Exhibit 4.4
EXECUTION COPY
CBD Media LLC
CBD Finance, Inc.
$150,000,000
8.625% Senior Subordinated Notes due 2011
PURCHASE AGREEMENT
------------------
June 9, 2003
Xxxxxx Brothers Inc.
Banc of America Securities LLC
TD Securities (USA) Inc.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CBD Media LLC, a Delaware limited liability company ("Media"), and CBD
Finance, Inc., a Delaware corporation ("Finance" and, collectively with Media,
the "Issuers"), propose to issue and sell to the several Initial Purchasers
named in Schedule 1 hereto (the "Initial Purchasers") $150,000,000 in aggregate
principal amount of their 8.625% Senior Subordinated Notes due 2011 (the
"Notes") to be guaranteed (the "Guarantees") by certain future domestic
subsidiaries of the Issuers, if any (the "Guarantors"), pursuant to the terms of
an indenture (the "Indenture"), to be dated as of June 13, 2003, between the
Issuers and HSBC Bank USA, as trustee (the "Trustee").
The Notes will be offered and sold to you pursuant to an exemption
from the registration requirements under the Securities Act of 1933, as amended
(the "Securities Act"). The Issuers have prepared a preliminary offering
memorandum, dated May 28, 2003 (as amended or supplemented, the "Preliminary
Offering Memorandum"), and will prepare a final offering memorandum (the
"Offering Memorandum"), to be dated June 9, 2003, relating to the Issuers, the
Notes and the Guarantees, if any.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the
Notes (and all securities issued in exchange therefor or in substitution
therefor) shall bear substantially the following legend:
THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH
RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER (IF AVAILABLE), (4) TO AN INSTITUTIONAL ACCREDITED INVESTOR
IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, (5) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (BASED ON AN OPINION OF
COUNSEL IF THE ISSUERS SO REQUEST) OR (6) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES.
You have advised the Issuers that you will make offers and sales (the
"Exempt Resales") of the Notes purchased hereunder on the terms set forth in the
Offering Memorandum solely to (i) persons whom you reasonably believe to be
"qualified institutional buyers" as defined in Rule 144A under the Securities
Act ("QIBs"), (ii) a limited number of "accredited investors," as defined in
Rule 501(a) under the Securities Act ("AIs"), that make certain representations
and agreements to the Issuers and (iii) outside the United States to persons
other than U.S. Persons in offshore transactions meeting the requirements of
Regulation S under the Securities Act ("Regulation S") (such persons specified
in clauses (i), (ii) and (iii) being referred to herein as the "Eligible
Purchasers"). As used herein, the terms "offshore transaction," "United States"
and "U.S. Person" have the respective meanings given to them in Regulation S.
You will offer the Notes to Eligible Purchasers initially at a price equal to
100.00% of the principal amount thereof. Thereafter, the offering price may be
changed at any time without notice.
The recapitalization transactions, including the offering of the
Notes, as described in the "Use of Proceeds" section of the Offering Memorandum
are collectively referred to herein as the "Transactions."
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement") among the Issuers and the Initial Purchasers,
to be dated as of the Closing Date (as defined below), in the form of Exhibit A
hereto, for so long as such Notes constitute "Transfer Restricted Securities"
(as defined in the Registration Rights Agreement). Pursuant to the Registration
Rights Agreement, the Issuers will agree to file with the Securities and
Exchange Commission (the "Commission") under the circumstances and pursuant to
the terms set forth therein, (i) a registration statement under the Securities
Act (the "Exchange Offer Registration Statement") relating to a separate series
of the Issuers' 8.625% Senior Subordinated Notes due 2011 with substantially
identical terms to the Notes (except for transfer restrictions) (the "Exchange
Notes") to be offered in exchange for the Notes (such offer to exchange being
referred to collectively as the "Registered Exchange Offer") and (ii) if
required by the terms of
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the Registration Rights Agreement, a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement" and,
together with the Exchange Offer Registration Statement, the "Registration
Statements") relating to the resale by certain holders of the Notes, and to use
their reasonable best efforts to cause such Registration Statements to be
declared effective. This Agreement, the Notes, the Exchange Notes, the
Guarantees (if any), the guarantees of the Exchange Notes (the "Exchange Note
Guarantees") (if any), the Indenture and Registration Rights Agreement are
hereinafter referred to collectively as the "Operative Documents." This is to
confirm the agreements concerning the purchase of the Notes from the Issuers by
the Initial Purchasers.
SECTION 1. Representations, Warranties and Agreements of the Issuers.
The Issuers, jointly and severally, represent, warrant and agree that:
(a) The Preliminary Offering Memorandum and the Offering Memorandum
have been or will be prepared by the Issuers for use by the Initial
Purchasers in connection with the Exempt Resales. No order or decree
preventing the use of the Preliminary Offering Memorandum or the Offering
Memorandum or any order asserting that the transactions contemplated by
this Agreement are subject to the registration requirements of the
Securities Act has been issued, and no proceeding for that purpose has
commenced or is pending or, to the knowledge of the Issuers, is
contemplated.
(b) The Preliminary Offering Memorandum as of its date, and the
Offering Memorandum as of its date and the Closing Date, did not or will
not as of such dates, and amendments or supplements to the Offering
Memorandum will not, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading, except that this representation and warranty does not apply to
statements in or omissions from the Preliminary Offering Memorandum and the
Offering Memorandum made in reliance upon and in conformity with
information furnished to the Issuers in writing by or on behalf of the
Initial Purchasers expressly for use therein, as specifically identified in
Section 8(e) hereof.
(c) Each of the Issuers has been duly organized, is an existing
limited liability company or corporation and is in good standing under the
laws of its respective jurisdiction of organization and is duly qualified
to do business and is in good standing in each jurisdiction in which its
respective ownership or lease of property or the conduct of its respective
businesses requires such qualification other than where the failure to be
so qualified or in good standing would not reasonably be expected to have a
Material Adverse Effect (as defined below). Each of the Issuers has all
corporate or limited liability company, as the case may be, power and
authority necessary to own or hold its respective properties and to conduct
the businesses in which its is engaged.
(d) Media has no subsidiaries (as defined in Section 15 hereof) other
than Finance, and Finance has no subsidiaries.
(e) Each of the Issuers has an authorized capitalization as set forth
in the Offering Memorandum under the caption "Capitalization"; all of the
issued shares of
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capital stock or other equity interests of the Issuers have been duly
authorized and validly issued, are fully paid and non-assessable; and all
of the issued shares of capital stock of Finance are owned directly or
indirectly by Media, free and clear of all liens, encumbrances and defects,
other than liens, encumbrances or defects contemplated under the Credit
Agreement (as hereinafter defined) and none of such shares of capital stock
or other equity interests were issued in violation of preemptive or other
similar rights arising by operation of law, under the charter and bylaws
(or similar organizational documents) of the Issuers or under any agreement
to which the Issuers are a party or otherwise.
