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EXHIBIT 1.1
SIGNATURE RESORTS, INC.
$140,000,000
9.25% Senior Notes due 2006
Purchase Agreement
April 9, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
NATIONSBANC XXXXXXXXXX SECURITIES LLC
BT ALEX. XXXXX INCORPORATED
SALOMON BROTHERS INC AND
SOCIETE GENERALE SECURITIES CORPORATION
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$140,000,000
9.25% Senior Notes due 2006
of SIGNATURE RESORTS, INC.
PURCHASE AGREEMENT
April 9, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
NATIONSBANC XXXXXXXXXX SECURITIES LLC
BT ALEX. XXXXX INCORPORATED
SALOMON BROTHERS INC and
SOCIETE GENERALE SECURITIES CORPORATION
As Initial Purchasers
c/x Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Signature Resorts, Inc., a Maryland corporation (the "COMPANY"),
proposes to issue and sell to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, NationsBanc Xxxxxxxxxx Securities LLC, BT Alex. Xxxxx Incorporated,
Salomon Brothers Inc and Societe Generale Securities Corporation (each, an
"INITIAL PURCHASER" and collectively, the "INITIAL PURCHASERS") an aggregate of
$140,000,000 in principal amount of its 9.25% Senior Notes due 2006 (the "SERIES
A NOTES"), subject to the terms and conditions set forth herein. The Series A
Notes are to be issued pursuant to the provisions of an indenture (the
"INDENTURE"), to be dated as of the Closing Date (as defined below), between the
Company and Norwest Bank Minnesota, National Association, as trustee (the
"TRUSTEE"). The Series A Notes and the Series B Notes (as defined below)
issuable in exchange therefor are collectively referred to herein as the
"NOTES." Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Indenture.
1. OFFERING MEMORANDUM. The Series A Notes will be offered and
sold to the Initial Purchasers pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"ACT"). The Company has prepared a preliminary offering memorandum, delivered to
the Initial Purchasers on March 30, 1998 (the "PRELIMINARY OFFERING MEMORANDUM")
and a final offering memorandum, dated April 9, 1998 (the "OFFERING
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MEMORANDUM"), relating to the Series A Notes.
Upon original issuance thereof, and until such time as the same
is no longer required pursuant to the Indenture, the Series A Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE THIRD SENTENCE HEREOF. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"), (B) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), OR (C)
IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT
RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
OF ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (3)
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS
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LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION"
AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION
OF THE FOREGOING."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers agree,
severally and not jointly, to purchase from the Company, the principal amounts
of Series A Notes set forth opposite the name of such Initial Purchaser on
Schedule A hereto at a purchase price equal to 97.25% of the principal amount
thereof (the "PURCHASE PRICE").
3. TERMS OF OFFERING. The Initial Purchasers have advised the
Company that the Initial Purchasers will make offers (the "EXEMPT RESALES") of
the Series A Notes purchased hereunder on the terms set forth in the Offering
Memorandum, as amended or supplemented, solely to (i) persons whom the Initial
Purchasers reasonably believe to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBS"), and (ii) to persons permitted to purchase
the Series A Notes in offshore transactions in reliance upon Regulation S under
the Act (each, a "REGULATION S PURCHASER") (such persons specified in clauses
(i) and (ii) being referred to herein as the "ELIGIBLE PURCHASERS"). The Initial
Purchasers 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 the Closing Date, in
substantially the form of Exhibit H 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 Company's 9.25% Series B Senior Notes due 2006 (the "SERIES B NOTES"), to
be offered in exchange for the Series A Notes (such offer to exchange being
referred to as the "EXCHANGE OFFER") and (ii) a shelf registration statement
pursuant to Rule 415 under the Act (the "SHELF REGISTRATION STATEMENT" and,
together with the Exchange Offer Registration Statement, the "REGISTRATION
STATEMENTS") relating to the resale by certain holders of the Series A Notes and
to use its reasonable best efforts to cause such Registration Statements to be
declared and remain effective and usable for the periods specified in the
Registration Rights Agreement and to consummate the Exchange Offer. This
Agreement, the Indenture, the Notes, and the Registration Rights Agreement are
hereinafter sometimes referred to collectively as the "OPERATIVE DOCUMENTS."
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4. DELIVERY AND PAYMENT.
(a) Delivery of, and payment of the Purchase Price for, the
Series A Notes shall be made at the offices of Xxxxxx & Xxxxxxx, New York, New
York or such other location as may be mutually acceptable. Such delivery and
payment shall be made at 9:00 a.m. New York City time, on April 15, 1998 or at
such other time as shall be agreed upon by the Initial Purchasers and the
Company. The time and date of such delivery and the payment are herein called
the "CLOSING DATE."
(b) One or more of the Series A Notes in definitive global
form, registered in the name of Cede & Co., as nominee of the Depository Trust
Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Series A Notes (collectively, the "GLOBAL
NOTE"), shall be delivered by the Company to the Initial Purchasers (or as the
Initial Purchasers direct) against payment by the Initial Purchasers of the
Purchase Price thereof by wire transfer in same day funds to the order of the
Company. The Global Note shall be made available to the Initial Purchaser for
inspection not later than 9:30 a.m., New York City time, on the business day
immediately preceding the Closing Date.
5. AGREEMENTS OF THE COMPANY. The Company hereby agrees with the
Initial Purchasers as follows:
(a) Prior to amending or supplementing the Offering
Memorandum, the Company shall furnish to the Initial Purchasers for review a
copy of each such proposed amendment or supplement, and the Company shall
deliver any such proposed amendment or supplement to which the Initial
Purchasers reasonably object.
(b) If, prior to the completion of the placement of the Series
A Notes by the Initial Purchasers with the Eligible Purchasers (as evidenced by
a notice in writing from the Initial Purchasers to the Company), any event shall
occur or condition exist as a result of which it is necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when the Offering Memorandum is delivered to a
purchaser, not misleading, or if in the opinion of the Initial Purchasers or
counsel for the Initial Purchasers it is otherwise necessary to amend or
supplement the Offering Memorandum to comply with law, the Company agrees
promptly to prepare (subject to Section 5(a) hereof), and furnish at its own
expense to the Initial Purchasers, amendments or supplements to the Offering
Memorandum so that the statements in the Offering Memorandum as so amended or
supplemented will not, in the light of the circumstances when the Offering
Memorandum is delivered to a purchaser, be misleading or so that the Offering
Memorandum, as amended or supplemented, will comply with law.
The Company hereby expressly acknowledges that the
indemnification and contribution provisions of Section 8 hereof are specifically
applicable and relate to each Offering Memorandum, amendment or supplement
referred to in this Section 5(b).
(c) The Company agrees to furnish the Initial Purchasers,
without
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charge, as many copies of the Offering Memorandum and any amendments and
supplements thereto as they may reasonably request.
