Exhibit 10.2
B&G FOODS, INC.
95/8% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
August 6, 1997
XXXXXX BROTHERS INC.
LAZARD FRERES & CO. LLC
c/x Xxxxxx Brothers Inc.
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
B&G Foods, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to you (the "Initial Purchasers") $120.0 million in aggregate
principal amount of its 95/8% Senior Subordinated Notes due 2007 (the "Series A
Notes"). The payment of principal, premium, interest and Liquidated Damages (as
defined below) if any, on the Series A Notes and the Company's 95/8% Senior
Subordinated Notes due 2007 to be issued in the Registered Exchange Offer
referred to below (the "Series B Notes" and, together with the Series A Notes,
the "Notes") will be unconditionally guaranteed (the "Subsidiary Guarantees") on
a senior subordinated basis by BGH Holdings, Inc., RWBV Acquisition Corp., BRH
Holdings, Inc., Xxxxx & Xxxxxxxxxxxx, Inc., Roseland Distribution Company, Xxxxx
& Xxxxxx, Inc., Roseland Manufacturing, Inc. and RWBV Brands Company
(collectively, the "Guarantors"), which are all of the Company's current
subsidiaries (the "Subsidiaries"). The Series A Notes are to be issued pursuant
to the terms of an indenture to be dated as of August 11, 1997 (the "Closing
Date") between the Company, The Bank of New York as trustee (the "Trustee"), and
the Guarantors (the "Indenture").
The Series A Notes will be offered and sold to you pursuant to an
exemption from the registration requirements under the Securities Act of 1933,
as amended (the "Act"). The Company has prepared a preliminary offering
memorandum (the "Preliminary Offering Memorandum"), dated July 23, 1997 and a
final offering memorandum (the "Offering Memorandum"), dated August 6, 1997,
relating to the Company and the Series A Notes. As described in the Offering
Memorandum, the Company will use all of the net proceeds from the offering of
the Series A Notes to redeem $23.0 million in aggregate principal amount of its
outstanding 12% Senior Subordinated Notes due 1997 (the "Interim Notes"), to
refinance approximately $76.54 million of outstanding senior debt under the
credit agreement dated June 17, 1997 with Xxxxxx Financial, Inc. (the "Existing
Credit Agreement") and to pay the fees and expenses in connection therewith. In
addition, the Company's wholly owned subsidiary BGH Holdings, Inc. ("BGH") has
agreed to purchase Trappey's Fine Foods, Inc. ("Trappey's") to be acquired from
X. XxXxxxxxx'x Son Corporation ("XxXxxxxxx") pursuant to the Transaction
Agreement (defined herein).
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Series A Notes
(and all securities issued in exchange therefor or in substitution thereof)
shall bear the following legend:
"THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT BEEN
REGISTERED UNDER THE U.S.SECURITIES ACT OF 1933, AS AMENDED THE
"SECURITIES ACT"), OR ANY OTHER STATE SECURITIES LAWS, AND,
ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE
FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER: REPRESENTS
THAT (1) IT IS (A) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1),(2),(3) OR (7)
UNDER THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR") OR (C)
NOT A U.S. PERSON AND IS ACQUIRING THE NOTE EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION; (2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THE NOTE EVIDENCED HEREBY EXCEPT TO (A) THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144 UNDER THE SECURITIES ACT, (C) AN INSTITUTIONAL
ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE
BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE),
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY
(THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE OR A
SUCCESSOR TRUSTEE, AS APPLICABLE), (D) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144A UNDER THE SECURITIES
ACT (IF AVAILABLE) OR IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (F) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OR ANY OTHER APPLICABLE JURISDICTION; AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IF
THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE (C), (D) OR (E) ABOVE, THE
HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK,
AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES," AND "U.S. PERSON" HAVE
THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT."
You have represented and warranted to the Company that you will make
offers (the "Exempt Resales") of the Series A Notes purchased by you hereunder
on the terms set forth in the Offering Memorandum, as amended or supplemented,
solely (i) to persons whom you reasonably believe to be "qualified institutional
buyers" as defined in Rule 144A under the Act ("QIBs"), (ii) to a limited number
of other institutional "accredited investors," as defined in Rule 501(a) (1),
(2), (3) and (7) under the Act, who execute a letter containing certain
representations and agreements in the form set forth as Annex A to the Offering
Memorandum (each, an "Accredited Institution") and (iii) outside the United
States to persons other than U.S. Persons in offshore transactions meeting the
requirements of Rule 904
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of Regulation S ("Regulations S") under the Act (such persons specified in
clauses (i) through (iii) being referred to herein as the "Eligible
Purchasers"). As used herein, the terms "offshore transaction," "United States"
and "U.S. person" have the respective meanings given to them in Regulation S.
You will offer the Series A Notes to Eligible Purchasers initially at a price
equal to 100% of the principal amount thereof. Such price may be changed at any
time without notice.
Holders (including subsequent transferees) of the Series A Notes will
have the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated as of the Closing Date, in the
form of Exhibit A hereto, for so long as such Series A Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Securities and Exchange Commission (the "Commission")
under the circumstances set forth therein, (i) a registration statement under
the Act (the "Exchange Offer Registration Statement") relating to the Series B
Notes to be offered in exchange for the Series A Notes, (such offer to exchange
being referred to collectively as the "Registered Exchange Offer") and (ii) a
shelf registration statement pursuant to Rule 415 under the Act (the "Shelf
Registration Statement") relating to the resale by certain holders of the Series
A Notes, and to use its best efforts to cause such Registration Statements to be
declared effective. This Agreement, the Indenture and the Registration Rights
Agreement are hereinafter referred to collectively as the "Operative Documents."
This is to confirm the agreements concerning the purchase of the Series A Notes
from the Company by you.
1. Representations, Warranties and Agreements of the Company and the
Guarantors. The Company and each Guarantor represents, warrants and agrees as
follows (all such representations, warranties and agreements, and all references
to the Company in this section shall be deemed to include Trappey's):
(a) The Preliminary Offering Memorandum and Offering Memorandum have
been prepared by the Company for use by the Initial Purchasers in connection
with the Exempt Resales. No order or decree preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any order
asserting that the transactions contemplated by this Agreement are subject to
the registration requirements of the Act has been issued and no proceeding for
that purpose has commenced or is pending or, to the knowledge of the Company, is
contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum as
of their respective dates and the Offering Memorandum as of the Closing Date,
did not and will not at any time contain an untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading, except
that this representation and warranty does not apply to statements in or
omissions from the Preliminary Offering Memorandum and Offering Memorandum made
in reliance upon and in conformity with information relating to the Initial
Purchasers furnished to the Company in writing by or on behalf of the Initial
Purchasers expressly for use therein.
