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BLUE BIRD BODY COMPANY
$100,000,000
10 3/4% Senior Subordinated Notes due 2006
PURCHASE AGREEMENT
Dated: November 13, 1996
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$100,000,000
BLUE BIRD BODY COMPANY
(a Georgia corporation)
10 3/4% Senior Subordinated Notes due 2006
PURCHASE AGREEMENT
November 13, 1996
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
BT SECURITIES CORPORATION
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Blue Bird Body Company, a Georgia corporation (the "Company")
confirms its agreement with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") and BT Securities Corporation (collectively
with Xxxxxxx Xxxxx, the "Initial Purchasers") with respect to the issue and sale
by the Company (the "Offering") and the purchase by the Initial Purchasers,
acting severally and not jointly, of the respective principal amounts set forth
in Schedule A of $100,000,000 aggregate principal amount of the Company's 10
3/4% Senior Subordinated Notes due 2006 (the "Notes"). The Notes are to be
issued pursuant to an indenture to be dated as of November 15, 1996 (the
"Indenture") among the Company, as issuer of the Notes, and guaranteed (the
"Guarantee" and, collectively with the Notes, the "Securities"), on a senior
subordinated basis by Blue Bird Corporation, a Delaware Corporation, which owns
all of the capital stock of the Company (the
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"Guarantor" or "BBC"), and Chase Manhattan Bank, as trustee (the "Trustee"). The
Company and the Guarantor are hereinafter referred to collectively as the
"Issuers" and this agreement (this "Agreement" or the "Purchase Agreement"), the
Indenture, the Securities, the Exchange Securities (as defined below), the
Private Exchange Securities (as defined below) and the Registration Rights
Agreement (as defined below) are referred to collectively as the "Operative
Documents."
As described in the Offering Memorandum (as defined below), the
Offering is part of an overall recapitalization of the Company, pursuant to
which (i) the Company's existing bank credit agreement will be replaced and
refinanced by an amended and restated credit agreement (the "New Credit
Agreement"), (ii) the Company will pay a special cash dividend to BBC (the "Blue
Bird Dividend") on all shares of its common stock, par value $ .01 per share,
and BBC will pay a special cash dividend on all shares of its common stock (the
"BBC Common Shares") and make payments to holders of options to purchase BBC
Common Shares (the "BBC Distribution" and, together with the Blue Bird Dividend,
the "Distribution") and (iii) all of the Company's outstanding 11 3/4% Senior
Subordinated Notes due 2002, Series B (the "Old Notes") will be retired pursuant
to the terms of letters providing for the sale of the Old Notes to the Company
executed by the holders of the Old Notes (the "Note Repurchase Letters"). The
Offering, the replacement of the Company's existing credit agreement with the
New Credit Agreement, the Distribution and the retirement of the Old Notes and ,
if required, the execution of a supplemental indenture in respect of the Old
Notes are collectively referred to herein as the "Recapitalization."
Capitalized terms used herein without definition have the respective
meanings specified in the Offering Memorandum referred to below.
The Securities will be offered and sold to the Initial Purchasers
without registration under the Securities Act of 1933, as amended (the "Act"),
in reliance upon an exemption from the registration requirements of the Act. The
Company has prepared and delivered to each Initial Purchaser copies of a
preliminary offering memorandum dated October 29, 1996 (the "Preliminary
Offering Memorandum") and has prepared and will deliver to each Initial
Purchaser, on the date hereof, copies of a final offering memorandum dated
November 13, 1996 (the "Final Offering Memorandum"), each to be used by such
Initial Purchaser in connection with its solicitation of purchases of,
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or offering of, the Securities. "Offering Memorandum" means, with respect to
any date or time referred to in this Agreement, the most recent offering
memorandum (whether the Preliminary Offering Memorandum or the Final Offering
Memorandum, together with any amendment or supplement to either such
document), including exhibits thereto which have been prepared and delivered
by the Company to the Initial Purchasers in connection with their
solicitation of purchases of, or offering of, the Securities. The Company
hereby confirms that it has authorized the use of the Preliminary Offering
Memorandum and the Offering Memorandum in connection with the offer and
resale of the Securities by the Initial Purchasers.
The Company understands that the Initial Purchasers propose to make
an offering of the Securities only on the terms and in the manner set forth in
the Offering Memorandum and Section 4 hereof, as soon as the Initial Purchasers
deem advisable after this Agreement has been executed and delivered, (i) to
persons in the United States whom the Initial Purchasers reasonably believe to
be qualified institutional buyers ("Qualified Institutional Buyers") as defined
in Rule 144A under the Act, as such rule may be amended from time to time ("Rule
144A"), in transactions under Rule 144A, (ii) to a limited number of other
institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3) and
(7) under Regulation D of the Act ("Accredited Investors")) in private sales
exempt from registration under the Act or (iii) pursuant to offers and sales to
non-U.S. persons that occur outside the United States within the meaning of
Regulation S under the Act ("Regulation S"), pursuant to Rule 904 of Regulation
S.
The Initial Purchasers and other holders of Securities (including
subsequent transferees) will be entitled to the benefits of the registration
rights agreement, to be dated as of November 19, 1996 (the "Registration Rights
Agreement"), between the Issuers and the Initial Purchasers, in the form
attached hereto as Exhibit A. Pursuant to the Registration Rights Agreement, the
Company will agree to file with the Securities and Exchange Commission (the
"Commission") under the circumstances set forth therein either (i) a
registration statement under the Act registering the Exchange Securities (as
defined in the Registration Rights Agreement) to be offered in exchange for the
Securities and to use its best efforts to cause such registration statement to
be declared effective or (ii) under certain circumstances set forth therein, to
file with the Commission a shelf registration statement pursuant to Rule 415
under the Act relating to the resale of the Securities
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by holders thereof or, if applicable, relating to the resale of Private Exchange
Securities (as defined in the Registration Rights Agreement) by the Initial
Purchasers pursuant to an exchange of the Securities for Private Exchange
Securities, and to use its best efforts to cause such shelf registration
statement to be declared effective.
SECTION 1. Representations and Warranties. (a) The Issuers, jointly
and severally, represent and warrant to each of the Initial Purchasers as of the
date hereof and as of the Closing Time (as defined in Section 3 hereof) that:
(i) As of their respective dates, none of the Offering Memorandum or
any amendment or supplement thereto, and at all times subsequent thereto
up to and as of the Closing Time, the Offering Memorandum, as amended or
supplemented to such time, contained or will contain an untrue statement
of a material fact or omitted or will omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that
this representation and warranty does not apply to statements or omissions
made in reliance upon and in conformity with information furnished in
writing by the Initial Purchasers to the Company expressly for use in the
Offering Memorandum or any amendment or supplement thereto.
(ii) When the Securities are issued and delivered pursuant to this
Agreement, such securities will not be of the same class (within the
meaning of Rule 144A) as securities of any of the Issuers which are listed
on a national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
quoted in a U.S. automated inter-dealer quotation system. The Company has
been advised that the Securities have been designated PORTAL eligible
securities in accordance with the rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD").
(iii) Neither of the Issuers, nor any of their affiliates (as
defined in Rule 501(b) under the Act) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Act) which is or will be
integrated with the sale of the Securities in a manner
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that would require the registration of the Securities under the Act.
(iv) None of the Issuers or any of their respective affiliates (as
such term is defined in Rule 501(b) under the Act) or any person (other
than the Initial Purchasers, as to which the Issuers make no
representation) acting at the request of the Issuers has engaged, in
connection with the offering of the Securities, (A) in any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Act, (B) in any directed selling efforts within the meaning of
Rule 902 under the Act in the United States in connection with the
Securities being offered and sold pursuant to Regulation S under the Act,
(C) in any manner involving a public offering within the meaning of
Section 4(2) of the Act or (D) in any action which would require the
registration of the offering and sale of the Securities pursuant to this
Agreement or which would violate applicable state securities or "blue sky"
laws.
(v) Assuming that the representations and warranties of the Initial
Purchasers contained in Section 4 are true, correct and complete, and
assuming compliance by the Initial Purchasers with their covenants in
Section 4, and assuming that the representations and warranties contained
in the Transferee Letters of Representation (the "Transferee Letters")
(substantially in the form of Appendix A to the Offering Memorandum)
completed by Accredited Investors or non-U.S. persons purchasing
Securities are true and correct as of the Closing Time, and assuming
compliance by such Accredited Investors or non-U.S. persons, as the case
may be, with the agreements in the Transferee Letters, it is not necessary
in connection with the offer, sale and delivery of the Securities to the
Initial Purchasers in the manner contemplated by, or in connection with
the initial resale of such Securities by the Initial Purchasers in
accordance with, this Agreement to register the Securities under the Act
or to qualify any indenture in respect of the Securities under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act").
