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EXHIBIT 4.3
XXXXX XXXXXX INCORPORATED
$200,000,000
6% Notes due 2009
PURCHASE AGREEMENT
February 1, 1999
NATIONSBANC XXXXXXXXXX SECURITIES LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Xxxxx Xxxxxx Incorporated, a Delaware corporation (the "Company"),
proposes to issue and sell $200,000,000 aggregate principal amount of its 6%
Notes due 2009 (the "Securities"). The Securities will be issued pursuant to an
Indenture dated as of May 15, 1991 (the "Indenture") between the Company and
Citibank, N.A., as trustee (the "Trustee"). The Company hereby confirms its
agreement with NationsBanc Xxxxxxxxxx Securities LLC (the "Initial Purchaser")
concerning the purchase of the Securities from the Company by the Initial
Purchaser.
The Securities will be offered and sold to the Initial Purchaser
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance upon an exemption therefrom. The Company will
prepare an offering memorandum dated the date hereof (the "Offering
Memorandum") setting forth information concerning the Company and the
Securities. Copies of the Offering Memorandum will be delivered by the Company
to the Initial Purchaser pursuant to the terms of this Agreement. Any
references herein to the Offering Memorandum shall be deemed to refer to and
include any documents incorporated by reference therein as of the date of the
Offering Memorandum, and any reference to any amendment or supplement to the
Offering Memorandum shall be deemed to refer to and include any document filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
after the date of the Offering Memorandum, unless otherwise noted. The Company
hereby confirms that it has authorized the use of the Offering Memorandum in
connection with the offering and resale of the Securities by the Initial
Purchaser in accordance with Section 2.
Holders of the Securities (including the Initial Purchaser and its
direct and indirect transferees as set forth herein) will be entitled to the
benefits of an Exchange and Registration Rights Agreement, substantially in the
form attached hereto as Annex A (the "Registration Rights Agreement"), pursuant
to which the Company will agree to file with the Securities and Exchange
Commission (the "Commission") (i) a registration statement under the Securities
Act (the "Exchange Offer Registration Statement") registering debt securities
of the Company (the "Exchange Securities") which are identical in all material
respects to the Securities (except that the Exchange
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Securities will not contain terms with respect to transfer restrictions or the
payment of additional interest) and (ii) under certain circumstances, a shelf
registration statement pursuant to Rule 415 under the Securities Act (the
"Shelf Registration Statement").
Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to, and agrees with, the Initial Purchaser on
and as of the date hereof and the Closing Date (as defined in Section 3) that:
(a) The Offering Memorandum, as of its date, did not, and on
the Closing Date, as amended or supplemented, will not, contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
that the Company makes no representation or warranty as to information
contained in or omitted from the Offering Memorandum in reliance upon and in
conformity with written information relating to the Initial Purchaser furnished
to the Company by or on behalf of the Initial Purchaser specifically for use
therein (the "Initial Purchaser's Information").
(b) The documents incorporated by reference in the Offering
Memorandum (the "Exchange Act Reports"), when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder and
none of such documents contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, and any
further documents so filed and incorporated by reference in the Offering
Memorandum, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder and shall not contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(c) The Offering Memorandum, as of its date, contains or
incorporates by reference all of the information that, if requested by a
prospective purchaser of the Securities, would be required to be provided to
such prospective purchaser pursuant to Rule 144A(d)(4) under the Securities
Act.
(d) Assuming the accuracy of the representations and
warranties of the Initial Purchaser contained in Section 2 and its compliance
with the agreements set forth therein, it is not necessary, in connection with
the issuance and sale of the Securities to the Initial Purchaser and the offer,
resale and delivery of the Securities by the Initial Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum, to register the
Securities under the Securities Act.
(e) The Company has all necessary corporate power and
authority to execute and deliver this Agreement, the Registration Rights
Agreement, the Securities and any supplemental indenture or other document
required under the Indenture to establish the Securities thereunder (the
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"Supplemental Indenture") (collectively, the "Transaction Documents") and to
perform its obligations under the Indenture and the Transaction Documents; and
all corporate action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated thereby have been duly and
validly taken.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Registration Rights Agreement has been duly
authorized by the Company and, when duly executed and delivered in accordance
with its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company enforceable against the Company in
accordance with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law) and except to the extent that the
enforceability of the indemnification provisions may be limited as against
public policy.
(h) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding agreement
of the Company enforceable against the Company in accordance with its terms,
except to the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or at law).
(i) The Securities have been duly authorized by the Company
and, when duly executed, authenticated, issued and delivered as provided in the
Indenture and the Supplemental Indenture and paid for as provided herein, will
be duly and validly issued and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except to the
extent that such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
(j) Each Transaction Document and the Indenture conforms in
all material respects to the description thereof contained in the Offering
Memorandum.