(c) The market-related and customer-related data and estimates included
in the Preliminary Offering Memorandum and the Offering Memorandum are based on
or derived from sources which the Company believes to be reliable and accurate.
(d) The Company is a corporation duly incorporated and validly existing
and in good standing under the laws of Delaware with full corporate power and
authority to own, lease and operate its properties and to conduct its business,
and is duly registered and qualified to conduct its business and
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is in good standing in each jurisdiction or place where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify or to be in
good standing does not have a material adverse effect on the condition
(financial or other), business, properties, net worth or results of operations
of the Company and its Subsidiaries, taken as a whole (a "Material Adverse
Effect").
(e) Each Guarantor is a corporation duly incorporated and validly
existing and in good standing under the laws of Delaware with full corporate
power and authority to own, lease and operate its properties and to conduct its
business, and is duly registered and qualified to conduct its business and is in
good standing in each jurisdiction or place where the nature of its properties
or the conduct of its business requires such registration or qualification,
except where the failure so to register or qualify or to be in good standing
does not have a Material Adverse Effect.
(f) The Company has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Indenture, the
Notes and the Registration Rights Agreement.
(g) Each Guarantor has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, the Indenture, the
Registration Rights Agreement and the Subsidiary Guarantees.
(h) This Agreement has been duly and validly authorized, executed and
delivered by the Company and each Guarantor and, assuming due authorization,
execution and delivery by the Initial Purchasers, constitutes the valid and
binding agreement of the Company and each Guarantor, enforceable against the
Company and each Guarantor in accordance with its terms, except as the
enforcement hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing and except as rights to indemnity and
contribution hereunder may be limited by Federal or state securities laws or
principles of public policy.
(i) The Registration Rights Agreement has been duly and validly
authorized by the Company and each Guarantor and, upon its execution and
delivery by the Company and each Guarantor and, assuming due authorization,
execution and delivery by the Initial Purchasers, will constitute the valid and
binding agreement of the Company and each Guarantor, enforceable against the
Company and each Guarantor in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing and except as rights to indemnity and
contribution thereunder may be limited by Federal or state securities laws or
principles of public policy.
(j) The Indenture has been duly and validly authorized by the Company
and each Guarantor, and upon its execution and delivery and, assuming due
authorization, execution and delivery by the Trustee, will constitute the valid
and binding agreement of the Company and each Guarantor, enforceable against the
Company and each Guarantor in accordance with its terms, except as the
enforcement hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of
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good faith and fair dealing; no qualification of the Indenture under the 1939
Act is required in connection with the offer and sale of the Series A Notes
contemplated hereby or in connection with the Exempt Resales other than in
connection with the performance of the Company's obligations under the
Registration Rights Agreement.
(k) The Series A Notes have been duly and validly authorized by the
Company and when duly executed by the Company in accordance with the terms of
the Indenture and, assuming due authentication of the Series A Notes by the
Trustee, upon delivery to the Initial Purchasers against payment therefor in
accordance with the terms hereof, will have been validly issued and delivered,
and will constitute valid and binding obligations of the Company entitled to the
benefits of the Indenture, enforceable against the Company in accordance with
their terms, except as the enforcement hereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(l) The Subsidiary Guarantees to be endorsed on the Series A Notes have
been duly and validly authorized by each Guarantor and when duly executed by
each Guarantor in accordance with the terms of the Indenture and, assuming due
authentication of the Series A Notes by the Trustee, upon delivery to the
Initial Purchasers against payment therefor in accordance with the terms hereof,
will have been validly issued and delivered, and will constitute valid and
binding obligations of each of the Guarantor, entitled to the benefits of the
Indenture, enforceable against each of the Guarantors in accordance with their
terms, except as the enforcement hereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(m) On or prior to the Closing Date, the Series B Notes will have been
duly authorized and, if and when executed and delivered by the Company, and if
and when the Series B Notes have been issued and authenticated in accordance
with the terms of the Registration Rights Agreement and the Indenture, the
Series B Notes will be the legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as the
enforcement hereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally, general equitable principles
(whether considered in a proceeding in equity or at law) and an implied covenant
of good faith and fair dealing.
(n) On or prior to the Closing Date, the Subsidiary Guarantees to be
endorsed on the Series B Notes will have been duly authorized and, if and when
executed and delivered by the Guarantors, and if and when the Series B Notes
have been issued and authenticated in accordance with the terms of the
Registration Rights Agreement and the Indenture, the Subsidiary Guarantees to be
endorsed on the Series B Notes will be the legally valid and binding obligation
of each Guarantor, enforceable against each Guarantor in accordance with its
terms, except as the enforcement hereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(o) The Company has all requisite corporate power and authority to
enter into (i) the credit agreement (the "New Credit Agreement"), dated August
11, 1997, by and among the Company and Xxxxxx Financial, Inc. and (ii) any and
all other agreements and instruments ancillary to or entered
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into in connection with the transaction contemplated by the New Credit Agreement
(collectively, the "Credit Documents").
(p) (i) Each of the New Credit Agreement and the other Credit Documents
has been duly and validly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the other parties thereto,
constitutes the valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms, except as the enforcement hereof may
be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing; and
(ii) all representations and warranties made by the Company in Section 5 of the
New Credit Agreement are true and correct in all material respects as of the
date hereof.
(q) BGH has all requisite corporate power and authority to enter into
(i) the Stock Purchase Agreement (the "Transaction Agreement"), dated July 20,
1997, by and among XxXxxxxxx and BGH, and (ii) any and all other agreements and
side letters ancillary to or entered into in connection with the transaction
contemplated by the Transaction Agreement.
(r) (i) The Transaction Agreement has been duly and validly authorized,
executed and delivered by BGH and, assuming due authorization, execution and
delivery by the other parties thereto, constitutes the valid and binding
agreement of BGH, enforceable against BGH in accordance with its terms, subject
to the qualification that the enforceability of BGH's obligations thereunder may
be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization,
moratorium, and other laws relating to or affecting creditors' rights generally
and by general equitable principles and (ii) all representation and warranties
made by BGH in Section 4 of the Transaction Agreement are true and correct in
all material respects as of the date hereof.
(s) All the shares of capital stock of the Company outstanding prior to
the issuance of the Series A Notes have been duly authorized and validly issued
and are fully paid and nonassessable and the authorized capital stock of the
Company conforms to the description thereof under the caption "Capitalization"
in the Offering Memorandum.