(d) The Company shall cooperate with the Initial Purchasers
and counsel for the Initial Purchasers to qualify or register the Series A Notes
for sale under (or obtain exemptions from the application of) the Blue Sky Laws
of those jurisdictions designated by the Initial Purchasers and shall comply
with such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the completion of the placement of
the Series A Notes by the Initial Purchasers with the Eligible Purchasers. The
Company shall not be required to qualify as a foreign corporation or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not presently qualified or where it would be subject to
taxation as a foreign corporation. The Company will advise the Initial
Purchasers promptly of the suspension of the qualification or registration of
(or any such exemption relating to) the Series A Notes for offering, sale or
trading in any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its reasonable
best efforts to obtain the withdrawal thereof at the earliest possible moment.
(e) The Company shall take all reasonable action necessary to
enable Standard & Poor's Ratings Group, a division of McGraw Hill, Inc., Xxxxx'x
Investors Service, Inc. and Duff & Xxxxxx to provide their respective credit
ratings of the Notes.
(f) The Company will cooperate with the Initial Purchasers and
use its reasonable best efforts to permit the Notes to be eligible for clearance
and settlement through the facilities of DTC.
(g) Prior to the completion of the placement of the Notes by
the Initial Purchasers with the Eligible Purchasers (as evidenced by a notice in
writing from the Initial Purchasers to the Company), the Company shall file, on
a timely basis, with the Commission and the New York Stock Exchange all reports
and documents required to be filed under Section 13 or 15(d) of the Exchange
Act. Additionally, at any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, for the benefit of holders and beneficial owners from
time to time of Notes, the Company shall furnish, at its expense, upon request,
to holders and beneficial owners of Notes and prospective purchasers of Notes
information satisfying the requirements of subsection (d)(4)(i) of Rule 144A
("Rule 144A Information").
(h) The Company shall comply in all material respects with all
provisions and obligations of, and shall cause the Exchange Offer to be made on
the appropriate form as contemplated by, the Registration Rights Agreement, and
shall comply in all material respects with all applicable federal and state
securities laws in connection with the Exchange Offer.
(i) The Company agrees that it will not and will cause its
Affiliates not to make any offer or sale of securities of the Company of any
class if as a result of the doctrine of "INTEGRATION" referred to in Rule 502
under the Securities Act, such offer or sale would render
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invalid (for the purpose of (i) the sale of the Series A Notes by the Company to
the Initial Purchasers, (ii) the resale of the Series A Notes by the Initial
Purchasers to the Eligible Purchasers) the exemption from the registration
requirements of the Securities Act provided by Section 4(1) or 4(2) thereof or
by Rule 144A or Regulation S thereunder or otherwise.
(j) Each certificate for a Note will bear the legend contained
in "Notice to Investors" in the Offering Memorandum for the time period and upon
the other terms stated in the Offering Memorandum.
(k) The Company will use its best efforts to cause the Notes
to qualify for initial designation and continued designation as PORTAL
securities in the NASD PORTAL Market (the "PORTAL MARKET").
(l) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Company
under this Agreement, including: (i) the fees, disbursements and expenses of
counsel to the Company and accountants of the Company in connection with the
sale and delivery of the Series A Notes to the Initial Purchasers and pursuant
to Exempt Resales, and all other fees and expenses in connection with the
preparation, printing, filing and distribution of the Preliminary Offering
Memorandum, the Offering Memorandum and all amendments and supplements to any of
the foregoing (including financial statements), including the mailing and
delivering of copies thereof to the Initial Purchasers and persons designated by
them in the quantities specified herein, (ii) all costs and expenses related to
the transfer and delivery of the Series A Notes to the Initial Purchasers and
pursuant to Exempt Resales, (iii) all costs of printing or reproducing this
Agreement, the other Operative Documents and any other agreements or documents
in connection with the offering, purchase, sale or delivery of the Series A
Notes, (iv) all expenses in connection with the registration or qualification of
the Series A Notes for offer and sale under the securities or Blue Sky laws of
the several states and all costs of printing or reproducing any preliminary and
supplemental Blue Sky memoranda in connection therewith (including the filing
fees and fees and disbursements of counsel for the Initial Purchasers in
connection with such registration or qualification and memoranda relating
thereto not to exceed $10,000), (v) the cost of printing certificates
representing the Series A Notes, (vi) all expenses and listing fees in
connection with the application for quotation of the Series A Notes in the
PORTAL Market, (vii) the fees and expenses of the Trustee in connection with the
Indenture and the Notes, (viii) the costs and charges of any transfer agent,
registrar and/or depositary (including DTC), (ix) any fees charged by rating
agencies for the rating of the Notes, (x) all costs and expenses of the Exchange
Offer and any Registration Statement, as set forth in the Registration Rights
Agreement, and (xi) and all other costs and expenses incident to the perfor
xxxxx of the obligations of the Company hereunder for which provision is not
otherwise made in this Section.
(m) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, confirm such advice in writing, (i) of 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 designated by the Initial Purchasers pursuant
to Section 5(d) hereof, or the initiation of any proceeding by any state
securities commission or
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any other federal or state regulatory authority for such purpose and (ii) of the
happening of any event during the period referred to in Section 5(c) below that
makes any statement of a material fact made in the Preliminary Offering
Memorandum or the Offering Memorandum untrue or that requires any additions to
or changes in the Preliminary Offering Memorandum or the Offering Memorandum in
order to make the statements therein not misleading. The Company shall use its
reasonable best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Series A Notes under any state
securities or Blue Sky laws and, if at any time any state securities commission
or other federal or state regulatory authority shall issue an order suspending
the qualification or exemption of any Series A Notes under any state securities
or Blue Sky laws, the Company shall use its best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(n) During the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise transfer or dispose of any debt securities of the Company or
any warrants, rights or options to purchase or otherwise acquire debt securities
of the Company substantially similar to the Notes (other than (i) the Notes and
(ii) commercial paper issued in the ordinary course of business), without the
prior written consent of the Initial Purchasers.
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, on behalf of
the several Initial Purchasers, may, in its sole discretion, waive in writing
the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As
of the date hereof, the Company represents and warrants to, and agrees with, the
Initial Purchasers that:
(a) Subject to compliance by the Initial Purchasers with the
representations and warranties and agreements set forth in Section 7 hereof, it
is not necessary in connection with the offer, sale and delivery of the Series A
Notes to the Initial Purchasers and to each Eligible Purchaser in the manner
contemplated by this agreement and the Offering Memorandum to register the
Series A Notes under the Securities Act or to qualify the Indenture under the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT," which term,
as used herein, includes the rules and regulations of the Commission promulgated
thereunder). The Company meets the requirement for use of Form S-3 under the
Securities Act.
