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EYE CARE CENTERS OF AMERICA, INC.
$150,000,000
$100,000,000 9 1/8% Senior Subordinated Notes due 2008
$50,000,000 Floating Interest Rate
Subordinated Term Securities due 2008 (FIRSTS)
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PURCHASE AGREEMENT
April 17, 1998
BT ALEX. BROWN INCORPORATED
XXXXXXX LYNCH, XXXXXX, XXXXXX
& XXXXX INCORPORATED
c/o BT Xxxx. Xxxxx Incorporated
Bankers Trust Plaza
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Eye Care Centers of America, Inc., a Texas corporation (the "Company"),
and each Guarantor (as defined) hereby confirm their agreement with each of you
(collectively, the "Initial Purchasers"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers
$100,000,000 aggregate principal amount of its 9 1/8% Senior Subordinated Notes
due 2008 (the "Fixed Rate Notes") and $50,000,000 aggregate principal amount of
its Floating Interest Rate Subordinated Term Securities due 2008 (the "Floating
Rate Notes" and, together with the Fixed Rate Notes, the "Notes"). The Notes are
to be issued under an indenture (the "Indenture") to be dated as of April 24,
1998 by and between the Company, the Guarantors and United States Trust Company
of New York, as Trustee (the "Trustee"). The Notes will be guaranteed
(collectively, the "Guarantees") on an unsecured senior subordinated basis by
each of the Company's domestic subsidiaries listed on the signature pages hereof
(collectively, and together with any subsidiary that in the future executes a
supplemental indenture pursuant to which such subsidiary agrees to guarantee the
Notes, the "Guarantors"). The Notes and the Guarantees are collectively referred
to herein as the "Securities." The Company and the Guarantors are collectively
referred to herein as the "Issuers".
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum dated March 31, 1998 (the "Preliminary
Memorandum"), and a final offering memorandum dated April 17, 1998 (the "Final
Memorandum"; the Preliminary Memorandum and the Final Memorandum each herein
being referred to as a "Memorandum") setting forth or including a description of
the terms of the Securities, the terms of the offering of the Securities, a
description of the Company, a description of the Recapitalization (as defined
below) and any material developments relating to the Company occurring after the
date
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of the most recent historical financial statements included therein.
The Initial Purchasers and their direct and indirect transferees of the
Securities will be entitled to the benefits of the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant to which the Issuers have agreed,
among other things, to file a registration statement (the "Registration
Statement") with the Securities and Exchange Commission (the "Commission")
registering the Securities or the Exchange Notes (as defined in the Registration
Rights Agreement) under the Act.
As described in the Preliminary Memorandum and the Final Memorandum,
the offering of the Notes is part of an over-all recapitalization of the Company
(the "Recapitalization"), pursuant to which the Company has entered into a
recapitalization agreement (the "Recapitalization Agreement"), dated as of March
6 1998, whereby a Delaware corporation formed by the Xxxxxx X. Xxx Company ("THL
Co.") will merge with and into the Company (the "Merger"). Upon consummation of
the Merger, THL Fund IV, L.P. and other affiliates of THL Co. (together, "THL")
will own approximately 90.1% of the issued and outstanding shares of Common
Stock of the Company (the "Common Stock"), existing shareholders (including
management) of the Company will retain approximately 7.3% of the issued and
outstanding Common Stock and management will purchase additional shares
representing approximately 2.6% of the issued and outstanding Common Stock. In
connection with the Recapitalization, (i) the Company and the Guarantors will
enter into a new credit facility (the "New Credit Facility") with Bankers Trust
New York Corporation, as administrative agent, and Xxxxxxx Xxxxx Capital
Corporation, as syndication agent, providing for a $55.0 million term loan
facility, a $35.0 million revolving credit facility, and a $100.0 million
acquisition facility and (ii) the Company will receive up to $99.1 million (the
"Equity Contribution") from the sale of capital stock to THL, Xxxxxxx X. Xxxxxxx
and other members of management consisting of (i) approximately $71.4 million
from the sale of Common Stock and (ii) approximately $27.8 million from the sale
of New Preferred Stock of the Company (the "New Preferred Stock").
2. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Initial Purchasers that:
(a) Neither the Preliminary Memorandum as of the date thereof
nor the Final Memorandum nor any amendment or supplement thereto as of the date
thereof and at all times subsequent thereto up to the Closing Date (as defined
in Section 3 below) contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set forth
in this Section 2(a) do not apply to statements or omissions made in reliance
upon and in conformity with information relating to any of the Initial
Purchasers furnished to the Company in writing by the Initial Purchasers
expressly for use in the Preliminary Memorandum, the Final Memorandum or any
amendment or supplement thereto.
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(b) As of the Closing Date (after giving effect to the
Recapitalization), the Company will have the authorized, issued and outstanding
capitalization set forth in the Final Memorandum; all of the domestic
subsidiaries of the Company are listed in Schedule 2 attached hereto (each, a
"Subsidiary" and collectively, the "Subsidiaries"); all of the outstanding
shares of capital stock of the Company and the Subsidiaries have been, and as of
the Closing Date will be, duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive or similar
rights; all of the outstanding shares of capital stock of the Company and of
each of the Subsidiaries will be free and clear of all liens, encumbrances,
equities and claims or restrictions on transferability or voting (other than
liens, restrictions and encumbrances imposed in favor of the lenders under the
New Credit Facility and restrictions and encumbrances in the Shareholders
Agreement to be entered into in connection with the Recapitalization and other
than those imposed by the Act and the securities or "Blue Sky" laws of certain
jurisdictions); except as set forth in the Final Memorandum, after giving effect
to the Recapitalization, there are no (i) options, warrants or other rights to
purchase, (ii) agreements or other obligations to issue or (iii) other rights to
convert any obligation into, or exchange any securities for, shares of capital
stock of or ownership interests in the Company or any of the Subsidiaries
outstanding. Except for the Subsidiaries or as disclosed in the Final
Memorandum, the Company does not own, directly or indirectly, any shares of
capital stock or any other equity or long-term debt securities or have any
equity interest in any firm, partnership, joint venture or other entity.
(c) Each of the Company and the Subsidiaries is duly
incorporated, validly existing and in good corporate standing under the laws of
its respective jurisdiction of incorporation and has all requisite corporate
power and authority to own its properties and conduct its business as now
conducted and as described in the Final Memorandum; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect on the business affairs, management,
business, condition (financial or otherwise) or results of operations of the
Company and the Subsidiaries, taken as a whole (any such event, a "Material
Adverse Effect").