(f) Each of the Issuers has all requisite corporate or limited
liability company, as the case may be, power and authority to execute,
deliver and perform its respective obligations under this Agreement and
each of the other Operative Documents to which it is a party.
(g) This Agreement has been duly and validly authorized, executed and
delivered by the Issuers.
(h) The Registration Rights Agreement has been duly and validly
authorized by the Issuers and, when duly executed by the proper officers of
the Issuers (assuming due authorization, execution and delivery by the
Initial Purchasers) and delivered by the Issuers, will constitute a legally
valid and binding agreement of the Issuers, enforceable against each of the
Issuers in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights and remedies generally, by general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing
(regardless of whether enforcement is sought in a proceeding at law or in
equity), and except that rights to indemnification and contribution
thereunder may be limited by federal or state securities laws or public
policy relating thereto.
(i) The Indenture has been duly and validly authorized by the Issuers
and, when duly executed by the proper officers of the Issuers (assuming due
authorization, execution and delivery by the Trustee) and delivered by the
Issuers, will constitute a legally valid and binding agreement of the
Issuers enforceable against each of the Issuers in accordance with its
terms, except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights and remedies
generally, by general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of
whether enforcement is sought in a proceeding at law or in equity). As of
the Closing Date, the Indenture will conform to the requirements of the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and
the rules and regulations thereunder applicable to an indenture that is
qualified thereunder.
(j) The Notes have been duly and validly authorized by the Issuers
and, when duly executed by the Issuers in accordance with the terms of the
Indenture and assuming due authentication of the Notes by the Trustee, when
delivered to the Initial Purchasers against payment therefor in accordance
with the terms hereof, will have been validly
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issued and delivered and will constitute legally valid and binding
obligations of the Issuers entitled to the benefits of the Indenture and
enforceable against each of the Issuers in accordance with their terms,
except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights and remedies generally, by
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(k) The Exchange Notes have been duly and validly authorized by the
Issuers and if and when duly executed by the Issuers in accordance with the
terms of the Indenture and, assuming due authentication of the Exchange
Notes by the Trustee, if and when delivered in accordance with the
Registered Exchange Offer contemplated by the Registration Rights
Agreement, will constitute legally valid and binding obligations of the
Issuers entitled to the benefits of the Indenture and enforceable against
each of the Issuers in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to
or affecting creditors' rights and remedies generally, by general
principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in
a proceeding at law or in equity).
(l) The Issuers have all requisite corporate and limited liability
company power and authority to enter into the recapitalization transactions
described in the Offering Memorandum.
(m) (i) The Indenture, the Notes, the Registration Rights Agreement
and the Credit Facility (as hereinafter defined) will, and (ii) the Billing
and Collection Services Operating Agreement, dated as of February 4, 2002,
between Cincinnati Bell Telephone Company and CBD Media, Inc., the
Directory Business Agreement, dated as of February 4, 2002, between
Broadwing Inc. and CBD Media, Inc., the Directory Services Agreement, dated
as of September 1, 2002, between Media and X.X. Xxxxx and Company, the
Agreement between Cincinnati Bell Directory Inc. and Quebecor Printing
Directory Sales Corporation for Printing and Binding of Directories,
effective as of January 1, 1999, as amended, the Directory Delivery
Agreement, effective as of January 1, 2003, between Cincinnati Bell Media
LLC and Directory Distributing Associates, Inc. and the License Agreement,
dated as of February 4, 2002, between Broadwing Inc. and CBD Media, Inc.,
do, conform in all material respects to the descriptions thereof in the
Offering Memorandum.
(n) The execution, delivery and performance of this Agreement and the
other Operative Documents by the Issuers and the consummation of the
Transactions will not (i) conflict with or result in a breach or violation
of any of the terms or provisions of, impose any lien, charge or
encumbrance upon any property or assets of the Issuers pursuant to, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement, license or instrument to which either of the
Issuers is a party or by which either of the Issuers is bound or to which
any of the property or assets
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of either of the Issuers is subject, (ii) result in any violation of the
provisions of the charter or bylaws (or similar organizational documents)
of the Issuers, or (iii) result in the violation of any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Issuers or any of their properties or assets
(except, with respect to (i) and (iii), to the extent any such conflict,
breach, violation, imposition or default would not reasonably be expected
to have a Material Adverse Effect); and except as may be required in
connection with (1) the registration of the Notes, the Exchange Notes, the
Guarantees (if any) and/or the Exchange Note Guarantees (if any) under the
Securities Act in accordance with the Registration Rights Agreement, (2)
qualification of the Indenture under the Trust Indenture Act and (3)
compliance with the securities or Blue Sky laws of various jurisdictions,
no consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or any of the other
Operative Documents by the Issuers and the consummation of the
Transactions.
(o) The financial statements (including the related notes and
supporting schedules) included in the Offering Memorandum comply as to form
to the best of the knowledge of the Issuers in all material respects with
the requirements of Regulation S-X under the Securities Act and present
fairly the financial condition, results of operations and cash flows of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved. The other financial data contained in the Offering Memorandum,
insofar as it has been derived from or represents data presented in the
historical financial statements or the books and records of the Issuers, is
consistent with such financial statements or books and records of the
Issuers, as applicable.
(p) Except as set forth in the Offering Memorandum, there are no
legal or governmental proceedings pending to which either of the Issuers is
a party or of which any property or assets of either of the Issuers is the
subject which, if determined adversely to the Issuers, would reasonably be
expected to have a material adverse effect on the financial condition,
results of operations, business or prospects of the Issuers (a "Material
Adverse Effect"), and to the Issuers' knowledge, no such proceedings are
threatened or contemplated by governmental authorities or others.
(q) Except as set forth in the Offering Memorandum, there are no
contracts, agreements or understandings between the Issuers and any person
granting such person the right to require the Issuers to file a
registration statement under the Securities Act with respect to any
securities of the Issuers owned or to be owned by such person or to require
the Issuers to include such securities in the securities to be registered
pursuant to the Exchange Offer Registration Statement or the Shelf
Registration Statement or in any securities registered or to be registered
pursuant to any other registration statement filed by or required to be
filed by the Issuers under the Securities Act.
(r) Except as disclosed in the Offering Memorandum, since the date of
the latest audited consolidated financial statements of Media included in
the Offering
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Memorandum, neither Issuer has incurred any liability or obligation, direct
or contingent, or entered into any transaction, in each case not in the
ordinary course of business, that is material to the Issuers taken as a
whole, and there has not occurred, to the knowledge of the Issuers, any
development or event involving a Material Adverse Effect and, except as
disclosed in the Offering Memorandum, there has been no (i) dividend or
distribution of any kind declared, paid or made by the Issuers on any class
of their respective capital stock or other equity interests, (ii) issuance
of securities by the Issuers (other than the Notes offered hereby) or (iii)
material increase in short-term or long-term debt of the Issuers.
