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Exhibit 10.1
KEY COMPONENTS, LLC
KEY COMPONENTS FINANCE CORP.
$80,000,000
10-1/2% Senior Notes due 2008
PURCHASE AGREEMENT
May 20, 1998
SOCIETE GENERALE SECURITIES CORPORATION
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
Key Components, LLC, a Delaware limited liability company
("KCI" or the "Company") and Key Components Finance Corp., a Delaware
corporation, and a wholly-owned subsidiary of the Company ("Finance Corp." and
together with the Company, the "Issuers"), propose to issue and sell $80,000,000
principal amount of their 10-1/2% Senior Notes due 2008 (the "Securities"). The
Securities are to be issued pursuant to an Indenture dated as of May 28, 1998
(the "Indenture") to be entered into between the Issuers, the subsidiaries
listed on the signature pages hereto and certain future subsidiaries of the
Company (collectively, the "Guarantors") and U.S. Trust Company, as trustee (the
"Trustee"). This is to confirm the agreement concerning the purchase of the
Securities from the Issuers by Societe Generale Securities Corporation (the
"Initial Purchaser"). Payment of principal and interest on the Securities will
be fully and unconditionally guaranteed, jointly and severally, on an unsecured
senior subordinated basis (the "Guarantees") by the Guarantors in accordance
with the terms of the Indenture. Unless otherwise indicated, all references to
"KCI" or the "Company" refer collectively, at all times prior to the Closing
Date (as defined herein) to Key Components, Inc. and its predecessors and
subsidiaries, and at all times on or after the Closing Date to Key Components,
LLC and its predecessors and subsidiaries.
The Securities 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 upon an exemption therefrom. The Issuers
have prepared a preliminary offering memorandum dated May 5, 1998, as
supplemented by that certain supplement dated May 14, 1998 (the "Preliminary
Offering Memorandum") and will prepare an offering memorandum dated the date
hereof (the "Offering Memorandum") setting forth information concerning the
Issuers and the Securities. 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, unless otherwise
noted. The Issuers
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hereby confirm that they have authorized the use of the Preliminary Offering
Memorandum and the Offering Memorandum in connection with the offering and
resale of the Securities by the Initial Purchaser in accordance with Section 2.
Holders of the Securities (including the Initial Purchaser and
its direct and indirect transferees) will be entitled to the benefits of an
Exchange and Registration Rights Agreement, substantially in the form attached
hereto as Annex A (the "Registration Rights Agreement"), pursuant to which the
Issuers and the Guarantors will agree to file with the Securities and Exchange
Commission (the "Commission") (i) a registration statement under the Securities
Act (the "Exchange Offer Registration Statement") registering an issue of
subordinated notes of the Issuers (the "Exchange Securities") which are
identical in all material respects to the Securities (except that the Exchange
Securities will not contain terms with respect to transfer restrictions) and
(ii) under certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Securities Act (the "Shelf Registration Statement").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE ISSUERS AND THE
GUARANTORS. The Issuers and the Guarantors represent and warrant to and
agree, jointly and severally, with the Initial Purchaser that:
(a) Accurate Information. Each of the Preliminary Offering Memorandum and
the Offering Memorandum, as of its respective date, did not, and on the
Closing Date the Offering Memorandum will not, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that neither the Issuers nor any Guarantor
makes any representation or warranty as to information contained in or
omitted from the Preliminary Offering Memorandum or the Offering
Memorandum in reliance upon and in conformity with written information
relating to the Initial Purchaser furnished to the Issuers and the
Guarantors by or on behalf of the Initial Purchaser specifically for
use therein (the "Initial Purchaser's Information"), it being
understood that the only such information furnished by the Initial
Purchaser consists of the information specified in Section 14 hereof.
(b) Compliance with Securities Act. Each of the Preliminary Offering
Memorandum and the Offering Memorandum, as of its respective date,
contains all of the information that, if requested by a prospective
purchaser of the Securities, would be required to be provided to such
prospective purchaser pursuant to Rule 144A(d)(4) under the Securities
Act.
(c) No Registration Required. Assuming the accuracy of the representations
and warranties of the Initial Purchaser contained in Section 2 and its
compliance with the agreements set forth therein, it is not necessary,
in connection with the issuance and sale of the Securities to the
Initial Purchaser and the offer, resale and delivery of the Securities
by the Initial Purchaser in the manner contemplated by this Agreement
and the Offering Memorandum, to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
(d) Corporate Existence; Compliance with Law. Each of the Issuers and each
of their respective subsidiaries (as defined in Section 13) have been
duly organized and are validly existing as corporations or, in the case
of the Company, a limited liability company, in good standing under the
laws of their respective jurisdictions of organization, are duly
qualified to
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do business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of property
or the conduct of their respective businesses requires such
qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or have such
power or authority 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 and its
subsidiaries taken as a whole (a "Material Adverse Effect"). Each of
the Company's subsidiaries is a direct, wholly-owned subsidiary, and
each of such subsidiaries is listed on Schedule I hereto.