(d) The Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under the
Notes, the Exchange Notes and the Private Exchange Notes (as defined in the
Registration Rights Agreement). The Notes, when issued, will be in the form
contemplated by the Indenture. The Notes, the Exchange Notes and the Private
Exchange Notes have each been duly and validly authorized by the Company and,
when executed by the Company and authenticated by the Trustee in accordance with
the provisions of the Indenture and, in the case of the Notes, when delivered to
and paid for by the Initial Purchasers in accordance with the terms of this
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 that the enforcement
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thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally, and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(e) Each Guarantor has all requisite corporate power and
authority to execute, deliver and perform each of its obligations under its
Guarantee, its guarantee of the Exchange Notes (each, an "Exchange Notes
Guarantee") and its guarantee of the Private Exchange Notes (each, a "Private
Exchange Notes Guarantee"). The Guarantees, when issued, will be in the form
contemplated by the Indenture. The Guarantees, the Exchange Notes Guarantees and
the Private Exchange Notes Guarantees have each been duly and validly authorized
by the Guarantors and, in the case of the Guarantees, when delivered to and paid
for by the Initial Purchasers in accordance with the terms of this Agreement,
will constitute valid and legally binding obligations of the Guarantors,
entitled to the benefits of the Indenture, and enforceable against the
Guarantors in accordance with their terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(f) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Indenture.
The Indenture meets the requirements for qualification under the Trust Indenture
Act of 1939, as amended (the "TIA"). The Indenture has been duly and validly
authorized by each of the Issuers and, when executed and delivered by each of
the Issuers (assuming the due authorization, execution and delivery by the
Trustee), will constitute a valid and legally binding agreement of the Issuers,
enforceable against the Issuers in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought.
(g) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Registration
Rights Agreement. The Registration Rights Agreement has been duly and validly
authorized by each of the Issuers and, when executed and delivered by each of
the Issuers, will constitute a valid and legally binding agreement of the
Issuers enforceable against the Issuers in accordance with its terms, except
that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought and (B) any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy considerations.
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(h) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and to consummate the transactions contemplated hereby. This Agreement and the
consummation by each of the Issuers of the transactions contemplated hereby have
been duly and validly authorized by the Issuers. This Agreement has been duly
executed and delivered by each of the Issuers.
(i) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the New Credit
Facility. The New Credit Facility has been duly and validly authorized by each
of the Issuers and, when executed and delivered by each of the Issuers, will
constitute a valid and legally binding agreement of the Issuers enforceable
against the Issuers in accordance with its terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(j) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Recapitalization Agreement. The Recapitalization Agreement has been duly and
validly 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 that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought. The Company has furnished the
Initial Purchasers with a true and correct conformed copy of the
Recapitalization Agreement, as in effect on the date hereof.
(k) No consent, approval, authorization or order of any court
or governmental agency or body, or third party is required for the issuance and
sale by the Issuers of the Securities to the Initial Purchasers or the
consummation by the Issuers of the Recapitalization or the other transactions
contemplated hereby, except such as have been obtained and such as may be
required under state securities or "Blue Sky" laws in connection with the
purchase and resale of the Securities by the Initial Purchasers. None of the
Company or the Subsidiaries is (i) in violation of its certificate of
incorporation or bylaws (or similar organizational document), (ii) in breach or
violation of any statute, judgment, decree, order, rule or regulation applicable
to any of them or any of their respective properties or assets, except for any
such breach or violation which would not, individually or in the aggregate, have
a Material Adverse Effect, or (iii) in breach of or default under (nor has any
event occurred which, with notice or passage of time or both, would constitute a
default under) or in violation of any of the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement or
instrument to which any of them is a party or to which any of them or their
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respective properties or assets is subject (collectively, "Contracts"), except
for any such breach, default, violation or event which would not, individually
or in the aggregate, have a Material Adverse Effect.
(l) The execution, delivery and performance by each of the
Issuers of this Agreement, the Indenture, the Registration Rights Agreement and
the New Credit Facility and the consummation by the Issuers of the transactions
contemplated hereby and thereby (including, without limitation, the issuance and
sale of the Securities to the Initial Purchasers) will not conflict with or
constitute or result in a breach of or a default under (or an event which with
notice or passage of time or both would constitute a default under) or violation
of any of (i) the terms or provisions of any Contract, except for any such
conflict, breach, violation, default or event which would not, individually or
in the aggregate, have a Material Adverse Effect, (ii) the certificate of
incorporation or bylaws (or similar organizational document) of the Company or
any of the Subsidiaries, or (iii) (assuming compliance with all applicable state
securities or "Blue Sky" laws and assuming the accuracy of the representations
and warranties of the Initial Purchasers in Section 8 hereof) any statute,
judgment, decree, order, rule or regulation applicable to the Company or any of
the Subsidiaries or any of their respective properties or assets, except for any
such conflict, breach or violation which would not, individually or in the
aggregate, have a Material Adverse Effect.
(m) The audited consolidated financial statements (including
the notes thereto) of the Company and the Subsidiaries included in the Final
Memorandum present fairly in all material respects the financial position,
results of operations and cash flows of the Company and the Subsidiaries at the
dates and for the periods to which they relate and have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis, except as otherwise stated therein. The summary and selected financial
and statistical data (including the notes thereto) in the Final Memorandum
present fairly in all material respects the information shown therein and have
been prepared and compiled on a basis consistent with the audited financial
statements included therein, except as otherwise stated therein. To the
Company's knowledge, Ernst & Young LLP (the "Independent Accountants") is an
independent public accounting firm within the meaning of the Act and the rules
and regulations promulgated thereunder.
(n) The pro forma financial statements (including the notes
thereto) and the other pro forma financial information included in the Final
Memorandum (i) comply as to form in all material respects with the applicable
requirements of Regulation S-X promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), (ii) have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma financial
statements, and (iii) have been properly computed on the bases described
therein; the assumptions used in the preparation of the pro forma financial data
and other pro forma financial information included in the Final Memorandum are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions or circumstances referred to therein.
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(o) The audited consolidated financial statements (including
the notes thereto) of each of The Xxxxx Organization ("TSO") and Visionworks
Holdings, Inc. ("Visionworks") included in the Final Memorandum present fairly
in all material respects the financial position, results of operations and cash
flows of TSO and Visionworks, as applicable, at the dates and for the periods to
which they relate and have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, except as otherwise stated
therein. To the Company's knowledge, Beers & Xxxxxx PLLC and KPMG Peat Marwick
LLP are independent public accountants within the meaning of the Act and the
rules and regulations promulgated thereunder with respect to TSO and
Visionworks, respectively.
(p) Except as disclosed in the Final Memorandum, there is not
pending or, to the knowledge of the Company, threatened any action, suit,
proceeding, inquiry or investigation to which the Company or any of the
Subsidiaries is a party, or to which the property or assets of the Company or
any of the Subsidiaries are subject, before or brought by any court, arbitrator
or governmental agency or body which, if determined adversely to the Company or
any of the Subsidiaries, would, individually or in the aggregate, have a
Material Adverse Effect or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the Securities to
be sold hereunder or the consummation of the Recapitalization or the other
transactions described in the Final Memorandum.
(q) Each of the Company and the Subsidiaries possesses all
licenses, permits, certificates, consents, orders, approvals and other
authorizations from, and has made all declarations and filings with, all
federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, presently required or
necessary to own or lease, as the case may be, and to operate its respective
properties and to carry on its respective businesses as now or proposed to be
conducted as set forth in the Final Memorandum ("Permits"), except where the
failure to obtain such Permits would not, individually or in the aggregate, have
a Material Adverse Effect; each of the Company and the Subsidiaries has
fulfilled and performed in all material respects all of its obligations with
respect to such Permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such Permit;
and none of the Company or the Subsidiaries has received any notice of any
proceeding relating to revocation or modification of any such Permit, except as
described in the Final Memorandum or except where such revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect.
