Exhibit 1.1
CONFORMED COPY
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XXX. XXXXXXXXXXX'X
MBW FOODS INC.
9 7/8% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
dated February 5, 1997
between
MBW FOODS INC.
and
CHASE SECURITIES INC.
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XXX. XXXXXXXXXXX'X
MBW FOODS INC.
$100,000,000
9 7/8% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
February 5, 1997
CHASE SECURITIES INC.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
MBW FOODS INC., a Delaware corporation (as more fully defined below,
the "Company"), proposes to issue and sell to CHASE SECURITIES INC. (the
"Initial Purchaser") $100,000,000 aggregate principal amount of its 9 7/8%
Senior Subordinated Notes due 2007 (the "Notes"). The Notes will be issued
pursuant to an Indenture to be dated as of February 10, 1997 (the "Indenture"),
among the Company and Wilmington Trust Company, as trustee (the "Trustee"). This
is to confirm the agreement concerning the purchase of the Notes from the
Company by the Initial Purchaser. For all purposes of this Agreement, the term
"Company" shall mean MBW Foods Inc.
The Notes will be offered and sold to the Initial Purchaser without
being registered under the Securities Act of 1933, as amended (the "Securities
Act"), in reliance on an exemption therefrom. The Company has prepared a
preliminary offering memorandum, dated January 21, 1997 (the "preliminary
offering memorandum"), and will prepare an offering memorandum dated the date
hereof (such offering memorandum, in the form furnished to the Initial Purchaser
for use in connection with the offering of the Notes, the "Offering
Memorandum"), setting forth information concerning the Company and the Notes.
Copies of the preliminary offering memorandum have been, and copies of the
Offering Memorandum will be delivered by the Company to the Initial Purchaser
pursuant to the terms of this Agreement. Any references herein to the
preliminary offering memorandum and the Offering Memorandum shall be deemed to
include all amendments and supplements thereto and all documents incorporated
therein by reference. The Company hereby confirms that it has authorized the use
of the preliminary offering memorandum and the Offering Memorandum in connection
with the offering and resale of the Notes by the Initial Purchaser in accordance
with Section 3 hereof.
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The Initial Purchaser and its direct and indirect transferees will be
entitled to the benefits of the Exchange and Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration Rights
Agreement"), pursuant to which the Company will agree to use its best efforts to
commence an offer to exchange the Notes for securities which have been
registered under the Securities Act, and which are identical in all material
respects to the Notes (except with respect to transfer restrictions), or to
cause a shelf registration statement to become effective under the Securities
Act and to remain effective for the period designated in such Registration
Rights Agreement.
The Company intends to use the proceeds of the Offering to repay
approximately $95.0 million of Existing Indebtedness (as defined in the Offering
Memorandum), to pay accrued and unpaid interest with respect to such
indebtedness and to pay certain fees and expenses incurred in connection with
the Offering.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents and warrants to and agrees with the Initial Purchaser that:
(a) Each of the preliminary offering memorandum and the Offering
Memorandum, as of its respective date, contains all the information that, if
requested by a prospective purchaser, would be required to be provided pursuant
to Rule 144A(d)(4) under the Securities Act. Each of the preliminary offering
memorandum and the Offering Memorandum, as of its date did not, and the Offering
Memorandum as of the Closing Date (as defined below), will not, contain any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading; provided, however, that
the Company makes no representation or warranty as to information contained in
or omitted from the preliminary offering memorandum or the Offering Memorandum,
as amended or supplemented, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Initial Purchaser
specifically for use therein (the "Initial Purchaser's Information"). The
parties acknowledge and agree that the Initial Purchaser's Information consists
solely of the statements relating to the Initial Purchaser in the second
sentence of the third paragraph, the third sentence of the fourth paragraph and
the sixth paragraph in its entirety under the heading "Plan of Distribution" in
the Offering Memorandum.
(b) It is not required by applicable law or regulation in connection
with the issuance and sale of the Notes to the Initial Purchaser and the offer,
resale and delivery of the Notes in the manner contemplated by this Agreement
and the Offering Memorandum, to register the Notes under the Securities Act or
to qualify the Indenture in respect of the Notes under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which its
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ownership or lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have, singularly
or in the aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company (a
"Material Adverse Effect"), and has the corporate power and authority necessary
to own or hold its respective properties and to conduct the businesses in which
it is engaged as described in the Offering Memorandum. The Company has no
subsidiaries.
(d) On the Closing Date the Company will have an authorized
capitalization of 3,000 shares of common stock, of which 1,000 are issued and
outstanding, and all of the issued shares of capital stock of the Company will
have been duly and validly authorized and issued, will be fully paid and
non-assessable.
(e) The Company has the corporate right, power and authority to
execute and deliver this Agreement, the Indenture, the Registration Rights
Agreement and the Notes (collectively, the "Transaction Documents") and to
perform its obligations hereunder and thereunder; and all corporate action
required to be taken for the due and proper authorization, execution and
delivery of the Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.
(f) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding agreement of the
Company.
(g) The Registration Rights Agreement has been duly authorized by the
Company, and when duly executed and delivered by the Company on the Closing
Date, will constitute a valid and legally binding agreement of the Company
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) or an implied covenant of good faith and fair dealing.
(h) The Indenture has been duly authorized by the Company, and when
duly executed and delivered by the Company and the Trustee on the Closing Date,
will constitute a valid and legally binding agreement of the Company enforceable
against the Company in accordance with its terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law) or
an implied covenant of good faith and fair dealing. At the Closing Date, the
Indenture will conform in all material respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission applicable to an
indenture which is qualified thereunder.
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(i) The Notes have been duly authorized by the Company, and, when duly
executed, authenticated, issued and delivered as provided in the Indenture and
paid for as provided herein, will be duly and validly issued and outstanding,
and will constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms and entitled to
the benefits of the Indenture, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) or an
implied covenant of good faith and fair dealing.
(j) The Transaction Documents and each of the Asset Purchase
Agreement, Co-Pack Agreement and Transition Services Agreement (as defined in
the Offering Memorandum) conform in all material respects to the description
thereof contained in the Offering Memorandum.
(k) The execution, delivery and performance of the Transaction
Documents by the Company, the issuance, authentication, sale and delivery of the
Notes, and compliance with the terms thereof will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company is a party or by which the Company is bound or
to which any of the property or assets of the Company is subject, nor will such
actions result in any violation of the provisions of the certificate of
incorporation or by-laws of the Company or, assuming the accuracy of the
representations and warranties of the Initial Purchaser contained herein, any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its properties or assets;
and except for such consents, approvals, authorizations, registrations or
qualifications as may be required under the applicable state securities laws in
connection with the purchase and resale of the Notes by the Initial Purchaser,
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 the Transaction Documents by the Company, the
issuance, authentication, sale and delivery of the Notes, and compliance with
the terms thereof, and the consummation by the Company of the transactions
contemplated thereby.
(l) Price Waterhouse LLP are independent public accountants with
respect to the Company as required by the Securities Act and the rules and
regulations thereunder for financial statements included in a definitive
prospectus forming part of a registration statement on Form S-1 under the
Securities Act. The historical financial statements (including the related notes
and supporting schedules, if any) included in the Offering Memorandum comply in
all material respects with the requirements applicable to a Registration
Statement on Form S-1 and have been prepared, and fairly present the financial
position of the entity purported to be shown thereby at the respective dates
indicated and, as
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applicable, the results of its operations and its cash flows for the respective
periods indicated, in accordance with generally accepted accounting principles
consistently applied throughout such periods; and the financial information and
financial data set forth in the Offering Memorandum under the captions "Summary
Pro Forma Financial Data", "Summary Historical Financial Data",
"Capitalization", "Selected Historical Financial" and "Pro Forma Financial
Information" are derived from the accounting records of the Company and fairly
present the data purported to be shown. The pro forma financial statements
contained in the Offering Memorandum have been prepared on a basis consistent
with such historical financial statements, except for the pro forma adjustments
specified therein, and include all material adjustments to the historical
financial data required to reflect the transactions described in the Offering
Memorandum, and give effect to assumptions made on a reasonable basis and
present fairly the historical and proposed transactions contemplated by the
Offering Memorandum and this Agreement.