(vi) The only subsidiaries of the Company as of the date hereof are
those listed on Schedule B hereto (also referred to herein as the
"Subsidiaries"). Each of the Issuers and the Subsidiaries has been duly
organized or incorporated, as the case may be, and validly existing in
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good standing under the laws of its respective jurisdictions of
organization, with all requisite power and authority (corporate or
otherwise) under such laws, and all necessary authorizations, approvals,
orders, licenses, certificates and permits of and from regulatory or
governmental officials, bodies and tribunals, (a) to own, lease and
operate their respective properties and to conduct their respective
businesses as now conducted and as described in the Offering Memorandum
and (b) to enter into, deliver, incur and perform their respective
obligations under the Operative Documents and (c) to consummate each
element of the Recapitalization, except, in the case of the foregoing
subclause (a) for authorizations, approvals, orders, leases, certificates
and permits, the failure of which to possess could not reasonably be
expected to have a Material Adverse Effect (as defined below); and are all
duly qualified to do business as foreign corporations in good standing in
all other jurisdictions where the ownership or leasing of their respective
properties or the conduct of their respective businesses requires such
qualification, except where the failure to be so qualified could not
reasonably be expected to have a material adverse effect (i) on the
business, condition (financial or otherwise), results of operations, or
business prospects of the Issuers and the Subsidiaries taken as a whole or
(ii) on the ability of either of the Issuers to perform any of their
respective obligations under the Operative Documents or to consummate any
of the transactions contemplated hereby or thereby (a "Material Adverse
Effect").
(vii) The Securities, the Exchange Securities and the Private
Exchange Securities have been duly authorized by each of the Issuers and
the Issuers have all requisite corporate power and authority to execute,
issue and deliver the Securities, the Exchange Securities and the Private
Exchange Securities and to incur and perform their respective obligations
provided for therein. The Notes, when executed, authenticated and issued
in accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the Trustee) and
when delivered against payment of the purchase price therefor as provided
in this Agreement, will constitute the valid and binding obligations of
the Company, entitled to the benefits of the Indenture, enforceable
against the Company in accordance with the terms thereof; and the
Guarantee, upon endorsement on the Notes by the Guarantor and upon
execution of the Notes by the
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Company and authentication thereof by the Trustee (assuming the due
authorization, execution and delivery of the Indenture by the Trustee),
and upon delivery of the Notes, and payment therefor in accordance with
the terms of this Agreement, will constitute a valid and binding
obligation of the Guarantor, enforceable against the Guarantor in
accordance with the terms of the Guarantee; and the Exchange Securities
and the Private Exchange Securities, if any, when executed, authenticated,
issued and delivered by the Issuers in exchange for the Securities, will
constitute valid and binding obligations of each of the Issuers, entitled
to the benefits of the Indenture, enforceable against each of the Issuers
in accordance with the terms thereof to the extent each is a party;
subject, in the case of each of the foregoing, to (a) applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and (b) general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law) (clauses (a) and (b) being referred to
herein as the "Enforceability Limitations").
(viii) This Agreement has been, and, as of the Closing Time, the
Registration Rights Agreement and the Indenture will have been, duly
authorized, executed and delivered by the Issuers, and upon such execution
by the Issuers (assuming the due authorization, execution and delivery by
parties thereto other than the Issuers) this Agreement constitutes, and,
as of the Closing Time, the Registration Rights Agreement and the
Indenture will constitute, the valid and binding obligations of each of
the Issuers, enforceable against the Issuers in accordance with the terms
hereof or thereof, subject only to the Enforceability Limitations.
(ix) Each element of the Recapitalization has been or, as of the
Closing Date, will have been, duly authorized by the Issuers, and, as of
the Closing Date, the New Credit Agreement and the Supplemental Indenture,
upon execution and delivery by the Issuers (assuming due authorization,
execution and delivery by the parties thereto other than the Issuers) will
constitute the valid and binding obligations of each of the Issuers,
enforceable against the Issuers in accordance with the terms hereof or
thereof, subject only to the Enforceability Limitations.
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(x) No consent, authorization, approval, license or order of, or
filing, registration or qualification with, any court or governmental or
regulatory agency or body, domestic or foreign, is required for the
performance by the Issuers of their obligations under the Operative
Documents, or for the consummation of the transactions contemplated hereby
(including the other elements of the Recapitalization) or thereby except
such as may be required (A) in connection with the registration under the
Act of the Securities, the Exchange Securities or the Private Exchange
Securities pursuant to the Registration Rights Agreement (including any
filing with the NASD), (B) the qualification of the Indenture under the
Trust Indenture Act or (C) by state securities or "blue sky" laws in
connection with the offer and sale of the Securities or the registration
thereof or of the Private Exchange Securities or the Exchange Securities
pursuant to the Registration Rights Agreement.
(xi) The issuance, sale and delivery of the Securities, the Exchange
Securities and the Private Exchange Securities, if any, the execution,
delivery and performance by the Issuers of this Agreement, the
Registration Rights Agreement and the Indenture, the consummation by the
Issuers of the transactions contemplated hereby, thereby, by the
Recapitalization, and in the Offering Memorandum and the compliance by the
Issuers with the terms of the foregoing do not, and, at the Closing Time,
will not conflict with or constitute or result in a breach or violation by
any of the Issuers or the Subsidiaries of (A) any of the terms or
provisions of, or constitute a default (or an event which, with notice or
lapse of time or both, would constitute a default) by any of the Company
or the Subsidiaries or give rise to any right to accelerate the maturity
or require the prepayment of any indebtedness under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Issuers or the Subsidiaries under any contract,
indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, authorization, permit, certificate or other agreement
or document to which any of the Issuers or the Subsidiaries is a party or
by which any of them may be bound, or to which any of them or any of their
respective assets or businesses is subject (collectively, "Contracts")
(and the Issuers have no knowledge of any conflict, breach or violation of
such terms or provisions or of any such default, in any such
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case, which has occurred or will so result), (B) the articles or by-laws
(each, an "Organizational Document") of each of the Issuers and the
Subsidiaries or (C) any law, statute, rule or regulation, or any judgment,
decree or order, in any such case, of any domestic or foreign court or
governmental or regulatory agency or other body having jurisdiction over
the Issuers or any of the Subsidiaries or any of their respective
properties or assets.
(xii) The Securities, the Exchange Securities, the Registration
Rights Agreement and the Indenture will each conform in all material
respects to the descriptions thereof in the Offering Memorandum.
(xiii) The audited consolidated financial statements included in the
Offering Memorandum, including the notes thereto, present fairly the
financial position of BBC and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and cash
flows of BBC and its consolidated subsidiaries for the periods have been
prepared in conformity with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The selected financial data and the summary financial
information included in the Offering Memorandum present fairly the
information shown therein and have been compiled on a basis consistent
with that of the financial statements included in the Offering Memorandum.
Xxxxxx Xxxxxxxx LLP, which has examined certain of such financial
statements as set forth in its report included in the Offering Memorandum,
is an independent public accounting firm with respect to the Issuers
within the meaning of Regulation S-X under the Act. The pro forma
financial information relating to BBC and its subsidiaries and the related
notes thereto included in the Offering Memorandum present fairly the
information shown therein, have been prepared in all material respects in
accordance with the Commission's rules and guidelines with respect to pro
forma financial adjustments and have been properly computed on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(xiv) Since the respective dates as of which information is given in
the Offering Memorandum, except as otherwise specifically stated therein,
there has been no
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(A) material adverse change in the business, condition (financial or
otherwise), results of operations or business prospects of any of the
Issuers or the Subsidiaries taken as a whole, whether or not arising in
the ordinary course of business (a "Material Adverse Change"), (B)
transaction entered into by any of the Issuers or the Subsidiaries, other
than in the ordinary course of business, that is material to the Issuers
and the Subsidiaries, taken as a whole or (C) dividend or distribution of
any kind declared, paid or made by BBC or the Company on its capital
stock.