(r) Since the date of the most recent financial statements
appearing in the Final Memorandum, except as described therein, (i) none of the
Company or the Subsidiaries has incurred any liabilities or obligations, direct
or contingent, or entered into or agreed to enter into any transactions or
contracts (written or oral) not in the ordinary course of business which
liabilities, obligations, transactions or contracts would, individually or in
the aggregate, be material to the business affairs, management, business,
condition (financial or otherwise) or
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results of operations of the Companies and its Subsidiaries, taken as a whole,
(ii) the Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock and (iii) there shall not have been any material change in the
capital stock or increase in long-term indebtedness of the Company or the
Subsidiaries.
(s) Each of the Company and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns, except
where the failure to so file such returns would not, individually or in the
aggregate, have a Material Adverse Effect, and has paid all taxes shown as due
thereon; and other than tax deficiencies which the Company or any Subsidiary is
contesting in good faith and for which the Company or such Subsidiary has
provided adequate reserves, there is no tax deficiency that has been asserted
against the Company or any of the Subsidiaries that would have, individually or
in the aggregate, a Material Adverse Effect.
(t) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which the Company and the
Subsidiaries believe to be reliable and accurate.
(u) None of the Company, the Subsidiaries or any agent acting
on their behalf has taken or will take any action that might cause this
Agreement or the sale of the Securities to violate Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System, in each case as in effect,
or as the same may hereafter be in effect, on the Closing Date.
(v) Each of the Company and the Subsidiaries has good and
marketable title to all real property and good title to all personal property
described in the Final Memorandum as being owned by it and good and marketable
title to any leasehold estate in the real and personal property described in the
Final Memorandum as being leased by it free and clear of all liens, charges,
encumbrances or restrictions, except as described in the Final Memorandum or to
the extent the failure to have such title or the existence of such liens,
charges, encumbrances or restrictions would not, individually or in the
aggregate, have a Material Adverse Effect. All leases, contracts and agreements
to which the Company or any of the Subsidiaries is a party or by which any of
them is bound are valid and enforceable against the Company or such Subsidiary,
and, to the Company's or such Subsidiary's knowledge, are valid and enforceable
against the other party or parties thereto and are in full force and effect with
only such exceptions as would not, individually or in the aggregate, have a
Material Adverse Effect. The Company and the Subsidiaries own or possess
adequate licenses or other rights to use all patents, trademarks, service marks,
trade names, copyrights and know-how necessary to conduct the businesses now or
proposed to be operated by them as described in the Final Memorandum, and none
of the Company or the Subsidiaries has received any notice of infringement of or
conflict with (or knows of any such infringement of or conflict with) asserted
rights of others with respect to any patents, trademarks, service marks, trade
names,
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copyrights or know-how which, if such assertion of infringement or conflict were
sustained, would have a Material Adverse Effect.
(w) There are no legal or governmental proceedings involving
or affecting the Company or any Subsidiary or any of their respective properties
or assets which would be required to be described in a prospectus pursuant to
the Act that are not described in the Final Memorandum, nor are there any
material contracts or other documents which would be required to be described in
a prospectus pursuant to the Act that are not described in the Final Memorandum.
(x) Except as would not, individually or in the aggregate,
have a Material Adverse Effect, to the Company's knowledge, (A) each of the
Company and the Subsidiaries is in compliance with and not subject to liability
under applicable Environmental Laws (as defined below), (B) each of the Company
and the Subsidiaries has made all filings and provided all notices required
under any applicable Environmental Law, and has and is in compliance with all
Permits required under any applicable Environmental Laws and each of them is in
full force and effect, (C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the knowledge
of the Company or any of the Subsidiaries, threatened against the Company or any
of the Subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any Environmental Law with
respect to any assets, facility or property owned, operated, leased or
controlled by the Company or any of the Subsidiaries, (E) none of the Company or
the Subsidiaries has received notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any comparable
state law, (F) no property or facility of the Company or any of the Subsidiaries
is (i) listed or proposed for listing on the National Priorities List under
CERCLA or is (ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to CERCLA,
or on any comparable list maintained by any state or local governmental
authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(y) There is no strike, labor dispute, slowdown or work
stoppage with the
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employees of the Company or any of the Subsidiaries which is pending or, to the
knowledge of the Company or any of the Subsidiaries, threatened.
(z) Each of the Company and the Subsidiaries carries insurance
in such amounts and covering such risks as is adequate for the conduct of its
business and the value of its properties.
(aa) None of the Company or the Subsidiaries has any material
liability for any prohibited transaction or funding deficiency or any complete
or partial withdrawal liability with respect to any pension, profit sharing or
other plan which is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), to which the Company or any of the Subsidiaries
makes or ever has made a contribution and in which any employee of the Company
or of any Subsidiary is or has ever been a participant. With respect to such
plans, the Company and each Subsidiary is in compliance in all material respects
with all applicable provisions of ERISA.
(bb) Each of the Company and the Subsidiaries (i) makes and
keeps in all material respects accurate books and records and (ii) maintains
internal accounting controls which provide reasonable assurance that (A)
transactions are executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, (C) access to its
assets is permitted only in accordance with management's authorization and (D)
the reported accountability for its assets is compared with existing assets at
reasonable intervals.
(cc) None of the Company or the Subsidiaries will be an
"investment company" or "promoter" or "principal underwriter" for an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(dd) The Securities, the Indenture, the Registration Rights
Agreement, the New Preferred Stock and the New Credit Facility will conform in
all material respects to the descriptions thereof in the Final Memorandum. The
Recapitalization Agreement conforms in all material respects to the description
thereof in the Final Memorandum.
(ee) No holder of securities of the Company or any Subsidiary
will be entitled to have such securities registered under the registration
statements required to be filed by the Company pursuant to the Registration
Rights Agreement other than as expressly permitted thereby.
(ff) Immediately after the consummation of the transactions
contemplated by this Agreement, the New Credit Facility and the Recapitalization
Agreement, the fair value and present fair saleable value of the assets of each
of the Issuers will exceed the sum of its stated liabilities and identified
contingent liabilities; none of the Issuers is, nor will any of the
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Issuers be, after giving effect to the execution, delivery and performance of
this Agreement, the New Credit Facility and the Recapitalization Agreement, and
the consummation of the transactions contemplated hereby and thereby, (a) left
with unreasonably small capital with which to carry on its business as it is
proposed to be conducted, (b) unable to pay its debts (contingent or otherwise)
as they mature or (c) otherwise insolvent.
(gg) None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D under the Act)
has directly, or through any agent, (i) sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of, any "security" (as defined in the
Act) which is or could be integrated with the sale of the Securities in a manner
that would require the registration under the Act of the Securities or (ii)
engaged in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering of
the Securities or in any manner involving a public offering within the meaning
of Section 4(2) of the Act. Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 8 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the Initial
Purchasers in the manner contemplated by this Agreement to register any of the
Securities under the Act or to qualify the Indenture under the TIA.