(t) Neither the Company nor its direct parent, B&G Foods Holdings Corp.
("Holdings") nor any of the Subsidiaries owns capital stock of any corporation
or entity other than the Subsidiaries. All the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly issued,
are fully paid and nonassessable, and are wholly owned by the Company directly,
or indirectly through one of the other Subsidiaries, free and clear of any lien,
adverse claim, security interest, equity or other encumbrance (except pursuant
to the New Credit Agreement).
(u) Except for the Debt Registration Rights Agreement and the Equity
Registration Rights Agreement, both dated June 17, 1997, among LB I Group Inc.,
the Company, Holdings and the Guarantors hereto, and the Securities Purchase and
Holders Agreement dated as of March 27, 1997 among Holdings and the shareholders
of Holdings, there are no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person the right to
require the Company or any Guarantor to file a registration statement under the
Act with respect to any securities of the Company or any Guarantor owned or to
be owned by such person or to require the Company or any Guarantor to include
such securities in the securities registered pursuant to the Exchange Offer
Registration Statement, the Shelf Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the
Company or any Guarantor under the Act.
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(v) Since the date as of which information is given in the Offering
Memorandum through the date hereof, and except as may otherwise be disclosed in
the Offering Memorandum, neither not in the ordinary course of business or (iii)
declared or paid any dividend on its capital stock.
(w) There are no legal or governmental proceedings pending or, to the
knowledge of the Company or any of the Guarantors, threatened, against the
Company or any of the Guarantors or to which any of their respective properties
(or any of the properties to be acquired by the Company upon consummation of the
transactions contemplated by the Transaction Agreement), is subject, that are
not disclosed in the Offering Memorandum and which, if adversely decided, are
reasonably likely to cause a Material Adverse Effect or to materially affect the
issuance of the Notes or the consummation of the other transactions contemplated
by the Operative Documents. Neither the Company nor any of the Guarantors is
involved in any strike, job action or labor dispute with any group of employees,
and, to the Company's knowledge, no such action or dispute is imminent which
could reasonably be expected to have a Material Adverse Effect.
(x) No material relationship, direct or indirect, exists between or
among the Company or any of the Guarantors on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of the
Guarantors on the other hand which is required to be described in the Offering
Memorandum, which is not so described pursuant to Regulation S-K of the
Commission (assuming Regulation S-K is applicable to the Offering Memorandum).
(y) Neither the Company nor any of its Subsidiaries (i) is in violation
of its certificate of incorporation, by-laws or other organizational documents,
(ii) is in default in any material respect in the due performance or observance
of any term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which any of them is a
party or by which any of them is bound or to which any of their respective
properties or assets is subject that is material to the Company's consolidated
financial condition or prospects (collectively, the "Material Agreements") and
(iii) is in violation in any material respect of any law, statute or ordinance,
or any rule, regulation, injunction or decree of any court or governmental
agency to which their respective property or assets may be subject or has failed
to obtain any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business, except in the case of (i), (ii) or (iii), as
would not, individually, or in the aggregate, have a Material Adverse Effect.
(z) Except to the extent the failure to obtain any such consent,
approval, authorization or order or to make any such filing or registration
would not individually or in the aggregate, have a Material Adverse Effect, none
of the issuance, offer or sale of the Series A Notes, the execution, delivery or
performance by the Company or any Subsidiary of this Agreement, the Subsidiary
Guarantees or the other Operative Documents, compliance by the Company or such
Subsidiaries with the provisions hereof or thereof nor consummation by the
Company or such Subsidiaries of the transactions contemplated hereby or thereby;
except to the extent the failure to obtain any such consent, approval,
authorization or order or to make any such filing or registration would not
individually or in the aggregate, have a Material Adverse Effect, none of the
execution, delivery or performance by the Company of the New Credit Agreement or
the other Credit Documents, compliance by the Company with the provisions
thereof nor consummation by the Company of the transactions contemplated
thereby; and none of the execution, delivery or performance by BGH of the
Transaction Agreement, compliance by BGH with the provisions thereof nor
consummation by BGH of the transactions contemplated thereby (i) requires any
consent, approval, authorization or other order of, or registration or filing
with, any court, regulatory body,
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administrative agency or other governmental body, agency or official (except
such as may be required in connection with the registration under the Act of the
Series B Notes in accordance with the Registration Rights Agreement,
qualification of the Indenture under the 1939 Act and compliance with the
securities or Blue Sky laws of various jurisdictions and except as required by
the Xxxx- Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended), or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Company or (ii) conflicts or will conflict with
or constitutes or will constitute a breach of, or a default under any Material
Agreement or will violate any law, statute, ordinance or any rule, regulation,
injunction or decree of any court or governmental agency to which it or its
property or assets may be subject or will result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the Company
(except for liens arising under the New Credit Agreement) pursuant to the terms
of any agreement or instrument to which it is a party or by which it may be
bound or to which any of its property or assets is subject.
(aa) The accountants, KPMG Peat Marwick LLP, who have certified certain
of the financial statements included as part of the Offering Memorandum, are
independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its interpretation and rulings during the periods
covered by the financial statements on which they reported contained in the
Offering Memorandum.
(ab) The consolidated historical and pro forma financial statements,
together with related notes, set forth in the Offering Memorandum comply as to
form in all material respects with the requirements of Regulation S-X under the
Act applicable to registration statements on Form S-1 under the Act. Such
historical financial statements fairly present the financial position of the
Company at the respective dates indicated and the results of operations and cash
flows for the respective periods indicated, in accordance with GAAP consistently
applied throughout such periods. Such pro forma financial statements have been
prepared on a basis consistent with such historical statements, except for the
pro forma adjustments specified therein, and give effect to assumptions made on
a reasonable basis and in good faith and present fairly the historical and
proposed transactions contemplated by the Offering Memorandum and this
Agreement. The other financial and statistical information and data included in
the Offering Memorandum, historical and pro forma, are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(ac) Except as disclosed in, or specifically contemplated by, the
Offering Memorandum, subsequent to the date of the latest audited financial
statements included in the Offering Memorandum, neither the Company nor any
Guarantor has incurred any liability or obligation, direct or contingent, or
entered into any transaction, in each case not in the ordinary course of
business, that is material to the Company or such Guarantor, as the case may be,
and there has not been any material change in the capital stock, or material
increase in the short-term or long-term debt, of the Company or such Guarantor
or any material adverse change, or any development involving or which would
reasonably be expected to involve a prospective material adverse change, in the
condition (financial or other), business, properties, net worth, results of
operations or prospects of the Company or such Guarantor.