(k) The execution, delivery and performance by the Company of
each of the Transaction Documents, the issuance, authentication, sale and
delivery of the Securities and compliance by the Company with the terms
thereof, the compliance by the Company with the terms of the Indenture and the
consummation of the transactions contemplated by the Transaction Documents will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any material indenture,
mortgage, deed of trust, loan agreement or other material agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or
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any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws of the Company or
any of its subsidiaries or any statute or any judgment, order, decree, rule or
regulation of any court or arbitrator or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets, except as would not have, in any case, a material adverse
effect on the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect"); and no consent, approval, authorization or order
of, or filing or registration with, any such court or arbitrator or
governmental agency or body under any such statute, judgment, order, decree,
rule or regulation is required for the execution, delivery and performance by
the Company of each of the Transaction Documents, the issuance, authentication,
sale and delivery of the Securities and compliance by the Company with the
terms thereof and the consummation of the transactions contemplated by the
Transaction Documents, except for such consents, approvals, authorizations,
filings, registrations or qualifications (i) which shall have been obtained or
made prior to the Closing Date, (ii) as may be required to be obtained or made
under the Securities Act and applicable state securities laws as provided in
the Registration Rights Agreement, and (iii) except to the extent that the
failure to obtain such consents, approvals, authorizations, filings,
registrations or qualifications would not have a Material Adverse Effect.
(l) No action has been taken and no statute, rule, regulation
or order has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Securities or suspends the sale of the
Securities in any jurisdiction; no injunction, restraining order or order of
any nature by any federal or state court of competent jurisdiction has been
issued with respect to the Company or any of its subsidiaries which would
prevent or suspend the issuance or sale of the Securities or the use of the
Offering Memorandum in any jurisdiction; no action, suit or proceeding is
pending against or, to the best knowledge of the Company, threatened against or
affecting the Company or any of its subsidiaries before any court or arbitrator
or any governmental agency, body or official, domestic or foreign, which could
reasonably be expected to interfere with or adversely affect the issuance of
the Securities or in any manner draw into question the validity or
enforceability of any of the Transaction Documents or the Indenture or any
action taken or to be taken pursuant thereto; and the Company has complied with
any and all requests by any securities authority in any jurisdiction for
additional information to be included in the Offering Memorandum.
(m) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
(n) In connection with the offering and sale of Securities in
reliance on Regulation S, neither the Company nor any of its affiliates or any
person acting on its or their behalf other than the Initial Purchaser, as to
which the Company makes no representation, has engaged or will engage in any
directed selling efforts (as such term is defined in Regulation S under the
Securities Act ("Regulation S")), and all such persons other than the Initial
Purchaser, as to which the Company makes no representation, have complied and
will comply with the offering restrictions requirement of Regulation S to the
extent applicable.
(o) Neither the Company nor any of its affiliates has,
directly or through any agent, sold, offered for sale, solicited offers to buy
or otherwise negotiated in respect of, any security
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(as such term is defined in the Securities Act), which is or will be integrated
with the sale of the Securities in a manner that would require registration of
the Securities under the Securities Act.
(p) None of the Company or any of its affiliates or any other
person acting on its or their behalf other than the Initial Purchaser, as to
which the Company makes no representation, has engaged, in connection with the
offering of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(q) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in the Offering Memorandum has been made or reaffirmed without a
reasonable basis or has been disclosed other than in good faith.
2. Purchase and Resale of the Securities. (a) On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
the Initial Purchaser, and the Initial Purchaser agrees to purchase from the
Company, the Securities at a purchase price equal to 99.295% of the principal
amount thereof. The Company shall not be obligated to deliver any of the
Securities except upon payment for all of the Securities to be purchased as
provided herein.
(b) The Initial Purchaser has advised the Company that it
proposes to offer the Securities for resale upon the terms and subject to the
conditions set forth herein and in the Offering Memorandum. The Initial
Purchaser represents and warrants to, and agrees with, the Company that (i) it
is purchasing the Securities pursuant to a private sale exempt from
registration under the Securities Act, (ii) it has not solicited offers for, or
offered or sold, and will not solicit offers for, or offer or sell, the
Securities by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act and (iii) it has solicited and
will solicit offers for the Securities only from, and has offered or sold and
will offer, sell or deliver the Securities, as part of its initial offering,
only (A) within the United States to persons whom it reasonably believes to be
qualified institutional buyers ("Qualified Institutional Buyers"), as defined
in Rule 144A under the Securities Act ("Rule 144A"), or if any such person is
buying for one or more institutional accounts for which such person is acting
as fiduciary or agent, only when such person has represented to it that each
such account is a Qualified Institutional Buyer to whom notice has been given
that such sale or delivery is being made in reliance on Rule 144A and, in each
case, in transactions in accordance with Rule 144A, (B) to a limited number of
other institutional accredited investors (as such term is defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D), and (C) outside the United States
to persons other than U.S. persons in reliance on, and in accordance with,
Regulation S. The Initial Purchaser represents and warrants to, and agrees
with, the Company that it is an accredited investor within the meaning of Rule
501(a) under the Securities Act.
(c) In connection with the offer and sale of Securities in
reliance on Regulation S, the Initial Purchaser represents, warrants and agrees
that:
(i) The Securities have not been registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons
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except pursuant to an exemption from, or in transactions not subject
to, the registration requirements of the Securities Act.
(ii) The Initial Purchaser has offered and sold the
Securities, and will offer and sell the Securities, (A) as part of
their distribution at any time and (B) otherwise until 40 days after
the later of the commencement of the offering of the Securities and
the Closing Date, only in accordance with Rule 903 of Regulation S or
Rule 144A or any other available exemption from registration under the
Securities Act.