(hh) No securities of the Company or any Subsidiary are of the
same class (within the meaning of Rule 144A under the Act) as the Notes are
listed on a national securities exchange registered under Section 6 of the
Exchange Act, or quoted in a U.S.
automated inter-dealer quotation system.
(ii) None of the Company or the Subsidiaries has taken, nor
will any of them 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 the Notes.
(jj) None of the Company, the Subsidiaries, any of their
respective Affiliates or any person acting on its or their behalf (other than
the Initial Purchasers) has engaged in any directed selling efforts (as that
term is defined in Regulation S under the Act ("Regulation S")) with respect to
the Securities; the Company, the Subsidiaries and their respective Affiliates
and any person acting on its or their behalf (other than the Initial Purchasers)
have complied with the offering restrictions requirement of Regulation S.
(kk) The Company has delivered to the Initial Purchasers a
complete copy of the Recapitalization Agreement.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered to any Initial Purchaser or to counsel for the Initial
Purchasers shall be deemed a representation and warranty by the Company or such
Subsidiary, as the case may be, to each Initial Purchaser as to the matters
covered thereby.
- 12 -
13
3. Purchase, Sale and Delivery of the Securities. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers, acting
severally and not jointly, agree to purchase the Notes in the respective amounts
set forth on Schedule 1 hereto from the Company at 96.511% of the principal
amount thereof, in the case of the Fixed Rate Notes, and 97.000% of the
principal amount thereof, in the case of the Floating Rate Notes, and the
Guarantors agree to issue the Guarantees. One or more certificates in definitive
form for the Securities that the Initial Purchasers have agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchasers request upon notice to the Company at least
36 hours prior to the Closing Date, shall be delivered by or on behalf of the
Issuers to the Initial Purchasers, against payment by or on behalf of the
Initial Purchasers of the purchase price therefor by wire transfer (same day
funds) to such account or accounts as the Company shall specify prior to the
Closing Date, or by such means as the parties hereto shall agree prior to the
Closing Date. Such delivery of and payment for the Notes shall be made at the
offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 10:00
A.M., New York time, on April 24, 1998, or at such other place, time or date as
the Initial Purchasers, on the one hand, and the Company, on the other hand, may
agree upon, such time and date of delivery against payment being herein referred
to as the "Closing Date." The Issuers will make such certificate or certificates
for the Securities available for checking and packaging by the Initial
Purchasers at the offices of BT Xxxx. Xxxxx Incorporated in New York, New York,
or at such other place as BT Xxxx. Xxxxx Incorporated may designate, at least 24
hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers propose
to make an offering of the Securities at the price and upon the terms set forth
in the Final Memorandum, as soon as practicable after this Agreement is entered
into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Company. The Issuers covenant and agree with each
of the Initial Purchasers that:
(a) The Issuers will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the Initial
Purchasers shall not previously have been advised and furnished a copy for a
reasonable period of time prior to the proposed amendment or supplement and as
to which the Initial Purchasers shall not have given their consent. The Company
will promptly, upon the reasonable request of the Initial Purchasers or counsel
for the Initial Purchasers, make any amendments or supplements to the
Preliminary Memorandum or the Final Memorandum that may be necessary or
advisable in connection with the resale of the Securities by the Initial
Purchasers.
(b) The Issuers will cooperate with the Initial Purchasers in
arranging for the qualification of the Securities for offering and sale under
the securities or "Blue Sky" laws
- 13 -
14
of such jurisdictions as the Initial Purchasers may designate and will continue
such qualifications in effect for as long as may be necessary to complete the
resale of the Securities; provided, however, that in connection therewith, the
Company shall not be required to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction or subject itself to
taxation in excess of a nominal dollar amount in any such jurisdiction where it
is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Securities or the Private Exchange
Notes, any event occurs or information becomes known as a result of which the
Final Memorandum as then amended or supplemented would include any untrue
statement of a material fact, or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Final Memorandum to comply with applicable law, the
Company will promptly notify the Initial Purchasers thereof and will prepare, at
the expense of the Company, an amendment or supplement to the Final Memorandum
that corrects such statement or omission or effects such compliance.
(d) The Issuers will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchasers may reasonably request.
(e) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For a period of two years from the Closing Date the
Issuers will furnish to the Initial Purchasers copies of all reports and other
communications (financial or otherwise) furnished by the Company to the Trustee
or to the holders of the Securities and, as soon as available, copies of any
reports or financial statements furnished to or filed by the Company with the
Commission or any national securities exchange on which any class of securities
of the Company may be listed.
(g) Prior to the Closing Date, the Issuers will furnish to the
Initial Purchasers, as soon as they have been prepared, a copy of any unaudited
interim financial statements of the Company for any period subsequent to the
period covered by the most recent financial statements appearing in the Final
Memorandum.
(h) None of the Issuers or any of their Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) which could be integrated with the sale of
the Securities in a manner which would require the registration under the Act of
the Securities.
- 14 -
15
(i) The Issuers will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Securities or in any manner involving a
public offering within the meaning of Section 4(2) of the Act.
(j) For so long as any of the Securities remain outstanding,
the Issuers will make available at their expense, upon request, to any holder of
such Securities and any prospective purchasers thereof the information specified
in Rule 144A(d)(4) under the Act, unless the Company is then subject to Section
13 or 15(d) of the Exchange Act.
(k) The Issuers will use their best efforts to (i) permit the
Securities to be designated PORTAL securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the Private Offerings,
Resales and Trading through Automated Linkages market (the "Portal Market") and
(ii) permit the Securities to be eligible for clearance and settlement through
The Depository Trust Company.
(l) In connection with Securities offered and sold in an
offshore transaction (as defined in Regulation S) the Issuers will not register
any transfer of such Securities not made in accordance with the provisions of
Regulation S and will not, except in accordance with the provisions of
Regulation S, if applicable, issue any such Securities in the form of definitive
securities.
(m) The Company will provide the Initial Purchasers with a
complete set of documents and opinions, to the extent permitted, executed in
connection with the Recapitalization and will provide the Initial Purchasers
with drafts of such documents in substantially final form prior to the Closing
Date.
6. Expenses. The Issuers agree to pay all costs and expenses incident
to the performance of their obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
the transactions contemplated hereby, including any costs of printing the
Preliminary Memorandum and the Final Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchasers of copies of the foregoing documents, (iii)
the fees and disbursements of the counsel, the accountants and any other experts
or advisors retained by the Company, (iv) preparation (including printing),
issuance and delivery to the Initial Purchasers of the Securities, (v) the
qualification of the Securities under state securities and "Blue Sky" laws,
including filing fees and reasonable fees and disbursements of counsel for the
Initial Purchasers relating thereto, (vi) 50% of expenses in connection with any
meetings with prospective investors in the Securities, (vii) fees and expenses
of the Trustee including fees and expenses of counsel, (viii) all expenses and
listing fees incurred in connection with the application for quotation of the
Securities on the PORTAL Market and (ix)
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16
any fees charged by investment rating agencies for the rating of the Securities.
