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EXHIBIT 4.7
XXXXXXXX CORPORATION
$110,000,000 10% SENIOR SUBORDINATED NOTES DUE 2007
XXXXXXXX HOLDINGS, INC.
$44,612,000 REPRESENTING 44,612 UNITS
CONSISTING OF
12% SENIOR DISCOUNT NOTES DUE 2009
AND
2,705,896 SHARES OF COMMON STOCK
PURCHASE AGREEMENT
June 9, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
SOCIETE GENERALE SECURITIES CORPORATION
UBS SECURITIES LLC
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 10010
Dear Sirs:
1. Introductory. Xxxxxxxx Corporation, a Delaware corporation
("Xxxxxxxx"), and Xxxxxxxx Holdings, Inc., a Delaware corporation ("Holdings"
and, together with Xxxxxxxx, the "Issuers"), propose, subject to the terms and
conditions stated herein, to issue and sell to the several initial purchasers
named in Schedule A hereto (the "Purchasers") $110,000,000 in aggregate
principal amount of Xxxxxxxx'x 10% Senior Subordinated Notes Due 2007 (the
"Senior Subordinated Notes") and 44,612 Units (the "Units"), each Unit
consisting of one of Holdings' 12% Senior Discount Notes Due 2009 (a "Discount
Note") with a principal amount at maturity of $1,000 and 60.654 shares
(collectively, the "Shares") of common stock, par value $.01 per share, of
Holdings ("Holdings Voting Common Stock"). The Senior Subordinated Notes and
the Discount Notes are collectively referred to herein as the "Offered Notes,"
and the Offered Notes, the Units and the Shares are collectively referred to
herein as the "Offered Securities." The Senior Subordinated Notes will be
unconditionally guaranteed on a senior basis (the "Holdings Guaranty") by
Holdings and on a senior subordinated basis (the "Subsidiary Guaranties" and,
together with the Holdings Guaranty, the "Guaranties") by each domestic
subsidiary of Xxxxxxxx (the "Subsidiary Guarantors," and, together with
Holdings, the "Guarantors"). The Senior Subordinated Notes are to be issued
under an
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indenture dated as of June 1, 1997 (the "Senior Subordinated Notes Indenture"),
among Xxxxxxxx, the Guarantors and IBJ Xxxxxxxx Bank & Trust Company, as
trustee (the "Senior Subordinated Notes Trustee"). The Discount Notes are to be
issued under an indenture dated as of June 1, 1997 (the "Discount Notes
Indenture" and, together with the Senior Subordinated Notes Indenture, the
"Indentures"), between Holdings and United States Trust Company of New York, as
trustee (the "Discount Notes Trustee" and, together with the Senior
Subordinated Notes Trustee, the "Trustees"). The United States Securities Act
of 1933, as amended, is herein referred to as the "Securities Act."
Holders of the Notes will be entitled to the benefit of a Registration
Rights Agreement (the "Notes Registration Rights Agreement") dated the date
hereof, among the Issuers and the Purchasers. Holders of Shares will be
entitled to the benefits of a Common Stock Registration Rights Agreement (the
"Common Stock Registration Rights Agreement" and, together with the Notes
Registration Rights Agreement, the "Registration Rights Agreements") dated the
date hereof among Holdings and the Initial Purchasers.
This Agreement, the Indentures and the Registration Rights Agreements
are referred to herein collectively as the "Operative Documents."
The Offered Securities are being issued and sold in connection with
the consummation of the transactions contemplated by the Agreement and Plan of
Merger (the "Merger Agreement") dated as of April 10, 1997, among Xxxxxxxx, XX
Acquisition Corp., a wholly owned subsidiary of Xxxxxxxx ("Acquisition Co.")
and ERO, Inc. ("ERO"), pursuant to which Xxxxxxxx has agreed, subject to
certain conditions, to acquire ERO (the "Acquisition").
As used in this Agreement, references to (i) the term "Company" mean
Xxxxxxxx Holdings, Inc. and Xxxxxxxx Corporation, including their subsidiaries
after giving effect to the Acquisition; (ii) the term "Issuers" mean Xxxxxxxx
Holdings, Inc. and Xxxxxxxx Corporation, each on a stand-alone basis and
excluding any of their respective subsidiaries; (iii) the term "ERO" mean ERO,
Inc., on a stand-alone basis excluding any subsidiaries; and (iv) the term
"Subsidiaries" mean all subsidiaries of the Issuers after giving effect to the
Acquisition.