(iii) None of the Initial Purchaser or any of its affiliates
or any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities,
and all such persons have complied and will comply with the offering
restrictions requirement of Regulation S.
(iv) At or prior to the confirmation of sale of any
Securities sold in reliance on Regulation S, it will have sent to each
distributor, dealer or other person receiving a selling concession,
fee or other remuneration that purchase Securities from it during the
distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities
Act"), and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons
(i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement
of the offering of the Securities and the date of original
issuance of the Securities, except in accordance with
Regulation S or Rule 144A or any other available exemption
from registration under the Securities Act. Terms used above
have the meanings given to them by Regulation S."
(v) It has not and will not enter into any contractual
arrangement with any distributor with respect to the distribution or
delivery of the Securities, except with its affiliates or with the
prior written consent of the Issuers.
Terms used in this Section 2(c) have the meanings given to them by Regulation
S.
(d) The Initial Purchaser represents, warrants and agrees
that (i) it has not offered or sold and prior to the date six months after the
Closing Date will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995; (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 and the Public Offers of Securities Regulations 1995 with
respect to anything done by it in relation to the Securities in, from or
otherwise involving the United Kingdom; and (iii) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received
by it in connection with the issue of the Securities to a person who is of a
kind
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described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document
may otherwise lawfully be issued or passed on.
(e) The Initial Purchaser agrees that, prior to or
simultaneously with the confirmation of sale by the Initial Purchaser to any
purchaser of any of the Securities purchased by the Initial Purchaser from the
Company pursuant hereto, the Initial Purchaser shall furnish to that purchaser
a copy of the Offering Memorandum (and any amendment or supplement thereto that
the Company shall have furnished to the Initial Purchaser prior to the date of
such confirmation of sale). In addition to the foregoing, the Initial Purchaser
acknowledges and agrees that the Company and, for purposes of the opinions to
be delivered to the Initial Purchaser pursuant to Sections 5(d) and (e),
counsel for the Company and for the Initial Purchaser, respectively, may rely
upon the accuracy of the representations and warranties of the Initial
Purchaser and its compliance with its agreements contained in this Section 2,
and the Initial Purchaser hereby consents to such reliance.
(f) The Company acknowledges and agrees that the Initial
Purchaser may sell Securities to any of its affiliates and that any such
affiliate may sell Securities purchased by it to the Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of and
payment for the Securities shall be made at the offices of Xxxxxx & Xxxxxx
L.L.P., 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxx, or at such other place as shall be
agreed upon by the Initial Purchaser and the Company, at 10:00 a.m., New York
City time, on February 4, 1999, or at such other time or date, not later than
seven full business days thereafter, as shall be agreed upon by the Initial
Purchaser and the Company (such date and time of payment and delivery being
referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for
the Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior
to the Closing Date or by such other means as the parties hereto shall agree
prior to the Closing Date against delivery to the Initial Purchaser of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligations of the Initial Purchaser hereunder. Upon
delivery, the Securities shall be in global form, registered in such names and
in such denominations as the Initial Purchaser shall have requested in writing
not less than two full business days prior to the Closing Date. The Company
agrees to make one or more global certificates evidencing the Securities
available for inspection by the Initial Purchaser in New York, New York at
least 24 hours prior to the Closing Date.
4. Further Agreements of the Company. The Company agrees with the
Initial Purchaser:
(a) at any time prior to completion of the resale of the
Securities by the Initial Purchaser: to advise the Initial Purchaser promptly
and, if requested, confirm such advice in writing, of the happening of any
event which makes any statement of a material fact made or incorporated by
reference in the Offering Memorandum untrue or which requires the making of any
additions to or changes in the Offering Memorandum (as amended or supplemented
from time to time) in order to make the statements therein, in the light of the
circumstances under which they were made, not
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misleading; to advise the Initial Purchaser promptly of any order preventing or
suspending the use of the Offering Memorandum, of any suspension of the
qualification of the Securities for offering or sale in any jurisdiction and of
the initiation or threatening of any proceeding for any such purpose; and to
use its best efforts to prevent the issuance of any such order preventing or
suspending the use of the Offering Memorandum or suspending any such
qualification and, if any such suspension is issued, to obtain the lifting
thereof at the earliest possible time;
(b) to furnish promptly to the Initial Purchaser and counsel
for the Initial Purchaser, without charge, as many copies of the Offering
Memorandum (and any amendments or supplements thereto) as may be reasonably
requested;
(c) prior to making any amendment or supplement to the
Offering Memorandum, to furnish a copy thereof to the Initial Purchaser and
counsel for the Initial Purchaser and not to effect any such amendment or
supplement to which the Initial Purchaser shall reasonably object by notice to
the Company after a reasonable period to review; provided that the Company
shall be permitted in any case to make all applicable filings under the
Exchange Act;
(d) if, at any time prior to completion of the resale of the
Securities by the Initial Purchaser, any event shall occur or condition exist
as a result of which it is necessary, in the opinion of counsel for the Initial
Purchaser or counsel for the Company, to amend or supplement the Offering
Memorandum in order that the Offering Memorandum will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading, or if it
is necessary to amend or supplement the Offering Memorandum to comply with
applicable law, to promptly prepare such amendment or supplement as may be
necessary to correct such untrue statement or omission or so that the Offering