(e) Corporate Power; Authorization. Each of the Issuers and the Guarantors
has full right, power and authority to execute and deliver this
Agreement, the Registration Rights Agreement, the Indenture, the
Securities, the Commitment Letters (as defined in the Offering
Memorandum) (collectively, the "Transaction Documents") and to perform
its respective obligations hereunder and thereunder; all corporate
action required to be taken for the due and proper authorization,
execution and delivery of each of the Transaction Documents and the
consummation of the transactions contemplated by this Agreement and the
Indenture have been duly and validly taken; and this Agreement has been
duly authorized, executed and delivered by the Issuers and the
Guarantors.
(f) Enforceable Obligations. The Indenture, when duly executed by the
proper officers of the Issuers and each Guarantor and delivered by the
Issuers and each Guarantor, assuming due authorization, execution and
delivery thereof by the Trustee, will constitute a valid and binding
agreement of the Issuers and each Guarantor enforceable against the
Issuers and each Guarantor 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) and an implied
covenant of good faith and fair dealing; the Registration Rights
Agreement, when duly executed by the proper officers of the Issuers and
each Guarantor and delivered by the Issuers and each Guarantor,
assuming due authorization, execution and delivery thereof by the
Trustee, will constitute a valid and binding agreement of the Issuers
and each Guarantor, respectively, enforceable against them 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) and an implied covenant of good faith and fair
dealing; the Securities, when duly executed, authenticated, issued and
delivered as provided in the Indenture and upon payment and delivery in
accordance with this Agreement, will be duly and validly issued and
outstanding and will constitute valid and binding obligations of the
Issuers entitled to the benefits of the Indenture and enforceable in
accordance with their 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) and an implied covenant of good faith and fair
dealing; the Guarantees, when duly executed by the proper officers of
each of the Guarantors, will constitute a valid and binding agreement
of each Guarantor enforceable against each Guarantor 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) and
an implied covenant of good faith and fair dealing; and the
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Indenture, the Registration Rights Agreement, the Commitment Letters,
the Limited Liability Company Agreement, the Guarantees and the
Securities conform in all material respects to the descriptions thereof
contained in the Offering Memorandum.
(g) Capitalization of the Issuers and Parent. The Company is a holding
company and has no material operations or assets other than its 100%
ownership interest in the capital stock of each of its subsidiaries.
All of the membership interests in the Company is owned by Key
Components, Inc. ("Parent") free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party. From and after the Formation (as
defined in the Offering Memorandum), Parent will have no material
operations or assets except for its ownership of membership interests
in the Company, except that it will be a party to certain agreements as
disclosed in the Offering Memorandum. Parent has an authorized
capitalization as set forth in the Offering Memorandum, and all of the
issued shares of capital stock of Parent have been duly and validly
authorized and issued, are fully paid and non-assessable and conform in
all material respects to the description thereof contained in the
Offering Memorandum. Finance Corp. is a wholly-owned subsidiary of the
Company formed in order to facilitate the Offering and has no
operations and assets and will not have any revenues.
(h) Capitalization of Subsidiaries. All the outstanding shares of capital
stock of each subsidiary of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and as of the Closing
Date will be owned by the Company directly or indirectly through one or
more wholly-owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party.
(i) No Legal Bar. The execution, delivery and performance of each of the
Transaction Documents by the Issuers and each Guarantor and the
consummation of the transactions contemplated hereby and thereby will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which the Issuers or their respective subsidiaries are bound or
to which any of the property or assets of the Issuers or their
respective subsidiaries are subject, nor will such actions result in
any violation of the provisions of the charter or by-laws of the
Issuers or their respective subsidiaries or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Issuers or their respective subsidiaries or any
of their properties or assets.
(j) No Further Requirements. Except for such consents, approvals,
authorizations, registrations or qualifications (i) which shall have
been obtained or made prior to the Closing Date and (ii) as may be
required to be obtained under the Securities Act and applicable state
securities laws in connection with the purchase and distribution of the
Securities by the Initial Purchaser or as may be required in the
Registration Rights Agreement, 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 each of the Transaction Documents by the Issuers or the
Guarantors and the consummation of the transactions contemplated hereby
and thereby, except for consents the failure so to obtain would not
have a Material Adverse Effect.