(b) The Company has not, directly or indirectly, solicited any
offer to buy or offered to sell, and will not, directly or indirectly, solicit
any offer to buy or offer to sell, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the sale
of the Series A Notes in a manner that would require the Series A Notes to be
registered under the Securities Act. None of the Company, its affiliates (as
such term is defined in Rule 501(b) under the Securities Act (each, an
"AFFILIATE"), or any person acting on its or any of their behalf (other than the
Initial Purchasers, as to whom the Company makes no representation or warranty)
has engaged or will engage, in connection with the offering of the Series A
Notes, in any form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act. With respect to Series A Notes
sold in reliance upon
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Regulation S, (i) none of the Company, its Affiliates or any person acting on
its or their behalf (other than the Initial Purchasers, as to whom the Company
makes no representation or warranty) has engaged or will engage in any directed
selling efforts within the meaning of Regulation S and (ii) each of the Company
and its Affiliates and any person acting on its or their behalf (other than the
Initial Purchasers, as to whom the Company makes no representation or warranty)
has complied and will comply with the offering restrictions set forth in
Regulation S.
(c) The Series A Notes are eligible for resale pursuant to
Rule 144A and will not be, at the Closing Date, of the same class as securities
listed on a national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT," which term, as
used herein, includes the rules and regulations of the Commission promulgated
thereunder) or quoted in a U.S. automated interdealer quotation system.
(d) The Offering Memorandum does not, and at the Closing Date
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 under which they were made, not misleading; provided that no
representation, warranty or agreement contained in this Section 6(d) shall be
applicable to information contained in or omitted from the Offering Memorandum
in reliance upon and in conformity with written information furnished by or on
behalf of any Initial Purchaser specifically for use in the preparation thereof.
Each of the Preliminary Offering Memorandum and the Offering Memorandum, as of
its date, contains all the information specified in, and meeting the
requirements of, Rule l44(A)(d)(4). The Company has not distributed and will not
distribute, prior to the later of the Closing Date and the completion of the
Initial Purchasers' distribution of the Series A Notes, any offering material in
connection with the offering and sale of the Series A Notes other than a
Preliminary Offering Memorandum, the Offering Memorandum and other materials
permitted or not prohibited by the Securities Act.
(e) This Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding obligation of, the Company,
enforceable in accordance with its terms, except as rights to indemnification
hereunder may be limited by applicable law and except as the enforcement hereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting the rights and remedies of creditors or by
general equitable principles.
(f) At the Closing Date, the Registration Rights Agreement
will be duly authorized, executed and delivered by, and will be a valid and
binding agreement of, the Company, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles.
(g) (i) The Series A Notes to be purchased by the Initial
Purchasers from the Company have been duly and validly authorized for issuance
by the Company, and when issued, delivered and paid for in accordance with the
terms of this Agreement and the Indenture, will be duly executed, authenticated
and delivered and will constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the Indenture under which they
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are to be issued, except as the enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization and
similar laws of general applicability relating to or affecting enforcement of
the rights and remedies of creditors and to general principles of equity and
(ii) the Series B Notes have been duly and validly authorized for issuance by
the Company, and when issued and authenticated in accordance with the terms of
the Indenture, the Registration Rights Agreement and the Exchange Offer, will
constitute valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium, and similar laws of general applicability relating
to or affecting enforcement of the rights and remedies of creditors and to
general principles of equity and will be entitled to the benefits of the
Indenture.
(h) The Indenture has been duly authorized by the Company and,
when executed and delivered by the Company and the Trustee, will constitute a
valid and legally binding instrument enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization and similar laws of general
applicability relating to or affecting enforcement of the rights and remedies of
creditors and to general principles of equity.
(i) The Notes, the Registration Rights Agreement and the
Indenture will conform in all material respects to the descriptions thereof in
the Offering Memorandum.
(j) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the business, management or operations of
the Company and its Affiliates and Subsidiaries (as defined), taken as a whole
(a "MATERIAL ADVERSE CHANGE") and (ii) there has not been any material adverse
change in the stockholders equity or in the long-term debt of the Company or any
of its subsidiaries, taken as a whole (other than the sale of the Notes under
this Agreement and other than draw-downs under the Company's revolving credit
facility in the ordinary course of business).
(k) Xxxxxx Xxxxxxxx LLP, Xxxxx & Xxxxx LLP and KPMG, who have
expressed their opinion with respect to the financial statements (which term as
used in this Agreement includes the related notes thereto) included in the
Offering Memorandum are independent public or chartered or certified public
accountants within the meaning of Regulation S-X under the Securities Act and
the Exchange Act.
(l) The consolidated financial statements of the Company
together with the related notes thereto, set forth in the Offering Memorandum
fairly present the financial condition of such entities as of the dates
indicated and the results of operations and changes in financial position for
the periods presented. Such statements, schedules and related notes have been
prepared in accordance with generally accepted accounting principles as applied
in the United States applied on a consistent basis as certified by the
applicable independent accountants named
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in Section 6(k). The selected financial data set forth in the Offering
Memorandum under the captions "Consolidated Capitalization," "Selected Financial
Data," "Unaudited Pro Forma Financial Data" and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" fairly present the
information set forth therein on the basis stated in the Offering Memorandum.
The Company's ratios of earnings to fixed charges set forth in the Offering
Memorandum, under the caption "Selected Financial Data" have been calculated in
compliance with Item 503(d) of Regulation S-K under the Securities Act.
(m) The Company has been duly formed and is validly existing
as a corporation, is in good standing under the laws of the State of Maryland,
with full power and authority (corporate and other) to conduct its business as
currently conducted or as described in the Offering Memorandum. Each of the
Company's affiliates (as defined in Rule 144(a) under the Securities Act) and
subsidiaries which is material to the operation of the Company, considered as
whole (the "COMPANY AFFILIATES AND SUBSIDIARIES") has been duly formed and is
validly existing as a partnership, limited liability company or corporation, as
applicable, in good standing under the laws of its jurisdiction of formation,
with full power and authority (partnership and other) to own and lease its
properties and conduct its respective businesses as currently conducted or
described in the Offering Memorandum, except where the failure to be in good
standing would not result in a Material Adverse Change. The Company has full
legal right, power and authority to enter into this Agreement, the Registration
Rights Agreement, the Notes, and the Indenture and to perform the transactions
contemplated hereby and thereby. The Company and each of the Company Affiliates
and Subsidiaries are duly qualified to do business and in good standing as a
foreign corporation, partnership or limited liability company, as applicable, in
each jurisdiction in which the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified and in good
standing would not result in a Material Adverse Change; and to the Company's
knowledge no proceeding has been instituted or threatened in any such
jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, such power and authority or qualification.
(n) As of December 31, 1997, on a consolidated basis, after
giving pro forma effect to the issuance and sale of the Series A Notes on the
basis indicated in the Offering Memorandum, the Company would have an authorized
and outstanding capitalization as set forth in the Offering Memorandum under the
caption "Consolidated Capitalization" (other than for subsequent issuances of
capital stock, if any, pursuant to employee benefit plans described or
incorporated by reference in the Offering Memorandum or upon exercise of
outstanding options described or incorporated by reference in the Offering
Memorandum).
(o) Each of the Company and each Company Affiliate and
Subsidiary is not in violation of any of its articles of organization or
by-laws, and is not in breach or default (either by itself or upon notice or the
passage of time or both) ("DEFAULT") with respect to any provision of any
agreement, judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which it is a party or by
which it or any of its properties are bound, or to which any of its property or
assets is subject (each, an "EXISTING INSTRUMENT"), except for any such
violation, breach or Default that will not result in a Material Adverse Change.