Memorandum, as so amended or supplemented, will comply with applicable law;
(e) to file all reports and definitive proxy or information
statement required to be filed by the Company with the Commission pursuant to
Section 12(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
the Offering Memorandum for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act;
(f) for five years from the date hereof, to furnish to the
Initial Purchaser copies of any annual reports, quarterly reports and current
reports filed by the Company with the Commission on Forms 10-K, 10-Q and 8-K,
or such other similar forms as may be designated by the Commission, and such
other documents, reports and information as shall be furnished by the Company
to the Trustee or to the holders of the Securities pursuant to the Indenture or
the Exchange Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the
Initial Purchaser may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as the
Initial Purchaser may designate and to continue such qualifications in effect
for so long as required for the resale of the Securities; and to arrange for
the determination of the eligibility for investment of the Securities under the
laws of such jurisdictions as the Initial
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Purchaser may reasonably request; provided that the Company and its
subsidiaries shall not be obligated to qualify as foreign corporations in any
jurisdiction in which they are not so qualified or to file a general consent to
service of process in any jurisdiction;
(h) not to, and to cause its affiliates not to, sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as such term is defined in the Securities Act) which could be
integrated with the sale of the Securities in a manner which would require
registration of the Securities under the Securities Act;
(i) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
not to, and to cause its affiliates not to, and not to authorize or knowingly
permit any person acting on their behalf to, solicit any offer to buy or offer
to sell the Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities Act; and
not to offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale, contract
or disposition would cause the exemption afforded by Section 4(2) of the
Securities Act to cease to be applicable to the offering and sale of the
Securities as contemplated by this Agreement and the Offering Memorandum;
(j) until the Closing Date, not to offer for sale, sell,
contract to sell or otherwise dispose of, directly or indirectly, or file a
registration statement for, or announce any offer, sale, contract for sale of
or other disposition of any debt securities issued or guaranteed by the Company
or any of its subsidiaries (other than the Securities) without the prior
written consent of the Initial Purchaser;
(k) for a period of two years after the Closing Date without
the prior written consent of the Initial Purchaser, not to, and not permit any
of its affiliates (as defined in Rule 144 under the Securities Act) to, resell
any of the Securities that have been reacquired by them, except for Securities
purchased by the Company or any of its affiliates and resold in a transaction
registered under the Securities Act;
(l) in connection with the offering of the Securities, until
the Initial Purchaser shall have notified the Company of the completion of the
resale of the Securities, not to, and to cause its affiliated purchasers (as
defined in Regulation M under the Exchange Act) not to, either alone or with
one or more other persons, bid for or purchase, for any account in which it or
any of its affiliated purchasers has a beneficial interest, any Securities, or
attempt to induce any person to purchase any Securities; and not to, and to
cause its affiliated purchasers not to, make bids or purchase for the purpose
of creating actual, or apparent, active trading in or of raising the price of
the Securities;
(m) not to, for so long as the Securities are outstanding, be
or become an open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under Section 8 of
the Investment Company Act of 1940, as amended, and to not be or become a
closed-end investment company required to be registered, but not registered
thereunder;
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(n) so long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) promulgated under the
Securities Act, the Company will, unless it is subject to and complies with
Section 13 or 15(d) of the Exchange Act, provide to each holder of such
restricted securities and to each prospective purchaser (as designated by such
holder) of such restricted securities, upon the request of such holder or
prospective purchaser, any information required to be provided by Rule
144A(d)(4) or a successor provision under the Securities Act; provided that
this covenant is intended to be solely for the benefit of the holders, and the
prospective purchasers designated by such holders, from time to time of such
restricted securities; and
(o) to apply the net proceeds from the sale of the Securities
as set forth in the Offering Memorandum under the heading "Use of Proceeds."
5. Conditions of Initial Purchaser's Obligations. The obligations of
the Initial Purchaser hereunder are subject to the accuracy, on and as of the
date hereof and the Closing Date, of the representations and warranties of the
Company contained herein, to the accuracy of the statements of the Company and
its officers made in any certificates delivered pursuant hereto, to the
performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Offering Memorandum (and any amendments or
supplements thereto) shall have been printed and copies distributed to the
Initial Purchaser as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial Purchaser may
agree; and no stop order suspending the sale of the Securities in any
jurisdiction shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or threatened.
(b) The Initial Purchaser shall not 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 is material or omits to state any fact which is material and is
required to be stated therein or is necessary to make the statements therein
not misleading.
(c) All corporate proceedings and other legal matters
incident to the authorization, form and validity of each of the Transaction
Documents and the Offering Memorandum, and all other legal matters relating to
the Transaction Documents, the Indenture and the transactions contemplated
thereby, shall be reasonably satisfactory in all material respects to the
Initial Purchaser, and the Company shall have furnished to the Initial
Purchaser all documents and information that it or its counsel may reasonably
request to enable them to pass upon such matters.
(d) Xxxxxxxx X'Xxxxxxx III, General Counsel to the Company,
and Xxxxx & Xxxxx, L.L.P., special counsel to the Company, shall have furnished
to the Initial Purchaser their written opinions, addressed to the Initial
Purchaser and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchaser, substantially to the effect set forth in
Annexes B-1 and B-2 hereto, respectively.