(xv) BBC has the authorized, issued and outstanding capitalization
set forth in the Offering Memorandum under the subheading "Historical"
under the caption "Capitalization"; all of the outstanding capital stock
of BBC has been duly authorized and validly issued, is fully paid and
nonassessable and was not issued in violation of any preemptive or similar
rights (whether provided contractually or pursuant to any Organizational
Document). None of the Issuers own, directly or indirectly, any material
amount of shares, or any other material amount of equity or long-term debt
securities or have any material equity interest in any firm, partnership,
joint venture or other entity other than the Subsidiaries, as set forth on
Schedule 1 hereto. No holder of any securities of BBC is entitled to have
such securities (other than the Securities, the Exchange Securities and
the Private Exchange Securities, if any) registered under any registration
statement contemplated by the Registration Rights Agreement. All of the
outstanding capital stock of each of the Subsidiaries has been duly
authorized and, to the knowledge of the Issuers, validly issued, is fully
paid and nonassessable and was not issued in violation of any preemptive
or similar rights (whether provided contractually or pursuant to any
Organizational Document) and the outstanding shares of the capital stock
owned by BBC of the Company are owned beneficially and of record by BBC
free and clear of all liens, encumbrances, equities and claims or
restrictions on transferability or voting of, or the payment to BBC of
dividends or distributions on such capital stock, except as set forth in
the Offering Memorandum.
(xvi) None of the Issuers or the Subsidiaries is (A) in violation of
its respective Organizational Documents, (B) in default (or, with notice
or lapse of time or both, would be in default) in the performance or
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observance of any obligation, agreement, covenant or condition contained
in any Contract, or (C) in violation of any law, statute, judgment,
decree, order, rule or regulation of any domestic or foreign court with
jurisdiction over the Issuers or the Subsidiaries or any of their
respective assets or properties, or other governmental or regulatory
authority, agency or other body, other than, in the case of clause (B) or
(C), such defaults or violations which, individually or in the aggregate,
could not reasonably be expected to have or result in a Material Adverse
Effect; and any real property and buildings held under lease by either
Issuer or the Subsidiaries which are material (individually or in the
aggregate) to the Issuers and the Subsidiaries, are held by such Issuer or
such Subsidiary, as the case may be, under valid, subsisting and
enforceable leases with such exceptions that would not, individually or in
the aggregate, have or result in a Material Adverse Effect.
(xvii) The Issuers and the Subsidiaries own or possess, or can
acquire on reasonable terms, adequate licenses, trademarks, service marks,
trade names, copyrights and know-how (including trade secrets and other
proprietary or confidential information, systems or procedures)
(collectively, "intellectual property") necessary to conduct the business
now or proposed to be operated by each of them as described in the
Offering Memorandum, except where the failure to own, possess or have the
ability to acquire any such intellectual property could not, individually
or in the aggregate, be reasonably expected to have a Material Adverse
Effect; and none of the Issuers or the Subsidiaries has received any
notice of infringement of or conflict with (and none of them knows of any
such infringement of or conflict with) asserted rights of others with
respect to any of such intellectual property.
(xviii) The Issuers and the Subsidiaries have obtained all material
consents, approvals, orders, certificates, licenses, permits, franchises
and other authorizations of and from, and has made all material
declarations and filings with, all governmental and regulatory
authorities, all self-regulatory organizations and all courts and other
tribunals necessary to own, lease, license and use their respective
properties and assets and to conduct their respective businesses in the
manner described in the Offering Memorandum.
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(xix) There is no legal action, suit, proceeding inquiry or
investigation before or by any court or governmental body or agency,
domestic or foreign, now pending or, to the knowledge of the Issuers,
threatened against any of the Issuers or the Subsidiaries or affecting the
Issuers or the Subsidiaries or any of their respective properties which
would be required to be disclosed in a registration statement filed under
the Act which would, individually or in the aggregate, have a Material
Adverse Effect. Except as set forth in the Offering Memorandum, none of
the Issuers or the Subsidiaries has received any notice or claim of any
material default (or event, condition or omission which with notice or
lapse of time or both would result in a default) under any of its
respective Contracts or has knowledge of any material breach of any of
such Contracts by the other party or parties thereto.
(xx) Each of the Issuers and the Subsidiaries has filed all
necessary federal, state and foreign income and franchise tax returns, and
has paid all taxes shown as due thereon; and there is no tax deficiency
that has been asserted against any of the Issuers or the Subsidiaries.
(xxi) Each of the Company and the Subsidiaries has good and
marketable title to all real and personal property described in the
Offering Memorandum as being owned by it and good and marketable title to
a leasehold estate in the real and personal property described in the
Offering Memorandum as being leased by it, free and clear of all liens,
charges, encumbrances or restrictions, except to the extent the failure to
have such title or the existence of such liens, charges, encumbrances or
restrictions does not result in a Material Adverse Effect.
(xxii) Neither the Company nor any of the Subsidiaries is an
"investment company" or a company "controlled by" an "investment company"
as such terms are defined in the Investment Company Act of 1940, as
amended, and the rules and regulations thereunder.
(xxiii) Neither the Company nor any of the Subsidiaries nor any of
their respective directors, officers or controlling persons has taken,
directly or indirectly, any action designed, or which might reasonably be
expected, to cause or result, under the Act or otherwise, in, or which has
constituted, stabilization or manipulation of the
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price of any security of the Company to facilitate the sale or resale of
the Securities, the Exchange Securities or the Private Exchange
Securities.
(xxiv) No labor problem, dispute or disturbance with the employees
of the Company or any of the Subsidiaries exists or, to the knowledge of
the Issuers, is threatened which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(xxv) The Company has insurance in such amounts and covering such
risks and liabilities as are in accordance with normal industry practice.
(xxvi) None of the Company nor any Subsidiary has any material
profit sharing, deferred compensation, stock option, stock purchase,
phantom stock or similar plans, including agreements evidencing rights to
purchase securities or to share in the profits of the Company or any
Subsidiary.
(xxvii) A true and correct copy of the executed New Credit Agreement
has been delivered to the Initial Purchasers and counsel to the Initial
Purchasers on or prior to the Closing Time. There have been no amendments,
alterations, modifications or waivers of the provisions of the New Credit
Agreement. The New Credit Agreement conforms in all material respects to
the description thereof in the Offering Memorandum.
(xxviii) The Note Repurchase Letters received from holders of 100%
of the Old Notes have been received by the Company and the Note Repurchase
Letters do not conflict with or constitute or result in a breach or
violation of any of the terms of the Old Notes Indenture. The Note
Repurchase Letters were obtained by the Company in compliance with the Act
and the Exchange Act.
(xxix) The statistical and market-related data included in the
Offering Memorandum are based on or derived from sources which the Company
believes to be reliable and accurate in all material respects or represent
the Company's good faith estimates that are made on the basis of data
derived from such sources.
(xxx) Each of the Company and BBC are, and immediately after the
Closing Time will be, Solvent. As used herein,
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the term "Solvent" means, with respect to the Issuers on a particular
date, that on such date (A) the fair market value of the assets of each of
the Issuers exceeds its respective liabilities (including without
limitation, stated liabilities and identified contingent liabilities), (B)
the present fair salable value of the assets of each of the Issuers will
exceed its respective probable liabilities on its debts (including without
limitation, stated liabilities and identified contingent liabilities), (C)
the fair market value of each of the Issuers' total assets exceeds its
total liabilities, including identified contingent liabilities, by an
amount at least equal to the total par value of its common stock, both
immediately prior to and after the Distribution, (D) each of the Issuers
is and will be able to pay its debts (including without limitation, stated
liabilities and identified contingent liabilities) as such debts mature
and (E) each of the Issuers will not have unreasonably small capital with
which to conduct its present and anticipated business.
(b) Any certificate signed by any officer of any of the Issuers and
delivered to the Initial Purchasers or to counsel for the Initial Purchasers
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Issuers to the Initial Purchasers as to the matters covered
thereby.
SECTION 2. Purchase and Sale of the Securities. The Company agrees
to sell to the Initial Purchasers and, subject to the terms and conditions and
in reliance upon the representations and warranties of the Issuers herein set
forth, each of the Initial Purchasers agrees severally to purchase from the
Company, at a purchase price of 97% of the principal amount thereof, the
respective principal amount of Notes set forth in Schedule A attached hereto
opposite the name of such Initial Purchaser.
SECTION 3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 9:00 A.M., New York City time, on November 19, 1996,
or such later date and time not more than two (2) business days thereafter as
the Initial Purchasers and the Company shall agree (such date and time of
delivery and payment for the Securities being herein called the "Closing Time").
Delivery of the Securities shall be made to the Initial Purchasers against
payment by the Initial Purchasers of the purchase price thereof by wire transfer
of immediately available funds to the order of the Company or as the
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Company may direct. Delivery of the Securities in definitive form shall be made
at such location as the Initial Purchasers shall reasonably designate at least
two business days in advance of the Closing Time and payment for the Securities
shall be made at the offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Certificates for the Securities shall be
registered in such names and in such denominations as the Initial Purchasers may
request not less than two full business days in advance of the Closing Time.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Initial Purchasers in New York, New York, not
later than 10:00 A.M. on the business day prior to the Closing Time.