(s) Media (i) makes and keeps accurate books and records and (ii)
maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements in conformity with generally
accepted accounting principles and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the recorded accountability for its
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(t) Since the date of the most recent balance sheet reviewed or
audited by Media's auditors, the board of directors (or a committee
thereof) of Media (or persons fulfilling the equivalent function) has not
been advised of (i) any significant deficiencies in the design or operation
of internal controls which could adversely affect Media's ability to
record, process, summarize and report financial data nor any material
weaknesses in internal controls; and (ii) any fraud, whether or not
material, that involves management or other employees who have a
significant role in Media's internal controls.
(u) Since the date of the most recent balance sheet reviewed or
audited by Media's auditors, there have been no significant changes in
internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
(v) Deloitte & Touche LLP, who has certified certain financial
statements of Media, whose report appears in the Offering Memorandum and
who has delivered the initial letter referred to in Section 7(j) hereof,
were independent public accountants during the periods covered by the
financial statements on which their report is contained in the Offering
Memorandum as required by the Securities Act and the rules and regulations
promulgated thereunder.
(w) The Issuers carry, or are covered by, insurance in such amounts
and covering such risks as is adequate for the conduct of their respective
businesses and the value of their respective properties and as is customary
for companies engaged in similar businesses in similar industries.
(x) The Issuers own or possess adequate rights to use all trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights and
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licenses necessary for the conduct of their respective businesses and have
no reason to believe that the conduct of their respective businesses will
conflict with, and have not received any notice of any claim of conflict
with, any such rights of others, and the Issuers are not aware of any
pending or threatened claim to the contrary or any pending or threatened
challenge by any other person to the rights of the Issuers with respect to
the foregoing which, if determined adversely to either of the Issuers would
have a Material Adverse Effect.
(y) There are no contracts or other documents which would be required
to be described in the Offering Memorandum (assuming that the Offering
Memorandum was made part of a registration statement on Form S-1 filed with
the Commission) that is not so described.
(z) No relationship, direct or indirect, exists between or among the
Issuers on the one hand, and the directors, officers, holders of membership
interests, stockholders, customers or suppliers of the Issuers on the other
hand, which would be required to be described in the Offering Memorandum
(assuming that the Offering Memorandum was made part of a registration
statement on Form S-1 filed with the Commission) that is not so described.
(aa) No labor disturbance by the employees of the Issuers or, to the
knowledge of the Issuers, by employees of X.X. Xxxxx and Company who are
dedicated to perform work on behalf of the Issuers, exists or, to the
knowledge of the Issuers, is imminent which would reasonably be expected to
have a Material Adverse Effect.
(bb) Each of the Issuers is in compliance in all material respects
with all presently applicable provisions of the Employee Retirement Income
Security Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Issuers would have any liability except as would not
reasonably be expected to result in a Material Adverse Effect; the Issuers
have not incurred and do not expect to incur liability under (i) Title IV
of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations thereunder
(the "Code"); each "pension plan" for which the Issuers would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification except as would not reasonably be expected to result in a
Material Adverse Effect.
(cc) None of the Issuers (i) is in violation of its charter and bylaws
(or similar organizational documents), (ii) is in default, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, license or other agreement, including but not limited to the
agreements described in the Offering Memorandum, or instrument to which it
is a party or by which it is bound or to which any of its properties or
assets is subject except as
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would not reasonably be expected to result in a Material Adverse Effect or
(iii) is in violation of any law, ordinance, governmental rule, regulation
or court decree to which it or its property or assets may be subject or has
failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business except as would not
reasonably be expected to result in a Material Adverse Effect. To the
Issuers' knowledge, no other party is in material violation of any contract
material to the Issuers' business.
(dd) None of the Issuers, or any director, officer, agent, employee or
other person associated with or acting on behalf of the Issuers, has used
any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision
of the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(ee) The Issuers are (i) in compliance with any and all applicable
federal, state and local laws, regulations, ordinance, rule, order,
judgment, decree, permit or other legal requirement relating to the
protection of human health and safety, the environment, natural resources
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), which compliance includes obtaining, maintaining
and complying with all permits and authorizations and approvals required by
Environmental Laws to conduct their respective businesses and (ii) have not
received notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except where such non-compliance
with or liability under Environmental Laws would not reasonably be expected
to have a Material Adverse Effect; and neither of the Issuers has been
named as a "potentially responsible party" under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended.
(ff) The Issuers have good and marketable title to all real property
and good and marketable title to all personal property owned by them, in
each case, free and clear of all liens, encumbrances and defects except
such as are described in the Offering Memorandum or would not reasonably be
expected to have a Material Adverse Effect, and do not materially interfere
with the use made or to be made of such property by the Issuers and all
real property and buildings held under lease by the Issuers are held by
them under valid and enforceable leases, with no exceptions that would
materially interfere with the use made or to be made of such assets by the
Issuers.
(gg) Immediately after the consummation of the Transactions, the fair
value and present fair saleable value of the assets of the Issuers (each on
a consolidated basis), will exceed the sum of its stated liabilities and
identified contingent liabilities; neither Issuer, is, nor will either
Issuer be, after giving effect to the execution, delivery and performance
of this Agreement and the other Operative Documents and the consummation of
the Transactions, (A) left with unreasonably small capital with which to
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carry on its business as it is proposed to be conducted, (B) unable to pay
its debts (contingent or otherwise) as they mature or (C) otherwise
insolvent.
(hh) Neither of the Issuers is, or, as of the Closing Date (as defined
below) after giving effect to the offering and sale of the Notes and the
application of the proceeds as described in the Offering Memorandum under
the section entitled "Use of Proceeds," will be, an "investment company"
within the meaning of such term under the Investment Company Act of 1940,
as amended (the "Investment Company Act").
(ii) Neither of the Issuers, nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act ("Regulation D")) of the
Issuers has directly, or through any agent (provided that no representation
is made as to the Initial Purchasers or any person acting on their behalf),
(i) sold, offered for sale, solicited offers to buy or otherwise negotiated
in respect of, any security (as defined in the Securities Act) which is or
could be integrated with the offering and sale of the Notes in a manner
that would require the registration of the Notes under the Securities Act
or (ii) engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D, including, but not limited to,
advertisements, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising) in connection with the
offering of the Notes. Neither of the Issuers has offered, sold or issued
any securities, or securities that are convertible into other securities,
with terms that are substantially similar to the Notes during the six-month
period preceding the date of the Offering Memorandum, including any sales
pursuant to Section 4(2) of the Securities Act or Regulation D or
Regulation S under the Securities Act.
(jj) Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains the information specified in, and
meets the requirements of, Rule 144A(d)(4) under the Securities Act.
(kk) When issued and delivered pursuant to this Agreement, the Notes
will not be of the same class (within the meaning of Rule 144A(d)(3) under
the Securities Act) as securities of the Issuers that are listed on a
national securities exchange registered under Section 6 of the Exchange Act
or that are quoted in a U.S. automated inter-dealer quotation system.