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(e) The Initial Purchaser shall have received from Xxxxxx &
Xxxxxx L.L.P., counsel for the Initial Purchaser, such opinion or opinions,
dated the Closing Date, with respect to such matters as the Initial Purchaser
may reasonably require, and the Company shall have furnished to such counsel
such documents and information as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) The Company shall have furnished to the Initial Purchaser
a letter (the "Initial Letter") of Deloitte & Touche LLP, addressed to the
Initial Purchaser and dated the date hereof, in form and substance satisfactory
to the Initial Purchaser, substantially to the effect set forth in Annex C
hereto.
(g) The Company shall have furnished to the Initial Purchaser
a letter (the "Bring- Down Letter") of Deloitte & Touche LLP, addressed to the
Initial Purchaser and dated the Closing Date (i) confirming that they are
independent public accountants with respect to the Company and its subsidiaries
within the meaning of Rule 101 of the Code of Professional Conduct of the AICPA
and its interpretations and rulings thereunder, (ii) stating, as of the date of
the Bring-Down Letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more than
three business days prior to the date of the Bring-Down Letter), that the
conclusions and findings of such accountants with respect to the financial
information and other matters covered by the Initial Letter are accurate and
(iii) confirming in all material respects the conclusions and findings set
forth in the Initial Letter.
(h) The Company shall have furnished to the Initial Purchaser
a certificate, dated the Closing Date, of its chief executive officer and its
chief financial officer stating that (A) such officers have carefully examined
the Offering Memorandum, (B) in their opinion, (i) the Offering Memorandum,
including the documents incorporated therein by reference, as of its date, did
not include any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and (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 so that the Offering Memorandum (as so
amended or supplemented) would not include any untrue statement of a material
fact and would not omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading and (C) to the best of
their knowledge, as of the Closing Date, the representations and warranties of
the Company in this Agreement are true and correct in all material respects,
the Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder on or prior to the Closing
Date, and subsequent to the date of the most recent financial statements
contained in the Offering Memorandum, there has been no material adverse change
in the financial position or results of operation of the Company or any of its
subsidiaries, or any change, or any development including a prospective change,
in or affecting the condition (financial or otherwise), results of operations,
business or prospects of the Company and its subsidiaries taken as a whole,
except at set forth in the Offering Memorandum.
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(i) The Initial Purchaser shall have received a counterpart
of the Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of the Company.
(j) The Securities shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee.
(k) If any event shall have occurred that requires the
Company under Section 4(d) to prepare an amendment or supplement to the
Offering Memorandum, such amendment or supplement shall have been prepared, the
Initial Purchaser shall have been given a reasonable opportunity to comment
thereon, and copies thereof shall have been delivered to the Initial Purchaser
reasonably in advance of the Closing Date.
(l) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the Exchange
Act by the Commission or any amendment or proposed amendment thereof by the
Commission which in the judgment of the Initial Purchaser would materially
impair the ability of the Initial Purchaser to purchase, hold or effect resales
of the Securities as contemplated hereby.
(m) Subsequent to the execution and delivery of this
Agreement or, if earlier, the dates as of which information is given in the
Offering Memorandum (exclusive of any amendment or supplement thereto), there
shall not have been any change in the capital stock or long-term debt or any
change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, the effect of
which, in any such case described above, is, in the judgment of the Initial
Purchaser, so material and adverse as to make it impracticable or inadvisable
to proceed with the sale or delivery of the Securities on the terms and in the
manner contemplated by this Agreement and the Offering Memorandum (exclusive of
any amendment or supplement thereto).
(n) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Securities; and no injunction, restraining order or
order of any other nature by any federal or state court of competent
jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance or sale of the Securities.
(o) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating accorded the
Securities or any of the Company's other debt securities or preferred stock by
any "nationally recognized statistical rating organization", as such term is
defined by the Commission for purposes of Rule 436(g)(2) of the rules and
regulations of the Commission under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or
review (other than an announcement with positive implications of a possible
upgrading), its rating of the Securities or any of the Company's other debt
securities or preferred stock.
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(p) 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 in the over-the-counter
market shall have been suspended or limited, or minimum prices shall have been
established on any such exchange or market by the Commission, by any such
exchange or by any other regulatory body or governmental authority having
jurisdiction, or trading in any securities of the Company on any exchange or in
the over-the-counter market shall have been suspended or (ii) any moratorium on
commercial banking activities shall have been declared by federal or New York
state authorities or (iii) an outbreak of escalation of hostilities or a
declaration by the United States of a national emergency or war or (iv) 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) the effect of which, in the case of clause (iii)
or (iv), is, in the judgment of the Initial Purchaser, so material and adverse
as to make it impracticable or inadvisable to proceed with the sale or the
delivery of the Securities on the terms and in the manner contemplated by this
Agreement and in the Offering Memorandum (exclusive of any amendment or
supplement thereto).
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 Purchaser.
6. Termination. The obligations of the Initial Purchaser hereunder may
be terminated by the Initial Purchaser, in its absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Securities if, prior to that time, any of the events described in Section 5(l),
(m), (n), (o) or (p) shall have occurred and be continuing.