If the sale of the Securities provided for herein is not consummated because any
condition to the obligations of the Initial Purchasers set forth in Section 7
hereof is not satisfied, because this Agreement is terminated (other than
pursuant to Sections 11(a)(ii), (iii) or (iv)) or because of any failure,
refusal or inability on the part of the Issuers to perform all obligations and
satisfy all conditions on their part to be performed or satisfied hereunder
(other than solely by reason of a default by the Initial Purchasers of their
obligations hereunder after all conditions hereunder have been satisfied in
accordance herewith), the Issuers agree to promptly reimburse the Initial
Purchasers upon demand for all out-of-pocket expenses (including reasonable
fees, disbursements and charges of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the
Initial Purchasers) that shall have been incurred by the Initial Purchasers in
connection with the proposed purchase and sale of the Securities.
7. Conditions of the Initial Purchasers' Obligations. The obligation of
the Initial Purchasers to purchase and pay for the Securities shall be subject
to the satisfaction or waiver of the following conditions on or prior to the
Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have
received the opinion, dated as of the Closing Date and after giving effect to
the Recapitalization and addressed to the Initial Purchasers, of Xxxxxxxx,
Xxxxxxx & Xxxxxxx, a Professional Corporation, and Xxx & Xxxxx Incorporated,
counsel for the Issuers, in form and substance satisfactory to counsel for the
Initial Purchasers, to the effect that (subject to customary assumptions,
qualifications and exceptions):
(i) Each of the Company and the Subsidiaries is
validly existing and in good corporate standing under the laws of its respective
jurisdiction of incorporation and has all requisite corporate power and
authority to own its properties and to conduct its business as described in the
Final Memorandum. Each of the Company and the Subsidiaries is duly qualified to
do business as a foreign corporation in good standing in all other jurisdictions
where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not, individually or in the aggregate, have a Material Adverse Effect.
(ii) The Company has the authorized, issued and
outstanding capitalization set forth in the Final Memorandum; all of the
outstanding shares of capital stock of the Company and the Subsidiaries have
been duly authorized and validly issued, are fully paid and nonassessable and
were not issued in violation of any preemptive or similar rights; all of the
outstanding shares of capital stock of the Subsidiaries are owned, directly or
indirectly, by the Company, and, to the knowledge of such counsel, free and
clear of all other liens, encumbrances, equities and claims or restrictions on
transferability (other than liens, restrictions and encumbrances in favor of the
lenders under the New Credit Facility and other than those imposed by the Act
and the securities or "Blue Sky" laws of certain jurisdictions) or voting.
- 16 -
17
(iii) Except as set forth in the Final
Memorandum (A) no options, warrants or other rights to purchase from the Company
shares of capital stock or ownership interests in the Company are outstanding,
(B) no agreements or other obligations to issue, or other rights to convert, any
obligation into, or exchange any securities for, shares of capital stock or
ownership interests in the Company are outstanding and (C) no holder of
securities of the Company is entitled to have such securities registered under a
registration statement filed by the Company pursuant to the Registration Rights
Agreement.
(iv) Each of the Issuers has all requisite
corporate power and authority to execute, deliver and perform each of its
respective obligations under the Indenture, the Securities, the Exchange Notes
and the Private Exchange Notes; the Indenture meets the requirements for
qualification under the TIA; the Indenture has been duly and validly authorized
by each of the Issuers and, when duly executed and delivered by each of the
Issuers (assuming the due authorization, execution and delivery thereof by the
Trustee), will constitute the valid and legally binding agreement of the
Issuers, enforceable against the Issuers in accordance with its terms, except
that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity
and the discretion of the court before which any proceeding therefor may be
brought.
(v) Each Guarantor has all requisite corporate
power and authority to execute, deliver and perform each of its obligations
under its Guarantee, the Exchange Notes Guarantee and the Private Exchange Notes
Guarantee. The Guarantees, when issued, will be in the form contemplated by the
Indenture. The Guarantees, the Exchange Notes Guarantees and the Private
Exchange Notes Guarantees have each been duly and validly authorized by the
Guarantors and, in the case of the Guarantees, when delivered to and paid for by
the Initial Purchasers in accordance with the terms of this Agreement, will
constitute valid and legally binding obligations of the Guarantors, entitled to
the benefits of the Indenture, and enforceable against the Guarantors in
accordance with their terms, except that the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and (ii)
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(vi) The Notes are in the form contemplated by
the Indenture. The Notes have each been duly and validly authorized by the
Company and, when duly executed and delivered by the Company and paid for by the
Initial Purchasers in accordance with the terms of this Agreement (assuming the
due authorization, execution and delivery of the Indenture by the Trustee and
due authentication and delivery of the Notes by the Trustee in accordance with
the Indenture), will constitute the valid and legally binding obligations of the
Company, entitled to the benefits of the Indenture, and enforceable against the
Company in accordance with its terms, except that the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the
- 17 -
18
discretion of the court before which any proceeding therefor may be brought.
(vii) (A) The Exchange Notes and the
Private Exchange Notes have been duly and validly authorized by the Company and
(B) the Exchange Notes Guarantees and the Private Exchange Notes Guarantees have
been duly and validly authorized by each of the Guarantors, and when the
Exchange Notes, the Private Exchange Notes, the Exchange Notes Guarantees and
the Private Exchange Notes Guarantees have been duly executed and delivered by
the Issuers in accordance with the terms of the Registration Rights Agreement
and the Indenture (assuming the due authorization, execution and delivery of the
Indenture by the Trustee and due authentication and delivery of the Exchange
Notes, the Private Exchange Notes, the Exchange Notes Guarantees and the Private
Exchange Notes Guarantees by the Trustee in accordance with the Indenture), will
constitute the valid and legally binding obligations of the Issuers, entitled to
the benefits of the Indenture, and enforceable against the Issuers in accordance
with their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(viii) Each of the Issuers has all
requisite corporate power and authority to execute, deliver and perform its
obligations under the Registration Rights Agreement; the Registration Rights
Agreement has been duly and validly authorized by each of the Issuers and, when
duly executed and delivered by each of the Issuers (assuming due authorization,
execution and delivery thereof by the Initial Purchasers), will constitute the
valid and legally binding agreement of the Issuers, enforceable against the
Issuers in accordance with its terms, except that (A) the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought and (B) any rights to
indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(ix) Each of the Issuers has all requisite
corporate power and authority to execute, deliver and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby;
this Agreement and the consummation by the Issuers of the transactions
contemplated hereby have been duly and validly authorized by the Issuers. This
Agreement has been duly executed and delivered by each of the Issuers.
(x) The Indenture, the Securities, the
Registration Rights Agreement and the New Credit Facility conform in all
material respects to the descriptions thereof contained in the Final Memorandum.
(xi) Except as described in the Final Memorandum
no actions, suits, proceedings, inquiries or investigations are pending or, to
the knowledge of such counsel,
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19
threatened to which any of the Company or the Subsidiaries is a party or to
which the property or assets of the Company or any Subsidiary are subject,
before or brought by any court, arbitrator or governmental agency or body which,
if determined adversely to the Company or the Subsidiaries, would result,
individually or in the aggregate, in a Material Adverse Effect, or which seeks
to restrain, enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of the Securities to be sold hereunder or the consummation of
the Recapitalization or the other transactions described in the Final
Memorandum.