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(k) Financial Statements. Price Waterhouse LLP, Xxxxxxxx & Xxxxxxx, LLP,
BDO Xxxxxxx, LLP and Greenberg, Xxxxxxxxxx, Xxxx & Xxxxxxx, P.C., who
have certified certain financial statements of the Company and its
subsidiaries and Parent, whose reports appear in the Preliminary
Offering Memorandum, as of its date, and the Offering Memorandum, and
who have delivered the initial letters referred to in Section 7(g)
hereof, are independent certified public accountants within the meaning
of Rule 101 of the Code of Professional Conduct of the American
Institute of Certified Public Accountants ("AICPA") and its
interpretations and rulings thereunder. The historical financial
statements (including the related notes) contained in the Offering
Memorandum comply in all material respects with the requirements
applicable to a registration statement on Form S-1 under the Securities
Act (except that certain supporting schedules are omitted); to the
Company's knowledge such financial statements have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods covered thereby and to the Company's
knowledge fairly present the financial position of the entities
purported to be covered thereby at the respective dates indicated and
the results of their operations and their cash flows for the respective
periods indicated; and the financial information contained in the
Offering Memorandum under the headings "Summary --Summary Historical
and Pro Forma Consolidated Financial Data", "Capitalization", "Selected
Historical Consolidated Financial Data" and "Management's Discussion
and Analysis of Results of Operations and Financial Condition" are
derived from the accounting records of the Company and its subsidiaries
and Parent and fairly present the information purported to be shown
thereby. The pro forma financial information contained in the Offering
Memorandum has been prepared on a basis consistent with the historical
financial statements contained in the Offering Memorandum (except for
the pro forma adjustments specified therein), includes all material
adjustments to the historical financial information required by Rule
11-02 of Regulation S-X under the Securities Act and the Exchange Act
to reflect the transactions described in the Offering Memorandum, gives
effect to assumptions made on a reasonable basis and fairly presents
the historical and proposed transactions contemplated by the Offering
Memorandum and the Transaction Documents. The other historical
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, fairly presented.
(l) No Material Adverse Change. Neither the Company nor any of its
subsidiaries has sustained, since the date of the latest audited
financial statements included in the Offering Memorandum, any material
change, or any development that has had or that could have a Material
Adverse Effect, otherwise than as set forth or contemplated in the
Offering Memorandum.
(m) No Material Litigation. Except as disclosed in the Offering Memorandum,
there is no legal or governmental proceeding pending to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which, singularly or in
the aggregate, if determined adversely to the Company or any of its
subsidiaries, could have a Material Adverse Effect; and to the best of
the Company's and the Guarantors' knowledge, no such proceedings are
threatened or contemplated.
(n) No Defaults. Neither of the Issuers nor any of their respective
subsidiaries (i) is in violation of its charter or by-laws, (ii) is in
default, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any 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 property or assets is subject or (iii) except as
disclosed in the Offering
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Memorandum, is in violation in any respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its
property or assets may be subject, except, in the case of clauses (ii)
and (iii), for such violations or defaults which, singularly or in the
aggregate, would not have a Material Adverse Effect.
(o) Possession of Licenses and Permits. The Company and each of its
subsidiaries possess all licenses, certificates, authorizations and
permits issued by, and have made all declarations and filings with, the
appropriate state, federal or foreign regulatory agencies or bodies
which are necessary or desirable for the ownership of their respective
properties or the conduct of their respective businesses as described
in the Offering Memorandum, and the Company has not received
notification of any revocation or modification of any such license,
authorization or permit and has no reason to believe that any such
license, certificate, authorization or permit will not be renewed in
each such case, except where any failures to possess or make the same,
singularly or in the aggregate, would not have a Material Adverse
Effect.
(p) Investment Company Act. Neither the Company nor any of its subsidiaries
is 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.
(q) No Stabilization. Neither the Issuers, nor to the Issuers' or the
Guarantors' best knowledge, any of their affiliates, has taken or may
take, directly or indirectly, any action designed to cause or result
in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the
Securities to facilitate the sale or resale of the Securities.
(r) Possession of Intellectual Property. The Company and each of its
subsidiaries own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark 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 their respective businesses,
except where the failure to so own or possess, singularly or in the
aggregate, would not have a Material Adverse Effect, and have no reason
to believe that the conduct of their respective businesses, will
conflict with, and have not received any notice of any claim of
conflict with, any such rights of others, except for such conflicts as
singularly or in the aggregate would not have a Material Adverse
Effect.