7. Reimbursement of Initial Purchaser's Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6, (b) the Company
shall fail to tender the Securities for delivery to the Initial Purchaser for
any reason permitted under this Agreement or (c) the Initial Purchaser shall
decline to purchase the Securities for any reason permitted under this
Agreement (other than pursuant to Section 5(p)), the Company shall reimburse
the Initial Purchaser for such out-of-pocket expenses (including reasonable
fees and disbursements of counsel) as shall have been reasonably incurred by
the Initial Purchaser in connection with this Agreement and the proposed
purchase and resale of the Securities.
8. Indemnification. (a) The Company shall indemnify and hold harmless
the Initial Purchaser, its affiliates, their respective officers, directors,
employees, representatives and agents, and each person, if any, who controls
the Initial Purchaser within the meaning of the Securities Act or the Exchange
Act (collectively referred to for purposes of this Section 8(a) and Section 9
as the Initial Purchaser), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating to
purchases and sales of the Securities), to which the Initial Purchaser may
become subject, whether commenced or threatened, under the Securities Act, the
Exchange Act, any other federal or state statutory law or regulation, at common
law or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated
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therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, and shall
reimburse the Initial Purchaser promptly upon demand for any reasonable legal
or other expenses reasonably incurred by the Initial Purchaser in connection
with investigating or defending or preparing to defend against or appearing as
a third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with any Initial
Purchaser's Information.
(b) The Initial Purchaser shall indemnify and hold harmless
the Company, its affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act (collectively
referred to for purposes of this Section 8(b) and Section 9 as the Company),
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
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 Offering Memorandum or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Initial Purchaser's Information provided by it,
and shall reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending or
preparing to defend against or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party pursuant to Section 8(a) or 8(b), notify the
indemnifying party in writing of the claim or the commencement of that action;
provided, however, that the failure to notify the indemnifying party shall not
relieve it from any liability which it may have under this Section 8 except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and, provided, further, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defenses of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in connection
with the defense thereof other than reasonable costs of investigation;
provided, however, that an indemnified party shall have the right to employ its
own
-14-
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counsel in any such action, but the fees, expenses and other charges of such
counsel for the indemnified party will be at the expense of such indemnified
party unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party has
reasonably concluded (based upon advice of counsel to the indemnified party)
that there may be legal defenses available to it or other indemnified parties
that are different from or in addition to those available to the indemnifying
party, (3) a conflict or potential conflict exists (based upon advice of
counsel to the indemnified party) between the indemnified party and the
indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 8(a) and 8(b),
shall use all reasonable efforts to cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be liable
for any settlement of any such action effected without its written consent
(which consent shall not be unreasonably withheld), but if settled with its
written consent or if there be a final judgment for the plaintiff in any such
action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written
consent of the indemnified party (which consent shall not be unreasonably
withheld), effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless
such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
The obligations of the Company and the Initial Purchaser in this
Section 8 and in Section 9 are in addition to any other liability that the
Company or the Initial Purchaser, as the case may be, may otherwise have,
including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
9. Contribution. If the indemnification provided for in Section 8 is
unavailable or insufficient to hold harmless an indemnified party under Section
8(a) or 8(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in
respect thereof, (i) in such proportion as shall be appropriate to reflect the
relative benefits received by the Company on the one hand and the Initial
Purchaser on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and the Initial Purchaser on the other with respect to the
statements or omissions that resulted in such loss, claim, damage or liability,
or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Initial Purchaser on the other with respect to such
-15-
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offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased under this Agreement (before
deducting expenses) received by or on behalf of the Company, on the one hand,
and the total discounts and commissions received by the Initial Purchaser with
respect to the Securities purchased under this Agreement, on the other, bear to
the total gross proceeds from the sale of the Securities under this Agreement.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to the Company or
information supplied by the Company on the one hand or to any Initial
Purchaser's Information on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Initial Purchaser agree
that it would not be just and equitable if contributions pursuant to this
Section 9 were to be determined by pro rata allocation or by any other method
of allocation that does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 9 shall be deemed to include, for purposes of
this Section 9, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending or preparing to
defend any such action or claim. Notwithstanding the provisions of this Section
9, the Initial Purchaser shall not be required to contribute any amount in
excess of the amount by which the total discounts and commissions received by
the Initial Purchaser with respect to the Securities purchased by it under this
Agreement exceeds the amount of any damages which the 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 8 and 9 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Company and the Initial
Purchaser. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Section 10, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein. No purchaser of Securities from the Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
11. Expenses. The Company agrees with the Initial Purchaser to pay (a)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities and any taxes payable in that connection; (b) the
costs incident to the preparation, printing and delivery of the certificates
evidencing the Securities, including stamp duties and transfer taxes, if any,
payable upon issuance of the Securities; (c) the fees and expenses of the
Company's independent accountants; (d) any fees charged by rating agencies for
rating the Securities; (e) the fees and expenses of the Trustee and any paying
agent (including related fees and expenses of any counsel to such parties); (f)
all expenses and application fees incurred in connection with the approval of
the Securities for book-entry transfer by DTC; and (g) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement which are not otherwise specifically provided for in this
Section 11; provided, however, that the Initial Purchaser shall pay its own
costs and expenses (except as
-16-
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provided in this Section 11 and in Section 7), the costs incident to the
printing and distribution of the Offering Memorandum and any amendments or
supplements thereto, the costs of legal counsel for the Initial Purchaser and
the Company and the costs of certain roadshow presentations.
12. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchaser contained in this Agreement or made by or on behalf of the Company or
the Initial Purchaser pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Securities
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
13. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered or sent
by mail or telecopy transmission to NationsBanc Xxxxxxxxxx Securities LLC, 000
Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Legal
Department (telecopier no.: (000) 000-0000); or
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the Offering
Memorandum, Attention: General Counsel (telecopier no.: (000) 000-0000);
provided that any notice to the Initial Purchaser pursuant to Section 8(c)
shall also be delivered or sent by mail to the Initial Purchaser at its address
set forth on the signature page hereof. Any such statements, requests, notices
or agreements shall take effect at the time of receipt thereof.
14. Definition of Terms. For purposes of this Agreement, (a) the term
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) the term "subsidiary" has the meaning set forth in Rule 405
under the Securities Act and (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
15. Initial Purchaser's Information. The parties hereto acknowledge
and agree that, for all purposes of this Agreement, the Initial Purchaser's
Information consists solely of the statements contained in the second
paragraph, the third sentence of the ninth paragraph as to intention to make a
market, and the tenth and eleventh paragraphs under the heading "Plan of
Distribution" in the Offering Memorandum.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
-17-
18
18. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
parties hereto.
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
-18-
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If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the Initial
Purchaser in accordance with its terms.
Very truly yours,
XXXXX XXXXXX INCORPORATED
By: /s/ XXXXXXXX X'XXXXXXX, III
-----------------------------------
Name: Xxxxxxxx X'Xxxxxxx, III
Title: Vice President
Accepted:
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: /s/ XXXXXXX X. XXXXXXX
----------------------------------
Authorized Signatory
Vice President
Address for notices pursuant to Section 8(c):
NC1-007-07-01
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxx
-00-
00
XXXXX X
[Form of Exchange and Registration Rights Agreement]
21
ANNEX B-1
[Form of Opinion of General Counsel to the Company]
Xxxxxxxx X'Xxxxxxx III shall have furnished to the Initial Purchaser
his written opinion, as General Counsel to the Company, addressed to the
Initial Purchaser and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchaser, substantially to the effect set forth
below:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of Delaware,
is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
substantial property or the conduct of its businesses requires such
qualification, and has all power and authority necessary to own or
hold its properties and to conduct the businesses in which it is
engaged (except where the failure to so qualify or have such power or
authority would not, singularly or in the aggregate, have a Material
Adverse Effect);
(ii) the Company has an authorized capitalization as set
forth or incorporated by reference in the Offering Memorandum;
(iii) such counsel does not have actual knowledge of any
current or pending legal or governmental actions, suits or proceedings
which (A) would be required to be described in the Offering Memorandum
if the Offering Memorandum were a prospectus included in a
registration statement on Form S-3 which are not described as so
required or (B) questions the validity or enforceability of any of the
Transaction Documents or the Indenture or any action taken or to be
taken pursuant thereto;
(iv) the execution, delivery and performance of each of the
Transaction Documents and the issuance and sale of the Securities and
compliance with the terms thereof and of the Indenture will not result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court having jurisdiction over
the Company, any of its subsidiaries or their respective properties,
or the certificate of incorporation or by-laws of the Company or any
of its subsidiaries or, to such counsel's knowledge, any agreement or
instrument that relates to the borrowing of funds or that is filed as
an exhibit to any document incorporated by reference in the Offering
Memorandum to which the Company or any of its subsidiaries is bound or
to which any of the properties of the Company or any of its
subsidiaries is subject, except for such breach, violation or default
that would not have a Material Adverse Effect; and
(v) the Exchange Act Reports (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion), when they were filed with the Commission
appeared on their face to comply as to form in all material respects
B-1-1
22
with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder.
Such counsel shall also state that he has participated in conferences
with representatives of the Company, representatives of the independent public
accountants for the Company, representatives of the Initial Purchaser and its
counsel at which conferences the contents of the Offering Memorandum and
related matters were discussed. Although he did not independently verify such
information and is not passing upon, and does not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Offering Memorandum or any of the documents incorporated by reference in the
Offering Memorandum, on the basis of the foregoing (relying as to materiality
to a large extent on officers and other representatives of the Company), no
facts have come to his attention that lead him to believe that the Offering
Memorandum (other than the financial statements, the notes thereto and the
auditor's report thereon and the other financial, numerical, statistical and
accounting data included or incorporated by reference therein, as to which he
has not been asked to express any belief), as of its date or as of the Closing
Date, contained or contains an untrue statement of a material fact or omitted
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.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates or
representations of responsible officers of the Company and certificates of
public officials.