SECTION 4. Resale of the Securities. The Initial Purchasers have
advised the Issuers that they propose to offer the Securities for resale upon
the terms and conditions set forth in this Agreement and in the Offering
Memorandum. Each Initial Purchaser hereby represents and warrants (as to itself
only) to, and agrees with, the Issuers that (i) it is purchasing the Securities
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is (a) a "qualified
institutional buyer" (a "QIB") within the meaning of Rule 144A under the Act and
is aware that the sale to it is being made in reliance on Rule 144A under the
Act, (b) an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3) or (7) of Rule 501 under the Act (an "Accredited
Investor"), or (c) a person other than a U.S. person (a "foreign purchaser"),
which term shall include dealers or other professional fiduciaries in the U.S.
acting on a discretionary basis for foreign beneficial owners in offshore
transactions meeting the requirements of Rule 903 of Regulation S under the Act;
(ii) it acknowledges that the Securities have not been registered under the Act
and that none of the Securities may be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except as set forth below;
(iii) it shall not resell or otherwise transfer any of such Securities prior to
(a) the date which is three years (or such shorter period of time as permitted
by Rule 144(k) under the Act or any successor provision thereunder) after the
later of the date of original issuance of the Securities and (b) such later
date, if any, as may be required by applicable laws except (a) to the Company or
its Subsidiaries, (b) inside the United States to an Accredited Investor that,
prior to such transfer, furnishes to the Trustee
-16-
a signed letter containing certain representations and agreements (the form of
which letter can be obtained from the Trustee), (d) outside the United States to
foreign purchasers in offshore transactions meeting the requirements of Rule 904
of Regulation S, (e) pursuant to the exemption from registration provided by
Rule 144 under the Act (if available), (f) pursuant to an effective registration
statement under the Act or (g) pursuant to another available exemption from the
registration requirements of the Act; (iv) it agrees that it will give to each
person to whom it transfers the Securities notice of any restrictions on
transfer of such Securities; (v) it understands that all of the Securities will
bear a legend substantially similar to that in Section 5(j) hereof, unless
otherwise agreed by the Company and the Trustee; (vi) it acknowledges that the
Trustee will not be required to accept for registration of transfer any
Securities acquired by it, except upon presentation of evidence satisfactory to
the Company and the Trustee that the restrictions set forth herein have been
complied with; and (vii) it acknowledges that the Issuers, the Trustee, the
Initial Purchasers and others will rely upon the truth and accuracy of the the
foregoing acknowledgments, representations and agreements and agrees that if any
of the acknowledgments, representations or agreements deemed to have been made
by its purchase of the Securities are no longer accurate, it shall promptly
notify the Issuers, the Trustee and the Initial Purchasers. If it is acquiring
the Securities as a fiduciary or agent for one or more investor accounts, it
represents that it has sole investment discretion with respect to each such
account and it has full power to make the foregoing acknowledgments,
representations and agreements on behalf of each account.
SECTION 5. Covenants of the Issuers. Each of the Issuers covenant
with the Initial Purchasers as follows:
(a) The Issuers will furnish to the Initial Purchasers and counsel
for the Initial Purchasers, without charge, such number of copies of the
Preliminary Offering Memorandum and the Offering Memorandum and any
amendments or supplements thereto as the Initial Purchasers and their
counsel may reasonably request.
(b) The Issuers will not at any time make any amendment or
supplement to the Preliminary Offering Memorandum or the Offering
Memorandum without the prior written consent of the Initial Purchasers.
-17-
(c) If at any time prior to completion of the distribution of the
Securities by the Initial Purchasers to purchasers who are not its
affiliates (as determined by the Initial Purchasers) any event shall occur
or condition shall exist as a result of which it is necessary, in the
opinion of the Initial Purchasers or counsel for the Initial Purchasers,
to amend or supplement the Offering Memorandum in order that the Offering
Memorandum, as then amended or supplemented, will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading or if
in the opinion of the Initial Purchasers or counsel to the Initial
Purchasers, such amendment or supplement is necessary to comply with
applicable law, the Issuers will, subject to paragraph (b) of this Section
5, promptly prepare, at their own expense, such amendment or supplement as
may be necessary to correct such untrue statement or omission or to effect
such compliance (in form and substance agreed upon by the Initial
Purchasers and counsel to the Initial Purchasers), so that as so amended
or supplemented, the statements in the Offering Memorandum will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances existing at the time it is delivered to a purchaser, not
misleading or so that such Offering Memorandum as so amended or
supplemented will comply with applicable law, as the case may be, and
furnish to the Initial Purchasers such number of copies of such amendment
or supplement as the Initial Purchasers may reasonably request. Each of
the Issuers agrees to notify the Initial Purchasers in writing to suspend
use of the Offering Memorandum as promptly as practicable after the
occurrence of an event specified in this paragraph (c), and the Initial
Purchasers hereby agree upon receipt of such notice from the Issuers to
suspend use of the Offering Memorandum until the Issuers have amended or
supplemented the Offering Memorandum to correct such misstatement or
omission or to effect such compliance.
(d) Notwithstanding any provision of paragraph (b) or (c) to the
contrary, however, the Issuers' obligations under paragraphs (b) and (c)
and the Initial Purchasers' obligations under paragraph (c) shall
terminate on the earliest to occur of (i) expiration of the Exchange Offer
-18-
(as defined in the Registration Rights Agreement) pursuant to the
Registration Rights Agreement, (ii) the effective date of a shelf
registration statement with respect to the Securities filed pursuant to
the Registration Rights Agreement, (iii) the date upon which no Initial
Purchaser nor any of their respective affiliates continues to hold
Securities acquired as part of their initial distribution and (iv) the
date upon which no Initial Purchaser nor any of their respective
affiliates continues to hold Private Exchange Securities, if any.
(e) None of the Issuers nor any of their affiliates (as defined in
Rule 501(b) under the Act) will solicit any offer to buy or offer or sell
the Securities, the Exchange Securities or the Private Exchange
Securities, if any, by means of any form of general solicitation or
general advertising (as such terms are used in Regulation D under the
Act), or by means of any directed selling efforts (as defined in Rule 902
under the Act) in the United States in connection with the Securities
being offered and sold pursuant to Regulation S or in any manner involving
a public offering within the meaning of Section 4(2) of the Act prior to
the effectiveness of a registration statement with respect to the
Securities, the Exchange Securities or the Private Exchange Securities, as
applicable.
(f) None of the Issuers nor any of their affiliates (as defined in
Rule 501(b) under the Act) will offer, sell 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 that
would require the registration of the Securities under the Act.
(g) The Company will, so long as the Securities are outstanding,
furnish to the Trustee on a timely basis, pursuant to the Indenture,
whether or not the Company has a class of securities registered under the
Exchange Act (i) audited year-end consolidated financial statements of BBC
(including a balance sheet, income statement and statement of changes of
cash flow) prepared in accordance with GAAP and substantially in the form
required under Regulation S-X under the Act and the information described
in Item 303 of Regulation S-K under the Act with respect to such period
and (ii) unaudited quarterly consolidated financial statements of BBC
(including a balance sheet, income statement and statement of changes of
cash flow)
-19-
prepared in accordance with GAAP and substantially in the form required by
Regulation S-X under the Act and the information described in Item 303 of
Regulation S-K under the Act with respect to such period and will furnish
to the Initial Purchasers copies of all such reports and information,
together with such other documents, reports and information as shall be
furnished by the Company to the holders of the Securities or to the
Trustee. In the event the Company is not subject to Section 13 or 15(d) of
the Exchange Act, the Company will furnish to holders of Securities and
prospective purchasers of Securities designated by such holders, upon
request of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Act to
permit compliance with Rule 144A in connection with resales of the
Securities.
(h) Each of the Issuers will use its reasonable best efforts in
cooperation with the Initial Purchasers to (i) permit the Securities to be
eligible for clearance and settlement through The Depository Trust Company
and (ii) permit the Securities to be designated as PORTAL securities in
accordance with the rules and regulations of the NASD.
(i) Prior to the Closing Time, the Company, will furnish to the
Initial Purchasers, if and as soon as they have been prepared, a copy of
any unaudited interim consolidated financial statements of BBC for any
period subsequent to the period covered by the most recent financial
statements of BBC appearing in the Offering Memorandum which have been
prepared in the ordinary course of business.