Each of the Issuers hereby agrees with the several Purchasers as
follows:
2. Representations and Warranties of the Issuers. The Issuers
represent and warrant to, and agree with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities to be offered by the Purchasers have been prepared by
the Issuers. Such preliminary offering circular and offering circular, as both
are supplemented as of the date of this Agreement, together with any other
document approved by the Issuers for use in connection with the contemplated
resale of the Offered Securities are hereinafter collectively referred to as
the "Offering Document." On the date of this Agreement, the Offering Document
does not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from the Offering
Document based upon written information furnished to the Issuers by any
Purchaser through Credit Suisse First Boston Corporation ("CSFBC") specifically
for use therein,
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it being understood and agreed that the only such information is that described
as such in Section 7(b) hereof.
(b) Each of the Issuers, ERO and each Subsidiary has been duly
incorporated and is a validly existing corporation in good standing under the
laws of the jurisdiction of its incorporation, with the requisite corporate
power and authority to own its properties and conduct its business as described
in the Offering Document; and each of the Issuers, ERO and each Subsidiary is
duly qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to so
qualify could not reasonably be expected to have a material adverse effect upon
the condition (financial or other), results of operations, business affairs or
business prospects of the Company, taken as a whole (a "Material Adverse
Effect").
(c) All of the issued and outstanding capital stock of each Subsidiary
has been duly authorized and validly issued and is fully paid and
nonassessable; and the capital stock of each Subsidiary owned by the Issuers or
ERO, directly or through subsidiaries, is owned (except as disclosed in the
Offering Document) free from liens, encumbrances and defects.
(d) Each of the Indentures has been duly authorized; the Offered Notes
have been duly authorized; and when the Offered Notes are delivered and paid
for pursuant to this Agreement on the Closing Date (as defined below), the
Indentures will have been duly executed and delivered, such Offered Notes will
have been duly executed, authenticated, issued and delivered and will conform
in all material respects to the description thereof contained in the Offering
Document, and assuming the due authorization, execution and delivery thereof by
all parties other than the Issuers, the Indentures and such Offered Notes will
constitute valid and legally binding obligations of the Issuers, enforceable in
accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforceability is considered in a proceeding at law or
in equity).
(e) The Registration Rights Agreements have been duly authorized,
executed and delivered by the Issuers (to the extent a party thereto), and
conform in all material respects to the descriptions thereof contained in the
Offering Document. Assuming the due authorization, execution and delivery
thereof by all parties other than the Issuers, the Registration Rights
Agreements constitute valid and legally binding obligations of the Issuers (to
the extent a party thereto), and are enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of whether
enforceability is considered in a proceeding at law or in equity).
(f) The Shares have been duly authorized; and when the Shares are
delivered and paid for pursuant to this Agreement on the Closing Date, the
Shares will have been validly issued, fully paid and nonassessable; the
outstanding Holdings Voting Common Stock has been duly authorized and validly
issued, is fully paid and nonassessable and conforms in all material respects
to the description thereof contained in the Offering Document; and the
stockholders of Holdings have no preemptive rights with respect to the Offered
Notes or the Shares.
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(g) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Issuers and any person that
would give rise to a valid claim against the Issuers or any Purchaser for a
brokerage commission, finder's fee or other like payment in connection with the
issuance and sale of the Offered Securities.
(h) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the consummation
of the transactions contemplated by the Operative Documents or in connection
with the issuance and sale of the Offered Securities by the Issuers, other than
those that have been obtained or made, or as may be required under the
Securities Act and the Rules and Regulations of the Commission thereunder with
respect to the Registration Rights Agreements and the transactions contemplated
thereunder and such as may be required by securities or blue sky laws of any
state of the United States or of any foreign jurisdiction in connection with
the offer and sale of the Offered Securities.
(i) The execution, delivery and performance by the Issuers of the
Operative Documents, and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof, will not result in a breach
or violation of any of the terms and provisions of, or constitute a default
under, (i) any statute, rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over either of the
Issuers, ERO or any Subsidiary or any of their properties, (ii) any agreement
or instrument to which either of the Issuers, ERO or any such Subsidiary is a
party or by which either of the Issuers, ERO or any such Subsidiary is bound or
to which any of the properties of either of the Issuers, ERO or any such
Subsidiary is subject, or (iii) the charter or by-laws of either of the
Issuers, ERO or any such Subsidiary, except, in the case of clause (i) or (ii),
such breaches, violations or defaults that individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect; and each of
the Issuers has full corporate power and authority to authorize, issue and sell
the Offered Securities to be sold by such Issuer as contemplated by this
Agreement.