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(p) The making and performance of this Agreement, the
Registration Rights Agreement, and the Indenture, and the issuance and delivery
of the Notes and the consummation of the transactions contemplated herein and
therein, (i) will not violate any provisions of any partnership agreement,
certificate of partnership, charter, bylaws or other organizational documents,
as applicable, of the Company or any of the Company Affiliates and Subsidiaries,
(ii) will not conflict with, result in the breach or violation of, or constitute
a Default under (A) any Existing Instrument or (B) any statute or any
authorization, rule or regulation of any court or any regulatory body,
administrative agency or other governmental body applicable to the Company, any
of the Company Affiliates and Subsidiaries or any of the Resorts (as defined
herein), and (iii) will not result in the imposition or creation of (or the
obligation to create or impose) any security interest, claim, lien, encumbrance
or adverse interest of any nature under, any agreement or instrument to which
the Company or any of its subsidiaries, is a party or by which the Company or
any of its subsidiaries or their respective property is bound, in each case
except as would not, individually or in the aggregate, result in a Material
Adverse Change.
(q) No consent, approval, authorization or other order of any
court, regulatory body, administrative agency or other governmental body is
required, including the satisfaction of any requirements pursuant to the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, for the
execution and delivery of this Agreement, the Registration Rights Agreement or
the Indenture, or the issuance and delivery of the Notes or the consummation of
the transactions otherwise contemplated hereby and thereby except for compliance
with the Securities Act, the Exchange Act, the Trust Indenture Act, the Blue Sky
or state or foreign securities laws (collectively, the "BLUE SKY LAWS")
applicable to the offering of the Series A Notes by the several Initial
Purchasers, the issuance of the Series B Notes or the consummation of the
Exchange Offer, and except for any such consent, approval, authorization or
other order as has been or will be obtained prior to the Closing Date, or in the
case of the Series B Notes, prior to the date of issuance.
(r) Except as disclosed in the Offering Memorandum, there are
no legal or governmental actions, suits or proceedings pending or threatened to
which the Company or any of the Company Affiliates and Subsidiaries are a party
or of which any resort owned or leased by the Company Affiliates and
Subsidiaries is the subject, or related to environmental or discrimination
matters, which actions, suits or proceedings could reasonably be anticipated to
individually or in the aggregate, prevent or adversely affect the transactions
contemplated by this Agreement or result in a Material Adverse Change. Neither
the Company nor any of the Company Affiliates and Subsidiaries is a party or
subject to the provisions of any material injunction, judgment, decree or order
of any court, regulatory body, administrative agency or other governmental body.
To the Company's knowledge, no labor problem exists or is imminent with respect
to the employees of any of the resorts operated by the Company, directly or
through the Company Affiliates and Subsidiaries, as described in the Offering
Memorandum (the "RESORTS") which could result in a Material Adverse Change.
(s) Except as specifically disclosed in or specifically
contemplated by the Offering Memorandum, the Company and the Company Affiliates
and Subsidiaries have
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sufficient trademarks, trade names, patent rights, copyrights, licenses or other
similar rights and proprietary knowledge (collectively, "INTANGIBLES"),
approvals and governmental authorizations to conduct its businesses as now
conducted or as described in the Offering Memorandum; the expiration of any
Intangibles, approvals or governmental authorizations will not result in a
Material Adverse Change; and the Company has no knowledge of any material
infringement by it or any of the Company Affiliates and Subsidiaries of any
Intangibles, and there is no claim being made against the Company or any of the
Company Affiliates and Subsidiaries regarding any Intangible or other
infringement which could result in a Material Adverse Change.
(t) Except as set forth in the Offering Memorandum, the
Company and each of the Company Affiliates and Subsidiaries are in possession of
and operating in compliance with all authorizations, licenses, permits,
consents, certificates and orders material to the conduct of their respective
businesses, all of which are valid and in full force and effect; and to the
Company's knowledge, no proceeding has been instituted or threatened in any such
jurisdiction revoking, limiting or curtailing, or seeking to revoke, limit or
curtail, any such authorization, license, permit, consent, certificate or order,
except, in each case, as would not, individually or in the aggregate, result in
a Material Adverse Change.
(u) Except as set forth in the Offering Memorandum, each of
the Company and each of the Company Affiliates and Subsidiaries has good and
marketable title to all the properties and assets reflected as owned in the
financial statements referred to in Section 6(k) above, in each case free and
clear of any security interests, mortgages, liens, encumbrances, equities,
claims and other defects, except such as would not, individually or in the
aggregate, result in a Material Adverse Change. The Company and each of the
Company Affiliates and Subsidiaries owns or leases all such properties as are
necessary to conduct the Company's business at the Resorts as now conducted or
as proposed to be conducted as described in the Offering Memorandum.
(v) The Company and each of the Company Affiliates and
Subsidiaries has filed all necessary federal, state and foreign income and
franchise tax returns and have paid all taxes shown as due thereon; except as
set forth in the Offering Memorandum, the Company has no knowledge of any tax
deficiency which has been or might be asserted or threatened against the
Company, any of the Company Affiliates and Subsidiaries, in each case except as
would not, individually or in the aggregate, result in a Material Adverse
Change.
(w) The Company is not, nor will it conduct its business in a
manner in which it would become an "INVESTMENT COMPANY" or an entity
"CONTROLLED" by an "INVESTMENT COMPANY" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 ACT").
(x) The Company and the Company Affiliates and Subsidiaries
have and will maintain liability, property and casualty insurance (insured by
insurers of recognized financial responsibility) in favor of the Company, or the
Company Affiliates and Subsidiaries, with respect to each of the Resorts in an
amount and on such terms as is reasonable and customary for businesses of the
type proposed to be conducted by the Company, including, among other things,
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insurance against theft, damage, destruction and acts of vandalism except where
the failure to maintain such insurance could result in a Material Adverse
Change. The Company has not received from any insurance company notice of any
material defects or deficiencies affecting the insurability of any such resort.
Title insurance in favor of the Company or the Company Affiliates and
Subsidiaries, is in force with respect to each of the Resorts in an amount
reasonably acceptable to a reasonably prudent company in a similar line of
business (except with respect to the St. Maarten Resort and the Grand Vacation
Club Resorts), and the Company shall have received title opinions in favor of
the Company or the Company Affiliates and Subsidiaries with respect to the St.
Maarten Resorts and the Grand Vacation Club Resorts.
(y) Subsequent to the respective dates as of which information
is given in the Offering Memorandum, the Company has not sustained any loss or
interference with its respective businesses or properties from fire, flood,
windstorm, accident or other calamity, whether or not covered by insurance, that
would result in a Material Adverse Change.
(z) Neither the Company nor any of the Company Affiliates and
Subsidiaries has taken or will take, directly or indirectly, any action designed
to or that might be reasonably expected to cause or result in stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Series A Notes.