(j) Each Security and Private Exchange Security, if any, will bear
the following legend until such legend shall no longer be necessary or
advisable because the Securities are no longer subject to the restrictions
on transfer described herein:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
-20-
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY
ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT) (AN
"ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO
RULE 903 OF REGULATION S, (2) AGREES THAT IT WILL NOT, PRIOR TO (X)
THE DATE WHICH IS THREE YEARS (OR SUCH SHORTER PERIOD OF TIME AS
PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR
PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF OR ANY PREDECESSOR OF THIS SECURITY OR THE LAST DATE ON WHICH
BLUE BIRD BODY COMPANY (THE "COMPANY") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS
SECURITY) OR (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY
APPLICABLE LAWS, (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE ISSUER OR
ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR
SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-US PERSONS THAT OCCUR OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT,
PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN ACCREDITED INVESTOR
THAT IS ACQUIRING THE SECURITIES FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH
-21-
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO,
OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER
AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE
TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "US PERSON" HAVE
THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
(k) The Issuers will arrange for the registration and qualification
of the Securities for offering and sale under the applicable securities or
"blue sky" laws of such states and other jurisdictions as the Initial
Purchasers may designate in connection with the resale of the Securities
as contemplated by this Agreement and the Offering Memorandum and will
continue such qualifications in effect for as long as may be necessary to
complete the distribution of the Securities; provided that in no event
shall any of the Issuers be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to so qualify but for this Section 5(k),
(ii) file any general consent to service of process in any jurisdiction
where it is not at the Closing Time then so subject or (iii) subject
itself to taxation in any such jurisdiction if it is not so subject. The
Issuers will file such statements and reports as may be required by the
laws of each jurisdiction in which the Securities have been qualified as
above provided. The Issuers shall promptly advise the Initial Purchasers
of the receipt by any of the Issuers of any notification with respect to
the suspension of the qualification or exemption from qualification of the
Securities for offering or sale in any jurisdiction or the institution,
threatening or contemplation of any proceeding for such purpose.
(l) From the date hereof to the Closing Time, none of the Issuers
will issue any press release or other public communication directly or
indirectly or hold any press
-22-
conference with respect to the Issuers or any of the Subsidiaries or the
business, financial condition, assets, liabilities (contingent or
otherwise), results of operations or prospects of the Issuers or any of
the Subsidiaries, without the prior consent of the Initial Purchasers
(which consent shall not be unreasonably withheld), unless in the judgment
of the Issuers and their counsel, and after notification to the Initial
Purchasers, such press release, communication or conference is required by
law.
(m) The Company will use the proceeds received from the sale of the
Securities in the manner specified in the Offering Memorandum under the
heading "Use of Proceeds."
(n) The Issuers shall not, for a period of 180 days from the date of
the Offering Memorandum, without the prior written consent the Initial
Purchasers, directly or indirectly, offer, sell, grant any option to
purchase or otherwise dispose of any debt securities of the Company or any
of the Subsidiaries (other than the Exchange Securities and the Private
Exchange Securities, if any).
(o) The Company agrees, at its expense, (i) as soon as practicable
after the Closing Time and concurrent with the filing of a registration
statement with respect to the Exchange Securities or the Securities, as
the case may be, under the Registration Rights Agreement, it will prepare
a registration statement under the Act in connection with the
market-making activities of Xxxxxxx Xxxxx with respect to the Exchange
Securities or the Securities, as the case may be, containing such
disclosures as are customary and appropriate for such a document and file
such registration statement and use its best efforts to cause such
registration statement to become effective under the Act as soon as
practicable thereafter or (ii) in lieu of the registration statement in
clause (i) hereof, the Company will cause the registration statement in
respect of the Exchange Securities or the Securities, as the case may be,
to contain alternative pages in connection with the market-making
activities of Xxxxxxx Xxxxx with respect to the Exchange Securities or the
Securities, as the case may be, and that, in the case of either clause (i)
or (ii) hereof, it will keep such registration statement in effect as long
as is required by the Act in the reasonable judgement of Xxxxxxx Xxxxx to
engage in market-making activities. The Company agrees to obtain from its
independent accountants, at its expense, on each effective date of
-23-
such registration statement, a letter addressed to Xxxxxxx Xxxxx dated
such date covering matters described in Section 5(g) hereof, modified as
appropriate to reflect the registered nature of the Exchange Securities or
the Securities, as the case may be, in each case, in form and substance
satisfactory to Xxxxxxx Xxxxx. The Company agrees to xxxxxxx Xxxxxxx Xxxxx
as many copies of the registration statement and each report of the
Company filed with the Commission pursuant to Section 13 or 15 of the
Exchange Act as Xxxxxxx Xxxxx shall reasonably request in connection with
its market-making activities. If a "qualified independent underwriter" is
required by the National Association of Securities Dealers, Inc. (the
"NASD") in connection with such market-making activities, the Company
shall pay such underwriter's fee (in a customary amount for transactions
of this type and amount) and expenses and to indemnify such underwriter on
customary terms. Such qualified independent underwriter shall be a firm
selected by Xxxxxxx Xxxxx and reasonably agreed upon by the Company.
SECTION 6. Payment of Expenses. (a) Whether or not any sale of the
Securities is consummated, the Issuers agree jointly and severally to pay and
bear all costs and expenses incident to the performance of all of their
obligations under this Agreement, including (i) the preparation and printing of
the Preliminary Offering Memorandum, the Offering Memorandum and any amendments
or supplements thereto and the cost of furnishing copies thereof to the Initial
Purchasers, (ii) the preparation, issuance, printing and distribution of the
Securities, the Exchange Securities, the Private Exchange Securities, if any,
and any survey of state securities or "blue sky" laws or legal investment
memoranda, (iii) the delivery to the Initial Purchasers of the Securities, the
Exchange Securities or the Private Exchange Securities, (iv) the fees and
disbursements of the Issuers' counsel and accountants, (v) the qualification of
the Securities under the applicable state securities or "blue sky" laws in
accordance with the provisions of Section 5(k) hereof and any filing for review
of the offering with the NASD, if required, including filing fees and reasonable
fees and disbursements of counsel to the Initial Purchasers in connection
therewith and in connection with the preparation of any survey of state
securities or "blue sky" laws or legal investment memoranda, (vi) any fees
charged by rating agencies for rating the Securities, the Exchange Securities
and the Private Exchange Securities, if any, (vii) the fees and
-24-
expenses of the Trustee, including the fees and disbursements of counsel for the
Trustee, (viii) all expenses (including travel expenses) of the Issuers and the
Initial Purchasers in connection with any meetings with prospective investors in
the Securities, (ix) all expenses in connection with the letter prepared by
Valuation Research Corporation, and (x) all expenses and listing fees in
connection with the application for designation of the Securities as PORTAL
securities and to permit the Securities, the Exchange Securities and the Private
Exchange Securities, as applicable, to be eligible for clearance through The
Depository Trust Company.
(b) 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 pursuant to Section 11 hereof or because of any failure, refusal or
inability on the part of any of the Issuers to perform all obligations and
satisfy all conditions on their part to be performed or satisfied hereunder
other than by reason of a default by an Initial Purchaser in payment for the
Securities at the Closing Time, the Issuers agree jointly and severally to
reimburse the Initial Purchasers promptly upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of their
counsel) that shall have been incurred by it in connection with the proposed
purchase and sale of the Securities.
SECTION 7. Conditions of the Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the Securities are
subject to the continued accuracy, as of the Closing Time, of the
representations and warranties of the Issuers herein contained, to the accuracy
of the statements of the Issuers and officers of the Issuers made in any
certificate pursuant to the provisions hereof, to the performance by the Issuers
of their respective obligations hereunder, and to the following further
conditions:
(a) At the Closing Time, the Initial Purchasers shall have received
the opinion of Wachtell, Lipton, Xxxxx & Xxxx, counsel to the Issuers,
dated as of the Closing Time, in the form set forth below and otherwise
reasonably satisfactory to the Initial Purchasers and counsel for the
Initial Purchasers, to the effect that:
(1) BBC has been duly incorporated and is validly existing
under the laws of the State of
-25-
Delaware, with corporate power and authority to own, lease and
operate its assets and properties and conduct its business as
described in the Offering Memorandum and to enter into and perform
its obligations under this Agreement and the other Operative
Documents; BBC is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect;
(2) BBC has all requisite corporate power and authority to
issue the Guarantee;
(3) the authorized, issued and outstanding capital stock of
BBC is as set forth in the Offering Memorandum under the caption
"Capitalization";
(4) BBC has the requisite corporate power and authority to
execute, deliver and perform its obligations under this Agreement,
the Registration Rights Agreement, the Securities, the Exchange
Securities, the Private Exchange Securities and the Indenture and to
consummate each other element of the Recapitalization to which it is
a party; and each of this Agreement, the Registration Rights
Agreement, the Securities, the Exchange Securities, the Private
Exchange Securities and the Indenture has been duly authorized by
BBC and each other element of the Recapitalization to which BBC is a
party has been duly authorized by BBC.
