(xxv) In addition to the foregoing, although such counsel has not
verified, are not passing upon and does not assume any responsibility
for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, such
counsel has reviewed and discussed such statements with certain
directors and officers of the Company, its accountants, the
Underwriter and its counsel and in the course of such review and
discussion, no facts come to our attention that lead such counsel to
believe that (other than the financial statements and other financial
and statistical information included therein, as to which no belief
need be expressed and except for that part of the Registration
Statement that constitutes the Form T-1) the Registration Statement,
at the time it became effective, did not contain any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, or to believe that the Prospectus, as amended or
supplemented at the Closing Date, contains any untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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With respect to subparagraph (xxv) of paragraph (i) above, such
counsel may state its belief is based upon its participation in the
preparation of the Registration Statement and Prospectus and any amendments
or supplements thereto and review and discussion of the contents thereof,
but is without independent check or verification except as specified. With
respect to paragraphs (vii) and (viii) of paragraph (i) above, (A) such
counsel may limit such opinions insofar as, enforcement of any rights may
be (x) subject to an implied duty to take action and make determinations on
a reasonable basis and in good faith, and (y) limited by the following
general principles of contract law: (I) the unenforceability of provisions
to the effect that provisions therein may only be amended or waived in
writing to the extent that an oral agreement modifying such provisions has
been entered into, and (II) the general rule that, where less than all of
an agreement is enforceable, the balance is enforceable only when the
unenforceable portion is not an essential part of the agreed exchange and
(B) such counsel need not provide an opinion as to (x) the enforceability
of the premium described in the second paragraph of Section 6.02 of the
Indenture, to the extent that a court may find that such premium
constitutes a penalty, (y) the effectiveness of prospective waivers of
rights to notice or a hearing, or other rights granted by constitution or
statue, powers of attorney, provisions purporting to relieve parties of the
consequences of their own negligence or misconduct, or provisions granting
indemnity or a right of contribution (which may be limited by federal or
state securities laws or public policy), or provisions purporting to
establish evidentiary standards, or (z) whether state court outside of the
State of New York or a Federal court would give effect to the choice of New
York law provided for in the Indenture.
(j) The Underwriter and the QIU shall have received a favorable
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the Underwriter, dated the Closing
Date, in form and substance satisfactory to you.
(k) The Underwriter and the QIU shall have received from Ernst & Young
LLP, two letters, the first delivered the day of but prior to the execution
of, and dated the date of, this Agreement and the other dated the Closing
Date, addressed to the Underwriter and the QIU, in the form heretofore
agreed (and in the case of the second such letter consistent with the first
such letter) with such variations as are reasonably acceptable to you.
(l) Each of the Stock Purchase and the Note Retirements, shall have
been consummated on the terms and conditions set forth in the Transaction
Documents (without waiver).
(m) On the Closing Date:
(i) the Certificate of Merger with respect to the Merger shall be
in form and substance satisfactory to the Underwriter and ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Underwriter, shall have been pre-cleared for
filing with the Secretary of State of the State of Delaware and shall
be ready in all respects for filing immediately upon consummation of
each of the transactions contemplated by the Prospectus to be
consummated prior to the Merger;
(ii) the New Credit Facility with aggregate advances and
commitments thereunder of not less than $38.0 million shall be in full
force and effect, no event shall have occurred and no event shall have
failed to occur, which would relieve the lenders under the New Credit
Facility (the "Lenders") of their obligation to advance funds, or
preclude them from advancing funds to the Company thereunder, and
concurrently with
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the Closing the Lenders shall have advanced funds under the New Credit
Facility in such amounts as are necessary to fund the Acquisition
(after giving effect to the Equity Financing and the sale of the
Securities hereunder); and
(iii) the Equity Financing shall have been consummated on terms
and conditions satisfactory to the Underwriter and the existing
preferred stock of Holding shall have been exchanged for new preferred
stock of Holding having terms and conditions acceptable to the
Underwriter.
(n) Simultaneously with the Closing, the closing contemplated by the
Merger Agreement, including, without limitation, the Merger, shall have
been consummated in accordance with the terms of the Merger Agreement.
(o) Counsel for the Underwriter shall have been furnished with such
other documents and opinions as they may reasonably require.
SECTION 8. PAYMENT OF EXPENSES. Whether or not any of the transactions
contemplated hereby are consummated, or this Agreement is terminated, the
Company agrees to pay all costs, expenses, fees and taxes incident to (i) the
preparation, printing, filing and distribution under the Act of the Registration
Statement (including financial statements and exhibits), the Prospectus, each
preliminary prospectus, and all amendments and supplements to any of them, (ii)
the preparation, printing (including word processing and duplication costs) and
delivery of this Agreement, the Indenture, Preliminary and Supplemental Blue Sky
Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the
Securities, (iii) the registration with the Commission, and the issuance by the
Company of the Securities, (iv) the registration or qualification of the
Securities for offer and sale under the securities or Blue Sky laws of the
several states as described in Section 6(e) (including the reasonable fees and
disbursements of your counsel relating to such registration or qualification),
(v) the fees and expenses of rating agencies, (vi) the furnishing of such copies
of the Registration Statement, Prospectus and preliminary prospectus, and all
amendments and supplements to any of them, as may be reasonably requested by
you; (vii) filings and clearance with the NASD in connection with the offering;
(viii) the listing of the Securities on a stock exchange or automated quotation
system, if any; (ix) the QIU (including fees and disbursements of counsel for
the QIU); (x) expenses of the Company in connection with any meetings with
prospective investors in the Securities; (xi) advertising relating to the
offering of the Securities (to the extent specifically approved by the Company);
and (xii) the performance by the Company of its other obligations under this
Agreement, including (without limitation) the fees of the Trustee, the costs of
the Trustee's personnel and other internal costs, the cost of printing and
engraving the certificates representing the Securities, all expenses and taxes
incident to the sale and the delivery of the Securities to you, and fees and
expenses of counsel for the Company for providing such opinions as you may
reasonably request.