(xii) None of the Company or the
Subsidiaries is (i) in violation of its certificate of incorporation or bylaws
(or similar organizational document), or (ii) in breach or violation of any
statute, judgment, decree, order, rule or regulation applicable to any of them
or any of their respective properties or assets, except for any such breach or
violation which would not, individually or in the aggregate, have a Material
Adverse Effect.
(xiii) The execution, delivery and
performance of this Agreement, the Indenture, the Registration Rights Agreement
and the New Credit Facility and the consummation of the transactions
contemplated hereby and thereby (including, without limitation, the issuance and
sale by the Issuers of the Securities to the Initial Purchasers) will not
conflict with or constitute or result in a breach or a default under (or an
event which with notice or passage of time or both would constitute a default
under) or violation of any of (i) the terms or provisions of any Contract known
to such counsel, except for any such conflict, breach, violation, default or
event which would not, individually or in the aggregate, have a Material Adverse
Effect, (ii) the certificate of incorporation or bylaws (or similar
organizational document) of the Company or any of the Subsidiaries, or (iii)
(assuming compliance with all applicable state securities or "Blue Sky" laws and
assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 8 hereof) any statute, judgment, decree, order, rule or
regulation known to such counsel to be applicable to the Company or any of the
Subsidiaries or any of their respective properties or assets, except for any
such conflict, breach or violation which would not, individually or in the
aggregate, have a Material Adverse Effect.
(xiv) No consent, approval, authorization
or order of any court or governmental agency or body, or, to such counsel's
knowledge, third party is required for the issuance and sale by the Issuers of
the Securities to the Initial Purchasers or the consummation by the Issuers of
the Recapitalization or the other transactions contemplated hereby or thereby,
except such as have been obtained and such as may be required under Blue Sky
laws, as to which such counsel need express no opinion, and those which have
previously been obtained.
(xv) There are no legal or governmental
proceedings involving or affecting the Company or the Subsidiaries or any of
their respective properties or assets which would be required to be described in
a prospectus pursuant to the Act that are not described in the Final Memorandum,
nor are there any material contracts or other documents which would be required
to be described in a prospectus pursuant to the Act that are not described in
the
- 19 -
20
Final Memorandum.
(xvi) None of the Company or the
Subsidiaries is, or immediately after the sale of the Securities to be sold
hereunder and the application of the proceeds from such sale (as described in
the Final Memorandum under the caption "Use of Proceeds") will be, an
"investment company" or "promoter" or "principal underwriter" for an "investment
company", as such terms are defined in the Investment Company Act of 1940, as
amended and the rules and regulations thereunder.
(xvii) No registration under the Act of the
Securities is required in connection with the sale of the Securities to the
Initial Purchasers as contemplated by this Agreement and the Final Memorandum or
in connection with the initial resale of the Securities by the Initial
Purchasers in accordance with Section 8 of this Agreement, and prior to the
commencement of the Exchange Offer (as defined in the Registration Rights
Agreement) or the effectiveness of the Shelf Registration Statement (as defined
in the Registration Rights Agreement), the Indenture is not required to be
qualified under the TIA, in each case assuming (i) (A) that the purchasers who
buy such Securities in the initial resale thereof are qualified institutional
buyers as defined in Rule 144A promulgated under the Act ("QIBs") or (B) that
the offer or sale of the Securities is made in an offshore transaction as
defined in Regulation S, (ii) the accuracy of the Initial Purchasers'
representations in Section 8 and those of the Issuers contained in this
Agreement regarding the absence of a general solicitation in connection with the
sale of such Securities to the Initial Purchasers and the initial resale thereof
and (iii) the due performance by the Initial Purchasers of the agreements set
forth in Section 8 hereof.
(xviii) Neither the consummation of the
transactions contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities will violate Regulation G, T, U or X of the Board of
Governors of the Federal Reserve System.
At the time the foregoing opinion is delivered, Xxxxxxxx, Xxxxxxx &
Xxxxxxx shall additionally state that it has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, representatives of the Initial
Purchasers and counsel for the Initial Purchasers, at which conferences the
contents of the Final Memorandum and related matters were discussed, and,
although it has not independently verified and is not passing upon and assumes
no responsibility for the accuracy, completeness or fairness of the statements
contained in the Final Memorandum (except to the extent specified in subsection
7(a)(x)), no facts have come to its attention which lead it to believe that the
Final Memorandum, on the date thereof or at the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements contained therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such firm need express no opinion with respect to the financial
statements and related notes thereto and the other financial, statistical and
accounting data included in the Final Memorandum). The opinion of Xxxxxxxx,
Xxxxxxx & Xxxxxxx described in this Section shall
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21
be rendered to the Initial Purchasers at the request of the Company and shall so
state therein.
References to the Final Memorandum in this subsection (a) shall include
any amendment or supplement thereto prepared in accordance with the provisions
of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall have
received the opinion, in form and substance satisfactory to the Initial
Purchasers, dated as of the Closing Date and addressed to the Initial
Purchasers, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, with
respect to certain legal matters relating to this Agreement and such other
related matters as the Initial Purchasers may reasonably require. In rendering
such opinion, Xxxxxx Xxxxxx & Xxxxxxx shall have received and may rely upon such
certificates and other documents and information as it may reasonably request to
pass upon such matters.
(c) The Initial Purchasers shall have received from (i) the
Independent Accountants a comfort letter or letters dated the date hereof and
the Closing Date, in form and substance satisfactory to counsel for the Initial
Purchasers and (ii) from Beers & Xxxxxx PLLC and KPMG Peat Marwick LLP a comfort
letter dated the date hereof with respect to the financial statements of TSO and
Visionworks included in the Final Memorandum, in form and substance satisfactory
to counsel for the Initial Purchasers.
(d) The representations and warranties of the Issuers
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date; the statements of the Company's officers made pursuant to any certificate
delivered in accordance with the provisions hereof shall be true and correct on
and as of the date made and on and as of the Closing Date; the Issuers shall
have performed all covenants and agreements and satisfied all conditions on
their part to be performed or satisfied hereunder at or prior to the Closing
Date; and, except as described in the Final Memorandum (exclusive of any
amendment or supplement thereto after the date hereof), subsequent to the date
of the most recent financial statements in such Final Memorandum, there shall
have been no event or development, and no information shall have become known,
that, individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect.
(e) The sale of the Securities hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(f) Subsequent to the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), none of the Company or any of the Subsidiaries
shall have sustained any loss or interference with respect to its business or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any strike, labor dispute, slow down or work
stoppage or from any legal or governmental proceeding, order or decree, which
loss
- 21 -
22
or interference, individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect.
(g) The Initial Purchasers shall have received a certificate
of the Company, dated the Closing Date, signed on behalf of the Company by its
Chairman of the Board, President or any Senior Vice President and the Chief
Financial Officer, to the effect that:
(i) The representations and warranties of the
Issuers contained in this Agreement are true and correct in all material
respects on and as of the date hereof and on and as of the Closing Date, and the
Issuers have performed all covenants and agreements and satisfied all conditions
on their part to be performed or satisfied hereunder at or prior to the Closing
Date;
(ii) At the Closing Date, since the date hereof or
since the date of the most recent financial statements in the Final Memorandum
(exclusive of any amendment or supplement thereto after the date hereof), no
event or development has occurred, and no information has become known, that,
individually or in the aggregate, has or would be reasonably likely to have a
Material Adverse Effect; and
(iii) The sale of the Securities hereunder
has not been enjoined (temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement executed by each of the Issuers and
such agreement shall be in full force and effect at all times from and after the
Closing Date.