(ll) Assuming (i) that your representations and warranties in Section
2 of this Agreement are true and accurate, (ii) your due performance of the
covenants set forth herein and (iii) that each of the Eligible Purchasers
is a QIB, AI or a person who acquires the Notes outside the United States
in an "offshore transaction" and is not a "U.S. person" (within the meaning
of Regulation S), it is not necessary in connection with the purchase of
the Notes and the offer and initial resale of the Notes by you in the
manner contemplated by this Agreement and the Offering Memorandum, to
register the Notes under the Securities Act or to qualify the Indenture
under the Trust Indenture Act.
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(mm) None of the Issuers or any of their affiliates or any person
acting on their behalf has engaged or will engage in any directed selling
efforts within the meaning of Rule 902(b) of Regulation S with respect to
the Notes, and the Issuers and their affiliates and all persons acting on
their behalf have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering
of the Notes outside of the United States and, in connection therewith, the
Offering Memorandum will contain the disclosure required by Rule 902(h).
(nn) The Notes sold by the Issuers in reliance on Regulation S will be
represented upon issuance by a temporary global security that may not be
exchanged for definitive securities until the expiration of the 40-day
restricted period referred to in Rule 903(c)(3) of the Securities Act and
only upon certification of beneficial ownership of such Notes by non-U.S.
persons or U.S. persons who purchased such Notes in transactions that were
exempt from the registration requirements of the Securities Act.
(oo) Neither of the Issuers has taken or will take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Notes to facilitate the
sale or resale of the Notes.
(pp) The Issuers have not taken, and will not take, any action that
might cause this Agreement or the issuance or sale of the Notes to violate
Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or
Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal
Reserve System.
Each of the Issuers understands that the Initial Purchaser and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant
to Section 7 hereof, counsel to the Issuers and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
SECTION 2. Representations, Warranties and Agreements of the Initial
Purchasers. Each of the Initial Purchasers, severally and not jointly,
represents and warrants to, and agrees with, the Issuers, that:
(a) Such Initial Purchaser is a QIB with such knowledge and
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Notes.
(b) Such Initial Purchaser (i) is not acquiring the Notes with a view
to any distribution thereof or with any present intention of offering or
selling any of the Notes in a transaction that would violate the Securities
Act or any state securities laws or any other applicable jurisdiction; (ii)
in connection with the Exempt Resales, will solicit offers to buy the Notes
only from, and will offer to sell the Notes only to, Eligible Purchasers in
accordance with this Agreement and on the terms contemplated by the
Offering Memorandum; and (iii) will not offer or sell the Notes, nor has it
offered or sold the Notes by, or otherwise engaged in, any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with the offering of the Notes.
11
(c) The Notes have not been and will not be registered under the
Securities Act and may not be offered or sold within the United States or
to, or for the account or benefit of, U.S. persons except in accordance
with Regulation S under the Securities Act or pursuant to an exemption from
the registration requirements of the Securities Act. Such Initial Purchaser
represents that it has not offered, sold or delivered the Notes, and will
not offer, sell or deliver the Notes (i) as part of their distribution at
any time or (ii) otherwise until 40 days after the later of the
commencement of the offering of the Notes and the Closing Date (such
period, the "Distribution Compliance Period"), within the United States or
to, or for the account or benefit of U.S. persons, except in accordance
with Rule 144A under the Securities Act. Accordingly, such Initial
Purchaser represents and agrees that neither it, its affiliates nor any
persons acting on its behalf have engaged or will engage in any directed
selling efforts within the meaning of Rule 902(c) of Regulation S with
respect to the Notes, and its affiliates and all persons acting on its
behalf have complied and will comply with the offering restrictions
requirements of Regulation S.
(d) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Notes (other than a sale pursuant to Rule 144A),
it will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Notes from them during
the Distribution Compliance Period a confirmation or notice substantially
to the following effect:
"The Notes covered hereby have not been registered under the
Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering or the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act, and
in connection with any subsequent sale by you of the Notes covered
hereby in reliance on Regulation S during the period referred to above
to any distributor, dealer or person receiving a selling concession,
fee or other remuneration, you must deliver a notice substantially to
the foregoing effect. Terms used above have the meanings assigned to
them in Regulation S."
(e) Such Initial Purchaser (i) has not offered or sold, and, prior to
the six months after the date of the issue of the Notes, will not offer or
sell, any Notes to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for purposes of their
businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995, (ii) has
complied with and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 (the "FSMA") with respect to
anything done by it in relation to the Notes in, from or otherwise
involving the United Kingdom, and (iii) has only communicated or caused to
be communicated and will only communicate and cause to be communicated any
invitation or inducement to engage in investment activity (within the
meaning of Section 21 of the
12
FSMA) received by it in connection with the issue or sale of any Notes in
circumstances in which Section 21(1) of the FSMA would not apply to the
Issuers.
(f) Each of the Initial Purchasers understands that the Issuers and,
for purposes of the opinion(s) to be delivered to the Initial Purchasers
pursuant to Section 7(d) and (e) hereof, counsel to the Issuers, will rely
upon the accuracy and truth of the foregoing representations, warranties
and agreements and the Initial Purchasers hereby consent to such reliance.
The terms used in this Section 2 that have meanings assigned to them
in Regulation S are used herein as so defined.
SECTION 3. Purchase of the Notes by the Initial Purchasers. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Issuers agrees to sell the Notes to
the several Initial Purchasers and each of the Initial Purchasers, severally and
not jointly, agrees to purchase the amount of Notes set opposite that Initial
Purchaser's name in Schedule 1 hereto. Each Initial Purchaser will purchase such
aggregate principal amount of Notes at an aggregate purchase price equal to
97.00% of the principal amount thereof (the "Purchase Price").
The Issuers shall not be obligated to deliver any of the Notes to be
delivered on the Closing Date, except upon payment for all the Notes to be
purchased on the Closing Date as provided herein.
SECTION 4. Delivery of and Payment for the Notes.
(a) Delivery of and payment for the Notes shall be made at the
offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, at 9:00 A.M., New York City time, on the fourth full business day
following the date of this Agreement or at such other date or place as
shall be determined by agreement between Xxxxxx Brothers and the Issuers.
This date and time are sometimes referred to as the "Closing Date."
(b) On the Closing Date, one or more Notes in definitive form,
registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of Notes sold pursuant to Eligible Resales
(collectively, the "Global Notes"), shall be delivered by the Issuers to
the Initial Purchasers against payment by the Initial Purchasers of the
purchase price thereof by wire transfer of immediately available funds as
the Issuers may direct by written notice delivered to you no later than two
business days prior to the Closing Date. The Global Notes in definitive
form shall be made available to the Initial Purchasers for inspection not
later than 2:00 p.m. on the business day immediately prior to the Closing
Date.