(m) There are no pending actions or suits or judicial, arbitral,
rule-making or other administrative or other proceedings to which the Company is
a party or of which any property or assets of the Company is the subject which,
singularly or in the aggregate could reasonably be expected to have a Material
Adverse Effect; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(n) No action has been taken and no statute, rule or regulation or
order has been enacted, adopted or issued by any governmental agency or body
which prevents the issuance of the Notes or suspends the sale of the Notes in
any jurisdiction; no injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction has been issued with respect to
the Company which would prevent or suspend the issuance or sale of the Notes, or
the use of the preliminary offering memorandum or the Offering Memorandum in any
jurisdiction; no action, suit or proceeding is pending against or, to the best
of the Company's knowledge, threatened against or affecting the Company, before
any court or arbitrator or any governmental body, agency or official, domestic
or foreign, which could reasonably be expected to interfere with or adversely
affect the issuance of the Notes or in any manner draw into question the
validity thereof or in any manner draw into question the validity of the
Transaction Documents or any action taken or to be taken pursuant thereto.
(o) The Company (i) is not in violation of its certificate of
incorporation or by-laws, (ii) is not in default in any material respect, 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 material indenture, mortgage, deed of trust, loan
agreement or other agreement 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 and (iii) is not
in violation in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be subject.
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(p) The Company possesses all material licenses, certificates,
authorizations or permits issued by, and has made all declarations and filings
with, the appropriate state, federal or foreign regulatory agencies or bodies
which are necessary for the ownership of its properties or the conduct of its
business as described in the Offering Memorandum, except where the failure to
possess or make the same would not have, singularly or in the aggregate, a
Material Adverse Effect, and the Company has not received notification of any
revocation or modification of any such license, certificate, authorization or
permit nor has any reason to believe that any such license, certificate,
authorization or permit will not be renewed.
(q) The Company is not (i) an "investment company" or a company
"controlled by" an investment company within the meaning of the Investment
Company Act of 1940, as amended (the "Investment Company Act"), and the rules
and regulations of the Commission thereunder or (ii) a "holding company" or a
"subsidiary company" of a holding company, or an "affiliate" thereof within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(r) The Company owns or possesses adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct of
its business and has no reason to believe that the conduct of its business will
conflict with, and has not received any notice of any claim of conflict with,
any such rights of others.
(s) The Company has good and indefeasible title in fee simple to, or
has valid rights to lease or otherwise use, all items of real and personal
property which are material to the business of the Company, in each case free
and clear of all liens, encumbrances and defects except such as are described in
the Offering Memorandum or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be
made of such property by the Company or such as would not reasonably be expected
to have a Material Adverse Effect.
(t) No labor disturbance by the employees of the Company exists or, to
the best knowledge of the Company, is imminent which might be expected to have a
Material Adverse Effect.
(u) No "prohibited transaction" (as defined in Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), or Section 4975
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"))
or "accumulated funding deficiency" (as defined in Section 302 of ERISA) or any
of the events set forth in Section 4043(b) of ERISA (other than events with
respect to which the 30-day notice requirement
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under Section 4043 of ERISA has been waived) has occurred with respect to any
employee benefit plan of the Company which could have a Material Adverse Effect;
each such employee benefit plan is in compliance in all material respects with
applicable law, including ERISA and the Code; the Company has not incurred and
does not expect to incur liability under Title IV of ERISA with respect to the
termination of, or withdrawal from, any "pension plan"; and each "pension plan"
(as defined in ERISA) for which the Company 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 could cause the loss of such qualification.
(v) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of toxic
or other wastes or other hazardous substances by, due to, or caused by the
Company (or, to the best knowledge of the Company, any other entity, including
their predecessors, for whose acts or omissions the Company is or may be liable)
upon any of the property now or previously owned or leased by the Company, or
upon any other property, in violation of any statute or any ordinance, rule,
regulation, order, judgment, decree or permit or which would, under any statute
or any ordinance, rule (including rule of common law), regulation, order,
judgment, decree or permit, give rise to any liability, except for any violation
or liability which would not have, singularly or in the aggregate with all such
violations and liabilities, a Material Adverse Effect; there has been no
disposal, discharge, emission or other release of any kind onto such property or
into the environment surrounding such property of any toxic or other wastes or
other hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission, or other release of any kind
which would not have, singularly or in the aggregate with all such discharges
and other releases, a Material Adverse Effect.
(w) Since December 31, 1996 there has not been any change in the
capital stock or long-term debt of the Company (other than scheduled redemptions
or payments) or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the management, financial
position, stockholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Offering Memorandum.
(x) The Company has filed all federal, state, local and foreign income
and franchise tax returns required to be filed through the date hereof and has
paid all material taxes due thereon, and no tax deficiency has been determined
adversely to the Company which has had (nor does the Company have any knowledge
of any tax deficiency which, if determined adversely to the Company, might
reasonably be expected to have) a Material Adverse Effect.
(y) Except as set forth in or contemplated by the Offering Memorandum,
since December 31, 1996, the Company has not (i) issued or granted any
securities (other
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than under plans, agreements and arrangements disclosed in, and in effect on the
date of, the Offering Memorandum), (ii) incurred any liability or obligation,
direct or contingent, other than liabilities and obligations which were incurred
in the ordinary course of business, (iii) entered into any transaction not in
the ordinary course of business or (iv) declared or paid any dividend on its
capital stock.
(bb) There are no securities of the Company registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or listed on a
national securities exchange or quoted in a U.S. automated inter-dealer
quotation system.
(cc) Neither the Company nor any affiliate (as defined in Rule 501(b)
of Regulation D under the Securities Act ("Regulation D")) of the Company 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 will 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) in connection with the offering of the Notes.
(dd) Neither the Company nor its affiliates has taken, and the Company
will not take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation of
the price of the Notes.
(ee) None of the proceeds of the sale of the Notes will be used,
directly or indirectly, for the purpose of purchasing or carrying any margin
security, for the purpose of reducing or retiring any indebtedness which was
originally incurred to purchase or carry any margin security or for any other
purpose which might cause any of the Notes to be considered a "purpose credit"
within the meanings of Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
(ff) On the Closing Date, the Company (after giving effect to the
issuance of the Notes) will be Solvent. As used in this paragraph (ff), the term
"Solvent" means, with respect to a particular date, that on such date (i) the
aggregate fair value (or present fair salable value) of the assets of the
Company is not less than its total existing debts and liabilities (including
contingent liabilities) as they become absolute and matured in the normal course
of business and (ii) the Company does not have an unreasonably small amount of
capital with which to conduct its business. In computing the amount of such
contingent liabilities at any time, it is intended that such liabilities will be
computed at the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.
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(gg) Neither the Company nor to the best of the Company's knowledge,
any director, officer, agent, employee or other person associated with or acting
on behalf of the Company, has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback
or other unlawful payment.
(hh) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(ii) The Company has and will maintain insurance covering its
properties, operations, personnel and businesses, which insurance is in amounts
and insures against such losses and risks, in each case as is adequate in its
reasonable business judgment to protect the Company and its businesses. The
Company has not received notice from any insurer or agent of such insurer that
capital improvements or other expenditures will have to be made in order to
continue such insurance.
(jj) Except as described in "Certain Related Transactions" in the
Offering Memorandum, the Company is not a party to any contract, agreement or
understanding with any person that would give rise to a valid claim against the
Company or the Initial Purchaser for a brokerage commission, finder's fee or
like payment.
(kk) The Notes satisfy the eligibility requirements of Rule 144A(d)(3)
under the Securities Act.
2. PURCHASE OF THE NOTES BY THE INITIAL PURCHASER. (a) On the basis of
the representations, warranties and agreements herein contained, and subject to
the terms and conditions set forth herein, the Company agrees to issue and sell
to the Initial Purchaser, and the Initial Purchaser agrees to purchase from the
Company, $100,000,000 aggregate principal amount of the Notes, at a purchase
price equal to 97% of the principal amount thereof by wire transfer of
immediately available funds.
(b) The Company shall not be obligated to deliver any of the Notes,
except upon payment for all of the Notes to be purchased as provided herein.
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3. SALE AND RESALE OF THE NOTES BY THE INITIAL PURCHASER. (a) The
Initial Purchaser has advised the Company that it proposes to offer the Notes
for resale upon the terms and conditions set forth in this Agreement and in the
Offering Memorandum. The Initial Purchaser hereby represents and warrants to,
and agrees with, the Company that it (i) is purchasing the Notes pursuant to a
private sale exempt from registration under the Securities Act, (ii) will not
solicit offers for, or offer or sell, the Notes by means of any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act, and (iii) will solicit offers
for the Notes only from, and will offer, sell or deliver the Notes, as part of
its initial offering, only to (A) persons in the United States whom the Initial
Purchaser reasonably believes to be qualified institutional buyers ("Qualified
Institutional Buyers") as defined in Rule 144A under the Securities Act, as such
rule may be amended from time to time ("Rule 144A") or, if any such person is
buying for one or more institutional accounts for which such person is acting as
fiduciary or agent, only when such person has represented to it that each such
account is a Qualified Institutional Buyer to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A and in each case,
in transactions under Rule 144A and (B) to a limited number of other accredited
investors ("Accredited Investors") as defined in Rule 501(a)(1)(2), (3) or (7)
under Regulation D that are institutional investors in private sales exempt from
registration under the Securities Act.