(j) The execution, delivery and performance by the Issuers, ERO and
each Subsidiary (to the extent a party thereto) of the Merger Agreement and the
Credit Agreement dated as of June 12, 1997, among Xxxxxxxx, Credit Suisse First
Boston, as agent, and the other lenders party thereto (and the related
guarantees and security documents) (collectively, the "Credit Agreement"), will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over either of the Issuers, ERO or any Subsidiary or any of their
properties, (ii) any agreement or instrument to which either of the Issuers,
ERO or any such Subsidiary is a party or by which either of the Issuers, ERO or
any such Subsidiary is bound or to which any of the properties of either of the
Issuers, ERO or any such Subsidiary is subject, or (iii) the charter or by-laws
of either of the Issuers, ERO or any such Subsidiary, except, in the case of
clause (i) or (ii), such breaches, violations or defaults that individually or
in the aggregate could not reasonably be expected to have a Material Adverse
Effect.
(k) The Merger Agreement and the Credit Agreement have been duly
authorized, executed and delivered by the Issuers (to the extent a party
thereto) and conform in all material respects to the descriptions thereof in
the Offering Document. The Merger Agreement and the Credit Agreement constitute
valid and legally binding obligations of
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the Issuers and each is enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). The Issuers
have delivered to the Purchasers true and correct copies of the Merger
Agreement (and all tender offer documentation filed with the Commission in
connection therewith), in the form as originally executed (or filed), and there
have been no amendments or waivers to the Merger Agreement (or exhibits and
schedules thereto) other than those as to which the Purchasers shall have been
advised.
(l) This Agreement has been duly authorized, executed and delivered
by each of the Issuers.
(m) The Issuers, ERO and the Subsidiaries have good and marketable
title to all material real properties and good title to all other material
properties and assets owned by each of them, in each case free from liens,
encumbrances and defects that would have a Material Adverse Effect; and the
Issuers, ERO and the Subsidiaries hold any material leased real or personal
property under valid and enforceable leases with no exceptions that would have
a Material Adverse Effect.
(n) The Issuers, ERO and the Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by each of
them, except where the failure to possess such certificates, authorities or
permits could not reasonably be expected to result in a Material Adverse
Effect, and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit that,
if determined adversely to the Issuers, ERO or any of the Subsidiaries, could,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(o) No labor dispute with the employees of the Issuers, ERO or any of
the Subsidiaries exists or, to the knowledge of the Issuers, is imminent that
could reasonably be expected to have a Material Adverse Effect.
(p) The Issuers, ERO and the Subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "intellectual property rights") necessary
to conduct the business now operated by each of them, or presently employed by
each of them, except where the failure to possess or acquire such intellectual
property rights could not reasonably be expected to result in a Material
Adverse Effect, and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual property rights
that, if determined adversely to the Issuers, ERO or any of the Subsidiaries,
could reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect.
(q) Except as disclosed in the Offering Document, neither the Issuers,
ERO nor any of the Subsidiaries is in violation of any applicable statute,
rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates
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any real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is subject to any pending, or to the
knowledge of the Issuers, threatened claim relating to any environmental laws,
which violation, contamination, liability or claim could reasonably be expected
to, individually or in the aggregate, have a Material Adverse Effect.
(r) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Issuers, ERO, any of the
Subsidiaries or any of their respective properties that, individually or in the
aggregate, if determined adversely to the Issuers, ERO or any such Subsidiary,
could reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect, or to materially and adversely affect the ability of
either of the Issuers to perform its obligations under any of the Operative
Documents or which are otherwise material in the context of the sale of the
Offered Securities and no such actions, suits or proceedings are, to the
Issuers' knowledge, threatened or contemplated.
(s) The financial statements of the Issuers included in the Offering
Document present fairly the financial position of the Issuers and their
consolidated subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles in the
United States applied on a consistent basis, except as noted therein; and the
assumptions used in preparing the pro forma financial statements included in
the Offering Document provide a reasonable basis for presenting the significant
effects directly attributable to the transactions and other events and items
described therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical financial
statement amounts.
(t) The financial statements of XXX included in the Offering Document
present fairly the financial position of ERO and its consolidated subsidiaries
as of the dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in conformity
with the generally accepted accounting principles in the United States applied
on a consistent basis, except as noted therein.
(u) Since the date of the latest respective audited financial
statements of the Issuers and XXX included in the Offering Document, there have
been no developments or events that could, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and, except as
disclosed in or contemplated by the Offering Document, there has been no
dividend or distribution of any kind declared, paid or made by the Issuers or
ERO on any class of their respective capital stock.
(v) Neither of the Issuers is an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to
be registered under Section 8 of the United States Investment Company Act of
1940 (as amended, the "Investment Company Act"), nor are either of them a
closed-end investment company required to be registered, but not registered,
thereunder; and neither of the Issuers is and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds
thereof as described in the Offering Document, neither Issuer will be an
"investment company" as defined in the Investment Company Act.