(i) On or before the Closing Date, (i) the New Credit Facility
(as defined in the Final Memorandum) shall have been consummated,(ii) the
Initial Purchasers and counsel for the Initial Purchasers shall have received
executed copies of the New Credit Facility, dated the Closing Date, and such
other documents, opinions and reliance letters as they shall have reasonably
requested, (iii) all conditions necessary for the effectiveness of the New
Credit Facility shall have been satisfied without waiver or amendment, (iv)
after giving effect to the transactions contemplated by this Agreement and the
application of the proceeds received by the Company from the sale of the
Securities, no condition that would constitute a default or event of default
under the New Credit Facility shall exist and (v) not more than $56.0 million
shall be outstanding under the New Credit Facility on the Closing Date (after
giving effect to all borrowings on the Closing Date).
(j) The Company shall contemporaneously consummate the
Recapitalization on the terms described in the Final Memorandum, including the
Merger, the New Credit Facility and the Equity Contribution, as described in the
Final Memorandum, and there shall have been no material amendments, alterations,
modifications or waivers of any material provisions of the Recapitalization
Agreement since the Issue Date.
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23
On or before the Closing Date, the Initial Purchasers and counsel for
the Initial Purchasers shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and the Subsidiaries as
they shall have heretofore reasonably requested from the Company.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Company shall
furnish to the Initial Purchasers such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchasers shall reasonably request.
8. Offering of Securities; Restrictions on Transfer. (a) Each of the
Initial Purchasers represents and warrants (as to itself only) that it is a QIB.
Each of the Initial Purchasers agrees with the Company (as to itself only) that
(i) it has not and will not solicit offers for, or offer or sell, the Securities
by any form of general solicitation or general advertising (as those terms are
used in Regulation D under the Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Act; and (ii) it has and will solicit
offers for the Securities only from, and will offer the Securities only to (A)
in the case of offers inside the United States, persons whom the Initial
Purchasers reasonably believe to be QIBs 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 the Initial Purchasers that
each such account is a QIB, 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 under Rule 144A and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("foreign purchasers," which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)); provided, however, that, in the case of this clause (B), in
purchasing such Securities such persons are deemed to have represented and
agreed as provided under the caption "Transfer Restrictions" contained in the
Final Memorandum (or, if the Final Memorandum is not in existence, in the most
recent Memorandum).
(b) Each of the Initial Purchasers represents and warrants (as
to itself only) with respect to offers and sales outside the United States that
(i) it has and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Securities or has
in its possession or distributes any Memorandum or any such other material, in
all cases at its own expense; (ii) the Securities have not been and will not be
offered or sold within the United States or to, or for the account or benefit
of, U.S. persons except in accordance with Regulation S under the Act or
pursuant to an exemption from the registration requirements of the Act; (iii) it
has offered the Securities and will offer and sell the Securities (A) as part of
its distribution at any time and (B) otherwise until 40 days after the later of
the commencement of the offering and the Closing Date, only in accordance with
- 23 -
24
Rule 903 of Regulation S and, accordingly, neither it nor any persons acting on
its behalf have engaged or will engage in any directed selling efforts (within
the meaning of Regulation S) with respect to the Securities, and any such
persons have complied and will comply with the offering restrictions requirement
of Regulation S; and (iv) it agrees that, at or prior to confirmation of sales
of the Securities, it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases
Securities from it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the
United States Securities Act of 1933 (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 the distribution of the
Securities at any time or (ii) otherwise until 40 days after the later
of the commencement of the offering and the closing date of the
offering, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act. Terms used above have
the meaning given to them in Regulation S."
Terms used in this Section 8 and not defined in this Agreement have the
meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) Each of the Issuers agrees,
jointly and severably, to indemnify and hold harmless each of the Initial
Purchasers, and each person, if any, who controls each Initial Purchaser within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities to which each of Initial Purchaser or
such controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue
statement of any material fact contained in any Memorandum or any amendment or
supplement thereto or any application or other document, or any amendment or
supplement thereto, executed by any of the Issuers or based upon written
information furnished by or on behalf of any of the Issuers filed in any
jurisdiction in order to qualify the Securities under the securities or "Blue
Sky" laws thereof or filed with any securities association or securities
exchange (each an "Application"); or
(ii) the omission or alleged omission to state,
in any Memorandum or any amendment or supplement thereto or any Application, a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse, as incurred, each of the Initial
Purchasers and each such controlling person for any legal or other expenses
incurred by such Initial Purchaser or such controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
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25
however, the Issuers will not be liable in any such case to the extent that any
such loss, claim, damage, or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Memorandum or any amendment or supplement thereto or any Application in
reliance upon and in conformity with written information concerning the Initial
Purchasers furnished to the Company by the Initial Purchasers specifically for
use therein; provided, further, that the foregoing indemnity with respect to the
Preliminary Memorandum shall not insure to the benefit of any Initial Purchaser
(or to the benefit of any person controlling such Initial Purchaser) from whom
the person asserting any such losses, claims, damages or liabilities purchased
Securities if (i) such untrue statement or omission or alleged untrue statement
or omission made in the Preliminary Memorandum was eliminated or remedied in the
Final Memorandum (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto to such Initial Purchaser prior to
confirmation of the sale of such Securities to such person by such Initial
Purchaser) and (ii) a copy of the Final Memorandum (as so amended and
supplemented) was not furnished to such person at or prior to the written
confirmation of the sale of such Securities to such person, unless such failure
to deliver was a result of non-compliance by the Company with Section 5(a), 5(c)
or 5(d) and the claims asserted by such person do not include allegations of
other untrue statements or omissions of material facts made in the Final
Memorandum which allegations are upheld in a final judgment. This indemnity
agreement will be in addition to any liability that the Issuers may otherwise
have to the indemnified parties. The Issuers shall not be liable under this
Section 9 for any settlement of any claim or action effected without its prior
written consent, which shall not be unreasonably withheld. The Initial
Purchasers shall not, without the prior written consent of the Company, effect
any settlement or compromise of any pending or threatened proceeding in respect
of which any Issuer is or could have been a party, or indemnity could have been
sought hereunder by any Issuer, unless such settlement (A) includes an
unconditional written release of the Issuers, in form and substance reasonably
satisfactory to the Company, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any statement as to an
admission of fault, culpability or failure to act by or on behalf of any Issuer.