(b) The Company acknowledges and agrees that the Initial Purchaser may
sell Securities to any affiliate of the Initial Purchaser and that any such
affiliate may sell Securities purchased by it to the Initial Purchaser.
4. DELIVERY OF AND PAYMENT FOR THE NOTES. (a) Delivery of and payment
for the Notes shall be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx, New
York, New York, or at such other place as shall be agreed upon by the Initial
Purchaser and the Company, at 10:00 A.M., New York City time, on ________ __,
1997 or at such other time or date, not later than seven full business days
thereafter, as shall be agreed upon by the Initial Purchaser and the Company
(such date and time of payment and delivery being herein called the "Closing
Date").
(b) On the Closing Date, payment of the purchase price for the Notes
shall be made to the Company by wire transfer of same-day funds to such account
or accounts as the Company shall specify prior to the Closing Date or by such
other means as the parties hereto shall agree prior to the Closing Date against
delivery to the Initial Purchaser of the certificates evidencing the Notes. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligations of the Initial
Purchaser hereunder. Upon delivery, the Notes shall be in global form,
registered in such names and in such denominations as the Initial Purchaser
shall request in writing not less than two full business days prior to the
Closing Date. For the purpose of expediting the checking and packaging of
certificates evidencing the Notes, the Company agrees to make
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such certificates available for inspection by the Initial Purchaser at least 24
hours prior to the Closing Date.
5. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the
Initial Purchaser:
(a) To furnish to the Initial Purchaser, without charge, as many
copies of the Offering Memorandum and any supplements and amendments thereto as
it may reasonably request.
(b) To advise the Initial Purchaser promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes any
statement of a material fact made in the Offering Memorandum untrue or which
requires the making of any additions to or changes in the Offering Memorandum
(as amended or supplemented from time to time) in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading and not to effect such amendment or supplementation without the
consent of the Initial Purchaser; to advise the Initial Purchaser promptly of
any order preventing or suspending the use of the preliminary offering
memorandum or the Offering Memorandum, or the suspension of the qualification of
the Securities for offering or sale in any jurisdiction and of the initiation or
threatening of any proceeding for any such purpose; and to use reasonable best
efforts to prevent the issuance of any such order preventing or suspending the
use of the preliminary offering memorandum or the Offering Memorandum or
suspending any such qualification and, if any such suspension is issued, to
obtain the lifting thereof at the earliest possible time.
(c) Prior to making any amendment or supplement to the Offering
Memorandum, the Company shall furnish a copy thereof to the Initial Purchaser
and counsel to the Initial Purchaser and will not effect any such amendment or
supplement to which the Initial Purchaser shall reasonably object by notice to
the Company after a reasonable period to review, which shall not in any case be
longer than five business days after receipt of such copy.
(d) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchaser to other purchasers, any event shall occur or
condition exist as a result of which it is necessary, in the opinion of counsel
for the Initial Purchaser or counsel for the Company, to amend or supplement the
Offering Memorandum in order that the Offering Memorandum will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in light of the
circumstances existing at the time it is delivered to a purchaser, or if it is
necessary to amend or supplement the Offering Memorandum to comply with
applicable law, to promptly prepare such amendment or supplement as may be
necessary to correct such untrue statement or omission or so that the Offering
Memorandum, as so amended or supplemented, will comply
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with applicable law and to furnish to the Initial Purchaser such number of
copies thereof as it may reasonably request.
(e) So long as the Notes are outstanding and are "Restricted
Securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
furnish to holders of the Notes and prospective purchasers of Notes 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
Securities Act, unless the Company is then subject to and in compliance with
Section 13 or 15(d) of the Exchange Act.
(f) For a period of five years following the Closing Date, to furnish
to the Initial Purchaser copies of any annual reports, quarterly reports and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar forms as may be designated by the Commission, and such other
documents, reports and information as shall be furnished by the Company to the
Trustee or to the holders of the Notes pursuant to the Indenture or the Exchange
Act or any rule or regulation of the Commission thereunder.
(g) To use its reasonable best efforts to qualify the Notes for sale
under the securities or Blue Sky laws of such jurisdictions as the Initial
Purchaser may reasonably designate and to continue such qualifications in effect
so long as required for the distribution of the Notes. The Company will also
arrange for the determination of the eligibility for investment of the Notes
under the laws of such jurisdictions as the Initial Purchaser may reasonably
request. Notwithstanding the foregoing, the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which they are not so
qualified or to file a general consent to service of process in any
jurisdiction.
(h) To use its reasonable best efforts to permit the Notes to be
designated Private Offerings, Resales and Trading through Automated Linkages
Market ("PORTAL") securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. ("NASD")
relating to trading in the PORTAL Market and to permit the Notes to be eligible
for clearance and settlement through the Depository Trust Company (the "DTC").
(i) Not to, and will cause its affiliates (as such term is defined in
Rule 501(B) under the Securities Act) not to, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect (except as contemplated in the
Offering Memorandum or hereby) of any security (as defined in the Securities
Act) which could be integrated with the sale of the Notes in a manner which
would require the registration of the Notes under the Securities Act.
(j) Except following the effectiveness of the Exchange Offer or the
Shelf Registration Statement, as the case may be, not to, and will cause its
affiliates (as such term is defined in Rule 501(B) under the Securities Act) not
to, and will not authorize or
13
knowingly permit any person acting on their behalf to, solicit any offer to buy
or offer to sell the Notes by means of any form of general solicitation or
general advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Securities Act.
(k) To apply the net proceeds from the sale of the Notes as set forth
in the Offering Memorandum.
(l) For a period of 90 days from the date of the Offering Memorandum,
not to offer for sale, sell, contract to sell or otherwise dispose of, directly
or indirectly, or file a registration statement for, or announce any offer,
sale, contract for sale of or other disposition of any debt securities issued or
guaranteed by the Company or any of its subsidiaries (other than the Notes)
without the prior written consent of the Initial Purchaser.
(m) In connection with the offering, until the Initial Purchaser shall
have notified the Company of the completion of the resale of the Notes, neither
the Company nor any of its affiliated purchasers (as defined in Rule 10b-6 under
the Exchange Act), either alone or with one or more other persons, will bid for
or purchase, for any account in which it or any of its affiliated purchasers has
a beneficial interest, any Notes, or attempt to induce any person to purchase
any Notes; and neither it nor any of its affiliated purchasers will make bids or
purchase for the purpose of creating actual, or apparent, active trading in or
of raising the price of the Notes.
6. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of
the Initial Purchaser hereunder are subject to the accuracy, on the date hereof
and on the Closing Date, of the representations and warranties of the Company
contained herein, to the accuracy of the statements of the Company made in any
certificates delivered pursuant to provisions hereof, to the performance by the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Initial Purchaser shall not have discovered and disclosed to
the Company on or prior to the Closing Date that the Offering Memorandum or any
amendment or supplement thereto contains an untrue statement of a fact which, in
the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchaser, is
material or omits to state a fact which, in the opinion of such counsel is
material and is required to be stated therein or is necessary to make the
statements therein not misleading; and no stop order suspending the sale of the
Securities in any jurisdiction shall have been issued and no proceeding for that
purpose shall have been commenced or shall be pending or threatened.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents, the Notes
and the Offering Memorandum, and all other legal matters relating to the
Transaction Documents and the transactions contemplated thereby shall be
reasonably satisfactory in all material respects
14
to counsel for the Initial Purchaser, and the Company shall have furnished to
such counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(c) White & Case shall have furnished to the Initial Purchaser their
written opinion, as counsel to the Company, addressed to the Initial Purchaser
and dated the Closing Date, in form and substance reasonably satisfactory to the
Initial Purchaser, substantially to the effect set forth in Exhibit B hereto.
(d) The Initial Purchaser shall have received from Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel for the Initial Purchaser, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Initial Purchaser may
reasonably require, and the Company shall have furnished to such counsel such
documents and information as they reasonably request for the purpose of enabling
them to pass upon such matters.