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(w) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed on
any national securities exchange registered under Section 6 of the Exchange Act
or quoted in a U.S. automated inter-dealer quotation system.
(x) The offer and sale of the Offered Securities in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act; and it is not necessary to qualify an
indenture in respect of the Offered Securities under the United States Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") other than in
connection with the Issuers' obligations under the Registration Rights
Agreements.
(y) Neither the Issuers, nor any of their affiliates, nor any person
acting on their behalf (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the Offered
Securities (A) in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) under the
Securities Act or (B) with respect to any such securities sold in reliance on
Rule 903 of Regulation S ("Regulation S") under the Securities Act, by means of
any directed selling efforts within the meaning of Rule 902(b) of Regulation S.
The Issuers, their affiliates and any person acting on their behalf have
complied and will comply with the offering restrictions requirement of
Regulation S. The Issuers have not entered and will not enter into any
contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement and the Registration Rights Agreement.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Issuers agree to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Issuers, at a purchase price of (i) 97% of the principal amount
thereof plus accrued interest, if any, from June 12, 1997 to the Closing Date,
the Senior Subordinated Notes set forth opposite the names of the several
Purchasers on Schedule A hereto and (ii) $540.7738 per Unit plus the increase
in accreted value of the Discount Notes, if any, from June 12, 1997 to the
Closing Date, the Units set forth opposite the names of the several Purchasers
on Schedule A hereto.
The Issuers will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global securities in
registered form (the "Global Securities") which will be deposited with the
applicable Trustee as custodian for The Depository Trust Company ("DTC") and
registered in the name of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry form through DTC
except in the limited circumstances described in the Offering Document. Payment
for the Offered Securities shall be made by the Purchasers in Federal
(same-day) funds by wire transfer to an account in New York previously
designated to CSFBC by the Issuers at a bank acceptable to CSFBC, at the office
of Cravath, Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000-0000 at 10:00 A.M. (New York time), on June 12, 1997, or at such other
time not later than seven full business days thereafter as CSFBC and the
Issuers determine, such time being herein referred to as the "Closing Date,"
against delivery to the applicable Trustee as custodian for DTC of the
applicable Global Securities representing all of the Offered Securities. The
Global Securities will be made available for checking at the
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above office of Cravath, Swaine & Xxxxx (or at another office in New York
designated by the Issuers) at least 24 hours prior to the Closing Date.
4. Representations by Purchasers; Resale by Purchasers. (a) Each
Purchaser severally represents and warrants to the Issuers that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or
sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption from
the registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities (i) as part of its distribution at
any time and (ii) otherwise until 40 days after the later of the commencement
of the offering and the Closing Date, only in accordance with Rule 903 or Rule
144A under the Securities Act ("Rule 144A"). Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or their behalf,
have engaged or will engage in any directed selling efforts with respect to the
Offered Securities, and such Purchaser, its affiliates and all persons acting
on its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser severally agrees that,
at or prior to confirmation of sale of the Offered Securities, other than a
sale pursuant to Rule 144A, such Purchaser will have sent to each distributor,
dealer or person receiving a selling concession, fee or other remuneration that
purchases the Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the date of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by Regulation
S."
Terms used in this subsection (b) have the meanings given to them by
Regulation S.
(c) CSFBC and any other Purchaser authorized by CSFBC may offer and
sell Offered Securities in definitive, fully registered form to a limited
number of institutions, each of which is reasonably believed by the applicable
Purchaser to be an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act or an entity in which all the equity
owners are accredited investors within the meaning of Rule 501(a)(1), (2), (3)
or (7) under the Securities Act (each, an "Institutional Accredited Investor");
provided, however, that each such Institutional Accredited Investor executes
and delivers to such Purchaser and the applicable Issuer, prior to the
consummation of any sale of Offered Securities to such Institutional Accredited
Investor, an Accredited Investor Letter in substantially the form attached as
Annex A to the Offering Document.
(d) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with
respect to the
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distribution of the Offered Securities except for any such arrangements with
the other Purchasers or affiliates of the other Purchasers or with the prior
written consent of the Issuers.
(e) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, including, but not limited to (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A. Each
Purchaser also severally agrees, in connection with each initial resale of the
Offered Securities, to deliver to the purchaser of such Offered Securities
either with the confirmation of such resale or otherwise prior to settlement of
such resale an Offering Document.
(f) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of
issue of the Offered Securities will not offer or sell any Offered Securities
to persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and
will only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is of a
kind described in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document
may otherwise lawfully be issued or passed on.