(aa) None of the Company, any of the Company Affiliates and
Subsidiaries or, to the Company's knowledge has at any time during the last five
years (i) made any unlawful contribution to any candidate for foreign office or
failed to disclose fully any contribution in violation of law or (ii) made any
payment to any federal or state governmental officer or official, or other
person charged with similar public or quasi-public duties, other than payments
required or permitted by the laws of the United States or any jurisdiction
thereof.
(bb) The Company and each of the Company Affiliates and
Subsidiaries maintain and will maintain 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 financial and corporate
books and records is permitted only in accordance with management's general or
specific 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.
(cc) Except as set forth in the Offering Memorandum, the
Company and each of the Company Affiliates and Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local rules,
laws and regulations relating to the protection of human health and safety, the
environment or any Hazardous Material (as hereinafter defined) ("ENVIRONMENTAL
LAWS"), (ii) have received, or will have received, as of the Closing Date, as
the case may be, all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are or will be, as of the Closing Date, as the case may be, in compliance with
all terms and conditions of any such permit,
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license or approval, in each case except as would not result in a Material
Adverse Change. As used herein, "HAZARDOUS MATERIAL" shall mean (a) any
"HAZARDOUS SUBSTANCE" as defined by the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA"), (b) any
"HAZARDOUS WASTE" as defined by the Resource Conservation and Recovery Act, as
amended, (c) any petroleum or petroleum product, (d) any polychlorinated
biphenyl and (e) any pollutant or contaminant or hazardous, dangerous, or toxic
chemical, material, waste or substance regulated under or within the meaning of
any other Environmental Law, foreign or domestic. Except as set forth in the
Offering Memorandum, to the Company's knowledge, there is no liability, alleged
liability or potential liability (including, without limitation, liability,
alleged liability or potential liability for investigatory costs, cleanup costs,
governmental response costs, natural resources damages, property damages,
personal injuries or penalties), of the Company or any Company Affiliate and
Subsidiary arising out of, based on or resulting from (a) the presence or
release into the environment of any Hazardous Material at any location, whether
or not owned by such entity, or (b) any violation or alleged violation of any
Environmental Law, which liability, alleged liability or potential liability is
material to the Company or such Company Affiliate and Subsidiary, as applicable.
(dd) No environmental engineering firm which prepared Phase I
environmental assessment reports (or other similar reports with respect to the
Resorts as set forth in the Offering Memorandum) was, at the time such reports
were delivered, employed for such purpose on a contingent basis or had any
substantial interest in the Company or any of the Company Affiliates and
Subsidiaries.
(ee) None of the assets of the Company or any of the Company
Affiliates and Subsidiaries constitute "PLAN ASSETS" under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
(ff) The Company and the Company Affiliates and Subsidiaries
are in compliance with all federal, state, local and foreign laws and
regulations applicable to such entity, including without limitation, all
applicable local, state, federal and foreign environmental laws and regulations
and all applicable local, state, federal and foreign laws and regulations
regarding the marketing, offers to sell and sales of vacation intervals in each
state in which the Company is doing business, including, but not limited to, the
Federal Trade Commission Act, Regulation Z (the truth-in-lending act), Equity
Opportunity Credit Act and Regulation B, Interstate Land Sales Full Disclosure
Act, Telephone Consumer Protection Act, Telemarketing and Consumer Fraud and
Abuse Prevention Act, Fair Housing Act, the Americans with Disabilities Act and
Civil Rights Acts of 1964 and 1968 and all corresponding foreign laws, in each
case as applicable to the Company and/or the Company Affiliates and
Subsidiaries, including, without limitation, the European Timeshare Directive of
1994, the Consumer Credit Act of 1974, the Unfair Terms in Consumer Contracts
Regulations 1995, the Package Travel, Package Holidays and Package Tours
Regulations 1992 and the Timeshare Xxx 0000; and in each case except as would
not result in a Material Adverse Change. The Company and the Company Affiliates
and Subsidiaries have filed all required documents and supporting information in
compliance with federal, state, local and foreign laws and regulations, and the
Company and the Company Affiliates and Subsidiaries are in compliance with all
licensure, anti-fraud, telemarketing, price, gift and sweepstakes and labor
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laws to which it is subject, in each case except as would not result in a
Material Adverse Change. The Company and each of the Company Affiliates and
Subsidiaries have, or upon the Closing Date will have, all permits and licenses
which are required to sell vacation interests in each state and foreign
jurisdiction where any of them currently sells vacation interests, in each case
except as would not result in a Material Adverse Change.
(gg) The mortgages and deeds of trust encumbering the Resorts
are not convertible into equity securities of the Company, nor does the Company
hold a participating interest therein and such mortgages and deeds of trust are
not cross-defaulted or cross-collateralized to any property not owned, directly
or indirectly by the Company.
(hh) Neither the Company nor any of the Company Affiliates and
Subsidiaries has incurred any liability for a fee, commission or other
compensation on account of the employment of a broker or finder in connection
with the transactions contemplated by this Agreement other than as disclosed in
the Offering Memorandum.
(ii) Except as disclosed in the Offering Memorandum, no person
has an option or right of first refusal to purchase all or part of any of the
Resorts (other than the Embassy Vacation Resort Poipu Point, Embassy Vacation
Resort Kaanapali Beach, Westin Vacation Club St. Xxxx, and the Sunterra Resorts
Northbay at Lake Arrowhead) or any interest therein. Except as set forth in the
Offering Memorandum, each of the Resorts complies with all applicable codes,
laws and regulations (including, without limitation, building and zoning codes
and laws relating to handicapped access), except for such noncompliance as will
not result in a Material Adverse Change. The Company has no knowledge of any
pending or threatened condemnation proceedings, zoning changes, or other
proceedings or actions that will in any manner affect the size of, number of
vacation intervals planned for, the use of any improvements on, or access to,
the Resorts.
(jj) Except as publicly announced on April 7, 1998, by
"nationally recognized statistical rating organizations," as such term is
defined for purposes of Rule 436(g)(2) under the Act, no "nationally recognized
statistical rating organization" has indicated to the Company that it is
considering (i) the downgrading, suspension or withdrawal of, or any review for
a possible change that does not indicate the direction of the possible change
in, any rating assigned to the Company or any securities of the Company or (ii)
any change in the outlook for any rating of the Company or any securities of the
Company.
(kk) The Company and its controlled Affiliates and all persons
acting, upon their request, on their behalf (other than the Initial Purchasers
and their Affiliates and any persons acting, upon their request, on their
behalf), as to whom the Company makes no representation) 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 the United States
and, in connection therewith, the Offering Memorandum will contain the
disclosure required by Rule 902(h).
(ll) The Series A Notes sold in reliance on Regulation S will
be
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represented upon issuance by a temporary global security that may not be
exchanged for definitive securities until the expiration of the 40-day
restricted period referred to in Rule 903(c)(3) of the Act and only upon
certification of beneficial ownership of such Series A Notes by non-U.S. persons
or U.S. persons who purchased such Series A Notes in transactions that were
exempt from the registration requirements of the Act.