(e) With respect to the letters of Price Waterhouse LLP delivered to
the Initial Purchaser concurrently with the execution of this Agreement (the
"Initial Letters"), the Company shall have furnished to the Initial Purchaser
letters (the "Bring-Down Letters") addressed to the Initial Purchaser and dated
the Closing Date (i) confirming that they are independent public accountants
within the meaning of Rule 101 of the American Institute of Certified Public
Accountants' Code of Professional Conduct and its rulings and interpretations;
(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 such Bring-Down Letters), that
the conclusions and findings of the firm with respect to the financial
information and other matters covered by the initial letter are accurate and
(iii) confirming in all material respects the conclusions and findings set forth
in their initial letters.
(f) The Company shall have furnished to the Initial Purchaser a
certificate, dated the Closing Date, of its President or any Vice President and
its chief financial officer stating that (A) such officers have carefully
examined the Offering Memorandum, (B) in their opinion, as of the date hereof
the Offering Memorandum did not include any untrue statement of a material fact
and did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and since the date
hereof, no event has occurred which should have been set forth in a supplement
or amendment to the Offering Memorandum and (C) to the best of their knowledge
after reasonable investigation, as of the Closing Date, the representations and
warranties of the Company in this Agreement are true and correct, the Company
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, and subsequent
to the date of the most recent financial statements in the Offering Memorandum,
there has been no material adverse change in the financial position or results
of operations of the Company, or any change, or any development including a
prospective
15
change, in or affecting the condition (financial or otherwise), results of
operations, business or prospects of the Company, except as set forth in the
Offering Memorandum.
(g) The Initial Purchaser shall have received on the date hereof the
Registration Rights Agreement executed and delivered by duly authorized officers
of the Company.
(h) The Notes shall have been approved by the NASD for trading in the
PORTAL Market.
(i) The Indenture shall have been duly executed and delivered by the
Company and the Trustee and the Notes shall have been duly executed and
delivered by the Company and duly authenticated by the Trustee.
(j) If any event shall have occurred that requires the Company under
Section 5(c) hereof to prepare an amendment or supplement to the Offering
Memorandum, such amendment or supplement shall have been prepared, the Initial
Purchaser shall have been given a reasonable opportunity to comment thereon, and
copies thereof shall have been delivered to the Initial Purchaser reasonably in
advance of the Closing Date.
(k) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal of any
rule or regulation under the Securities Act or the Exchange Act by the
Commission or any amendment or proposed amendment thereof by the Commission
which in the reasonable judgment of the Initial Purchaser would materially
impair the ability of the Initial Purchaser to purchase, hold or effect resales
of the Notes as contemplated hereby.
(l) At the Closing Date, there shall exist no default or event of
default under the Indenture or the Senior Credit Facilities (as defined in the
Offering Memorandum).
(m) Since December 31, 1996, except for the transactions contemplated
by the Offering Memorandum, there shall not have been any change in the capital
stock or long-term debt of the Company or any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), results of operations, business or prospects of the Company, the
effect of which, in any such case described above, is, in the reasonable
judgment of the Initial Purchaser, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the Notes
on the terms and in the manner contemplated in the Offering Memorandum
(exclusive of any supplement).
(n) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Notes by any
"nationally recognized statistical rating organization," as that term is defined
by the Commission for purposes of Rule 436(g)(2) of the rules and regulations of
the Commission under the
16
Securities Act, and (ii) no such organization shall have publicly announced that
it has under surveillance or review (other than an announcement with positive
implications of a positive upgrading) its rating of the Notes.
(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, the American Stock Exchange or the
over-the-counter market shall have been suspended or limited, 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, or trading in any securities of the Company on
any exchange or in the over-the-counter market shall have been suspended or,
(ii) a general moratorium on commercial banking activities shall have been
declared by Federal or New York State authorities, or (iii) an outbreak or
escalation of hostilities or a declaration by the United States of a national
emergency or war, or (iv) a material adverse change in general economic,
political or financial conditions (or the effect of international conditions on
the financial markets in the United States shall be such) the effect of which,
in the case of this clause (iv), is, in the reasonable judgment of the Initial
Purchaser, so material and adverse as to make it impracticable or inadvisable to
proceed with the sale or delivery of the Notes on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum (exclusive of any
supplement).
(p) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
which would, as of the Closing Date, prevent the issuance or sale of the Notes;
and no injunction, restraining order or order of any other nature by a federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the Notes.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchaser.
7. TERMINATION. The obligations of the Initial Purchaser hereunder may
be terminated by the Initial Purchaser, in its absolute discretion, by notice
given to and received by the Company prior to delivery of and payment for the
Notes if, prior to that time, any of the events described in Sections 6(k), (m),
(n), (o) or (p) shall have occurred and be continuing.
8. REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If (a) this
Agreement shall have been terminated pursuant to Section 7, (b) the Company
shall fail to tender the Notes for delivery to the Initial Purchaser for any
reason permitted under this Agreement or (c) the Initial Purchaser shall decline
to purchase the Notes for any reason permitted under this Agreement, the Company
shall reimburse the Initial Purchaser for the
17
reasonable fees and expenses of its counsel and for such other reasonable
out-of-pocket expenses as shall have been reasonably incurred by the Initial
Purchaser in connection with this Agreement and the proposed purchase of the
Notes.
9. INDEMNIFICATION. (a) The Company shall indemnify and hold harmless
the Initial Purchaser, its affiliates, and its officers, directors, employees,
representatives and agents, and each person, if any, who controls the Initial
Purchaser within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 9 and Section 10 as the
Initial Purchaser) 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
Notes), to which that Initial Purchaser may become subject, under the Securities
Act, the Exchange Act or any other federal or state statutory law or regulation,
at common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary offering
memorandum or the Offering Memorandum or in any amendment or supplement thereto
or any information provided by the Company pursuant to Section 5(e) hereof or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and shall reimburse the Initial Purchaser promptly upon demand for any legal or
other expenses reasonably incurred by the Initial Purchaser in connection with
investigating or defending or preparing to defend against or appearing as a
third party witness in connection with any such loss, claim, damage, liability
or action as such expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, an untrue statement
or alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with any Initial Purchaser's
Information; and provided further that with respect to any such untrue statement
or omission made in the preliminary offering memorandum, the indemnity agreement
contained in this Section 9(a) shall not inure to the benefit of the Initial
Purchaser, to the extent that the sale to the person asserting any such loss,
claim, damage, liability or action was an initial resale by the Initial
Purchaser and any such loss, claim, damage, liability or action is a result of
the fact that both (i) to the extent required by applicable law, a copy of the
Offering Memorandum was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes to such person, and (ii) the
untrue statement or omission in the preliminary offering memorandum was
corrected in the Offering Memorandum unless, in either case, such failure to
deliver the Offering Memorandum was a result of non-compliance by the Company
with Section 5(c).
(b) The Initial Purchaser shall indemnify and hold harmless the
Company, its affiliates, and its officers, directors, employees, representatives
and agents, and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act (collectively referred to for purposes
of this Section 9 and Section 10 as the Company),
18
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject, under the
Securities Act, the Exchange Act or any other federal or state statutory law or
regulation, at common law or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
offering memorandum or the Offering Memorandum or in any amendment or supplement
thereto or (ii) the omission or alleged omission to state therein a material
fact required to be stated therein or necessary 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 the Initial Purchaser's Information, and shall
reimburse the Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
9 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 9, 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 9 except to the extent that such
indemnifying party 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 9. If any such claim or action shall be brought against an
indemnified party, it shall notify the indemnifying party thereof, and 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 9 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 each indemnified party shall
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (3) a conflict
or potential conflict exists (based on advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice
19
of the commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment 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.
The obligations of the Company and the Initial Purchaser in this
Section 9 and in Section 10 are in addition to any other liability which the
Company or the Initial Purchaser, as the case may be, may otherwise have.