5. Certain Agreements of the Issuers. The Issuers agree with the
several Purchasers that:
(a) The Issuers will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent (which consent shall not be
unreasonably withheld). If, at any time prior to the completion of the resale
of the Offered Securities by the Purchasers, any event occurs as a result of
which the Offering Document as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
at any such time to amend or supplement the Offering Document to comply with
any applicable law, the Issuers promptly will notify CSFBC of such event and
promptly will prepare, at their own expense, an amendment or supplement which
will correct such statement or omission or effect such compliance. Neither
CSFBC's consent to, nor the
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Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Issuers will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as
CSFBC reasonably requests, and the Issuers will furnish to CSFBC on the date
hereof four copies of the Offering Document signed by a duly authorized officer
of each of the Issuers, one of which will include the independent accountants'
reports therein manually signed by such independent accountants. At any time
when either of the Issuers is not subject to Section 13 or 15(d) of the
Exchange Act, such Issuer will promptly furnish or cause to be furnished to
CSFBC (and, upon request, to each of the other Purchasers) and, upon request of
holders and prospective purchasers of the Offered Securities, to such holders
and purchasers, copies of the information required to be delivered to holders
and prospective purchasers of the Offered Securities pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto) in
order to permit compliance with Rule 144A in connection with resales by such
holders of the Offered Securities. Xxxxxxxx will pay the expenses of printing
and distributing to the Purchasers all such documents.
(c) The Issuers will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for investment
under the laws of such jurisdictions in the United States and Canada as CSFBC
designates and will continue such qualifications in effect so long as required
for the resale of the Offered Securities by the Purchasers, provided that the
Issuers will not be required to qualify as a foreign corporation or to file a
general consent to service of process in any such state.
(d) During the period of five years hereafter, the Issuers will
furnish to CSFBC and, upon request, to each of the other Purchasers, as soon as
available, a copy of each report and any definitive proxy statement of either
of the Issuers filed with the Commission under the Exchange Act or mailed to
stockholders.
(e) During the period of two years after the Closing Date, the Issuers
will, upon request, furnish to CSFBC, each of the other Purchasers and any
holder of Offered Securities a copy of the restrictions on transfer applicable
to the Offered Securities.
(f) During the period of two years after the Closing Date, the Issuers
will not, and will not permit any of their affiliates (as defined in Rule 144
under the Securities Act) to, resell any of the Offered Securities that have
been reacquired by any of them.
(g) During the period of two years after the Closing Date, neither of
the Issuers will be or become, an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act, and neither of the Issuers is,
or will be or become, a closed-end investment company required to be
registered, but not registered, under the Investment Company Act.
(h) Xxxxxxxx will pay all expenses incidental to the performance of
the Issuers' obligations under this Agreement and the Indentures, including (i)
the fees and expenses of the Trustees and their professional advisers; (ii) all
expenses in connection with the execution, issue, authentication, packaging and
initial delivery of the Offered Securities, the preparation and printing of
this Agreement, the Offered Securities, the Indentures, the Offering Document
and amendments and supplements thereto, and any other document
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relating to the issuance, offer, sale and delivery of the Offered Securities;
and (iii) the cost of qualifying the Offered Securities for trading in the
Private Offerings, Resale and Trading through Automated Linkages (PORTAL)
market and any expenses incidental thereto. The Issuers will also pay or
reimburse the Purchasers (to the extent incurred by them) for any reasonable
expenses (including reasonable fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities for sale under the laws
of such jurisdictions in the United States and Canada as CSFBC designates and
the printing of memoranda relating thereto, for any fees charged by investment
rating agencies for the rating of the Offered Securities, for all travel
expenses of the Issuers' officers and employees and any other expenses of the
Issuers in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers and for expenses
incurred in distributing preliminary offering circulars and the Offering
Document (including any amendments and supplements thereto).