(ad) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific
8
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ae) The Company and each Guarantor has good and marketable title to
all property (real and personal) described in the Offering Memorandum as being
owned by it, free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Offering Memorandum or as do
not materially affect the value of such property and do not materially interfere
with the use made of such property by the Company or any Guarantor and all the
material property described in the Offering Memorandum as being held under lease
by the Company or any Guarantor is held by it under valid, subsisting and
enforceable leases, with only such exceptions as in the aggregate are not
materially burdensome and do not interfere with the conduct of the business of
the Company or any Guarantor.
(af) The Company and each Guarantor owns or possesses, free and clear
of all Liens (other than Permitted Liens), defects, restrictions or equities of
any kind whatsoever, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") presently employed by it in connection with its respective business
now operated by it, except where the failure to own or possess or have the
ability to acquire such Intellectual Property would not, singly or in the
aggregate, result in a Material Adverse Effect. The use of such Intellectual
Property in connection with the business and operations of the Company and the
Guarantors does not, to the Company's knowledge, infringe on the rights or
claimed rights of any person. Neither the Company nor any of the Subsidiaries
has received any notice of infringement of or conflict with assessed rights of
others with respect to any Intellectual Property which, singly or in the
aggregate, if the subject of any unfavorable decision, ruling or finding, might
have a Material Adverse Effect.
(ag) The Company and each Guarantor has such permits, licenses,
franchises, certificates of need and other approvals or authorizations of
governmental or regulatory authorities ("Permits") as are necessary under
applicable law to own their respective properties and to conduct their
respective businesses in the manner described in the Offering Memorandum, except
to the extent that the failure to have such Permits would not have a Material
Adverse Effect; the Company and each Guarantor has fulfilled and performed in
all material respects, all their respective material obligations with respect to
the Permits, and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such Permit, subject in
each case to such qualification as may be set forth in the Offering Memorandum
and except to the extent that any such revocation or termination would not have
a Material Adverse Effect; and, except as described in the Offering Memorandum,
none of the Permits contains any restriction that is materially burdensome to
the Company or any Guarantor.
(ah) Except as set forth in the Offering Memorandum, there has been no
storage, disposal, generation, manufacture, refinement, transportation, handling
or treatment of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any Guarantor (or, to the knowledge of the Company
or any Guarantor, any of their predecessors in interest) at, upon or from any of
the property now or previously owned or leased by the Company or any Guarantor
in violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action which would not have, or could not
be reasonably likely to have, singularly or in the aggregate with all such
violations and remedial actions, a Material Adverse
9
Effect; except as set forth in the Offering Memorandum, there has been no
material spill, discharge, leak, emission, injection, escape, dumping or release
of any kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or hazardous
substances due to or caused by the Company or any Guarantor or with respect to
which the Company or any Guarantor has knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the terms "hazardous
wastes," "toxic wastes," "hazardous substances" and "medical wastes" shall have
the meanings specified in any applicable local, state, federal and foreign laws
or regulations with respect to environmental protection.
(ai) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not reasonably
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); each "pension plan" other
than a multiemployer plan, as defined in ERISA, for which the Company would have
any liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and to the knowledge of the Company,
nothing has occurred, whether by action or by failure to act, which would cause
the loss of such qualification.
(aj) The Company and each of its Subsidiaries maintain insurance
covering their properties, operations, personnel and businesses. Such Insurance
insures against such losses and risks as are reasonably adequate in accordance
with customary industry practice to protect the Company and its Subsidiaries and
their businesses. Neither the Company nor any of its Subsidiaries has received
written notice from any insurer or agent of such insurer that substantial
capital improvements or other expenditures will have to be made in order to
continue such insurance. All such insurance is outstanding and duly in force on
the date hereof and will be outstanding and duly in force through the Closing
Date.
(ak) The Company has filed all federal, state and local income and
franchise tax returns required to be filed through the date hereof and has paid,
or made adequate reserve or provision for, all taxes due thereon, and no tax
deficiency has been determined adversely to the Company which has had (nor does
the Company have any knowledge of any tax deficiency which, if determined
adversely to the Company, might have) a material adverse effect on the
consolidated financial position, stockholders' equity, results of operations,
business or prospects of the Company.
(al) Neither the Company nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any Guarantor, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; has made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; has
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or has made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(am) The Company is not and, upon sale of the Series A Notes to be
issued and sold thereby in accordance herewith and the application of the net
proceeds to the Company of such sale as
10
described in the Offering Memorandum under the caption "Use of Proceeds," will
not be an "investment company" within the meaning of the Investment Company Act
of 1940, as amended.
(an) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D ("Regulation D") under the Act) of the Company has directly, or
through any agent (provided that no representation is made as to the Initial
Purchasers or any person acting on its behalf), (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Act) which is or could be integrated with the offering and sale
of the Notes in a manner that would require the registration of the Series A
Notes under the Act or (ii) engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D, including, but not
limited to, advertisements, articles, notices or other communications published
in any newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising) in connection with the offering of
the Series A Notes. No securities of the same class as the Series A Notes have
been issued and sold by the Company within the six-month period immediately
prior to the date hereof.
(ao) Except as permitted by the Act, the Company has not distributed
and, prior to the later to occur of the Closing Date and completion of the
distribution of the Series A Notes, will not distribute any offering material in
connection with the offering and sale of the Series A Notes other than the
Preliminary Offering Memorandum and Offering Memorandum.
(ap) When the Series A Notes are issued and delivered pursuant to this
Agreement, such Series A Notes will not be of the same class (within the meaning
of Rule 144A under the Act) as securities of the Company that are listed on a
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") or that are quoted in a
United States automated inter-dealer quotation system.
(aq) Assuming (i) that the Series A Notes are issued, sold and
delivered under the circumstances contemplated by the Offering Memorandum and
this Agreement, (ii) that your representations and warranties in Section 2 are
true, (iii) that the representations of the Accredited Institutions set forth in
the certificates of such Accredited Institutions in the form set forth in Annex
A to the Offering Memorandum are true, (iv) compliance by you with your
covenants set forth in Section 2 and (v) that each of the Eligible Purchasers is
a QIB, an Accredited Institution or a person who is not a "U.S. person" who
acquires the Series A Notes outside the United States in an "offshore
transaction" (within the meaning of Rule 904 of Regulation S), the purchase of
the Series A Notes by you pursuant hereto and the initial resale of the Series A
Notes pursuant hereto pursuant to the Exempt Resales is exempt from the
registration requirements of the Act.