(mm) The entities listed on Exhibit 21 to the Company's
Registration Statement on Form S-3 (No. 333-46511) ("Exhibit 21") hereto are the
only subsidiaries, direct or indirect, of the Company. Except as listed on
Exhibit 21, all of the outstanding shares of capital stock of each of the
Company's subsidiaries are owned by the Company, directly or indirectly, through
one or more subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (except where such security
interest, claim, lien, encumbrance or adverse interest would not give rise to a
Material Adverse Change).
Any certificate signed by an officer of the Company and delivered
to the Initial. Purchasers or to counsel for the Initial Purchasers shall be
deemed to be a representation and warranty by the Company to each Initial
Purchaser as to the matters set forth therein.
The Company acknowledges that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 9 hereof, counsel to the Company and counsel to the Initial Purchasers
will rely upon the accuracy and truth of the foregoing representations and
hereby consents to such reliance.
7. INITIAL PURCHASER'S REPRESENTATIONS AND WARRANTIES AND
COVENANTS.
Each of the Initial Purchasers, severally and not jointly,
represents and warrants to the Company, and agrees that:
(a) Such Initial Purchaser is a QIB, with such knowledge and
experience in financial and business matters as is necessary in order to
evaluate the merits and risks of an investment in the Series A Notes.
(b) Such Initial Purchaser (A) 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 and (B) will be reoffering and reselling the
Series A Notes only to (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A, and (y) in offshore
transactions in reliance upon Regulation S under the Act.
(c) Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
controlled affiliates or representatives in connection with the offer and sale
of the Series A Notes pursuant hereto, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine or similar
medium or
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broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
(d) Such Initial Purchaser agrees that, in connection with
Exempt Resales, such Initial Purchaser will solicit offers to buy the Series A
Notes only from, and will offer to sell the Series A Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that it will offer to sell the
Series A Notes only to, and will solicit offers to buy the Series A Notes only
from (A) Eligible Purchasers that the Initial Purchaser reasonably believes are
QIBs, and (B) Regulation S Purchasers, in each case, that agree that (x) the
Series A Notes purchased by them may be resold, pledged or otherwise transferred
within the time period referred to under Rule 144(k) (taking into account the
provisions of Rule 144(d) under the Act, if applicable) under the Act, as in
effect on the date of the transfer of such Series A Notes, only (I) to the
Company or any of its subsidiaries, (II) to a person whom the seller reasonably
believes is a QIB purchasing for its own account or for the account of a QIB in
a transaction meeting the requirements of Rule 144A under the Act, (III) in an
offshore transaction (as defined in Rule 902 under the Act) meeting the
requirements of Rule 904 of the Act, (IV) in a transaction meeting the
requirements of Rule 144 under the Act, (V) to an Accredited Institution that,
prior to such transfer, furnishes the Trustee a signed letter containing such
representations and agreements that the Trustee or the Company shall reasonably
request relating to the registration of transfer of such Series A Note and, if
such transfer is in respect of an aggregate principal amount of Series A Notes
less than $250,000, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Act, (VI) in accordance with another
exemption from the registration requirements of the Act (and based upon an
opinion of counsel acceptable to the Company) or (VII) pursuant to an effective
registration statement and, in each case, in accordance with the applicable
securities laws of any state of the United States or any other applicable
jurisdiction and (y) they will deliver to each person to whom such Series A
Notes or an interest therein is transferred a notice substantially to the effect
of the foregoing.
(e) None of such Initial Purchaser nor 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 Regulation S with respect to the
Series A Notes.
(f) The Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(g) The sale of the Series A Notes offered and sold by such
Initial Purchaser pursuant hereto in reliance on Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act.
(h) Such Initial Purchaser further represents and agrees that
(1) it has not offered or sold and will not offer or sell any Series A Notes to
persons in the United Kingdom prior to the expiration of the period of six
months from the issue date of the Series A 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 business or
otherwise in
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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 Series A 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 Series A Notes to a person who is of a kind
described in Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
(i) Such Initial Purchaser agrees that it will not offer, sell
or deliver any of the Series A Notes in any jurisdiction outside the United
States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the Series A Notes in
such jurisdictions. Such Initial Purchaser understands that no action has been
taken to permit a public offering in any jurisdiction outside the United States
where action would be required for such purpose.
(j) Such Initial Purchaser agrees that it has not offered or
sold and will not offer or sell the Series A Notes in the United States or to,
or for the benefit or account of, a U.S. Person (other than a distributor), in
each case, as defined in Rule 902 under the Act (i) as part of its distribution
at any time and (ii) otherwise until 40 days after the later of the commencement
of the offering of the Series A Notes pursuant hereto and the Closing Date,
other than in accordance with Regulation S of the Act or another exemption from
the registration requirements of the Act. Such Initial Purchaser agrees that,
during such 40-day restricted period, it will not cause any advertisement with
respect to the Series A Notes (including any "tombstone" advertisement) to be
published in any newspaper or periodical or posted in any public place and will
not issue any circular relating to the Series A Notes, except such
advertisements as permitted by and include the statements required by Regulation
S.
(k) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Series A Notes by it to any distributor, dealer or
person receiving a selling concession, fee or other remuneration during the
40-day restricted period referred to in Rule 903(c)(3) under the Act, it will
send to such distributor, dealer or person receiving a selling concession, fee
or other remuneration a confirmation or notice to substantially the following
effect:
"The Series A Notes covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (the
"SECURITIES 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 your distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of
the Offering and the Closing Date, except in either case in
accordance with Regulation S under the Securities Act (or Rule
144A or to Accredited Institutions in transactions that are
exempt from the registration requirements of the Securities
Act),
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and in connection with any subsequent sale by you of the
Series A Notes covered hereby in reliance on Regulation S
during the period referred to above to any distributor, dealer
or person receiving a selling concession, fee or other
remuneration, you must deliver a notice to substantially the
foregoing effect. Terms used above have the meanings assigned
to them in Regulation S."
Each Initial Purchaser agrees that the Series A Notes offered
and sold in reliance on Regulation S will be represented upon issuance by a
global security that may not be exchanged for definitive securities until the
expiration of the 40-day restricted period referred to in Rule 903(c)(3) of the
Act and only upon certification of beneficial ownership of such Series A Notes
by non-U.S. persons or U.S. persons who purchased such Series A Notes in
transactions that were exempt from the registration requirements of the Act.
(l) Each of the Initial Purchasers represents and warrants to
the Company that the information set forth (i) on the cover page of the Offering
Memorandum with respect to price, commissions and terms of offering and (ii) in
paragraphs one, three, six, seven (fourth sentence thereof only), eight (with
respect to the first sentence only and therein with respect to actions by the
Initial Purchasers only), nine and ten (first and second sentences thereof only)
and under the caption "Plan of Distribution" in the Offering Memorandum was
furnished to the Company by and on behalf of the Initial Purchasers for use in
connection with the preparation of the Offering Memorandum and is correct in all
material respects.