(i) In connection with the offering, until CSFBC shall have notified
the Issuers and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Issuers nor any of their affiliates has or
will, either alone or with one or more other persons, bid for or purchase for
any account in which it or any of their affiliates has a beneficial interest
any Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither they nor any of their affiliates will make bids or
purchases for the purpose of creating actual, or apparent, active trading in,
or of raising the price of, the Offered Securities.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of
the Issuers herein, to the accuracy of the statements of officers of the
Issuers made pursuant to the provisions hereof, to the performance by the
Issuers of their obligations hereunder and to the following additional
conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of
this Agreement, of Xxxxxx Xxxxxxxx LLP confirming that they are independent
public accountants under Rule 101 of the AICPA's Code of Professional Conduct,
and its rulings and interpretations, and to the effect that:
(i) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Issuers who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements included in the
Offering Document for them to be in conformity with generally
accepted accounting principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified
date not more than five days prior to the date of this
Agreement, there was any change in the capital stock, any
increase in short-term indebtedness or long-term debt or any
decrease in consolidated net current assets, total assets or
stockholders' equity of the Issuers and their consolidated
subsidiaries, as compared with amounts shown on the latest
balance sheet included in the Offering Document; or
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(C) for the period of the closing date of the latest
income statement included in the Offering Document to the
closing date of the latest available income statement read by
such accountants, or to a subsequent specified date not more
than five days prior to the date of this Agreement, there
were any decreases, as compared with the corresponding period
of the previous year, in consolidated net sales, operating
income, net income or in the ratio of earnings to fixed
charges;
except in all cases as set forth in clauses (B) and (C) above for
changes, increases or decreases which are described in such letter;
(ii) on the basis of specified procedures, including (A) a
reading of the unaudited pro forma consolidated financial statements
of the Issuers included in the Offering Document; (B) inquiries of
certain officials of the Issuers who have responsibility for financial
and accounting matters about the basis for the determination of the
pro forma adjustments and whether all significant assumptions
regarding the 1996 Cost Reduction Plan (as defined in the Offering
Document), the Acquisition and the offering of the Offered Securities
contemplated by this Agreement had been reflected in the pro forma
adjustments; and (C) proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the unaudited pro forma financial statements referred to in clause
(A), nothing came to their attention that caused them to believe that
the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Document (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of the
Issuers and their subsidiaries subject to the internal controls of the
Issuers' accounting system or are derived directly from such records
by analysis or computation) with the results obtained from inquiries,
a reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(b) The Initial Purchasers shall have received a letter, dated the
date of this Agreement, of Price Waterhouse LLP confirming that they are
independent public accountants under Rule 101 of the AICPA's Code of
Professional Conduct, and its rulings and interpretations, and to the effect
that:
(i) on the basis of a reading of the latest available interim
financial statements of XXX, inquiries of officials of ERO who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements included in the
Offering Document for them to be in conformity with generally
accepted accounting principles;
(B) at the date of the latest available balance
sheet read by such accountants, or at a subsequent specified
date not more than five days prior
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to the date of this Agreement, there was any change in the
capital stock, any increase in short-term indebtedness or
long-term debt or any decrease in consolidated net current
assets, total assets or stockholders' equity of ERO and its
consolidated subsidiaries, as compared with amounts shown on
the latest balance sheet included in the Offering Document;
or
(C) for the period of the closing date of the latest
income statement included in the Offering Document to the
closing date of the latest available income statement read by
such accountants, or to a subsequent specified date not more
than five days prior to the date of this Agreement, there
were any decreases, as compared with the corresponding period
of the previous year, in consolidated net sales, net
operating income, net income or in the ratio of earnings to
fixed charges;
except in all cases as set forth in clauses (B) and (C) above for
changes, increases or decreases which are described in such letter;
and
(ii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Offering Document (in each case to the
extent that such dollar amounts, percentages and other financial
information are derived from the general accounting records of ERO and
its subsidiaries subject to the internal controls of XXX's accounting
system or are derived directly from such records by analysis or
computation) with the results obtained from inquiries, a reading of
such general accounting records and other procedures specified in such
letter and have found such dollar amounts, percentages and other
financial information to be in agreement with such results, except as
otherwise specified in such letter.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of CSFBC, be likely to prejudice materially
the success of the proposed issue, sale or distribution of the Offered
Securities, whether in the primary market or in respect of dealings in the
secondary market, or (ii) (A) any change, or any development or event involving
a prospective change, in the condition (financial or other), business,
properties or results of operations of either of the Issuers or their
subsidiaries, or ERO or its subsidiaries which, in the judgment of a majority
in interest of the Purchasers including CSFBC, could result in a prospective
Material Adverse Effect and makes it impractical or inadvisable to proceed with
completion of the offering or the sale of and payment for the Offered
Securities; (B) any downgrading in the rating of any debt securities of either
of the Issuers or ERO or any of their respective subsidiaries by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Securities Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of either of the Issuers, ERO or any of their respective
subsidiaries (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (C) any suspension or limitation of trading in securities generally on
the New York Stock Exchange or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of either of the
Issuers on any exchange or in the over-the-counter market; (D) any banking
moratorium declared by U.S. Federal or New York authorities; or (E) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial national
or international
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calamity or emergency if, in the judgment of a majority in interest of the
Purchasers including CSFBC, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the Offered
Securities.