(ar) None of the Company or any of its affiliates or any person acting
on its or their behalf has engaged or will engage in any directed selling
efforts within the meaning of Rule 902(b) of Regulation S with respect to the
Notes, and the Company and its affiliates and all persons acting on its of their
behalf have complied with and will comply with the offering restrictions
requirements of Regulation S in connection with the offering of the Series A
Notes outside of the United States; provided that no representation is made as
to the Initial Purchasers or any person, acting on their behalf.
(as) The sale of the Series A Notes pursuant to Regulation S are
"offshore transactions" and are not part of a plan or scheme to evade the
registration provision of the Act.
11
2. Representations, Warranties and Agreements of the Initial
Purchasers. Each Initial Purchaser represents and warrants with respect to
itself that:
(a) Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case with such knowledge and experience in financial and
business matters as are necessary in order to evaluate the merits and risks of
an investment in the Series A Notes.
(b) Such Initial Purchaser (i) is not acquiring the Series A Notes with
a view to any distribution thereof or with any present intention of offering or
selling any of the Series A Notes in a transaction that would violate the Act or
the securities laws of any State of the United States or any other applicable
jurisdiction; (ii) in connection with the Exempt Resales, will solicit offers to
buy the Notes only from, and will offer to sell the Notes only to, the Eligible
Purchasers in accordance with this Agreement and on the terms contemplated by
the Offering Memorandum; and (iii) will not offer or sell the Notes by, nor has
it offered or sold the Notes by, or otherwise engaged in, any form of general
solicitation or general advertising (within the meaning of Regulation D;
including, but not limited to, advertisements, articles, notices or other
communications published in any newspaper, magazine, or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising) in
connection with the offering of the Series A Notes.
(c) The Notes 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. The Initial Purchasers represent that they have not offered, sold or
delivered the Notes, and will not offer, sell or deliver the Notes (i) as part
of its distribution at any time or (ii) otherwise until 40 days after the later
of the commencement of the offering and the Closing Date (such period, the
"Restricted Period"), within the United States or to, or for the account or
benefit of U.S. persons, except in accordance with Rule 144A under the Act, or
to Accredited Institutions in transactions that are exempt from the registration
requirements of the Act. Accordingly, each Initial Purchaser represents and
agrees that neither it, its affiliates nor any persons acting on its or their
behalf has engaged or will engage in any directed selling efforts within the
meaning of Rule 902(b) of Regulation S with respect to the Notes, and it, its
affiliates and all persons acting on its behalf have complied and will comply
with the offering restrictions requirements of Regulation S.
(d) Such Initial Purchaser agrees that, at or prior to confirmation of
a sale of Notes (other than a sale pursuant to Rule 144A or to Accredited
Institutions in transactions that are exempt from the registration requirements
of the Act), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Notes from it
during the Restricted Period a confirmation or notice substantially to the
following effect:
"The Notes covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Act") and may not be offered and 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 or the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Act. Terms used
above have the meanings assigned to them in Regulation S."
12
Such Initial Purchaser further agrees that it has not entered and will
not enter into any contractual arrangement with respect to the distribution or
delivery of the Notes, except with its affiliates or with the prior written
consent of the Company.
(e) Such Initial Purchaser further represents and agrees that (i) it
has not offered or sold and will not offer or sell any Notes to persons in the
United Kingdom prior to the expiry of the period of six months from the issue
date of the Notes, except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 with respect to anything done by it in relation to the Notes
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 issuance of the Notes to a person who is
of a kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1995 or is a person to whom the
document may otherwise lawfully be issued or passed on.
(f) Such Initial Purchaser agrees not to cause any advertisement of the
Notes to be published in any newspaper or periodical or posted in any public
place and not to issue any circular relating to the Notes, except such
advertisements as may be permitted by Regulation S.
(g) The sale of the Series A Notes pursuant to Regulation S are
"offshore transactions" and are not part of a plan or scheme to evade the
registration provision of the Act.
(h) Such Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to you pursuant to Section 7 hereof,
counsel to the Company, General Counsel to the Company and counsel to the
Initial Purchasers, will rely upon the accuracy and truth of the foregoing
representations and you hereby consent to such reliance.
The terms used in this Section 2 that have meanings assigned to them in
Regulation S are used herein as so defined.
Each Initial Purchaser further agrees that, in connection with the
Exempt Resales, it will solicit offers to buy the Series A Notes only from, and
will offer to sell the Series A Notes only to, the Eligible Purchasers in Exempt
Resales.
3. Purchase of the Notes by the Initial Purchasers. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell $120.0 million in
aggregate principal amount of Series A Notes to the Initial Purchasers, and each
of the Initial Purchasers, severally and not jointly, agrees to purchase the
aggregate principal amount of Series A Notes set forth opposite that Initial
Purchaser's name in Schedule 1 hereto. Each Initial Purchaser will purchase such
aggregate principal amount of Series A Notes at an aggregate purchase price
equal to 97.0% of the principal amount thereof (the "Purchase Price").
The Company shall not be obligated to deliver any of the Series A Notes
to be delivered, except upon payment for all the Series A Notes to be purchased
on such Closing Date as provided herein.
4. Delivery of and Payment.
13
(a) Delivery to the Initial Purchasers of and payment for the Series A
Notes shall be made at 9:00 a.m., New York City time, on the Closing Date at the
offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such
other time or place as you and the Company shall designate.
(b) One or more Series A Notes in definitive form, registered in the
name of Cede & Co., as nominee of the Depository Trust Company ("DTC"), or such
other names as the Initial Purchasers may request upon at least one business
days' notice to the Company, having an aggregate principal amount corresponding
to the aggregate principal amount of Series A Notes sold pursuant to Eligible
Resales (collectively, the "Global Note"), shall be delivered by the Company to
the Initial Purchasers, against payment by the Initial Purchasers of the
purchase price thereof by wire transfer of immediately available funds as the
Company may direct by written notice delivered to you two business days prior to
the Closing Date. The Global Note in definitive form shall be made available to
you for inspection not later than 9:30 a.m. on the business day immediately
preceding the Closing Date.
(c) Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Initial Purchaser hereunder.