(5) no consent, approval, authorization, license,
qualification or order of or filing or registration with, any court
or governmental or regulatory agency or body of the United States or
the State of New York or the General Corporation Law of the State of
Delaware is required for the execution and delivery by the Issuers
of this Agreement, the Registration Rights Agreement or the
Indenture or for the issue and sale of the Securities, the Exchange
Securities or the Private Exchange Securities, if any, or the
issuance of the Guarantee by BBC or the consummation by the Issuers
of any of the transactions contemplated herein (including the other
elements of the
-26-
Recapitalization) or therein, except such as may be required (A) in
connection with the registration under the Act of the Securities,
the Exchange Securities or the Private Exchange Securities, if any,
pursuant to the Registration Rights Agreement, (B) the qualification
of the Indenture under the Trust Indenture Act in connection with
the registration of the Securities, the Exchange Securities or the
Private Exchange Securities, if any, pursuant to the Registration
Rights Agreement and (C) under the "blue sky" laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Initial Purchasers (as to which such counsel need
express no opinion);
(6) the issuance, sale and delivery of the Securities, the
Exchange Securities and the Private Exchange Securities, if any, the
execution, delivery and performance by the Issuers of this
Agreement, the Registration Rights Agreement and the Indenture (in
each case assuming due authorization and execution by each party
other than BBC), the declaration and payment of the BBC Distribution
and the consummation by the Issuers of the transactions contemplated
hereby (including each element of the Recapitalization) and thereby
and the compliance by the Issuers with the terms of the foregoing do
not, and, at the Closing Time, will not, conflict with or constitute
or result in a breach or violation by the Issuers or any of the
Subsidiaries of (A) any provision of the Certificate of
Incorporation or By-laws of BBC, (B) any of the terms or provisions
of, or constitute a default (or an event which, with notice or lapse
of time or both, would constitute a default) by the Issuers, or give
rise to any right to accelerate the maturity or require the
prepayment of any indebtedness under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Issuers under any material agreements or instruments
known to such counsel or (C) any law, statute, rule, or regulation
of the United States or the State of New York or under the General
Corporation Law of the State of Delaware or any order, decree or
judgment known to such counsel to be applicable to the Issuers, of
any court or governmental or regulatory agency or body or arbitrator
in the United States or the States of New York or Delaware.
-27-
(7) the statements in the Offering Memorandum under the
headings "Summary - The Offering," "Description of the Notes" and
"Exchange Offer; Registration Rights," insofar as such statements
purport to summarize certain provisions of the Securities, the
Exchange Securities, the Registration Rights Agreement and the
Indenture provide a fair summary of such provisions of such
agreements and instruments and are complete in all material
respects;
(8) all descriptions in the Offering Memorandum of Contracts
and other documents to which the Company or the Subsidiaries are a
party are accurate and complete in all material respects;
(9) each of the Indenture and the Registration Rights
Agreement (assuming due authorization and execution by each party
thereto other than BBC) constitutes a valid and binding agreement of
the Issuers, enforceable against the Issuers in accordance with its
terms, except (a) with respect to the Indenture and the Registration
Rights Agreement, the Enforceability Limitations, and (b) with
respect to the Registration Rights Agreement, that such counsel
expresses no opinion regarding the enforceability of the
indemnification provisions contained in Section 4 thereof;
(10) each of the Securities, when executed and authenticated in
accordance with the provisions of the Indenture and delivered and
paid for in accordance with the terms of this Agreement, and the
Exchange Securities and the Private Exchange Securities, if any,
when executed, authenticated and delivered in exchange for the
Securities in accordance with the terms of the Registration Rights
Agreement, will be entitled to the benefits of the Indenture and
will be valid and binding obligations of the Issuers, enforceable in
accordance with its terms except as the enforceability thereof may
be limited by the Enforceability Limitations;
(11) the Guarantee, when authenticated, executed and delivered
by BBC in accordance with the provisions of the Indenture (assuming
the due authentication of the Notes by the Trustee) will be entitled
to the benefits of the Indenture and will be a legal,
-28-
valid and binding obligation of BBC enforceable against BBC in
accordance with its terms except as the enforceability thereof may
be limited by the Enforceability Limitations;
(12) The Note Repurchase Letters do not conflict with or
constitute or result in a breach or violation of any of the terms of
the Old Notes Indenture.
(13) to the knowledge of such counsel, other than as described
in the Offering Memorandum, no legal, regulatory or governmental
proceedings are pending to which any of the Issuers or the
Subsidiaries is a party or to which the assets of the Issuers or the
Subsidiaries are subject which, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect or
which, individually or in the aggregate, would have a material
adverse effect on the power or ability of the Issuers to perform
their respective obligations under the Operative Documents or to
consummate the transactions contemplated thereby (including the
other elements of the Recapitalization) or by the Offering
Memorandum and no such material proceedings have been threatened
against any of the Issuers or with respect to any of their
respective assets or properties;
(14) assuming that the representations and warranties of the
Initial Purchasers contained in Section 4 of this Agreement are
true, correct and complete, and assuming compliance by the Initial
Purchasers with their covenants in Section 4 hereof, and assuming
that the representations and warranties contained in the Transferee
Letters (substantially in the form of Appendix A to the Offering
Memorandum) completed by Accredited Investors and non-U.S. persons
purchasing Securities from the Initial Purchasers are true and
correct as of the Closing Time, and assuming compliance by such
Accredited Investors and non-U.S. persons with the agreements in the
Transferee Letters, it is not necessary in connection with the
offer, sale and delivery of the Securities to the Initial Purchasers
under, or in connection with the initial resale of such Securities
by the Initial Purchasers in accordance with, this Agreement that
would require the Issuers to register the Securities under the Act
-29-
or to qualify the Indenture under the Trust Indenture Act;
(15) neither Issuer nor any of the Subsidiaries is an
"investment company" or a company "controlled by" or required to
register as an investment company as such terms are defined in the
Investment Company Act of 1940, as amended, and the rules and
regulations thereunder; and
(16) when the Securities are issued and delivered pursuant to
this Agreement, such Securities will not be of the same class
(within the meaning of Rule 144A) as securities of any of the
Issuers which 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.
In addition such counsel shall state that such counsel has
participated in conferences with representatives of the Initial
Purchasers, officers and other representatives of the Issuers and
representatives of the independent certified accountants of the Issuers,
at which conferences the contents of the Offering Memorandum and related
matters were discussed, and although such counsel has not verified and
does not pass upon or assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Offering
Memorandum (except and only to the extent set forth in subclauses (7) and
(8) above), on the basis of the foregoing (relying as to materiality to a
large extent upon representations and opinions of officers and other
representatives of the Issuers), no facts have come to the attention of
such counsel which lead such counsel to believe that the Offering
Memorandum at the date thereof or as of the Closing Time, contained or
contains an 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;
provided that such counsel need not express any comment with respect to
the financial statements, including the notes thereto and supporting
schedules, or any other financial or statistical data set forth or
referred to in the Offering Memorandum.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws
-30-
of any jurisdiction other than the Federal law of the United States and
the laws of the States of Delaware and New York, (B) may rely, as to
matters of fact, to the extent they deem proper on representations or
certificates of responsible officers of the Issuers and certificates of
public officials and (C) may rely to the extent they deem proper upon the
opinion of Xxxxxx & Xxxxxx contemplated by subsection (b).
References to the Offering Memorandum in this subsection (a) include
any supplements thereto at or prior to the Closing Time.