(d) The Purchasers shall have received an opinion, dated the Closing
Date, of Xxxx, Xxxxxxx & Xxxxxx LLP, counsel for the Issuers, substantially in
the form attached hereto as Exhibit A.
(e) The Purchasers shall have received from Cravath, Swaine & Xxxxx,
counsel for the Purchasers, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Issuers, the validity of the Offered
Securities, the Offering Document, the exemption from registration for the
offer and sale of the Offered Securities by the Issuers to the several
Purchasers and the resales by the several Purchasers as contemplated hereby and
other related matters as CSFBC may reasonably require, and the Issuers shall
have furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(f) The Purchasers shall have received a certificate, dated the
Closing Date, of the President or any Vice President and a principal financial
or accounting officer of each of the Issuers in which such officers, to the
best of their knowledge after reasonable investigation, shall state that the
representations and warranties of such Issuer in this Agreement are true and
correct, that such Issuer 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 that, subsequent to the date of the most recent financial
statements in the Offering Document there has been no change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of such
Issuer, ERO and any Subsidiary which, in the judgment of a majority in interest
of the Purchasers including CSFB could result in a prospective Material Adverse
Effect, except as set forth in or contemplated by the Offering Document or as
described in such certificate.
(g) Concurrently with or prior to the issue and sale of the Offered
Securities by the Issuers, Xxxxxxxx shall have entered into the Credit
Agreement and, to the extent required as of the Closing Date to consummate the
Acquisition, the initial borrowings thereunder shall have occurred. The
Purchasers shall have received conformed counterparts thereof and all other
documents and agreements entered into and received thereunder in connection
with the Credit Agreement. There shall exist at and as of the Closing Date
(after giving effect to the transactions contemplated by this Agreement and the
Acquisition) no condition that would constitute a default (or an event that
with notice a lapse of time, or both, would constitute a default) under the
Credit Agreement.
(h) The issuance and sale of the Senior Subordinated Notes and the
Units by the Issuers shall be consummated concurrently in accordance with the
terms of this Agreement and the description thereof in the Offering Document.
(i) Concurrently with or prior to the issuance and sale of the Offered
Securities by the Issuers, the Issuers shall have consummated an offer to
purchase (the "Offer to Purchase") any and all shares of capital stock of ERO
in accordance with the Merger Agreement and on terms that conform in all
material respects to the description thereof in the Offering Document; the
Issuers shall have acquired at least a majority of common stock of ERO; and the
Issuers shall have acquired all shares of such capital stock validly tendered
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and not withdrawn pursuant to such Offer to Purchase. The Purchasers shall have
received true and correct copies of all documents pertaining to the Offer to
Purchase and the Acquisition and evidence reasonably satisfactory to the
Purchasers of the consummation of the Offer to Purchase.
(j) Concurrently with or prior to the issuance and sale of the Offered
Securities by the Issuers, Holdings shall have received $40 million of gross
proceeds from the private placement of shares of its non-voting common stock,
and Holdings shall have contributed such proceeds (net of fees and expenses) to
the equity capital of Xxxxxxxx.
(k) The Purchasers shall have received letters, dated the Closing
Date, of each of Xxxxxx Xxxxxxxx LLP and Price Waterhouse LLP, which meet the
requirements of subsections (a) and (b) of this Section, except that the
specified date referred to in such subsection will be a date not more than five
days prior to the Closing Date for the purposes of this subsection.
The Issuers will furnish the Purchasers with such conformed copies of such
opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchaser's
compliance with any conditions of the Purchasers hereunder, whether in respect
of the Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Issuers will jointly and
severally indemnify and hold harmless each Purchaser against any losses,
claims, damages or liabilities, joint or several, to which such Purchaser may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any breach of any of the
representations and warranties of the Issuers contained herein or any untrue
statement or alleged untrue statement of any material fact contained in the
Offering Document, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein 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 will reimburse
each Purchaser for any legal or other expenses reasonably incurred by such
Purchaser in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Issuers will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon 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 written
information furnished to the Issuers by any Purchaser through CSFBC
specifically for use therein, it being understood and agreed that the only such
information consists of the information described as such in subsection (b)
below; provided further, that with respect to any untrue statement or alleged
untrue statement in or omission or alleged omission from any preliminary
offering circular the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Purchaser that sold the Offered
Securities concerned to the person asserting any such losses, claims, damages
or liabilities, to the extent that such sale was an initial resale by such
Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities to
such person, a copy of the Offering Document (exclusive of any material
included therein but not attached thereto) if the Issuers had previously
furnished copies thereof to such Purchaser.