SECTION 5. Further Agreements of the Issuers. Each of the Issuers
agrees:
(a) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of the issuance by the Commission or any state
securities commission of
13
any stop order suspending the qualification or exemption from qualification
of the Notes and the Guarantees (if any) for offering or sale in any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose by the Commission or any state securities commission or other
regulatory authority, and (ii) the happening of any event that makes any
statement of a material fact made in the Preliminary Offering Memorandum or
the Offering Memorandum untrue or which requires the making of any
additions to or changes in the Preliminary Offering Memorandum or Offering
Memorandum in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Issuers shall
use all reasonable efforts to prevent the issuance of any stop order or
order suspending the qualification or exemption of the Notes and the
Guarantees (if any) under any state securities or Blue Sky laws and, if at
any time any state securities commission shall issue any stop order
suspending the qualification or exemption of the Notes under any state
securities or Blue Sky laws, the Issuers shall use all reasonable efforts
to obtain the withdrawal or lifting of such order at the earliest possible
time.
(b) To furnish to you without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as you may reasonably request. The
Issuers consent to the use, in accordance with the securities or blue sky
laws of the jurisdictions in which the Notes are offered by you and by
dealers, of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments and supplements thereto required pursuant to
this Agreement, by you in connection with the Exempt Resales that are in
compliance with this Agreement.
(c) Not to amend or supplement the Offering Memorandum prior to the
Closing Date or during the period referred to in (d) below unless you shall
previously have been advised of, and shall not have reasonably objected to,
such amendment or supplement within a reasonable time, but in any event not
longer than three days after being furnished a copy of such amendment or
supplement. The Issuers shall promptly prepare, upon any reasonable request
by you, any amendment or supplement to the Offering Memorandum that may be
necessary or advisable in connection with Exempt Resales.
(d) If, after the date of this Agreement and prior to the completion
of the distribution of the Notes, any event shall occur that, in the
judgment of the Issuers or in your judgment or the judgment of counsel to
you, makes any statement of a material fact in the Offering Memorandum
untrue or that requires the making of any additions to or changes in the
Offering Memorandum in order to make the statements in the Offering
Memorandum, in the light of the circumstances at the time that the Offering
Memorandum is delivered to prospective Eligible Purchasers, not misleading,
or if it is necessary to amend or supplement the Offering Memorandum to
comply with applicable law, the Issuers will promptly notify you of such
event and prepare an appropriate amendment or supplement to the Offering
Memorandum so that, at the time that the Offering Memorandum is delivered
to prospective Eligible Purchasers, (i) the Offering Memorandum as amended
or supplemented will not contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
14
made therein, in light of the circumstances under which they were made, not
misleading and (ii) the Offering Memorandum will comply with applicable
law.
(e) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes for offering and sale under the
state securities or Blue Sky laws of such jurisdictions as you may request
(provided, however, that the Issuers shall not be obligated to qualify as a
foreign corporation in any jurisdiction in which it is not now so qualified
or to take any action that would subject it to general consent to service
of process in any jurisdiction in which it is not now so subject) and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Notes.
(f) To use all best efforts to do and perform all things required to
be done and performed under this Agreement by it prior to or after the
Closing Date and to satisfy all conditions precedent on its part to the
delivery of the Notes.
(g) Except as contemplated in the Registration Rights Agreement, not
to sell, offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) that would be
integrated with the sale of the Notes in a manner that would require the
registration under the Securities Act of the sale to you or the Eligible
Purchasers of the Notes.
(h) Not to, and to not permit any of its affiliates to, resell any
Notes that have been acquired by any of them, except in accordance with the
Securities Act and the rules and regulations of the Commission.
(i) Not to, and to not permit any of its affiliates or any person
acting on its or their behalf to, engage in any form of general
solicitation or general advertising (within the meaning of Regulation D) in
connection with the offering of the Notes.
(j) Not to, and to not permit any of its affiliates or any person
acting on its or their behalf to, engage in any directed selling efforts
within the meaning of Rule 902(b) of Regulation S with respect to the
Notes, and to, and require its affiliates or any person acting on its or
their behalf to, comply with the offering restrictions requirements of
Regulation S in connection with the offering of the Notes outside of the
United States.
(k) Not to, and to not permit any of its subsidiaries to take,
directly or indirectly, any action designed to cause or result in, or which
has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the Notes to facilitate the
sale or resale of the Notes.
(l) For so long as any Notes remain outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) or, if earlier, until two
years after the Closing Date, and during any period in which the Issuers or
the Guarantors, if any, are not subject to Section 13 or 15(d) of the
Exchange Act, to make available upon request to any registered holder or
beneficial owner of Notes in connection with any sale thereof and any
prospective purchaser of Notes from such registered holder or beneficial
owner upon
15
request of such holder, the information required by Rule 144A(d)(4) under
the Securities Act.
(m) To use its best efforts to permit the Notes to be eligible for
trading in The PORTAL/SM/ Market ("PORTAL"), a subsidiary of The Nasdaq
Stock Market, Inc., and to permit the Notes to be eligible for clearance
and settlement through DTC.
(n) To apply the net proceeds from the sale of the Notes
substantially in accordance with the description set forth in the Offering
Memorandum under the section entitled "Use of Proceeds."
(o) To take such steps as shall be necessary to ensure that neither
of the Issuers shall become an "investment company" within the meaning of
such term under the Investment Company Act and the rules and regulations of
the Commission thereunder.
(p) Except for borrowings under the Credit Agreement, to be dated as
of June 13, 2003, among the Issuers and the lenders named therein (the
"Credit Facility"), for a period of 180 days from the date of the Offering
Memorandum, not to, directly or indirectly, sell, contract to sell, grant
any option to purchase, issue any instrument convertible into or
exchangeable for, or otherwise transfer or dispose of, any debt securities
of the Issuers in a public or private offering for cash having a maturity
of more than one year from the date of issue of such securities, except (i)
for the Exchange Notes and the Exchange Note Guarantees (if any) in
connection with the Exchange Offer or (ii) with the prior consent of the
Initial Purchasers, which consent shall not be unreasonably withheld.