If this Agreement is terminated by you in accordance with the provisions of
Section 7 or Section 11, the Company and JWCAC jointly and severally shall
reimburse you for all of your out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriter.
SECTION 9. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to
indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, from and against any and all losses, claims, damages,
liabilities or judgments (including without limiting the foregoing the
reasonable legal and other expenses incurred in connection with any action, suit
or proceeding or any claim asserted) arising
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out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to the
Underwriter furnished in writing to the Company by the Underwriter expressly for
use therein. This indemnity agreement will be in addition to any liability which
the Company may otherwise have to the persons referred to above in this Section
9(a).
(b) The Underwriter agrees to indemnify and hold harmless the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages liabilities and judgments (including without limiting the foregoing the
reasonable legal and other expenses incurred in connection with any action, suit
or proceeding or any claim asserted) arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to the
Underwriter furnished to the Company in writing by the Underwriter through you
expressly for use in the Registration Statement, the Prospectus, any amendment
or supplement thereto, or any preliminary prospectus.
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be instituted involving any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (hereinafter called the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought
(hereinafter called the "indemnifying party") in writing and the indemnifying
party, upon request of the indemnified party, shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such action or
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (ii) the
indemnifying party shall have failed to assume the defense and employ counsel or
(iii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests among them. It is understood that the indemnifying
party shall not, in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for (a) the reasonable fees and expenses of more
than one separate firm (in addition to local counsel) for the Underwriter and
all persons, if any, who control the Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act and (b) the reasonable
fees and expenses of more than one separate firm (in addition to local counsel)
for the Company its directors, its officers who sign the Registration Statement
and each person, if any, who controls the Company within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriter and such control persons of the Underwriter,
such firm shall be designated in writing by the Underwriter. In the case of any
such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written
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consent; but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the immediately preceding sentence, if in any case where the
fees and expenses of counsel are at the expense of the indemnifying party and an
indemnified party shall have requested the indemnifying party to reimburse the
indemnified party for such fees and expenses of counsel as incurred, such
indemnifying party agrees that it shall be liable for any settlement of any
action effected without its written consent if (i) such settlement is entered
into more than twenty business days after the receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 9 is unavailable to
an indemnified party in respect of any losses, claims, damages, liabilities or
judgments referred to therein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriter 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
Underwriter on the other in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriter on the other shall be deemed to
be in the same proportions as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriter, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company on the one hand and the Underwriter on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company or by the Underwriter and the party's
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to Section 9(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of Section 9(d), in no event shall the
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
the Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
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SECTION 10. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company and JWCAC submitted
pursuant hereto, including indemnity and contribution agreements, shall remain
operative and in full force and effect, regardless of any termination of this
Agreement, or any investigation made by or on behalf of the Underwriter or any
person controlling the Underwriter by or on behalf of the Company, its officers
or directors, and shall survive acceptance and payment for the Securities
hereunder.
SECTION 11. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the later of (x) execution and delivery hereof by
the parties hereto and (y) release of notification of the effectiveness of the
Registration Statement by the Commission.
This Agreement may be terminated for any reason at any time prior to the
Closing Date by the Underwriter upon the giving of written notice of such
termination to the Company, if prior to the Closing Date (i) there has been,
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition, financial or otherwise,
earnings, business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business, or (ii) there has occurred any
outbreak or escalation of hostilities or other calamity or crisis or material
change in existing financial, political, economic or securities market
conditions, the effect of which is such as to make it, in the judgment of the
Underwriter impracticable or inadvisable to market the Securities in the manner
contemplated in the Prospectus or enforce contracts for the sale of the
Securities, or (iii) trading generally on either the American Stock Exchange,
the New York Stock Exchange or the NASDAQ National Market System has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or the NASDAQ National Market System or by order of the Commission or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities. In the event of any such termination, the
provisions of Section 8, the indemnity agreement and contribution provisions set
forth in Section 9, and the provisions of Sections 10, 13 and 14 shall remain in
effect.
SECTION 12. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunications. Notice to the
Underwriter shall be directed to NationsBanc Capital Markets, Inc., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Syndicate; notices to
the Company shall be directed to such party at Central Tractor Farm & Country,
Inc., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: President
(with a copy to the Treasurer) with a copy to ▇.▇. Childs Associates, L.P., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company, JWCAC, the Underwriter, each director, officer and any
controlling persons referred to herein and their respective successors and
assigns. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. No purchaser of Securities from the Underwriter
shall be deemed to be a successor or assign by reason merely of such purchase.
SECTION 14. GOVERNING LAW. This Agreement shall be governed by the laws of
the State of New York.
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This Agreement may be signed in two or more counterparts each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
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If the foregoing is in accordance with your understanding of our agreement,
please sign this Agreement and return it to us.
Very truly yours,
CENTRAL TRACTOR FARM & COUNTRY, INC.
By:
-----------------------------------
Name:
Title:
JWC ACQUISITION I, INC.
By:
-----------------------------------
Name:
Title:
NATIONSBANC CAPITAL MARKETS, INC.
By
-----------------------------
Name:
Title:
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