(m) Each Initial Purchaser will deliver to each purchaser of
the Notes from such Initial Purchaser, in connection with its sale of the Series
A Notes to the Eligible Purchasers, a copy of the Offering Memorandum, as
amended and supplemented at the date of such delivery.
Each Initial Purchaser acknowledges that the Company and, for
purposes of the opinions to be delivered to each Initial Purchaser pursuant to
Section 9 hereof, counsel to the Company and counsel to the Initial Purchasers
will rely upon the accuracy and truth of the foregoing representations and each
Initial Purchaser hereby consents to such reliance.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each
Initial Purchaser, its respective directors, officers and each person, if any,
who controls such Initial Purchaser within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any
reasonable legal or other expenses incurred in connection with investigating or
defending any matter, including any action, that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Offering Memorandum (or any amendment or supplement thereto), the Preliminary
Offering Memorandum or any Rule 144A Information provided by the Company to any
holder or prospective purchaser of Series A Notes pursuant to Section 5(h) or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or
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necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Initial Purchasers furnished in writing to the
Company by the Initial Purchasers. For purposes of this Section 8, the parties
agree that the only information furnished to the Company by the Initial
Purchasers for inclusion in the Offering Memorandum or Preliminary Offering
Memorandum is set forth in Section 7(l) hereof.
(b) Each Initial Purchaser agrees, severally and not jointly,
to indemnify and hold harmless the Company, and its directors and officers and
each person, if any, who controls (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) the Company, to the same extent as the
foregoing indemnity from the Company to the Initial Purchasers but only with
reference to information relating to such Initial Purchaser furnished in writing
to the Company by such Initial Purchaser (and not with respect to information
provided to the Company by any other Initial Purchaser) expressly for use in the
Preliminary Offering Memorandum or the Offering Memorandum.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchasers). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any case, the indemnifying party shall not, in connection
with any one action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, in the case of the parties indemnified pursuant to Section 8(a),
and by the Company, in the case of parties indemnified pursuant to Section 8(b).
The indemnifying party shall indemnify and hold
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harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action (i)
effected with its written consent or (ii) effected without its written consent
if the settlement is entered into more than 40 business days after the
indemnifying party shall have received a request from the indemnified party for
reimbursement for the fees and expenses of counsel (but in only those cases
where such fees and expenses are at the expense of the indemnifying party
pursuant to this Section 8) and, prior to the date of such settlement, the
indemnifying party shall have failed to comply with such reimbursement request.
No indemnifying party shall, without the prior written consent of the
indemnified party, which consent shall not be unreasonably withheld, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Initial Purchasers on the other hand from the
offering of the Series A Notes or (ii) if the allocation provided by clause
8(d)(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
8(d)(i) above but also the relative fault of the Company, on the one hand, and
the Initial Purchasers, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, 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 hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Series A Notes (before deducting expenses)
received by the Company, and the total discounts and commissions received by the
Initial Purchasers bear to the total price to investors of the Series A Notes,
in each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault of the Company, on the one hand, and the Initial
Purchasers, on the other hand, 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 information
supplied by the Company, on the one hand, or the Initial Purchasers, on the
other hand, and the parties' relative intent, 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 contribution pursuant to this Section 8(d) were
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 account of the equitable considerations referred to in the
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immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any matter, including any action, that could have given rise to
such losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchaser exceeds the amount of any damages
which such Initial Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Initial Purchasers' obligations
to contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Series A Notes purchased by each of the Initial
Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations
of the Initial Purchasers to purchase the Series A Notes under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) On the date hereof, the Initial Purchasers shall have
received from Xxxxxx Xxxxxxxx LLP, independent public accountants for the
Company, a letter dated the date hereof addressed to the Initial Purchasers, in
form and substance satisfactory to the Initial Purchasers, containing statements
and information of the type ordinarily included in accountant's "COMFORT
LETTERS" to Initial Purchasers, delivered according to Statement of Auditing
Standards Nos. 72 and 76 (or any successor bulletins), with respect to the
audited and unaudited financial statements and certain financial information
contained in the Offering Memorandum.
(b) For the period from and after the date of this Agreement
and prior to the Closing Date there shall not have occurred any downgrading, nor
shall any notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any securities of the Company or any of
its subsidiaries by any "NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION"
as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(c) On the Closing Date the Initial Purchasers shall have
received the favorable opinions of:
(i) Xxxxxx & Xxxxxxx, counsel for the Company, dated as of the
Closing Date, substantially in the form attached hereto as
Exhibit A;
(ii) Xxxxxx X. Xxxxxx, Vice President and General Counsel of the
Company,
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dated as of the Closing Date, substantially in the form
attached hereto as Exhibit B;
(iii) Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, special Maryland counsel
for the Company, dated as of the Closing Date, substantially
in the form attached hereto as Exhibit C;
(iv) Xxxxxxxxx, Xxxxxxx & Xxxxx, special Georgia and Florida
counsel for the Company, dated as of the Closing Date,
substantially in the form attached hereto as Exhibit D;
(v) Paul, Hastings, Xxxxxxxx & Xxxxxx, special regulatory counsel
for the Company, dated as of the Closing Date, substantially
in the form attached hereto as Exhibit E;
(vi) XX Xxxxxx & Co. as special British counsel for the Company,
dated as of the Closing Date, substantially in the form
attached hereto as Exhibit F; and
(vii) Xxxx & Maw, as special British counsel for the Company, dated
as of the Closing Date, substantially in the form attached
hereto as Exhibit G.
(d) On the Closing Date the Initial Purchasers shall have
received an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Initial Purchasers, dated as of the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers.
(e) On the Closing Date the Initial Purchasers shall have
received a written certificate executed by the Chairman of the Board, Chief
Executive Officer or President of the Company and the Chief Financial Officer or
Chief Accounting Officer of the Company, dated as of the Closing Date, to the
effect that:
(i) the representations, warranties and covenants of the Company
set forth in Section 5 of this Agreement are true and correct
with the same force and effect as though expressly made on and
as of the Closing Date;
(ii) the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at
or prior to the Closing Date; and
(iii) each of the respective signers of each certificate has
carefully examined the Offering Memorandum; in his opinion and
to the knowledge of the Company the Offering Memorandum does
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that such certificate shall not require any
representation concerning statements in, or omitted from, the
Offering Memorandum, in reliance upon and in conformity with
written information furnished to the Company by the Initial
Purchasers expressly for use in preparation of the Offering
Memorandum.
(f) On the Closing Date the Initial Purchasers shall have
received from Xxxxxx Xxxxxxxx LLP independent public accountants for the Company
a letter dated such date, in form and substance satisfactory to the Initial
Purchasers, to the effect that they reaffirm the
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statements made in the letter furnished by them pursuant to subsection (a) of
this Section 9, except that the specified date referred to therein for the
carrying out of procedures shall be no more than three business days prior to
the Closing Date.
(g) At the Closing Date, the Notes shall have been designated
for trading in the PORTAL Market.
(h) The Company shall have entered into the Registration
Rights Agreement and the Indenture and the Initial Purchasers shall have
received executed counterparts thereof.