(b) At the Closing Time, the Initial Purchasers shall have received
the opinion of Xxxxxx & Xxxxxx, special counsel to the Company, dated as
of the Closing Time, in the form set forth below and otherwise reasonably
satisfactory to the Initial Purchasers and counsel for the Initial
Purchasers, to the effect that:
(1) the Company has been duly incorporated and is validly
existing under the laws of the State of Georgia, with corporate
power and authority to own, lease and operate its assets and
properties and conduct its business as described in the Offering
Memorandum and to enter into and perform its obligations under this
Agreement and the other Operative Documents; the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property
or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse
Effect;
(2) all of the authorized, issued and outstanding capital
stock of the Company is owned by BBC as set forth in the Offering
Memorandum under the caption "Capitalization";
(3) the Company has the requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement, the Registration Rights Agreement, the Securities, the
Exchange Securities, the Private Exchange Securities and the
Indenture and to consummate each other element of the
-31-
Recapitalization to which it is a party; and each of this Agreement,
the Registration Rights Agreement, the Securities, the Exchange
Securities, the Private Exchange Securities and the Indenture has
been duly authorized by the Company; the Company has the requisite
corporate power and authority to issue and deliver the Securities,
the Exchange Securities and the Private Exchange Securities; and the
Securities, the Exchange Securities and the Private Exchange
Securities have been duly authorized by the Company for issuance;
and each other element of the Recapitalization to which the Company
is a party has been duly authorized by the Company;
(4) no consent, approval, authorization, license,
qualification or order of or filing or registration with, any court
or governmental or regulatory agency or body of the State of Georgia
is required for the execution and delivery by the Company of this
Agreement, the Registration Rights Agreement or the Indenture or for
the issue and sale of the Securities, the Exchange Securities or the
Private Exchange Securities, if any, or the consummation by the
Company of any of the transactions contemplated herein (including
the other elements of the Recapitalization) or therein, except such
as may be required under the "blue sky" laws of any jurisdiction in
connection with the purchase and distribution of the Securities by
the Initial Purchasers (as to which such counsel need express no
opinion);
(5) the issuance, sale and delivery of the Securities, the
Exchange Securities and the Private Exchange Securities, if any, the
execution, delivery and performance by the Company of this
Agreement, the Registration Rights Agreement and the Indenture (in
each case assuming due authorization and execution by each party
other than the Company), the declaration and payment of the Blue
Bird Dividend and the consummation by the Issuers of the
transactions contemplated hereby (including the other elements of
the Recapitalization) and thereby and the compliance by the Issuers
with the terms of the foregoing do not, and, at the Closing Time,
will not, conflict with or constitute or result in a breach or
violation by the Issuers or any of the Subsidiaries of (A) any
provision of the Certificate of Incorporation or By-laws
-32-
of the Company, (B) any law, statute, rule, or regulation of the
State of Georgia or any order, decree or judgment known to such
counsel to be applicable to the Issuers, of any court or
governmental or regulatory agency or body or arbitrator in the State
of Georgia or (C) any of the terms or provisions of, or constitute a
default (or an event which, with notice or lapse of time or both,
would constitute a default) by any of the Issuers or the
Subsidiaries or give rise to any right to accelerate the maturity or
require the prepayment of any indebtedness under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Issuers or the Subsidiaries under any
Contracts.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other
than the laws of the State of Georgia and (B) may rely, as to matters of
fact, to the extent they deem proper on representations or certificates of
responsible officers of the Issuers and certificates of public officials.
References to the Offering Memorandum in this subsection (b) include
any supplements thereto at or prior to the Closing Time.
(c) The Initial Purchasers shall have received the favorable
opinion, dated as of the Closing Time, of Xxxxxx Xxxxxx & Xxxxxxx, counsel
for the Initial Purchasers, with respect to certain matters set forth in
clauses (4), (7), (9), (10), (11) and (14) of subsection (a) of this
Section 7.
In rendering such opinion, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other
than the Federal laws of the United States and the laws of the State of
New York and (B) may rely, as to matters of fact, to the extent they deem
proper on representations or certificates of responsible officers of the
Company and certificates of public officials.
In addition, such counsel shall additionally state that such counsel
has participated in conferences with officers and other representatives of
the Issuers and representatives of the independent accountants for the
-33-
Issuers at which conferences the contents of the Offering Memorandum and
related matters were discussed, and although such counsel has not verified
and does not pass upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Offering Memorandum, on the basis of the foregoing (relying as to
materiality to a large extent upon the representations and opinions of
officers and other representatives of the Issuers), no facts have come to
the attention of such counsel which lead such counsel to believe that the
Offering Memorandum, at the date thereof, contained an untrue statement of
a material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such counsel need
express no comment with respect to the financial statements, including the
notes thereto, or any other financial or statistical data found in or
derived from the internal accounting and other records of BBC and its
subsidiaries set forth or referred to in the Offering Memorandum).
(d) The following conditions contained in clauses (i) and (ii) of
this subsection (d) shall have been satisfied at and as of the Closing
Time and each of the Issuers shall have furnished to the Initial
Purchasers a certificate, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of each of the
Issuers, dated as of the Closing Time, to the effect that the signers of
such certificate have carefully examined the Offering Memorandum, any
amendment or supplement to the Offering Memorandum, and this Agreement and
that:
(i) the representations and warranties of the Issuers in this
Agreement are true and correct in all material respects on and as of
the Closing Time with the same effect as if made at the Closing Time
and the Issuers have complied with all the agreements and satisfied
all the conditions under this Agreement on its part to be performed
or satisfied in all material respects at or prior to the Closing
Time; and
(ii) since the date of the most recent financial statements
included in the Offering Memorandum (exclusive of any amendment or
supplement thereto), there has been no Material Adverse Change,
whether or
-34-
not arising in the ordinary course of business. As used in this
subparagraph, the term "Offering Memorandum" means the Offering
Memorandum in the form first used to confirm sales of the
Securities.
(e) At the time that this Agreement is signed and at the Closing
Time, Xxxxxx Xxxxxxxx LLP shall have furnished to the Initial Purchasers a
letter or letters, dated respectively as of the date of this Agreement and
as of the Closing Time, in form and substance satisfactory to the Initial
Purchasers, confirming that they are independent certified public
accountants within the meaning of the Act and the applicable published
rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements included
in the Offering Memorandum comply as to form in all material
respects with the applicable accounting requirements of the Act and
the rules and regulations promulgated thereunder;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Issuers; carrying out
certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the shareholders, the board of directors and committees
thereof of each of the Issuers; and inquiries of certain officials
of each of the Issuers who have responsibility for financial and
accounting matters of BBC and the Company as to transactions and
events subsequent to July 27, 1996, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention which caused them to believe that:
(A) the unaudited financial statements included in the
Offering Memorandum do not comply as to form in all material
respects with applicable accounting requirements of the Act
and with the published rules and regulations of the
Commission; and said unaudited financial statements are not in
conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
-35-
audited financial statements included in the Offering
Memorandum; or
(B) with respect to the period subsequent to July 27,
1996, that at a specified date not more than three business
days prior to the date of the letter, there were any changes
in the capital stock or there were any increases in the
long-term debt or any decreases in the net current assets, or
shareholders' equity of BBC, as compared with the amounts
shown on the unaudited balance sheet at July 27, 1996 included
in the Offering Memorandum, or for the period from July 28,
1996 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year,
in net sales, income before extraordinary items or net income
of BBC (on a consolidated basis), except in all instances for
increases or decreases that the Offering Memorandum discloses
have occurred or may occur; and
(iii) they have performed certain other specified procedures,
not constituting an audit, with respect to certain amounts,
percentages and financial information that are derived from the
general accounting records or other unaudited schedules of the
Issuers and are included in the Offering Memorandum, and have
compared such amounts, percentages and financial information with
such records of the Issuers and with information derived from such
records and have found them to be in agreement, excluding any
questions of legal interpretation. References to the Offering
Memorandum in this subsection (e) include any supplement thereto at
the date of the applicable letter.
(f) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Offering Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been any change, or
any development involving a prospective change, in or affecting the
business or properties of the Issuers the effect of which is, in the sole
judgment of the Initial Purchasers, so material and adverse as to make it
impractical or inadvisable to proceed with the purchase and the delivery
of the Securities as contemplated by the Offering Memorandum (exclusive of
any amendment or supplement thereto).
-36-
(g) At the Closing Time, counsel for the Initial Purchasers shall
have been furnished with such information, certificates and documents as
they may reasonably require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as contemplated herein and related
proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all opinions and certificates mentioned
above or elsewhere in this Agreement shall be reasonably satisfactory in
form and substance to the Initial Purchasers and counsel for the Initial
Purchasers.
(h) The Issuers and the Trustee shall have entered into the
Indenture.
(i) The Issuers and the Initial Purchasers shall have entered into
the Registration Rights Agreement.
(j) On or prior to the Closing Time, the Company shall have amended
and restated its Existing Credit Agreement (as defined in the Offering
Memorandum) on the terms described in the Offering Memorandum; all
conditions to the availability and the initial borrowing under the New
Credit Agreement (as defined in the Offering Memorandum) shall have been
satisfied; and the funding under the New Credit Agreement shall occur on
or prior to the Closing Time.