SECTION 6. Expenses. Each of the Issuers agrees that, whether or not
the transactions contemplated by this Agreement are consummated or this
Agreement becomes effective or is terminated (except as otherwise set forth in
the second sentence of Section 11 hereof), to pay all costs, expenses, fees and
taxes incident to and in connection with: (i) the preparation, printing, filing
and distribution of the Preliminary Offering Memorandum and the Offering
Memorandum (including, without limitation, financial statements) and all
amendments and supplements thereto (but not, however, legal fees and expenses of
your counsel incurred in connection therewith), (ii) the preparation, printing
(including, without limitation, word processing and duplication costs) and
delivery of this Agreement, the Indenture, the Registration Rights Agreement,
and all other agreements, memoranda, correspondence and other documents printed
and delivered in connection herewith and with the Exempt Resales (but not,
however, legal fees and expenses of your counsel incurred in connection with any
of the foregoing other than fees of such counsel), (iii) the issuance and
delivery by the Issuers of the Notes, (iv) furnishing such copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and all amendments
and supplements thereto, as may be reasonably requested for use in connection
with the Exempt Resales, (v) the preparation of certificates for the Notes
(including, without limitation, printing and engraving thereof), (vi) the fees,
disbursements and expenses of the Issuers' counsel and accountants and the
Trustee, (vii) all expenses and listing fees in connection with the application
for quotation of the Notes in PORTAL, (viii) the costs and expenses of the
Issuers relating to investor presentations on any road show undertaken in
16
connection with the offering of the Notes, including without limitation,
expenses associated with the production of road show slides and graphics, fees
and expenses of any consultants engaged in connection with the road show
presentations with the prior approval of the Issuers, travel and lodging
expenses of the representatives and officers of the Issuers and any such
consultants, and the cost of any aircraft chartered in connection with the road
show, (ix) fees charged by any rating agency and other related expenses, if any,
all fees and expenses (including fees and expenses of counsel) of the Issuers in
connection with approval of the Notes by DTC for "book-entry" transfer, and (x)
the performance by the Issuers of their other obligations under this Agreement.
SECTION 7. Conditions of Initial Purchasers' Obligations. The
respective obligations of the Initial Purchasers hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Issuers contained herein, to the performance by each of the
Issuers of its obligations hereunder, and to each of the following additional
terms and conditions.
(a) The Issuers shall have used their best efforts to cause the
Offering Memorandum to have been printed and copies distributed to you not
later than 5:00 P.M., New York City time, on June 11, 2003, or at such
later date and time as you may approve in writing, and no stop order
suspending the qualification or exemption from qualification of the Notes
in any jurisdiction shall have been issued and no proceeding for that
purpose shall have been commenced or shall be pending or threatened.
(b) No Initial Purchaser shall have discovered and disclosed to the
Issuers on or prior to such Closing Date that the Offering Memorandum or
any amendment or supplement thereto contains an untrue statement of a fact
which, in the judgment of the Initial Purchasers, is material or omits to
state a fact which, in the judgment of the Initial Purchasers, is material
and is required to be stated therein or is necessary to make the statements
therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the other Operative
Documents, the Offering Memorandum, and all other legal matters relating to
this Agreement and the Transactions shall be reasonably satisfactory in all
material respects to counsel for the Initial Purchasers, and the Issuers
shall have furnished to such counsel/the Initial Purchasers all documents
and information that they may reasonably request to enable them to pass
upon such matters.
(d) Xxxxxx & Xxxxxxx LLP shall have furnished to the Initial
Purchasers its written opinions and 10b-5 representation letter, as counsel
to the Issuers, addressed to the Initial Purchasers and dated as of the
Closing Date, in form and substance reasonably satisfactory to the Initial
Purchasers, substantially in the forms attached hereto as Exhibits B1-B3.
(e) Xxxxxxxx and Shohl LLP shall have furnished to the Initial
Purchasers its written opinion, as counsel to the Issuers, addressed to the
Initial Purchasers and dated as
17
of the Closing Date, in form and substance reasonably satisfactory to the
Initial Purchasers, substantially in the form attached hereto as Exhibit
B-4.
(f) The Initial Purchasers shall have received from Xxxx, Gotshal &
Xxxxxx LLP, counsel for the Initial Purchasers, such opinion or opinions,
dated as of the Closing Date, with respect to the issuance and sale of the
Notes, the Offering Memorandum and other related matters as the Initial
Purchasers may reasonably require, and the Issuers shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) Each of the Issuers and the Trustee shall have entered into the
Indenture and the Initial Purchasers shall have received counterparts,
conformed as executed, thereof.
(h) Each of the Issuers shall have entered into the Registration
Rights Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, by the Issuers.
(i) The Notes shall have been approved for trading in PORTAL and
shall be eligible for clearance and settlement through DTC.
(j) At the time of execution of this Agreement, the Initial
Purchasers shall have received from Deloitte & Touche LLP a letter, in form
and substance satisfactory to the Initial Purchasers, addressed to the
Initial Purchasers and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Offering Memorandum,
as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants' "comfort
letters" to initial purchasers.
(k) With respect to the letter of Deloitte & Touche LLP, referred to
in the preceding paragraph and delivered to the Initial Purchasers
concurrently with the execution of this Agreement (the "initial letter"),
the Initial Purchasers shall have received a letter (the "bring-down
letter") of such accountants, addressed to the Initial Purchasers and dated
as of the Closing Date (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Offering Memorandum,
as of a date not more than five days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters
18
covered by the initial letter and (iii) confirming in all material respects
the conclusions and findings set forth in the initial letter.
(l) The Initial Purchasers shall have received a certificate from
each of the Issuers, dated as of the Closing Date, signed by its Chief
Executive Officer and Chief Financial Officer stating, as applicable, that:
(A) The representations and warranties of the Issuers
contained herein, as applicable, are true and correct as if made
on and as of the Closing Date (other than to the extent any such
representation or warranty is made expressly to a certain date),
and the Issuers, as applicable, have performed all covenants and
agreements and satisfied all conditions on their part to be
performed or satisfied hereunder, to the extent a party hereto,
at or prior to the Closing Date;
(B) They have carefully examined the Preliminary Offering
Memorandum and the Offering Memorandum and, in their opinion, the
Preliminary Offering Memorandum and Offering Memorandum, as of
their respective dates, did not, and the Offering Memorandum, as
of the Closing Date, does not include any untrue statement of a
material fact and did not omit to state a material fact required
to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, and since the date of the Offering Memorandum, no
event has occurred which should have been set forth in a
supplement or amendment to Offering Memorandum; and
(C) The issuance and sale of the Notes by the Issuers
hereunder has not been enjoined (temporarily or permanently) by
any court or governmental body or agency.
(m) (i) Neither of the Issuers shall have sustained since the date of
the latest audited financial statements included in the Offering Memorandum
(exclusive of any amendment or supplement thereto after the date hereof)
any loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Offering Memorandum or (ii) since such
date there shall not have been any change in the capital stock or long-term
debt of the Issuers or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position or results of operations of the Issuers and its
subsidiaries, otherwise than as set forth or contemplated in the Offering
Memorandum, the effect of which, in any such case described in clause (i)
or (ii), is, in the judgment of Xxxxxx Brothers, so material and adverse as
to make it impracticable or inadvisable to proceed with the offering or the
delivery of the Notes being delivered on such Closing Date on the terms and
in the manner contemplated herein and in the Offering Memorandum.
19
(n) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Issuers' debt
securities by any "nationally recognized statistical rating organization,"
as that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Securities Act and (ii) no such organization shall have publicly
announced or privately informed the Issuers that it has under surveillance
or review, with possible negative implications, its rating of any of the
Issuers' debt securities.