10. CONTRIBUTION. If the indemnification provided for in Section 9 is
unavailable or insufficient to hold harmless an indemnified party under Section
9(a) or 9(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchaser on
the other from the offering of the 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 Company on the one hand and the Initial
Purchaser 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 Company on the one hand and the Initial Purchaser 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 Company, on the one hand,
and the total discounts and commissions received by the Initial Purchaser 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, in
each case as set forth in the table on the cover page of the Offering
Memorandum. The relative fault shall be determined by reference to, among other
things, 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 Company on the one hand or the Initial Purchaser's Information
on the other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue
20
statement or omission. The Company and the Initial Purchaser agree that it would
not be just and equitable if contributions pursuant to this Section 10 were to
be determined by pro rata allocation 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 10 shall be deemed to include, for purposes of this Section 10, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, Initial Purchaser shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Notes sold and distributed by it was offered to purchasers
exceeds the amount of any damages which the Initial Purchaser has otherwise paid
or become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
11. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchaser, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 10 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Company and the Initial
Purchaser and in Section 5(f) with respect to holders and prospective purchasers
of the Notes. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 11, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
12. EXPENSES. The Company agrees with the Initial Purchaser to pay (a)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Notes and any taxes payable in that connection, (b) the costs
incident to the preparation and printing of the preliminary offering memorandum
and the Offering Memorandum and any amendments or supplements thereto, (c) the
costs of distributing the preliminary offering memorandum and the Offering
Memorandum and any amendments or supplements thereto, (d) the costs of printing,
reproducing and distributing the Transaction Documents, (e) the costs incident
to the preparation, printing and delivery of the certificates representing the
Notes, including stamp duties and stock transfer taxes, if any, payable upon
issuance of any of the Notes, (f) the fees and disbursements of the Company's
counsel and accountants, (g) the fees and disbursements of accountants for the
Company and the Predecessor (as defined in the Offering Memorandum), (h) any
fees charged by rating agencies for rating the Notes, (i) the fees and expenses
of qualifying the Notes under securities laws of the several jurisdictions as
provided in Section 5(g) and of preparing, printing and distributing a Blue Sky
memorandum (including related reasonable fees and expenses of Xxxxxxx Xxxxxxx &
Xxxxxxxx, counsel to the Initial Purchaser), (j) the fees and expenses of the
Trustee and any paying agent,
21
(including related fees and expenses of any counsel for such parties), (k) all
expenses and listing fees incurred in connection with the application for
quotation of the Notes on the PORTAL Market and the approval of the Notes for
book-entry transfer by The Depository Trust Company, and (l) all other
reasonable costs and expenses incident to the performance of the Company's
obligations hereunder which are not otherwise specifically provided for in this
Section; provided, however, that except as provided in this Section 12 and
Section 8, the Initial Purchaser shall pay its own costs and expenses, including
the costs and expenses of its counsel.
13. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company and the Initial
Purchaser contained in this Agreement or made by or on behalf 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 termination or cancellation of this Agreement or any investigation made by
or on behalf of any of them or any person controlling any of them.
14. NOTICES. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchaser, shall be delivered or sent by
mail or facsimile transmission to Chase Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxx (Fax:
000-000-0000); or
(b) if to the Company, shall be delivered or sent by mail or
facsimile transmission to the address of the Company: 000 Xxxxxxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000, Attn: Xxxxxx Xxxxxxx, with a copy to
Xxxxx Xxxxxx, Esq., White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
provided, however, that any notice to the Initial Purchaser pursuant to Section
9(c) shall be delivered or sent by mail to the Initial Purchaser at 000 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department. Any
such statements, requests, notices or agreements shall take effect at the time
of receipt thereof.
15. DEFINITION OF TERMS. For purposes of this Agreement, "business
day" means any day on which the New York Stock Exchange, Inc. is open for
trading.
16. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York but without giving effect
to applicable principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby.
22
17. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. AMENDMENTS. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
19. HEADINGS. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
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 will become a binding agreement among the Company and the
Initial Purchaser in accordance with its terms.
Very truly yours,
MBW FOODS INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President
Accepted:
CHASE SECURITIES INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
Authorized Signatory
EXHIBIT A
FORM OF REGISTRATION RIGHTS AGREEMENT
________ __, 1997
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
MBW Foods Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to you (the "Initial Purchaser"), upon the terms set forth in a
purchase agreement dated ________ __, 1997 (the "Purchase Agreement"),
$100,000,000 principal amount of its 9 7/8% Senior Subordinated Securities due
2007 (the "Securities") which Securities shall be unsecured and will be
subordinated to all existing and future Senior Indebtedness of the Company and
will be effectively subordinated to all obligations of each subsidiary of the
Company as may exist from time to time. Capitalized terms used but not
specifically defined herein have the respective meanings ascribed thereto in the
Purchase Agreement. As an inducement to the Initial Purchaser to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company agrees with you, for the benefit of the holders of the
Securities (including the Initial Purchaser) (the "Holders"), as follows:
1. Registered Exchange Offer. The Company shall prepare and, not later
than 60 days following the Issue Date (as hereinafter defined), shall file with
the Commission a registration statement (the "Exchange Offer Registration
Statement") on an appropriate form under the Securities Act with respect to a
proposed offer (the "Registered Exchange Offer") to the Holders to issue and
deliver to such Holders, in exchange for the Securities, a like aggregate
principal amount of debt securities of the Company (the "Exchange Securities")
identical in all material respects to the Securities, except for the transfer
restrictions relating to the Securities, shall use its reasonable best efforts
to cause the Exchange Offer Registration Statement to become effective under the
Securities Act no later than 150 days after the Issue Date and to be consummated
no later than 180 days after the Issue Date, and shall keep the Exchange Offer
Registration Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date notice of the Exchange Offer is
mailed to the Holders (such period being called the "Exchange Offer Registration
Period"). The Exchange Securities will be issued under the Indenture or an
indenture (the "Exchange Securities Indenture") between the Company and the
Trustee or such other bank or trust company reasonably satisfactory to you, as
trustee (the "Exchange Securities
2
Trustee"), such indenture to be identical in all material respects to the
Indenture except for the transfer restrictions relating to the Securities (as
described above).
Upon the effectiveness of the Exchange Offer Registration Statement,
the Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Securities for Exchange Securities (assuming that such Holder (a) is
not (i) an affiliate of the Company within the meaning of the Securities Act or
(ii) an Exchanging Dealer (as defined below) not complying with the requirements
of the next sentence, (b) acquires the Exchange Securities in the ordinary
course of such Holder's business and (c) has no arrangements or understandings
with any person to participate in the distribution of the Exchange Securities)
and to trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States. The Company, the Initial Purchaser and each Exchanging Dealer (as
defined below) acknowledge that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Securities Act, (i) each Holder which is
a broker-dealer electing to exchange Securities, acquired for its own account as
a result of market making activities or other trading activities, for Exchange
Securities (an "Exchanging Dealer"), is required to deliver a prospectus
containing the information set forth in Annex A hereto on the cover, in Annex B
hereto in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section, and in Annex C hereto in the "Plan of Distribution"
section of such prospectus in connection with a sale of any such Exchange
Securities received by such Exchanging Dealer pursuant to the Registered
Exchange Offer and (ii) if the Initial Purchaser elects to sell Exchange
Securities acquired in exchange for Securities constituting any portion of an
unsold allotment it is required to deliver a prospectus containing the
information required by Items 507 or 508 of Regulation S-K under the Securities
Act, as applicable, in connection with such a sale.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange offer open for not less than 30 days
after the date notice of the Exchange Offer is mailed to the Holders (or
longer if required by applicable law);
(c) utilize the services of a Depositary for the Registered Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
3
(d) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last business day on which
the Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all laws applicable to the
Registered Exchange Offer.
As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(a) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the case
may be, promptly to authenticate and deliver to each Holder of Securities,
Exchange Securities equal in principal amount to the Securities of such
Holder so accepted for exchange.
The Company shall make available for a period of 90 days after the
consummation of the Registered Exchange Offer, a copy of the prospectus forming
part of the Exchange Offer Registration Statement to any broker-dealer for use
in connection with any resale of any Exchange Securities.
Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date on which interest
was paid on the Securities surrendered in exchange therefor or, if no interest
has been paid on the Securities, from the date of original issue of the
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company that at the time of the consummation of the
Registered Exchange Offer (i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business, (ii) such Holder will have
no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act and (iii) such Holder is not an affiliate of the Company
within the meaning of the Securities Act, or if it is an affiliate, it will
comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable.
Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus
4
forming part thereof and any supplement thereto complies in all material
respects with the Securities Act and the rules and regulations thereunder, (ii)
any Exchange Offer Registration Statement and any amendment thereto does not,
when it becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein not misleading and (iii) any prospectus forming part of
any Exchange Offer Registration Statement, and any supplement to such
prospectus, does not include, as of the consummation of the Registered Exchange
Offer, an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
2. Shelf Registration. If (i) applicable interpretations of the staff
of the Commission do not permit the Company to effect the Registered Exchange
Offer as contemplated by Section 1 hereof, or (ii) for any other reason the
Registered Exchange Offer is not consummated within 165 days after the Issue
Date or (iii) any Holder either (A) is not eligible to participate in the
Registered Exchange Offer or (B) participates in the Registered Exchange Offer
and does not receive freely transferrable Exchange Securities in exchange for
tendered Securities the following provisions shall apply:
(a) The Company shall use all reasonable efforts to as promptly as
practicable file with the Commission and thereafter shall use its reasonable
best efforts to cause to be declared effective a shelf registration statement on
an appropriate form under the Securities Act relating to the offer and sale of
the Transfer Restricted Securities (as defined below) by the Holders from time
to time in accordance with the methods of distribution set forth in such
registration statement (hereafter, a "Shelf Registration Statement" and,
together with any Exchange Offer Registration Statement, a "Registration
Statement"); provided, however, that no Holder of Securities or Exchange
Securities (other than the Initial Purchaser) shall be entitled to have
Securities or Exchange Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder.
(b) The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus forming part thereof to be usable by Holders for a period of three
years from the Issue Date or such shorter period that will terminate when all
the Securities and Exchange Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its reasonable best efforts to keep the
Shelf Registration Statement effective during the requisite period if it
voluntarily takes any action that would result in Holders of Securities or
Exchange Securities covered thereby not being able to offer and sell such
Securities or Exchange Securities during that period, unless such action is
required by applicable law; provided, however, that the foregoing shall not
apply to actions taken by the Company in good faith and for valid business
reasons (not including avoidance of its obligations hereunder), including,
without limitation, the acquisition or divestiture of
5
assets, so long as the Company within 120 days thereafter complies with the
requirements of Section 4(i) hereof. Any such period during which the Company
fails to keep the registration statement effective and usable for offers and
sales of Securities and Exchange Securities is referred to as a "Suspension
Period." A Suspension Period shall commence on and include the date that the
Company gives notice that the Shelf Registration Statement is no longer
effective or the prospectus included therein is no longer usable for offers and
sales of Securities and Exchange Securities and shall end on the date when each
Holder of Securities and Exchange Securities covered by such registration
statement either receives the copies of the supplemented or amended prospectus
contemplated by Section 4(i) hereof or is advised in writing by the Company that
use of the prospectus may be resumed. If one or more Suspension Periods occur,
the three-year time period referenced above shall be extended by the number of
days included in each such Suspension Period.
(c) Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Shelf Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment thereto (in
either case, other than with respect to information included therein in reliance
upon or in conformity with written information furnished to the Company by or on
behalf of any Holder specifically for use therein (the "Holders' Information"))
does not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any prospectus forming
part of any Shelf Registration Statement, and any supplement to such prospectus
(in either case, other than with respect to Holders' Information), does not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
3. Liquidated Damages. (a) The parties hereto agree that the Holders
of Securities will suffer damages if the Company fails to fulfill its
obligations under Section 1 or Section 2, as applicable, and that it would not
be feasible to ascertain the extent of such damages. Accordingly, if (i) the
applicable Registration Statement is not filed with the commission on or prior
to 60 days after the Issue Date, (ii) the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, is not declared
effective within 150 days after the Issue Date (or in the case of a Shelf
Registration Statement required to be filed in response to a change in law or
the applicable interpretations of Commission's Staff, if later, within 45 days
after publication of the change in law or interpretation), (iii) the Registered
Exchange Offer is not consummated on or prior to 180 days after the Issue Date,
or (iv) the Shelf Registration Statement is filed and declared effective within
150 days after the Issue Date (or in the case of a Shelf Registration Statement
required to be filed in response to a change in law or the applicable
interpretations of Commission's Staff, if later, within 45 days after
publication of the change in law or interpretation) but shall thereafter cease
to be effective (at any time that the Company is obligated to maintain the
effectiveness
6
thereof) without being succeeded within 60 days by an additional Registration
Statement filed and declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company will generally be
obligated to pay liquidated damages to each holder of Transfer Restricted
Securities (as defined below), during the period of such Registration Default,
in an amount equal to $0.192 per week per $1,000 principal amount of the
Securities constituting Transfer Restricted Securities held by such holder until
the applicable Registration Statement is filed or declared effective, the
Registered Exchange Offer is consummated or the Shelf Registration Statement
again becomes effective, as the case may be; provided, however, no liquidated
damages shall be payable for a Registration Default under clause (iii) above if
a Shelf Registration Statement covering the securities for which the Exchange
Offer was intended shall have been declared effective. Following the cure of all
Registration Defaults, the accrual of liquidated damages will cease. "Transfer
Restricted Securities" means each Security or Exchange Security until (i) the
date on which such Security or Exchange Security has been exchanged for a freely
transferrable Exchange Security in the Registered Exchange Offer, (ii) the date
on which such Security or Exchange Security has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement or (iii) the date on which such Security or Exchange
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or is salable pursuant to Rule 144(k) under the Securities Act.
Notwithstanding anything to the contrary in this Section 3(a), the Company shall
not be required to pay liquidated damages to the holder of Transfer Restricted
Securities if such holder: (a) failed to comply with its obligations to make the
representations in the second to last paragraph of Section 1; or (b) failed to
provide the information required to be provided by it, if any, pursuant to
Section 4(m).
(b) The Company shall notify the Trustee and the Paying Agent under
the Indenture immediately upon the happening of each and every Registration
Default. The Company shall pay the liquidated damages due on the Transfer
Restricted Securities by depositing with the Paying Agent (which may not be the
Company for these purposes), in trust, for the benefit of the Holders thereof,
prior to 10:00 a.m., New York City time on the next interest payment date
specified by the Indenture and the Securities, sums sufficient to pay the
liquidated damages then due. The liquidated damages due shall be payable on each
interest payment date specified by the Indenture to the record holder entitled
to receive the interest payment to be made on such date. Each obligation to pay
liquidated damages shall be deemed to accrue from and including the applicable
Registration Default.
(c) The parties hereto agree that the liquidated damages provided for
in this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by holders of Transfer
Restricted Securities by reason of the failure of the Shelf Registration
Statement or the Exchange Offer Registration Statement, as the case may be, to
be filed, to be declared effective or to remain effective, or the Exchange Offer
to be consummated, as the case may be, to the extent required by this Agreement.
7
4. Registration Procedures. In connection with any Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to you, prior to the filing thereof
with the Commission, a copy of the Registration Statement and each amendment
thereof and each supplement, if any, to the prospectus included therein and, in
the event that the Initial Purchaser (with respect to any portion of an unsold
allotment from the original offering) is participating in the Registered
Exchange Offer or the Shelf Registration, shall use reasonable efforts to
reflect in each such document, when so filed with the Commission, such comments
as you reasonably may propose; (ii) if applicable, include the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
C hereto in the "Plan of Distribution" section of the prospectus forming a part
of the Exchange Offer Registration Statement, and include the information set
forth in Annex D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and (iii) if requested by the Initial Purchaser,
include the information required by Items 507 or 508 of Regulation S-K under the
Securities Act, as applicable, in the prospectus forming a part of the Exchange
Offer Registration Statement.
(b) The Company shall advise you and, if requested by the Holders, but
only as to events set forth in clauses (i) and (ii) below, the Holders and, if
requested by you, confirm such advice in writing (which advice pursuant to
clauses (ii)-(iv) hereof shall be accompanied by an instruction to suspend the
use of the prospectus until the requisite changes have been made):
(i) when any Registration Statement and any amendment thereto has been
filed with the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
any Registration Statement or the prospectus included therein or for
additional information;
(iii) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities or the Exchange
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(iv) of the happening of any event that requires the making of any
changes in any Registration Statement or the prospectus so that, as of such
date, the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
8
(c) The Company will furnish to each Holder of Transfer Restricted
Securities included within the coverage of any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits (including those
incorporated by reference).
(d) The Company will, during the Shelf Registration Period, promptly
deliver to each Holder of Transfer Restricted Securities included within the
coverage of any Shelf Registration Statement, without charge, as many copies of
the prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of the prospectus or
any amendment or supplement thereto by each of the selling Holders of Transfer
Restricted Securities in connection with the offering and sale of the Transfer
Restricted Securities covered by the prospectus or any amendment or supplement
thereto.
(e) The Company will furnish to each Exchanging Dealer or the Initial
Purchaser, as applicable, which so requests, without charge, at least one copy
of the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Exchanging
Dealer or Initial Purchaser, as applicable, so requests in writing, all exhibits
(including those incorporated by reference).