5. Further Agreements of the Company and the Guarantors.
The Company and each of the Guarantors agrees:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, of (i) the issuance by any state securities commission of any
stop order suspending the qualification or exemption from qualification of any
Series A Notes for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purpose by the Commission or any state securities
commission or other regulatory authority, and (ii) the happening of any event
that makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or which requires the making of any
additions to or changes in the Preliminary Offering Memorandum or the Offering
Memorandum in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company and each
Guarantor shall use its best efforts to prevent the issuance of any stop order
or order suspending the qualification or exemption of the Series A Notes under
any state securities or Blue Sky laws and, if at any time any state securities
commission shall issue any stop order suspending the qualification or exemption
of the Series A Notes under any state securities or Blue Sky laws, the Company
and each Guarantor shall use every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To furnish to you, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as you may reasonably request. The Company and each
Guarantor consents to the use of the Preliminary Offering Memorandum and the
Offering Memorandum, and any amendments and supplements thereto required
pursuant to this Agreement, by you in connection with the Exempt Resales that
are in compliance with this Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to the
Closing Date or during the period referred to in (d) below unless you shall
previously have been advised of, and shall not have reasonably objected to, such
amendment or supplement within a reasonable time, but in any event not longer
than five days after being furnished a copy of such amendment or supplement. The
Company shall reasonably promptly prepare, upon any reasonable request by you,
any amendment or
14
supplement to the Offering Memorandum that may be necessary or advisable in
connection with Exempt Resales.
(d) If, in connection with any Exempt Resales or market making
transactions after the date of this Agreement and prior to the consummation of
the Exchange Offer, any event shall occur that, in the judgment of the Company
or in the judgment of your counsel, makes any statement of a material fact in
the Offering Memorandum untrue or that requires the making of any additions to
or changes in the Offering Memorandum in order to make the statements in the
Offering Memorandum, in light of the circumstances at the time that the Offering
Memorandum is delivered to prospective Eligible Purchasers, not misleading, or
if it is necessary to amend or supplement the Offering Memorandum to comply with
all applicable laws, the Company shall promptly notify you of such event and
prepare an appropriate amendment or supplement to the Offering Memorandum so
that (i) such statements or omissions will be corrected and (ii) the Offering
Memorandum will comply with applicable law.
(e) To cooperate with you and your counsel in connection with the
qualification of the Series A Notes for offer and sale by you and by dealers
under the state securities or Blue Sky laws of such jurisdictions as you may
request (provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not now so qualified
or to take any action that would subject it to general consent to service of
process in any jurisdiction in which it is not now so subject). The Company
shall continue such qualification in effect so long as required by law for
distribution of the Series A Notes and shall file such consents to service of
process or other documents as may be necessary in order to effect such
qualification.
(f) To the extent it lawfully may do so, not to voluntarily claim, and
to actively resist any attempts to claim, the benefit of any usury laws against
the holders of the Series A Notes.
(g) Prior to the Closing Date, to furnish to you, as soon as they have
been prepared, a copy of any internal consolidated financial statements of the
Company for any period subsequent to the period covered by the financial
statements appearing in the Offering Memorandum.
(h) To use its reasonable best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or after
the Closing Date and to satisfy all conditions set forth in Section 7 hereof.
(i) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Series A Notes in a manner that would require
the registration under the Act of the sale to you or the Eligible Purchasers of
Series A Notes.
(j) For so long as any of the Notes remain outstanding and are
Restricted Securities within the meaning of Rule 144(a)(3) under the Act and
during any period in which the Company is not subject to Section 13 or 15(d) of
the Exchange Act, to make available to any registered holder or beneficial owner
of Series A Notes in connection with any sale thereof and any prospective
purchaser of such Series A Notes from such registered holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act.
(k) To comply with its agreements in the Registration Rights Agreement,
and all agreements set forth in the representation letters of the Company to DTC
relating to the approval of the Notes by DTC for "book-entry" transfer.
15
(l) To use its reasonable best efforts to effect the inclusion of the
Notes in the National Association of Securities Dealers, Inc. Automated
Quotation System - Private Offerings, Resales and Trading through Automated
Linkages Market ("PORTAL").
(m) To apply the net proceeds from the sale of the Series A Notes being
sold by the Company as set forth in the Offering Memorandum under the caption
"Use of Proceeds."
(n) To take such steps as shall be necessary to ensure that the Company
shall not become an "investment company" within the meaning of such term under
the Investment Company Act of 1940 and the rules and regulations of the
Commission thereunder.
6. Expenses. The Company agrees that, whether or not the transactions
contemplated by this Agreement are consummated or this Agreement becomes
effective or is terminated, to pay all costs, expenses, fees and taxes incident
to and in connection with: (i) the preparation, printing and distribution of the
Preliminary Offering Memorandum and the Offering Memorandum (including, without
limitation, financial statements) and all amendments and supplements thereto
(but not, however, legal fees and expenses of your counsel incurred in
connection therewith), (ii) the preparation (including, without limitation, word
processing and duplication costs) and delivery of all Blue Sky Memoranda and all
other agreements, memoranda, correspondence and other documents printed and
delivered in connection herewith and with the Exempt Resales (but not, however,
legal fees and expenses of your counsel incurred in connection with any of the
foregoing other than fees of such counsel plus reasonable disbursements incurred
in connection with the preparation, printing and delivery of such Blue Sky
Memoranda), (iii) the issuance and delivery by the Company of the Notes, (iv)
the issuance and delivery by the Guarantors of the Subsidiary Guarantees, (v)
the qualification of the Notes for offer and sale under the securities or Blue
Sky laws of the several states (including, without limitation, the reasonable
fees and disbursements of your counsel relating to such registration or
qualification), (vi) furnishing such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and supplements
thereto, as may be reasonably requested for use in connection with the Exempt
Resales, (vii) the preparation of certificates for the Notes and Subsidiary
Guarantees (including, without limitation, printing and engraving thereof),
(viii) the fees, disbursements and expenses of the Company's counsel and
accountants, (ix) all expenses and listing fees in connection with the
application for quotation of the Series A Notes in PORTAL, (x) all fees and
expenses of the Company in connection with approval of the Notes by DTC for
"book-entry" transfer and (xi) the performance by the Company and the Guarantors
of their other obligations under this Agreement; provided that, except as
provided in Section 6(ii) and Section 10, the Initial Purchasers shall pay their
own costs and expenses of their counsel.
7. Conditions of Initial Purchasers' Obligations. The respective
obligations of the Initial Purchasers hereunder are subject to the accuracy,
when made and again on the Closing Date (as if made again on and as of such
date), of the representations and warranties of the Company and the Guarantors
contained herein, to the performance by the Company and the Guarantors of their
obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Offering Memorandum shall have been printed and copies
distributed to you not later than 11:00 a.m., New York City time, on August 7,
1997, or at such later date and time as you may approve in writing.