(o) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Issuers
on any exchange or in the over-the-counter market, shall have been
suspended or the settlement of such trading generally shall have been
materially disrupted or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities not existing on the date of this Agreement, there shall have
been an escalation in hostilities involving the United States or there
shall have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) or there shall have occurred any other calamity or crisis,
including without limitation as a result of terrorist activities after the
date hereof, as to make it, in the judgment of Xxxxxx Brothers,
impracticable or inadvisable to proceed with the offering or delivery of
the Notes being delivered on such Closing Date on the terms and in the
manner contemplated in the Offering Memorandum.
(p) The Initial Purchasers shall have received copies of each
Certificate from Acquiring Accredited Investor, duly executed by each AI
purchasing Notes from the Initial Purchasers, in form reasonably
satisfactory to the Initial Purchasers.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
SECTION 8. Indemnification and Contribution.
(a) The Issuers shall jointly and severally indemnify and hold
harmless each Initial Purchaser, its directors, officers and employees and
each person, if any, who controls any Initial Purchaser within the meaning
of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action relating
to purchases and sales of the Notes), to which that Initial Purchaser,
director, officer, employee or controlling person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A)
20
in the Preliminary Offering Memorandum, the Offering Memorandum or in any
amendment or supplement thereto or (B) in any Blue Sky application or other
document prepared or executed by the Issuers (or based upon any written
information furnished by the Issuers) specifically for the purpose of
qualifying any or all of the Notes under the securities laws of any state
or other jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application") or (C) in any materials or
information provided to investors by, or with the approval of, the Issuers
in connection with the marketing of the offering of the Notes ("Marketing
Materials"), including any roadshow or investor presentations made to
investors by the Issuers (whether in person or electronically), (ii) the
omission or alleged omission to state in the Preliminary Offering
Memorandum, the Offering Memorandum or in any amendment or supplement
thereto, or in any Blue Sky Application or Marketing Materials, any
material fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Initial Purchaser in connection with,
or relating in any manner to, the Notes or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon matters covered by
clause (i) or (ii) above (provided that the Issuers shall not be liable
under this clause (iii) to the extent that it is determined in a final
judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Initial Purchaser
through its gross negligence or willful misconduct), and shall reimburse
each Initial Purchaser and each such director, officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that Initial Purchaser, director, officer, employee
or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Issuers
shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged
omission made in the Preliminary Offering Memorandum or the Offering
Memorandum, or in any such amendment or supplement thereto, or in an Blue
Sky Application, in reliance upon and in conformity with written
information concerning such Initial Purchaser furnished to the Issuers by
or on behalf of any Initial Purchaser specifically for inclusion therein.
The foregoing indemnity agreement is in addition to any liability which the
Issuers may otherwise have to any Initial Purchaser or to any director,
officer, employee or controlling person of that Initial Purchaser.
(b) Each Initial Purchaser shall, severally and not jointly,
indemnify and hold harmless the Issuers, each of their directors, officers,
employees and each person, if any, who controls the Issuers within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Issuers or any such director, officer, employee or controlling person may
become subject, under the Securities Act or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum, the Offering Memorandum
or in any amendment or supplement thereto, or in any Blue Sky Application
or (ii) the omission or alleged omission to state in the Preliminary
21
Offering Memorandum, the Offering Memorandum or in any amendment or
supplement thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information concerning
such Initial Purchaser furnished to the Issuers through Xxxxxx Brothers by
or on behalf of that Initial Purchaser specifically for inclusion therein,
and shall reimburse the Issuers and any such director, officer, employee or
controlling person for any legal or other expenses reasonably incurred by
the Issuers or any such director, officer or controlling person in
connection with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such expenses are
incurred. The foregoing indemnity agreement is in addition to any liability
which any Initial Purchaser may otherwise have to the Issuers or any such
director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 8 except to the extent
it has been materially prejudiced by such failure and, provided further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 8. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that Xxxxxx Brothers shall have the right to employ counsel to
represent jointly Xxxxxx Brothers and those other Initial Purchasers and
their respective directors, officers, employees and controlling persons who
may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Initial Purchasers against the Issuers under
this Section 8 if, in the reasonable judgment of Xxxxxx Brothers, it is
advisable for Xxxxxx Brothers and those Initial Purchasers, directors,
officers, employees and controlling persons to be jointly represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Issuers. No indemnifying party shall (i)
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from
22
all liability arising out of such claim, action, suit or proceeding and
does not include any findings of fact or admissions of fault or culpability
as to the indemnified party or (ii) be liable for any settlement of any
such action effected without its written consent (which consent shall not
be unreasonably withheld), but if settled with the consent of the
indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 8(a) or 8(b) in respect of any loss, claim,
damage or liability, or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Issuers on the one hand
and the Initial Purchasers on the other from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative
fault of the Issuers, on the one hand, and the Initial Purchasers on the
other with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received
by the Issuers on the one hand and the Initial Purchasers on the other with
respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Notes purchased under this
Agreement (before deducting expenses) received by the Issuers, on the one
hand, and the total discounts and commissions received by the Initial
Purchasers with respect to the Notes purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the offering of the Notes
under this Agreement. The relative fault shall be determined by reference
to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by the Issuers or the Initial Purchasers, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Issuers
and the Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 8(d) were to be determined by pro
rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the loss, claim,
damage or liability, or action in respect thereof, referred to above in
this Section 8(d) shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending or preparing to defend
any such action or claim. Notwithstanding the provisions of this Section
8(d), no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Notes purchased
by it was resold to Eligible Purchasers exceeds the amount of any damages
which such Initial Purchaser has otherwise paid or become liable to pay by
reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the
23
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute as provided in this Section 8(d) are several in
proportion to their respective purchase obligations and not joint.
(e) The Initial Purchasers severally confirm and the Issuers
acknowledge that the last sentence on the cover page of the Offering
Memorandum, the seventh paragraph of page ii of the Offering Memorandum,
and the first sentence of the fifth and sixth paragraphs, the sixth
sentence of the tenth paragraph and the eleventh paragraph under the
section entitled "Plan of Distribution" in the Offering Memorandum
constitute the only information concerning the Initial Purchasers furnished
in writing to the Issuers by or on behalf of the Initial Purchasers
specifically for inclusion in the Offering Memorandum.
SECTION 9. Defaulting Initial Purchasers.