(b) The Initial Purchasers agree, jointly and severably, to
indemnify and hold harmless the Issuers, their directors, their officers and
each person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act against any losses, claims, damages
or liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Memorandum or any amendment or
supplement thereto or any Application, or (ii) the omission or the alleged
omission to state therein a material fact required to be stated in any
Memorandum or any amendment or supplement thereto or any Application, or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written
- 25 -
26
information concerning such Initial Purchaser, furnished to the Company by the
Initial Purchasers specifically for use therein; and subject to the limitation
set forth immediately preceding this clause, will reimburse, as incurred, any
legal or other expenses incurred by the Issuers or any such director, officer or
controlling person in connection with investigating or defending against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action in respect thereof. This indemnity agreement will be
in addition to any liability that the Initial Purchasers may otherwise have to
the indemnified parties. The Initial Purchasers shall not be liable under this
Section 9 for any settlement of any claim or action effected without their
consent, which shall not be unreasonably withheld. The Issuers shall not,
without the prior written consent of the Initial Purchasers, effect any
settlement or compromise of any pending or threatened proceeding in respect of
which any Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by any Initial Purchaser, unless such settlement (A)
includes an unconditional written release of the Initial Purchasers, in form and
substance reasonably satisfactory to the Initial Purchasers, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of any Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties.
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27
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by such indemnified party
of counsel appointed to defend such action, the indemnifying party will not be
liable to such indemnified party under this Section 9 for any legal or other
expenses, other than reasonable costs of investigation, subsequently incurred by
such indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable
for the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances,
designated by the Initial Purchasers in the case of paragraph (a) of this
Section 9 or the Company in the case of paragraph (b) of this Section 9,
representing the indemnified parties under such paragraph (a) or paragraph (b),
as the case may be, who are parties to such action or actions) or (ii) the
indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 9, in
which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Issuers on
the one hand and any Initial Purchaser on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by such Initial Purchaser. The relative fault of the parties 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 Issuers on the one hand,
or such Initial Purchaser on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other
- 27 -
28
equitable considerations appropriate in the circumstances. The Issuers and the
Initial Purchasers agree that it would not be equitable if the amount of such
contribution were detemined by pro rata or per capita allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Initial Purchaser
shall be obligated to make contributions hereunder that in the aggregate exceed
the total discounts, commissions and other compensation received by such Initial
Purchaser under this Agreement, less the aggregate amount of any damages that
such Initial Purchaser has otherwise been required to pay by reason of the
untrue or alleged untrue statements or the omissions or alleged omissions to
state a material fact, and no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchasers, and each director of the Issuers, each officer of the
Issuers and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Issuers.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Issuers, their
officers and the Initial Purchasers set forth in this Agreement or made by or on
behalf of them pursuant to this Agreement shall remain in full force and effect,
regardless of (i) any investigation made by or on behalf of the Issuers, any of
their officers or directors, the Initial Purchasers or any controlling person
referred to in Section 9 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6, 9 and 15 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Company given prior to the
Closing Date in the event that the Issuers shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date:
(i) any of the Company or the Subsidiaries shall
have sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity, whether or
not covered by insurance, or from any strike, labor dispute, slow down or work
stoppage or any legal or governmental proceeding, which loss or interference, in
the sole judgment of the Initial Purchasers, has had or has a Material Adverse
Effect, or there shall have been, in the sole judgment of the Initial
Purchasers, any event or development that, individually or in the aggregate, has
or could be reasonably likely to have a Material Adverse Effect (including
without limitation a change in control of the Company or
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29
the Subsidiaries), except in each case as described in the Final Memorandum
(exclusive of any amendment or supplement thereto);
(ii) trading in securities generally on the New
York Stock Exchange, American Stock Exchange or the NASDAQ National Market shall
have been suspended or minimum or maximum prices shall have been established on
any such exchange or market;
(iii) a banking moratorium shall have been declared
by New York or United States authorities;
(iv) there shall have been (A) an outbreak or
escalation of hostilities between the United States and any foreign power, (B)
an outbreak or escalation of any other insurrection or armed conflict involving
the United States or any other national or international calamity or emergency
or (c) any material change in the financial markets of the United States which,
in the case of Section 11(a)(iv)(A) or (B) or (c) which in the sole judgment of
the Initial Purchasers, makes it impracticable or inadvisable to proceed with
the offering or the delivery of the Securities as contemplated by the Final
Memorandum; or
(v) any securities of the Company shall have
been downgraded or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The statements set
forth in the last paragraph on the front cover page, in the first paragraph on
page (i) and in the second and third sentences of the third paragraph and in the
sixth, seventh and eighth paragraphs under the heading "Private Placement" in
the Final Memorandum (to the extent such statements relate to the Initial
Purchasers) constitute the only information furnished by the Initial Purchasers
to the Company for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to the Initial Purchasers, shall be mailed or delivered to BT Xxxx. Xxxxx
Incorporated, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Finance Department; and if sent to the Company, shall be mailed or delivered to
the Company at 00000 Xxxx Xxxxxx, Xxx Xxxxxxx, Xxxxx 00000, Attention: Chief
Financial Officer; with a copy to Xxxxxxxx, Xxxxxxx & Xxxxxxx, 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; and one business day
after being timely delivered to a next-day air courier.
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14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Issuers and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Issuers contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control the Initial Purchasers within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act and (ii) the
indemnities of the Initial Purchasers contained in Section 9 of this Agreement
shall also be for the benefit of the directors of the Issuers, their officers
and any person or persons who control the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act. No purchaser of Securities from
the Initial Purchasers will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY PROVISIONS
THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Issuers
and the Initial Purchasers.
Very truly yours,
EYE CARE CENTERS OF AMERICA, INC.
By:
Name:
Title:
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31
ENCLAVE ADVANCEMENT GROUP, INC.
ECCA MANAGED VISION CARE, INC.
VISIONWORKS HOLDINGS, INC.
VISIONWORKS, INC.
VISIONWORKS PROPERTIES, INC.
EYECARE HOLDINGS, INC.
VISIONARY RETAIL MANAGEMENT, INC.
VISIONARY PROPERTIES, INC.
VISIONARY MSO, INC.
THE XXXXX GROUP, INC.
HOUR EYES, INC.
SYKLAB OPTICAL, INC.
METROPOLITAN VISION SERVICES, INC.
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
BT ALEX. BROWN INCORPORATED
By:
Name:
Title:
XXXXXXX LYNCH, XXXXXX, XXXXXX &
XXXXX INCORPORATED
By:
Name:
Title:
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32
SCHEDULE 1
PrincipalAmount of Principal Amount of
Initial Purchaser Fixed Rate Notes Floating Rate Notes
BT Xxxx. Xxxxx Incorporated................................. $50,000,000 $25,000,000
Xxxxxxx Lynch, Xxxxxx, Xxxxxx $50,000,000 $25,000,000
& Xxxxx Incorporated......................................
------------ -----------
Total............................................. $100,000,000 $50,000,000
33
SCHEDULE 2
Subsidiaries of the Company
Jurisdiction of
Name Incorporation
---- -------------
Enclave Advancement Group, Inc. Texas
ECCA Managed Vision Care, Inc. Texas
Visionworks Holdings, Inc. Florida
Visionworks, Inc. Florida
Visionworks Properties, Inc. Florida
Eyecare Holdings, Inc. Delaware
Visionary Retail Management, Inc. Delaware
Visionary Properties, Inc. Delaware
Visionary MSD, Inc. Delaware
The Xxxxx Group, Inc. Delaware
Hour Eyes, Inc. Maryland
Skylab Optical, Inc. Virginia
Metropolitan Vision Services, Inc. Virginia
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