(b) No Initial Purchaser shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Offering Memorandum or any
amendment or supplement thereto contains an untrue statement of a fact which, in
the opinion of Xxxxxx & Xxxxxxx, counsel for the Initial
16
Purchasers, is material or omits to state a fact which, in the opinion of such
counsel, is material or is necessary to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the other Operative
Documents, the Transaction Agreement, the Credit Documents, the Offering
Memorandum, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Initial Purchasers, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Dechert Price & Xxxxxx shall have furnished to the Initial
Purchasers its written opinion, as counsel to the Company and the Guarantors,
addressed to the Initial Purchasers and dated as of the Closing Date,
substantially in the form attached hereto as Exhibit B. The opinion of such
counsel may be limited to the laws of the state of New York, the General
Corporation Law of the state of Delaware and the federal laws of the United
States.
(e) The Initial Purchasers shall have received from Xxxxxx & Xxxxxxx,
counsel for the Initial Purchasers, such opinion or opinions, dated such Closing
Date, with respect to the issuance and sale of the Series A Notes, the Offering
Memorandum and other related matters as the Initial Purchasers 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.
(f) The Initial Purchasers shall have received letters addressed to the
Initial Purchasers, and dated the date hereof and the Closing Date from KPMG
Peat Marwick, independent certified public accountants, substantially in the
forms heretofore approved by the Initial Purchasers.
(g) The Company and the Guarantors shall have furnished to the Initial
Purchasers a certificate, dated such Closing Date, of Xxxxx X. Xxxxxx, its Chief
Executive Officer and Xxxxxx X. Xxxxxxxx, its Chief Financial Officer, stating
that:
(i) The representations, warranties and agreements of the Company
(after giving effect to all materiality qualifiers therein) and the
Guarantors in Section 1 are true and correct as of such date and giving
effect to the consummation of the transactions contemplated by the
Transaction Agreement, the Credit Documents and this Agreement; the
Company and each Guarantor has complied with all its agreements
contained herein; and the conditions set forth in Sections 7(h), 7(i)
and 7(l) have been fulfilled; and
(ii) They have carefully examined the Preliminary Offering
Memorandum and the Offering Memorandum and, in their opinion (i) as of
their respective dates and as of the Closing Date, the Preliminary
Offering Memorandum and the Offering Memorandum did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (ii) since the date of the
Offering Memorandum, no event has occurred which should have been set
forth in a supplement or amendment to the Offering Memorandum.
(h) (i) The Company and each Guarantor shall not have sustained since
the date of the latest audited financial statements included in the Offering
Memorandum any loss or interference with
17
its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Offering
Memorandum or (ii) since such date there shall not have been any change in the
capital stock or long-term debt of the Company or any Guarantor or any change,
or any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company or any Guarantor, otherwise than as set forth or
contemplated in the Offering Memorandum, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Initial Purchasers,
so material and adverse as to make it impracticable or inadvisable to proceed
with the public offering or the delivery of the Notes being delivered on such
Closing Date on the terms and in the manner contemplated in the Offering
Memorandum.
(i) Prior to or simultaneously with the closing of the transactions
contemplated by the Operative Documents, the Company shall have closed the
transactions contemplated by the Credit Documents.
(j) Simultaneously with the closing of the transactions contemplated by
the Operative Documents, the Company shall redeem the Interim Notes and repay
the outstanding balance of the Existing Credit Facility in accordance with the
Use of Proceeds section of the Offering Memorandum.
(k) Xxxxxx & Xxxxxxx shall have been furnished with executed copies,
certified by the Secretary of the Company, of the Transaction Agreement, the
Credit Documents and such other documents and opinions, in addition to those set
forth above, as they may reasonably require for the purpose of enabling them to
review or pass upon the matters referred to in this Agreement and in order to
evidence the accuracy, completeness or satisfaction in all material respects of
any of the representations, warranties or conditions herein contained.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment of a
majority in interest of the several Initial Purchasers, impracticable or
inadvisable to proceed with the public offering or delivery of the Notes being
delivered on such Closing Date on the terms and in the manner contemplated in
the Offering Memorandum.
18
(n) The Company shall have furnished to the Initial Purchasers a
certificate, dated as of the Closing Date, of Xxxxxx X. Xxxxxxxx, its Chief
Financial Officer, stating that the Company has at least $50.0 million of
borrowings available to it under the New Credit Agreement (giving effect to the
covenants contained in the New Credit Agreement).
(m) Dechert Price & Xxxxxx shall have furnished a letter to the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers, the Company and their respective counsel, permitting the Initial
Purchasers to rely on certain provisions of Dechert Price & Xxxxxx' opinion
rendered pursuant to the New Credit Agreement.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
8. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and severally, shall
indemnify and hold harmless each Initial Purchaser, its officers and employees
and each person, if any, who controls any Initial Purchaser within the meaning
of the Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Notes), to which that Initial Purchaser, officer, employee or controlling person
may become subject, under the Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto, (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum or the Offering Memorandum or in any amendment
or supplement thereto any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any Initial Purchaser in
connection with, or relating in any manner to, the Notes or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that neither the Company nor the
Guarantors shall be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Initial Purchaser
through its gross negligence or willful misconduct), and shall reimburse each
Initial Purchaser and each such officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that Initial
Purchaser, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that neither the Company nor any of the Guarantors shall be liable in any such
case to the extent that any such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Offering Memorandum or the
Offering Memorandum, or in any such amendment or supplement in reliance upon and
in conformity with written information concerning such Initial Purchaser
furnished to the Company by or on behalf of any Initial Purchaser specifically
for inclusion therein. The foregoing indemnity agreement is in addition to any
liability which the Company or any Guarantor may otherwise have to any Initial
Purchaser or to any officer, employee or controlling person of that Initial
Purchaser.