If, on the Closing Date, any Initial Purchaser defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Initial Purchasers shall be obligated to purchase the Notes that
the defaulting Initial Purchaser agreed but failed to purchase on such Closing
Date in the respective proportions which the amount of the Notes set forth
opposite the name of each remaining non-defaulting Initial Purchaser in Schedule
1 hereto bears to the total amount of Notes set forth opposite the names of all
the remaining non-defaulting Initial Purchasers in Schedule 1 hereto; provided,
however, that the remaining non-defaulting Initial Purchasers shall not be
obligated to purchase any of the Notes on such Closing Date if the total amount
of the Notes which the defaulting Initial Purchaser or Initial Purchasers agreed
but failed to purchase on such date exceeds 10% of the total amount of Notes to
be purchased on such Closing Date, and any remaining non-defaulting Initial
Purchaser shall not be obligated to purchase more than 110% of the amount of
Notes which it agreed to purchase on such Closing Date pursuant to the terms of
Section 2. If the foregoing maximums are exceeded, the remaining non-defaulting
Initial Purchasers, or those other Initial Purchasers satisfactory to Xxxxxx
Brothers who so agree, shall have the right, but shall not be obligated, to
purchase, in such proportion as may be agreed upon among them, all of the Notes
to be purchased on such Closing Date. If the remaining Initial Purchasers or
other Initial Purchasers satisfactory to Xxxxxx Brothers do not elect to
purchase the Notes which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase on such Closing Date, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or the Issuers, except that the Issuers will continue to be liable for the
payment of expenses to the extent set forth in Sections 6 and 11. As used in
this Agreement, the term "Initial Purchaser" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases the Notes which a
defaulting Initial Purchaser agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial Purchaser
of any liability it may have to the Issuers for damages caused by its default.
If other Initial Purchasers are obligated or agree to purchase the Notes of a
defaulting or withdrawing Initial Purchaser, either Xxxxxx Brothers or the
Issuers may postpone the Closing Date for up to seven full business days in
order to effect any changes that in the opinion of counsel for the Issuers or
24
counsel for the Initial Purchasers may be necessary in the Offering Memorandum
or in any other document or arrangement.
SECTION 10. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by Xxxxxx Brothers by notice given to and received
by the Issuers prior to delivery of and payment for the Notes if, prior to that
time, any of the events described in Sections 7(m), 7(n) and 7(o) shall have
occurred or if the Initial Purchasers shall decline to purchase the Notes for
any reason permitted under this Agreement.
SECTION 11. Reimbursement of Initial Purchasers' Expenses. If the
Issuers shall fail to deliver the Notes to the Initial Purchasers by reason of
any failure, refusal or inability on the part of the Issuers to perform any
agreement on its part to be performed, or because any other condition of the
Initial Purchasers' obligations hereunder required to be fulfilled by the
Issuers is not fulfilled, the Issuers will reimburse the Initial Purchasers for
all reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Initial Purchasers in connection with this Agreement
and the proposed purchase of the Notes, and upon demand the Issuers shall pay
the full amount thereof to Xxxxxx Brothers. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Initial
Purchasers, the Issuers will not be obligated to reimburse any defaulting
Initial Purchaser on account of those expenses.
SECTION 12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by mail,
telex or facsimile transmission to the care of Xxxxxx Brothers Inc., 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxx
(Fax: (000) 000-0000), with a copy to Weil, Gotshal & Xxxxxx LLP, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx, Esq. (Fax:
000-000-0000) and, in the case of any notice pursuant to Section 8(d), to
the Director of Litigation, Office of the General Counsel, Xxxxxx Brothers
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx (Fax: (000) 000-0000);
(b) if to the Issuers, shall be delivered or sent by mail, telex or
facsimile transmission to the Issuers, 000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, XX 00000, Attention: Xxxx X. Xxxxxxx (Fax: (000) 000-0000),
with a copy to Xxxxxx & Xxxxxxx LLP, 000 Xxxxxxxx Xxxxxx, XX, Xxxxx 0000,
Xxxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxx, Esq. (Fax: (000) 000-0000);
provided, however, that any notice to an Initial Purchaser pursuant to Section
8(c) shall be delivered or sent by mail, telex or facsimile transmission to such
Initial Purchaser at its address set forth in its acceptance telex to Xxxxxx
Brothers, which address will be supplied to any other party hereto by Xxxxxx
Brothers upon request; provided further that any notice to the Initial
Purchasers pursuant to Section 5(a) shall be delivered by email to Xxxxx
Xxxxxxxxx (xxxxxxxx@xxxxxx.xxx), Xxxx Xxxxxx (xxxxxxx@xxxxxx.xxx) and Xxxxx
Xxxxxx (xxxxxxx@xxxxxx.xxx) at Xxxxxx Brothers Inc. Any such statements,
requests, notices or agreements shall take effect at the time of receipt
thereof. The Issuers shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Initial Purchasers
by Xxxxxx Brothers.
25
SECTION 13. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Issuers and their respective personal representatives and successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the representations, warranties, indemnities and
agreements of the Issuers contained in this Agreement shall also be deemed to be
for the benefit of the directors, officers, employees of the Initial Purchasers
and each person or persons, if any, who control any Initial Purchasers within
the meaning of Section 15 of the Securities Act and (b) the indemnity agreement
of the Initial Purchasers contained in Section 8(b) of this Agreement shall be
deemed to be for the benefit of directors, officers, employees and any person
controlling the Issuers within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Issuers and the Initial Purchasers contained in
this Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Notes and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
SECTION 15. Definition of the Terms "Business Day" and "Subsidiary."
For purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the
Securities Act.
SECTION 16. Jurisdiction. Each of the parties hereto irrevocably
consents to the jurisdiction of the courts of the State of New York and the
courts of the United States of America located in the Borough of Manhattan, City
and State of New York, over any suit, action or proceeding with respect to this
Agreement or the transactions contemplated hereby. Each of the parties hereto
waives any objection that it may have to the venue of any suit, action or
proceeding with respect to this Agreement or the transactions contemplated
hereby in the courts of the State of New York or the courts of the United States
of America, in each case, located in the Borough of Manhattan, City and State of
New York or that such suit, action or proceeding brought in the courts of the
State of New York or United States of America, in each case, located in the
Borough of Manhattan, City and State of New York was brought in an inconvenient
court and agrees not to plead or claim the same.
SECTION 17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
SECTION 18. Counterparts. This Agreement may be executed in multiple
counterparts and, if executed in counterparts, the executed counterparts shall
each be deemed to be an original but all such counterparts shall together
constitute one and the same instrument.
26
SECTION 19. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
27
If the foregoing correctly sets forth the agreement among the Issuers
and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CBD MEDIA LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
CBD FINANCE, INC.
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
SIGNATURE PAGE TO PURCHASE AGREEMENT
Accepted:
Xxxxxx Brothers Inc.
By: /s/ Xxxx Xxxx
--------------------------
Authorized Representative
For itself and as representative
of the several Initial Purchasers named
in Schedule 1 hereto
SIGNATURE PAGE TO PURCHASE AGREEMENT
SCHEDULE 1
----------
Principal Amount
Initial Purchasers of Notes
-------------------------------------------------------- ----------------
Xxxxxx Brothers Inc. ................................ $ 97,500,000
Banc of America Securities LLC....................... 37,500,000
TD Securities (USA) Inc.............................. 15,000,000
Total $ 150,000,000
================
EXHIBIT A
---------
Registration Rights Agreement
EXHIBIT B
---------
Form of Xxxxxx & Xxxxxxx Opinion