(k) On or prior to the Closing Time, the Initial Purchasers shall
have received a letter from Valuation Research Corporation with respect to
the Issuers in form and substance reasonably satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers.
(l) On or prior to the Closing Time, the Board of Directors of the
Company shall have declared the Blue Bird Dividend and the Board of
Directors of BBC shall have declared the BBC Dividend as described in the
Offering Memorandum.
(m) All of the conditions to the sale to the Company by the holders
of 90% or more of the Company's Old Notes shall have been satisfied on or
prior to the Closing Time and, on or prior to the Closing Time, the
Company shall have received 90% or more of the outstanding Old Notes from
the holders of the Old Notes who are parties to the
-37-
Note Repurchase Letters. In the event that less than all of the Old Notes
are received by the Company from the holders of the Old Notes, the Company
will (i) cause a supplemental indenture in respect of the Old Notes to be
executed by the Company and the trustee under the indenture governing the
Old Notes as contemplated by the Note Repurchase Letters and (ii) deliver
to the Initial Purchasers and to counsel for the Initial Purchasers legal
opinions and other documents reasonably required by, and acceptable in
form and substance to, the Initial Purchasers and counsel for the Initial
Purchasers.
If any condition specified in this Section 7 shall not have been
fulfilled in all material respects when and as required to be fulfilled, this
Agreement may be terminated by the Initial Purchasers by notice to the Issuers,
and such termination shall be without liability of any party to any other party
except as provided in Section 6. Notwithstanding any such termination, the
provisions of Sections 8 and 9 shall remain in effect. Notice of such
cancellation shall be given to the Issuers in writing or by telephone, facsimile
transmission or telegraph confirmed in writing. The Issuers shall furnish to the
Initial Purchasers such conformed copies of such opinions, certificates, letters
and documents in such quantities as the Initial Purchasers and counsel for the
Initial Purchasers shall reasonably request.
SECTION 8. Indemnification.
(a) The Issuers agree, jointly and severally, to indemnify and hold
harmless the Initial Purchasers, their respective affiliates, and each person,
if any, who controls any Initial Purchaser or their respective affiliates within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
their respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum, the Final Offering Memorandum or
"market-making prospectus" (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
-38-
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by Xxxxxxx Xxxxx),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser expressly for use in the Preliminary Offering Memorandum, the
Final Offering Memorandum or "market-making prospectus" (or any amendment or
supplement thereto).
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, their respective directors and each
person, if any, who controls the Issuers within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section 8, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Preliminary
Offering Memorandum, Final Offering Memorandum or "market-making prospectus" (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Issuers by such Initial Purchaser expressly
for use in the Preliminary Offering Memorandum, Final Offering Memorandum or
"market-making prospectus" (or any amendment or supplement thereto).
-39-
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, enclosing a
copy of all papers properly served on such indemnified party, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 8(a) above, counsel to the indemnified
parties shall be selected by Xxxxxxx Xxxxx, and, in the case of parties
indemnified pursuant to Section 8(b) above, counsel to the indemnified parties
shall be selected by the Issuers. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. Notwithstanding the foregoing,
if it so elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying parties receiving such
notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action (which approval
shall not be unreasonably withheld), unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. In no event shall the indemnifying parties be liable for the fees
and expenses of more than one counsel (in addition to local counsel) for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental
-40-
agency or body, commenced or threatened, or any claim whatsoever in respect of
which indemnification or contribution could be sought under this Section 8 or
Section 9 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as to which such indemnified party is liable pursuant to Section 8(a) or
(b), as the case may be, such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 8(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
SECTION 9. Contribution. If the indemnification provided for in
Section 8 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers on the one hand and the Initial Purchasers on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Issuers on the one hand and of the
Initial Purchasers on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
-41-
The relative benefits received by the Issuers on the one hand and
the Initial Purchasers on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Initial
Purchasers, bear to the aggregate initial offering price of the Securities.
The relative fault of the Issuers on the one hand and the Initial
Purchasers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Issuers or by the Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Issuers and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 9. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 9 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 9, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be
-42-
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 9, 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 such Initial
Purchaser, and each director of any of the Issuers, each officer of any of the
Issuers and each person, if any, who controls any of the Issuers 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. The Initial Purchasers'
respective obligations to contribute pursuant to this Section 9 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 10. Representations, Warranties and Agreements To Survive
Delivery. All representations, warranties, indemnities, agreements and other
statements of the Issuers and their respective officers and of the Initial
Purchasers contained in or made pursuant to this Agreement shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Initial Purchaser or controlling person, or by or on behalf
of the Issuers, and shall survive delivery and payment for the Securities to the
Initial Purchasers.
SECTION 11. Termination of Agreement.
(a) Termination: General. (a) The Initial Purchasers may terminate
this Agreement, by notice to any of the Issuers, at any time at or prior to the
Closing Time if (i) there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Offering Memorandum and on or prior to the Closing Time, any Material Adverse
Change with respect to the Issuers and the Subsidiaries, taken as a whole
whether or not arising in the ordinary course of business, or (iii) since the
date of this Agreement and on or prior to the Closing Time, (A) there has
occurred any outbreak of hostilities or escalation of existing hostilities or
other national or international calamity or crisis, the effect of which on the
financial securities markets of the United States is such as to make it, in the
judgment of any Initial Purchaser, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (B) trading generally on
the New York Stock Exchange, the American
-43-
Stock Exchange or the over-the-counter market has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities generally have been required, by any such exchange or by order of the
Commission, the NASD or any other governmental authority or (C) a general
banking moratorium has been declared by either Federal or New York authorities.
As used in this Section 11(a), the term "Offering Memorandum" means the Offering
Memorandum in the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section 11,
such termination shall be without liability of any party to any other party
except as provided in Section 6 hereof, and provided further that Sections 1, 8,
9 and 16 shall survive such termination and remain in full force and effect.
(c) This Agreement may also terminate pursuant to the provisions of
Section 7, with the effect stated in such Section.
SECTION 12. Default By One of the Initial Purchasers. If one of the
Initial Purchasers shall fail at the Closing Time to purchase the Securities
which it is obligated to purchase under this Agreement (the "Defaulted
Securities"), the other Initial Purchaser shall have the right, but not the
obligation, within 24 hours thereafter, to make arrangements for the
nondefaulting Initial Purchaser, or any other Initial Purchasers, to purchase
all, but not less than all, of the Defaulted Securities in such amounts as may
be agreed upon and upon the terms herein set forth; if, however, the other
Initial Purchaser shall not have completed such arrangements within such 24-hour
period, then this Agreement shall terminate without liability on the part of any
nondefaulting Initial Purchaser.
No action pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Initial Purchaser or an
Issuer shall have the right to postpone the Closing Time for a period not
exceeding seven days in order to effect any required changes in the Offering
Memorandum or in any other documents or arrangement.
-44-
SECTION 13. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to the Initial Purchasers c/o Merrill Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxxx Xxxxx World
Headquarters, North Tower, World Financial Center, New York, New York
10281-1305, attention: Xxxxxxx Xxxxxxxxx, Managing Director; and notices to the
Issuers shall be directed to Blue Bird Body Company, 0000 Xxxxxxxxx Xxxx, Xxxxx,
Xxxxxxx, 00000, attention: Xxxx Xxxxxx, with a copy to Wachtell, Lipton, Xxxxx &
Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxxx X. Xxxx.
SECTION 14. Information Supplied by the Initial Purchasers. The
statements set forth in the last paragraph on the front cover page and under the
heading "Plan of Distribution" in the Preliminary Offering Memorandum or the
Offering 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 1 and 8 hereof.
SECTION 15. Parties. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchasers and the Issuers and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Initial Purchasers, their respective affiliates and
the Issuers and their respective successors and legal representatives and the
controlling persons and officers, directors, employees and agents referred to in
Sections 8 and 9 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under, by virtue of or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions
and provisions hereof are intended to be for the sole and exclusive benefit of
the Initial Purchasers their respective affiliates and the Issuers and their
respective successors and legal representatives, and said controlling persons
and officers, directors, employees and agents and their heirs and legal
representatives, and said controlling persons and officers, directors, employees
and agents and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
-45-
SECTION 16. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. Specified times
of day refer to New York City time.
SECTION 17. Counterparts. This Agreement may be executed in one or
more counterparts and, when each party has executed a counterpart, all such
counterparts taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement by
and among the Initial Purchasers, the Company and the Guarantor in accordance
with its terms.
Very truly yours,
BLUE BIRD BODY COMPANY
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: President
BLUE BIRD CORPORATION
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: President
Confirmed and accepted as of
the date first above
written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
BT SECURITIES CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