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(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Issuers against any losses, claims, damages or liabilities to
which the Issuers may become subject, under the Securities Act or the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or any related preliminary
offering circular, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Issuers by such Purchaser specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Issuers
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Purchaser consists of
the following information in the Offering Document furnished on behalf of each
Purchaser: the last paragraph at the bottom of the cover page concerning the
terms of the offering by the Purchasers, the legends concerning over-allotments
and stabilizing on the inside front cover page and the fourth and seventh
paragraphs under the caption "Plan of Distribution".
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (in which case, such
indemnified party shall be entitled, at its option, to engage at the
indemnifying party's cost, separate counsel reasonably satisfactory to the
indemnifying party to act on behalf of all indemnified parties in connection
with such action), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action 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 any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion
as is appropriate to reflect the relative benefits received by the Issuers on
the one hand and the Purchasers on the other from the offering
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of the Offered Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Issuers on the one hand and the Purchasers on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Issuers on the one hand
and the Purchasers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Issuers bear to the total discounts and commissions received by the
Purchasers from the Issuers under this Agreement. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Issuers or the
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (d) shall
be deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Purchaser shall be required to contribute
any amount in excess of the amount by which the total price at which the
Offered Securities purchased by it were resold exceeds the amount of any
damages which such Purchaser has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. The
Purchasers' obligations in this subsection (d) to contribute are several in
proportion to their respective purchase obligations and not joint. Any party
entitled to contribution will, promptly after receipt of notice of the
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 7(d), notify such party or parties from whom contribution
may be sought, but the failure to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
obligation it or they may have under this Section 7(d) or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its prior written consent; provided, however, that such written consent
was not unreasonably withheld.
(e) The obligations of the Issuers under this Section shall be in
addition to any liability which the Issuers may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Purchaser within the meaning of the Securities Act or the Exchange
Act; and the obligations of the Purchasers under this Section shall be in
addition to any liability which the respective Purchasers may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls the Issuers within the meaning of the Securities Act or the
Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFBC may make arrangements
satisfactory to the Issuers for the purchase of such Offered Securities by
other persons, including any of the Purchasers, but if no such arrangements are
made by the Closing Date, the non-defaulting Purchasers shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the Offered Securities that such defaulting Purchasers agreed but failed to
purchase. If any Purchaser or Purchasers so default and the aggregate principal
amount of Offered
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Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFBC and the Issuers for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or the
Issuers, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of
the Issuers or their officers and of the several Purchasers set forth in or
made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made
by or on behalf of any Purchaser, the Issuers or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement
is terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Purchasers is not consummated, the Issuers shall
remain responsible for the expenses to be paid or reimbursed by them pursuant
to Section 5 and the respective obligations of the Issuers and the Purchasers
pursuant to Section 7 shall remain in effect and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and
all obligations under Section 5 shall also remain in effect. If the purchase of
the Offered Securities by the Purchasers is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 or the occurrence of any event specified in clause (C), (D) or (E) of
Sec tion 6(c)(ii), the Issuers will reimburse the Purchasers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telecopied and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Xxxxxx Xxxxxxx
Xxxxxx, Xxx Xxxx, X.X. 10010, Attention: Investment Banking
Department-Transactions Advisory Group, or, if sent to the Issuers, will be
mailed, delivered or telegraphed and confirmed to them at:
Xxxxxxxx Corporation
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with copies to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Xx.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxx, Gotshal & Xxxxxx LLP
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxx Xxxxxxx, Esq.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
provided, however, that any notice to a Purchaser pursuant to Section 7 will be
mailed, delivered or telegraphed and confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Issuers as if such
holders were parties thereto.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Issuers hereby submit to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Purchasers' understanding
of our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Issuers and the
several Purchasers in accordance with its terms.
Very truly yours,
XXXXXXXX CORPORATION,
By: /s/ XXXXXX X. XXXXX
------------------------------
Name: Xxxxxx X. Xxxxx
Title:
XXXXXXXX HOLDINGS, INC.,
By: /s/ XXXXXX X. XXXXX
------------------------------
Name: Xxxxxx X. Xxxxx
Title:
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
SOCIETE GENERALE SECURITIES CORPORATION
UBS SECURITIES LLC
By CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ XXXX X. XXXXXX
-----------------------------------
Name: Xxxx X. Xxxxxx
Title:
21
21
Schedule A
Principal Amount of
Senior Subordinated
Purchaser Notes Number of Units
--------- ----- ---------------
Credit Suisse First Boston $77,000,000 31,228.40
Corporation
Societe Generale Securities $16,500,000 6,691.80
Corporation
UBS Securities LLC $16,500,000 6,691.80