(f) The Company will, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer or the Initial Purchaser, as
applicable, without charge, as many copies of the prospectus included within the
coverage of Exchange Offer Registration Statement and any amendment or
supplement thereto as such Exchanging Dealer or the Initial Purchaser, as
applicable, may reasonably request for delivery by (i) such Exchanging Dealer in
connection with a sale of Exchange Securities received by it pursuant to the
Registered Exchange Offer or (ii) the Initial Purchaser in connection with a
sale of Exchange Securities received by it in exchange for Securities
constituting any portion of an unsold allotment; and the Company consents to the
use of the prospectus or any amendment or supplement thereto by any such
Exchanging Dealer or the Initial Purchaser, as applicable, as aforesaid.
(g) Prior to any public offering of Securities or Exchange Securities
pursuant to any Registration Statement, the Company will use its reasonable best
efforts to register or qualify or cooperate with the Holders of Securities
included therein and its counsel in connection with the registration or
qualification of such securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any such Holder reasonably requests in writing
and do any and all other acts or things necessary or advisable to enable the
offer and sale in such jurisdictions of the Securities or Exchange Securities
covered by such Registration Statement; provided, however, that the Company will
not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take
9
any action which would subject it to general service of process or to taxation
in any such jurisdiction where it is not then so subject.
(h) The Company will cooperate with the Holders of Securities or
Exchange Securities to facilitate the timely preparation and delivery of
certificates representing Securities or Exchange Securities to be sold pursuant
to any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request in writing
prior to sales of Securities or Exchange Securities pursuant to such
Registration Statement.
(i) If (i) any event contemplated by paragraphs (b)(ii) through (iv)
above occurs during the period in which the Company is required to maintain an
effective Registration Statement or (ii) any Suspension Period remains in effect
more than 120 days after the occurrence thereof, the Company will promptly
prepare a post-effective amendment to the Registration Statement or a supplement
to the related prospectus or file any other required document so that, as
thereafter delivered to purchasers of the Securities or purchasers of Exchange
Securities from a Holder, the prospectus will not include an untrue statement of
a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(j) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities or
Exchange Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Securities or Exchange Securities, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(k) The Company will use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and will make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act; provided that in no event
shall such earnings statement be delivered later than 45 days after the end of a
12-month period (or 90 days, if such period is a fiscal year) beginning with the
first month of the Company's first fiscal quarter commencing after the effective
date of the applicable Registration Statement, which statements shall cover such
12-month period.
(l) The Company will cause the Indenture or the Exchange Securities
Indenture, as the case may be, to be qualified under the Trust Indenture Act as
required by applicable law in a timely manner.
(m) The Company may require each Holder of Transfer Restricted
Securities to be sold pursuant to any Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the distribution of such
Transfer Restricted
10
Securities as the Company may from time to time reasonably require for inclusion
in such Registration Statement, and the Company may exclude from such
registration the Transfer Restricted Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving such
request.
(n) In the case of a Shelf Registration Statement, each Holder of
Transfer Restricted Securities to be registered pursuant thereto agrees by
acquisition of such Transfer Restricted Securities that, upon receipt of any
notice from the Company pursuant to Section 4(b)(ii) through (iv) hereof, such
Holder will discontinue disposition of such Transfer Restricted Securities until
such Holder's receipt of copies of the supplemental or amended prospectus
contemplated by Section 4(i) hereof, or until advised in writing (the "Advice")
by the Company that the use of the applicable prospectus may be resumed. If the
Company shall give any notice under Section 4(b)(ii) through (iv) during the
period that the Company is required to maintain an effective Registration
Statement (the "Effectiveness Period"), such Effectiveness Period shall be
extended by the number of days during such period from and including the date of
the giving of such notice to and including the date when each seller of Transfer
Restricted Securities covered by such Registration Statement shall have received
(x) the copies of the supplemental or amended prospectus contemplated by Section
4(i) (if an amended or supplemental prospectus is required) or (y) the Advice
(if no amended or supplemental prospectus is required).
5. Registration Expenses. The Company will bear all expenses incurred
in connection with the performance of its obligations under Sections 1, 2, 3 and
4 hereof and the Company will reimburse the Initial Purchaser and the Holders
for the reasonable fees and disbursements of one firm of attorneys chosen by the
Holders of a majority in aggregate principal amount of the Securities and the
Exchange Securities to be sold pursuant to each Registration Statement (the
"Special Counsel") acting for the Initial Purchaser or Holders in connection
therewith.
6. Indemnification. (a) In the event of a Shelf Registration Statement
or in connection with any prospectus delivery pursuant to an Exchange Offer
Registration Statement by an Exchanging Dealer or the Initial Purchaser, as
applicable, the Company shall indemnify and hold harmless each Holder, its
directors, officers, agents and employees and each person, if any, who controls
such Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act and the directors, officers, agents and employees of such
controlling persons against any and all loss, liability, claim and damage, as
incurred, arising out of any untrue statement or alleged untrue statement of a
material fact contained in any such Registration Statement or any prospectus
forming part thereof or in any amendment or supplements 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; and shall reimburse each Holder promptly upon demand for
any and all expense (including, subject to Section 6(c) hereof, the fees and
disbursements of counsel chosen by the indemnified party), reasonably incurred
as
11
such expenses are incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental or regulatory
agency or body, commenced or threatened, or any claim based upon any such untrue
statement or omission, or any such alleged untrue statement or omission;
provided, however, that (i) this indemnity 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 Holders' Information and (ii) this indemnity with
respect to any untrue statement or alleged untrue statement or omission or
alleged omission in any related preliminary prospectus shall not enure to the
benefit of any indemnified party from whom the person asserting any such loss,
claim, damage or liability received Securities or Exchange Securities if such
persons did not receive a copy of the final prospectus at or prior to the
confirmation of the sale of such Securities or Exchange Securities to such
person in any case where such delivery is required by the Securities Act and the
untrue statement or omission of material fact contained in the related
preliminary prospectus was corrected in the final prospectus unless such failure
to deliver the final prospectus was a result of noncompliance by the Company
with Sections 4(c), 4(d), 4(e) or 4(f).
(b) In the event of a Shelf Registration Statement, each Holder agrees
to indemnify and hold harmless the Company, its directors, officers, agents and
employees and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act and the
directors, officers, agents and employees of such controlling persons against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 6(a) hereof, as incurred, arising out of or based
upon any untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment or supplement
thereto) in reliance on and in conformity with Holders' Information furnished to
the Company by such Holder; provided, however, that no such Holder shall be
liable for any indemnity claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Securities or Exchange
Securities pursuant to the Registration Statement.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any claim or action commenced against
it in respect of which indemnity may be sought hereunder; provided, however,
that failure to so notify an indemnifying party shall not relieve such
indemnifying party from any obligation that it may have pursuant to this Section
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; provided further,
however, that the failure to notify an indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than on
account of this indemnity agreement. If any such claim or action shall be
brought against an indemnified party, the indemnified party shall notify the
indemnifying party thereof, and 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
12
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 6 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof; provided, however,
that an indemnified party will have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (1) the employment of counsel by
the indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on the written advice
of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based on
the written advice of counsel to the indemnified party) between the indemnified
party and indemnifying party (in which case the indemnifying party will not have
the right to direct the defense of such action on behalf of the indemnified
party) or (4) the indemnifying party has not in fact employed counsel to assume
the defense of such action within a reasonable time after receiving notice of
the commencement of the action, in each of which cases the reasonable fees,
disbursements and other charges of counsel for the indemnified party will be at
the expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. Each indemnified party, as a condition of the indemnity agreements
contained in Sections 6(a) and 6(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action or
claim. No indemnifying party shall be liable for any settlement of any such
action effected without its written consent, but if settled with its written
consent 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.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
(d) If a claim by an indemnified party for indemnification under this
Section 6 is unenforceable even though the express provisions hereof provide for
indemnification in such case, then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses in such proportion
as is appropriate to reflect the relative fault of the indemnifying party and
indemnified party in connection with the actions, statements or omissions that
resulted in such losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in question,
including
13
any untrue or alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any losses shall be deemed to include, subject
to the limitations set forth in Section 6(c) herein, any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section, an indemnifying party that is a
holder of Transfer Restricted Securities or Exchange Securities shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities or Exchange Securities sold by
such indemnifying party and distributed to the public were offered to the public
exceeds the amount of any damages that such indemnifying party would have
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 10(f) of the Securities Act)
shall be entitled to any contribution from any person who was not guilty of such
fraudulent misrepresentation.