X-0-0
00
XXXXX X-0
[Form of Opinion of Special Counsel for the Company]
Xxxxx & Xxxxx, L.L.P. shall have furnished to the Initial Purchaser
their written opinion, as counsel to the Company, addressed to the Initial
Purchaser and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchaser, substantially to the effect set forth
below:
(i) the Company has all necessary corporate power and
authority to execute and deliver each of the Transaction Documents and
to perform its obligations thereunder; and all corporate action
required to be taken for the due and proper authorization, execution
and delivery of each of the Transaction Documents and the consummation
of the transactions contemplated thereby have been duly and validly
taken;
(ii) each of the Purchase Agreement and the Registration
Rights Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding agreement of
the Company enforceable against the Company in accordance with its
terms, except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law) and except to the
extent that the indemnification provisions thereof may be
unenforceable;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company constitutes a valid and legally binding
agreement of the Company enforceable against the Company in accordance
with its terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law);
(iv) the Securities have been duly authorized and issued by
the Company and, assuming due authentication thereof by the Trustee
and upon payment and delivery in accordance with the Purchase
Agreement, will constitute valid and legally binding obligations of
the Company entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except to the
extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights
generally and by general equitable principles (whether considered in a
proceeding in equity or at law);
(v) each Transaction Document conforms in all material
respects to the description thereof contained in the Offering
Memorandum;
B-2-1
24
(vi) the Indenture conforms in all material respects with the
requirements of the Trust Indenture Act and the rules and regulations
of the Commission applicable to an indenture which is qualified
thereunder;
(vii) the Company is not an "investment company" or a company
"controlled by" an investment company within the meaning of the
Investment Company Act of 1940, as amended; and
(viii) assuming the accuracy of the representations,
warranties and agreements of the Company and of the Initial Purchaser
contained in the Purchase Agreement, no registration of the Securities
under the Securities Act or qualification of the Indenture under the
Trust Indenture Act is required in connection with the issuance and
sale of the Securities by the Company and the offer, resale and
delivery of the Securities by the Initial Purchaser in the manner
contemplated by the Purchase Agreement and the Offering Memorandum.
Such counsel shall also state that they have participated in
conferences with representatives of the Company, representatives of the
independent public accountants for the Company, representatives of the Initial
Purchaser and its counsel at which conferences the contents of the Offering
Memorandum and related matters were discussed. Although they did not
independently verify such information and are not passing upon, and do not
assume any responsibility for, the accuracy, completeness or fairness of the
statements contained in the Offering Memorandum or any of the documents
incorporated by reference in the Offering Memorandum (except to the extent set
forth in paragraph (v) above), on the basis of the foregoing (relying as to
materiality to a large extent on officers and other representatives of the
Company), no facts have come to their attention that lead them to believe that
the Offering Memorandum (other than the financial statements, the notes thereto
and the auditor's report thereon and the other financial, numerical,
statistical and accounting data included or incorporated by reference therein,
as to which they have not been asked to comment), as of its date or as of the
Closing Date, contained or contains an untrue statement of a material fact or
omitted 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.
B-2-2
25
ANNEX C
[Form of Initial Comfort Letter]
The Company shall have furnished to the Initial Purchaser a letter of
Deloitte & Touche LLP, addressed to the Initial Purchaser and dated the date of
the Purchase Agreement, in form and substance satisfactory to the Initial
Purchaser, substantially to the effect set forth below:
(i) they are independent certified public accountants with
respect to the Company within the meaning of Rule 101 of the Code of
Professional Conduct of the AICPA and its interpretations and rulings;
(ii) in their opinion, the audited financial statements [and
pro forma financial information] included or incorporated by reference
in the Offering Memorandum and reported on by them comply in form in
all material respects with the accounting requirements of the Exchange
Act and the related published rules and regulations of the Commission
thereunder that would apply to the Offering Memorandum if the Offering
Memorandum were a prospectus included in a registration statement on
[Form S-3] under the Securities Act (except that certain supporting
schedules are omitted);
(iii) based upon a reading of the latest unaudited financial
statements made available by the Company, the procedures of the AICPA
for a review of interim financial information as described in
Statement of Auditing Standards No. 71, reading of minutes and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters and certain other limited
procedures requested by the Initial Purchaser and described in detail
in such letter, nothing has come to their attention that causes them
to believe that (A) any unaudited financial statements included in the
Offering Memorandum do not comply as to form in all material respects
with applicable accounting requirements, or (B) any material
modifications should be made to the unaudited financial statements
included in the Offering Memorandum for them to be in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
included in the Offering Memorandum;
(iv) based upon the procedures detailed in such letter with
respect to the period subsequent to the date of the last available
balance sheet, including reading of minutes and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters, nothing has come to their attention that causes
them to believe that (A) at a specified date not more than three
business days prior to the date of such letter, there was any change
in capital stock, increase in long-term debt or decrease in net
current assets as compared with the amounts shown in the
__________________, 199__ unaudited balance sheet included or
incorporated by reference in the Offering Memorandum or (B) for the
period from _________________, 199__ to a specified date not more than
three business days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the preceding
year, in net sales, income from operations, EBITDA
C-1
26
or net income, except in all instances for changes, increases or
decreases that the Offering Memorandum discloses have occurred or
which are set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance
thereof unless said explanation is not deemed necessary by the Initial
Purchaser;
(v) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company) set forth in the Offering
Memorandum agrees with the accounting records of the Company,
excluding any questions of legal interpretation [; and] [.]
[(vi) on the basis of a reading of the unaudited pro forma
financial information included or incorporated by reference in the
Offering Memorandum, carrying out certain specified procedures,
reading of minutes and inquiries of certain officials of the Company
who have responsibility for financial and accounting matters and
proving the arithmetic accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma financial
information, nothing came to their attention which caused them to
believe that the pro forma financial information does not comply in
form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts
in the compilation of such information.]
C-2