19
(b) Each Initial Purchaser, severally and not jointly, shall indemnify
and hold harmless the Company, the Guarantors, their officers and employees,
each of their directors, and each person, if any, who controls the Company or
any Guarantor within the meaning of the Act or the Exchange Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company or any such Guarantor, director, officer
or controlling person may become subject, under the Act or otherwise, insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Offering Memorandum or the Offering Memorandum or
in any amendment or supplement thereto or (ii) the omission or alleged omission
to state in any Preliminary Offering Memorandum or the Offering Memorandum, or
in any amendment or supplement thereto, any material fact required to be stated
therein or necessary to make the statements therein not misleading, but in each
case only to the extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity with
written information concerning such Initial Purchaser furnished to the Company
by or on behalf of that Initial Purchaser specifically for inclusion therein,
and shall reimburse the Company, the Guarantors, and any such director, officer
or controlling person for any legal or other expenses reasonably incurred by the
Company, the Guarantors, or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability which any Initial
Purchaser may otherwise have to the indemnified parties.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Initial Purchasers shall have the right to employ counsel to represent
jointly the Initial Purchasers and their respective officers, employees and
controlling persons who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the Initial Purchasers against the
Company under this Section 8 if, in the reasonable judgment of the Initial
Purchasers, it is advisable for the Initial Purchasers, officers, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
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, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent
20
shall not be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage or liability, or action in respect thereof, (i) in such proportion as
shall be appropriate to reflect the relative benefits received by the Company on
the one hand and the Initial Purchasers on the other from the offering of the
Series A Notes or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Initial Purchasers on the other
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Initial Purchasers on the other with respect to such offering
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes purchased under this Agreement (before deducting
expenses) received by the Company, on the one hand, and the total discounts and
commissions received by the Initial Purchasers with respect to the Series A
Notes purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the Series A Notes under this Agreement, in each
case as set forth in the table on the cover page of the Offering Memorandum. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company or the Initial
Purchasers, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Initial Purchasers agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be determined
by pro rata allocation (even if the Initial Purchasers were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim, damage
or liability, or action in respect thereof, referred to above in this Section
shall be deemed to include, for purposes of this Section 8(d), 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 this Section 8(d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Series A Notes purchased by it was resold to Eligible Purchasers exceeds the
amount of any damages which such Initial Purchaser has otherwise paid or become
liable to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Initial Purchasers confirm and the Company acknowledges that
the last paragraph on the cover page and the stabilization legend on page iii
and the information set forth in the 1st through the 9th and the 13th paragraphs
under the caption "Plan of Distribution" in the Offering Memorandum constitute
the only information concerning such Initial Purchasers furnished in writing to
21
the Company by or on behalf of the Initial Purchasers specifically for inclusion
in the Offering Memorandum.
9. Termination. The obligations of the Initial Purchasers hereunder may
be terminated by Xxxxxx Brothers Inc. by notice given to the Company prior to
delivery of and payment for the Series A Notes if, prior to that time, any of
the events described in Sections 7(h) or 7(n) shall have occurred or if the
Initial Purchasers shall decline to purchase the Series A Notes for any reason
permitted under this Agreement. If, on the Closing Date, the Initial Purchasers
shall default in the performance of their obligations under this Agreement, this
Agreement shall terminate without liability on the part of the Company or the
Guarantors, except that the Company will continue to be liable for the payment
of expenses to the extent set forth in Section 6 and except that the provisions
of Section 8 shall not terminate and shall remain in full force and effect.
10. Reimbursement of Initial Purchasers' Expenses. If the Company shall
fail to tender the Series A Notes for delivery to the Initial Purchasers by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Initial Purchasers' obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Initial Purchasers for all reasonable out-of-pocket expenses (including the fees
and disbursements of its counsel) incurred by the Initial Purchasers in
connection with this Agreement and the proposed purchase of the Series A Notes,
and upon demand the Company shall pay the full amount thereof to Xxxxxx Brothers
Inc.
11. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Brothers Inc., Three
World Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 000-000-0000), with a copy to Xxxxxx & Xxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxxx
(Fax: 000-000-0000) and, in the case of any notice pursuant to Section
8, to the Director of Litigation, Office of the General Counsel, Xxxxxx
Brothers Inc., Three World Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000; and
(b) if to the Company or any Guarantor, shall be delivered or sent
by mail, telex or facsimile transmission to B&G Foods, Inc., 000 Xxxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, Attention: Chief Financial
Officer (Fax: 000-000-0000), with a copy to Dechert Price & Xxxxxx, 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Glyndwr X.
Xxxx (Fax: 000-000-0000).
Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on behalf of the
Initial Purchasers by Xxxxxx Brothers Inc.
12. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company,
and their respective personal representatives and successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that (i) the representations, warranties, indemnities and agreements of
the Company and the Guarantors contained in this Agreement shall also be deemed
to be for the
22
benefit of the person or persons, if any, who control any Initial Purchaser
within the meaning of Section 15 of the Act and (ii) the representations,
warranties, indemnities and agreements of the Initial Purchasers contained in
this Agreement shall be deemed to be for the benefit of directors of each of the
Company or the Guarantors, officers of each of the Company and the Guarantors
and any person controlling the Company within the meaning of Section 15 of the
Act. Nothing in this Agreement is intended or shall be construed to give any
person, other than the persons referred to in this Section 12, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
13. Survival. The respective indemnities, representations, warranties
and agreements of the Company, the Guarantors and the Initial Purchasers
contained in this Agreement or made by or on behalf on them, respectively,
pursuant to this Agreement, shall survive the delivery of and payment for the
Notes and shall remain in full force and effect, regardless of any investigation
made by or on behalf of any of them or any person controlling any of them.
14. Definition of the Terms "Business Day" and "Subsidiary." For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
15. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
16. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
17. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[Signature Page(s) Follow]
23
If the foregoing correctly sets forth the agreement between the Company
and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
B&G FOODS, INC.
By /s/
--------------------------------
Name:
Title:
BGH HOLDINGS, INC.
By /s/
--------------------------------
Name:
Title:
RWBV ACQUISITION CORP.
By /s/
--------------------------------
Name:
Title:
BRH HOLDINGS, INC.
By /s/
--------------------------------
Name:
Title:
24
XXXXX & XXXXXXXXXXXX, INC.
By /s/
--------------------------------
Name:
Title:
ROSELAND DISTRIBUTION COMPANY
By /s/
--------------------------------
Name:
Title:
XXXXX & XXXXXX, INC.
By /s/
--------------------------------
Name:
Title:
ROSELAND MANUFACTURING, INC.
By /s/
--------------------------------
Name:
Title:
RWBV BRANDS COMPANY
By /s/
--------------------------------
Name:
Title:
Accepted:
XXXXXX BROTHERS INC.
By /s/
--------------------------------
Name:
Title:
LAZARD FRERES & CO. LLC
By /s/
--------------------------------
Name:
Title:
SCHEDULE 1
Initial Purchaser Principal Amount Notes
----------------- ----------------------
XXXXXX BROTHERS INC........................ $ 96,000,000
LAZARD FRERES & CO. LLC.................... $ 24,000,000
=======================
Total................................... $ 120,000,000
EXHIBIT A
Registration Rights Agreement
-----------------------------
EXHIBIT B
Form of Opinion of Dechert Price & Xxxxxx
-----------------------------------------