7. Miscellaneous. (a) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Holders of a majority in aggregate principal
amount of the Securities and the Exchange Securities, taken as a single class.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of the
Holders of Securities or Exchange Securities whose Securities or Exchange
Securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by
Holders of a majority in aggregate principal amount of the Securities or
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 7(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to Chase Securities Inc.;
14
(2) if to you, initially at your address set forth in the Purchase
Agreement; and
(3) if to the Company, initially at the address of the Company set
forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if telecopied.
(c) Successors And Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopies) and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law; Submission to Jurisdiction.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
(g) No Inconsistent Agreements. The Company has not and shall not, on
or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the holders of Transfer Restricted
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The Company has not previously entered into any agreement which remains in
effect granting any registration rights with respect to any of its debt
securities to any person. Without limiting the generality of the foregoing,
without the written consent of the holders of a majority in aggregate principal
amount of the then outstanding Transfer Restricted Securities, the Company shall
not grant to any person the right to request the Company to register any debt
securities of the Company under the Securities Act unless the rights so granted
are not in conflict or inconsistent with the provisions of the Agreement.
15
(h) No Piggyback on Registrations. Neither the Company, nor any of its
security holders (other than the holders of Transfer Restricted Securities in
such capacity) shall have the right to include any securities of the Company in
any Shelf Registration or Registered Exchange Offer other than Transfer
Restricted Securities.
(i) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Remedies. In the event of a breach by the Company, or by any
holder of Transfer Restricted Securities, of any of their obligations under this
Agreement, each holder of Transfer Restricted Securities or the Company, as the
case may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages (other than the recovery of damages for a
breach by the Company of its obligations under Sections 1 or 2 hereof for which
liquidated damages have been paid pursuant to Section 3 hereof), will be
entitled to specific performance of its rights under this Agreement. The Company
and each holder of Transfer Restricted Securities agree that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by it of any of the provisions of this Agreement and hereby further agree that,
in the event of any action for specific performance in respect of such breach,
it shall waive the defense that a remedy at law would be adequate.
Please confirm that the foregoing correctly sets forth the agreement
among the Company and you.
Very truly yours,
MBW FOODS INC.
By: _______________________________
Name:
Title:
16
Accepted in New York, New York
CHASE SECURITIES INC.
By: ___________________________
Name:
Title:
17
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Registered Exchange Offer must acknowledge that it will
deliver a prospectus in connection with any resale of such Exchange Securities.
This Prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of Exchange Securities
received in exchange for Securities where such Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 90 days after the Expiration Date, it will make
this Prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until _______________,
199_, all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.*
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Registered Exchange Offer may be sold from
time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such Exchange Securities. Any broker-dealer that resells
Exchange Securities that were received by it for its own account pursuant to the
Registered Exchange Offer and any broker or dealer that participates in a
distribution of such Exchange Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any such resale of
Exchange Securities and any commission or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that, by acknowledging that it will deliver and
by delivering a prospectus, a broker-dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Registered Exchange Offer (including the expenses of one counsel
for the Holders of the Securities) other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
----------
* In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: _______________________________________
Address: ____________________________________
____________________________________
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
EXHIBIT B
FORM OF OPINION OF
WHITE & CASE
White & Case shall furnish to the Initial Purchaser their written
opinion, as counsel to the Company, addressed to the Initial Purchaser and
dated the Closing Date, in form and substance reasonably satisfactory to
the Initial Purchaser, to the effect that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, and has all power and authority necessary to own or hold
its properties and to conduct the businesses in which it is engaged as
described in the Offering Memorandum. The Company has no subsidiaries.
2. The Company's authorized capitalization is 3,000 shares
of common stock, of which 1,000 are issued and outstanding, and all of
the issued shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable.
3. The statements in the Offering Memorandum under the
caption "Certain United States Federal Income Tax Considerations",
insofar as they purport to constitute summaries of matters of United
States federal tax law and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the matters
described therein in all material respects.
4. The Company has the corporate right, power and authority
to execute and deliver the Transaction Documents and to perform its
obligations thereunder; and all corporate action required to be taken
for the due and proper authorization, execution and delivery of the
Transaction Documents and the consummation of the transactions
contemplated thereby have been duly and validly taken.
5. Each of the Purchase Agreement and the Registration
Rights Agreement has been duly authorized, executed and delivered by
the Company, and each constitutes a valid and legally binding
agreement, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by applicable bankruptcy,
reorganization, insolvency, or other similar laws affecting creditors'
rights generally or by general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
6. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery
2
thereof by the Trustee, constitutes a valid and legally binding
agreement of the Company enforceable in accordance with its terms,
except as the enforcement thereof may be limited by applicable
bankruptcy, reorganization, insolvency, or other similar laws
affecting creditors' rights generally or by general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
7. The Notes have been duly authorized, executed and issued
by the Company and, assuming due authentication thereof by the Trustee
and upon payment and delivery in accordance with the Purchase
Agreement, will constitute valid and legally binding obligations of
the Company enforceable in accordance with their respective terms,
except as the enforcement thereof may be limited by applicable
bankruptcy, reorganization, insolvency, or other similar laws
affecting creditors' rights generally or by general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law). The statements made in the Offering Memorandum
under the caption "Description of Notes" and "Exchange and
Registration Rights Agreement," insofar as they purport to constitute
summaries of certain terms of the Indenture, the Notes and the
Registration Rights Agreement, constitute accurate summaries of the
terms of such documents in all material respects.
8. The execution, delivery and performance by the Company of
each of the Transaction Documents, the issuance, authentication, sale
and delivery of the Securities and compliance by the Company with the
terms thereof and the consummation of the transactions contemplated by
the Transaction Documents will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to us to
which the Company is a party or by which the Company is bound or to
which any of the property or assets of the Company is subject, nor
will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any statute or any judgment,
order, decree, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its properties
or assets except for such conflicts, breaches, violations, defaults,
liens, charges or encumbrances as would not have a Material Adverse
Effect; and to our knowledge no consent, approval, authorization or
order of, or filing or registration with, any such court or arbitrator
or governmental agency or body under any such statute, judgment,
order, decree, rule or regulation is required for the execution,
delivery and performance by the Company of each of the Transaction
Documents, the issuance, authentication, sale and delivery of the
Securities and compliance by the Company with the terms thereof and
the consummation of the transactions contemplated by the Transaction
Documents, except for
3
such consents, approvals, authorizations, filings, registrations or
qualifications (i) which have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained or made under
the Securities Act and applicable state securities laws as provided in
the Registration Rights Agreement.
9. Neither the consummation of the transactions contemplated
by this Agreement nor the sale, issuance, execution or delivery of the
Notes will violate Regulation G, T, U or X of the Federal Reserve
Board.
10. To the knowledge of such counsel, there are no pending
actions or suits or judicial, arbitral, rule-making, administrative or
other proceedings to which the Company is a party or of which any
property or assets of the Company is the subject which questions the
validity or enforceability of any of the Transaction Documents or any
action taken or to be taken pursuant thereto; and to the knowledge of
such counsel, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
11. The Company is not an "investment company" or a company
"controlled" by an investment company within the meaning of the
Investment Company Act.
12. Assuming (i) the accuracy of the representations,
warranties and agreements of the Company and of the Initial Purchaser
contained in the Purchase Agreement, (ii) that the persons who buy the
Notes in the initial resale thereof are Qualified Institutional Buyers
or institutional Accredited Investors, and (iii) the accuracy of the
representations and warranties made by each institutional Accredited
Investor as set forth in the letters of representation executed by
such institutional Accredited Investors in the form of Annex A to the
Offering Memorandum, the issuance and sale of the Notes and the offer,
resale and delivery of the Notes in the manner contemplated in the
Offering Memorandum and the Purchase Agreement, are exempt from the
registration requirements of the Securities Act and it is not
necessary to qualify the Indenture under the Trust Indenture Act.
Such counsel shall state that they have participated in conferences
with representatives of the Company and with representatives of its
independent accountants, at which conferences the contents of the Offering
Memorandum, any amendment thereof and supplement thereto and related
matters were discussed, and, although such counsel assume no responsibility
for the factual accuracy or completeness of the Offering Memorandum, any
amendment thereof or supplement thereto (except as expressly provided
above), such counsel believes that the Offering Memorandum or any amendment
thereof or supplement thereto (other than the financial statements and
other financial and statistical information contained therein, as to which
such counsel need express no belief) contains any untrue statement of a
4
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
In rendering such opinion, such counsel may rely as to matters of
fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials which are
furnished to the Initial Purchaser.