(i) On or before the Closing Date, counsel for the Initial
Purchasers shall have received such information, documents and opinions as they
may reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Notes as contemplated herein, or in order to evidence
the accuracy of any of the representations and warranties, or the satisfaction
of any of the conditions or agreements, herein contained.
(j) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development involving a prospective change in the stockholders
equity or in the long-term debt of the Company or any of its subsidiaries, taken
as a whole (other than the sale of the Notes under this Agreement and other than
draw-downs under the Company's revolving credit facility in the ordinary course
of business) and (iii) neither the Company nor any of its subsidiaries shall
have incurred any liability or obligation, direct or contingent (except for any
such liability or obligation incurred in the ordinary course of business), the
effect of which, in any such case described in clause 9(j)(i), 9(j)(ii) or
9(j)(iii), in your reasonable judgment, is material and adverse and, in your
reasonable judgment, makes it impracticable to market the Series A Notes on the
terms and in the manner contemplated in the Offering Memorandum.
If any condition specified in this Section 9 is not satisfied
when and as required to be satisfied, this Agreement may be terminated by the
Initial Purchasers by notice to the Company at any time on or prior to the
Closing Date, which termination shall be without liability on the part of any
party to any other party, except that Section 5(o), and Section 8 shall at all
times be effective and shall survive such termination.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by the Initial Purchaser by written notice to the Company if any of
the following has occurred: (i) any outbreak or escalation of hostilities or
other national or international calamity or crisis or
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change in economic conditions or in the financial markets of the United States
or elsewhere that, in the Initial Purchasers' reasonable judgment, is material
and adverse and, in the Initial Purchasers' reasonable judgment, makes it
impracticable to market the Series A Notes on the terms and in the manner
contemplated in the Offering Memorandum, (ii) the suspension or material
limitation of trading in securities or other instruments on the New York Stock
Exchange, the American Stock Exchange, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq
National Market or limitation on prices for securities or other instruments on
any such exchange or the Nasdaq National Market, (iii) the suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market, (iv) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your reasonable opinion materially and adversely
affects, or will materially and adversely affect, the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, (v) the declaration of a banking moratorium by
either federal or New York State authorities or (vi) the taking of any action by
any federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your reasonable opinion has a material adverse effect on
the financial markets in the United States.
If on the Closing Date any one or more of the Initial Purchasers
shall fail or refuse to purchase the Series A Notes which it or they have agreed
to purchase hereunder on such date and the aggregate principal amount of the
Series A Notes which such defaulting Initial Purchaser or Initial Purchasers, as
the case may be, agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of the Series A Notes to be
purchased on such date by all Initial Purchasers, each non-defaulting Initial
Purchaser shall be obligated severally, in the proportion which the principal
amount of the Series A Notes set forth opposite its name in Schedule A bears to
the aggregate principal amount of the Series A Notes which all the
non-defaulting Initial Purchasers, as the case may be, have agreed to purchase,
or in such other proportion as you may specify, to purchase the Series A Notes
which such defaulting Initial Purchaser or Initial Purchasers, as the case may
be, agreed but failed or refused to purchase on such date; provided that in no
event shall the aggregate principal amount of the Series A Notes which any
Initial Purchaser has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of the Series A Notes without the written consent of such
Initial Purchaser. If on the Closing Date any Initial Purchaser or Initial
Purchasers shall fail or refuse to purchase the Series A Notes and the aggregate
principal amount of the Series A Notes with respect to which such default occurs
is more than one-tenth of the aggregate principal amount of the Series A Notes
to be purchased by all Initial Purchasers and arrangements satisfactory to the
Initial Purchasers and the Company for purchase of such the Series A Notes are
not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Initial Purchaser and the
Company. In any such case which does not result in termination of this
Agreement, either you or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Offering Memorandum or any other documents or
arrangements may be effected. Any action taken under this paragraph shall
not relieve any defaulting Initial Purchaser from liability in respect of any
default of any such Initial Purchaser under this Agreement.
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11. MISCELLANEOUS. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to
Signature Resorts, Inc., 0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx,
Xxxxxxxxxx 00000, Facsimile (000) 000-0000, Attention: Xxxxxx X. Xxxxxx, Esq.
and (ii) if to the Initial Purchasers, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Department, or in any case to such other address as the person to be notified
may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company and the Initial
Purchasers set forth in or made pursuant to this Agreement shall remain
operative and in full force and effect, and will survive delivery of and payment
for the Series A Notes, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of the Initial Purchasers, the
officers or directors of the Initial Purchaser, any person controlling the
Initial Purchasers, the Company, the officers or directors of the Company, or
any person controlling the Company, (ii) acceptance of the Series A Notes and
payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Series A Notes are not delivered by or on
behalf of the Company as provided herein (other than as a result of any material
breach by you of any representations, warranties or covenants in Section 7
hereof or any termination of this Agreement pursuant to Section 10), the Company
agrees to reimburse the Initial Purchasers for all out-of-pocket expenses
(including the reasonable fees and disbursements of counsel) incurred by them.
Notwithstanding any termination of this Agreement (but subject to the
parenthetical in the foregoing sentence), the Company shall be liable for all
expenses which it has agreed to pay pursuant to Section 5(o) hereof. Each of the
parties hereto agrees to reimburse the other parties hereto and its officers,
directors and each person, if any, who controls such other parties hereto within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act for any
and all fees and expenses (including without limitation the reasonable fees and
expenses of counsel) incurred by them in connection with enforcing their rights
under this Agreement (including without limitation its rights under Section 8).
Except as otherwise provided herein (including without limitation
Section 8), this Agreement has been and is made solely for the benefit of and
shall be binding upon the Company, the Initial Purchasers, and no other person
shall acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include a purchaser of any of the Series A
Notes from the Initial Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company and the Initial Purchasers.
Very truly yours,
SIGNATURE RESORTS, INC.
By: /s/ XXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, General
Counsel & Secretary
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
NATIONSBANC XXXXXXXXXX SECURITIES LLC
By: /s/ XXXXXXX XXXXX
---------------------------------
Name: Xxxxxxx Xxxxx
Title:
BT ALEX. XXXXX INCORPORATED
By: /s/ XXXXX XXXXXX
---------------------------------
Name: Xxxxx Xxxxxx
Title: Principal
SALOMON BROTHERS INC
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Managing Director
SOCIETE GENERALE SECURITIES CORPORATION
By: /s/ XXXX X. XXXXX III
---------------------------------
Name: Xxxx X. Xxxxx III
Title: Managing Director
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SCHEDULE A
AGGREGATE PRINCIPAL
AMOUNT OF SERIES A
INITIAL PURCHASER NOTES TO BE PURCHASED
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation 70,000,000
NationsBanc Xxxxxxxxxx Securities LLC............................. 35,000,000
BT Alex. Xxxxx Incorporated....................................... 11,667,000
Salomon Brothers Inc.............................................. 11,667,000
Societe Generale Securities Corporation........................... 11,666,000
Total $140,000,000
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A-1