(s) Title to Property. The Company and each of its subsidiaries have good
and marketable title in fee simple to, or have valid rights to lease or
otherwise use, all items of real or personal property which are
material to the business of the Company and its subsidiaries taken as a
whole, in each case free and clear of all liens, encumbrances, claims
and defects other than liens, encumbrances, claims and defects that
would not result in a Material Adverse Effect.
(t) No Labor Dispute. No labor disturbance by the employees of the Company
or any of its subsidiaries exists or, to the best of the Company's
knowledge, is imminent which might be expected to have a Material
Adverse Effect.
(u) Employee Benefit Plans. 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,
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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 under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan
which could reasonably be expected to have a Material Adverse Effect;
each 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 material 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 material 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) Environmental, Health and Safety Matters. Except as disclosed in the
Offering Memorandum:
(i) There is not and has not been any Environmental Condition at any
premises or property currently or formerly owned, leased, operated,
controlled, or used by the Company or any of its subsidiaries or any of
their respective predecessors, except for Environmental Conditions that
could not reasonably be expected to result in a Material Adverse
Effect, (ii) there is not and has not been any Environmental Condition
at any other location relating in any way to the Company or any of its
subsidiaries or any of their respective predecessors (including,
without limitation, any location at which any Hazardous Substances have
been generated, treated, stored, or disposed of by or on behalf of the
Company or any of its predecessors), except for Environmental
Conditions that could not reasonably be expected to result in a
Material Adverse Effect, and (iii) the Company has not received any
notice alleging that it is liable for any Environmental Condition at
any location, except for Environmental Conditions that could not
reasonably be expected to result in a Material Adverse Effect.
"Environmental Condition" means any event, condition or circumstance,
including, without limitation, the presence of any Hazardous Substances, which
does or reasonably could (i) require assessment, investigation, abatement,
correction, removal or remediation, (ii) give rise to any obligation or
liability of any nature (whether civil or criminal, arising under a theory of
negligence or strict liability, or otherwise) under any Environmental Law, (iii)
create or constitute a public or private nuisance or trespass, or (iv)
constitute a violation of or non-compliance with any Environmental Law.
"Environmental Law" means all federal, state, local, municipal or
foreign common law, statutes, laws, regulations, rules, orders, decrees,
ordinances, permits, licenses, registrations, approvals, or requirements or
authorizations of any governmental authority relating to the environment,
natural resources, safety, or health of humans or other organisms.
"Hazardous Substances" means any pollutant, contaminant, hazardous
substance, hazardous waste, toxic substance, petroleum or petroleum-derived
substance or waste, asbestos, PCBs, radioactive material, or other material or
substance in any form whatsoever regulated, restricted or addressed by or under
any Environmental Law.
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(w) Taxes. The Company and its subsidiaries each (i) have filed all
necessary federal, state and foreign income and franchise tax returns,
(ii) have paid all federal, state, local and foreign taxes due and
payable for which it is liable, including, but not limited to,
withholding taxes and amounts payable under the Code, and has furnished
all information returns it is required to furnish pursuant to the Code,
(iii) have established adequate reserves for all such taxes which are
not yet due and payable and (iv) do not have any tax deficiency or
claims outstanding or assessed or, to the best of the Company's
knowledge, proposed against it which could reasonably be expected to
have a Material Adverse Effect.
(x) Insurance Policies. The Company and its subsidiaries each maintain
insurance policies and surety bonds, including, but not limited to,
general liability and property insurance, which insures the Company and
each of its subsidiaries and their respective employees against losses
and risks generally insured against by comparable companies in
comparable businesses. Neither the Company, nor to the Company's
knowledge with respect to any of its subsidiaries for periods prior to
the subsidiaries' respective dates of acquisition, nor any of its
subsidiaries for periods subsequent to their respective dates of
acquisition (i) has failed to give notice or to present any insurance
claim with respect to any material matter, including, but not limited
to, the Company's or the subsidiaries' respective business, property or
employees, under any insurance policy or surety bond in a due and
timely manner, (ii) has any material disputes or claims against any
underwriter of such insurance policies or surety bonds or has failed to
pay any premiums due and payable thereunder or (iii) has failed to
comply with any material conditions contained in such insurance
policies and surety bonds, except in all such cases, as would not have
a Material Adverse Effect. To the best of the Company's knowledge,
there are no facts or circumstances under any such insurance policy or
surety bond which would relieve any insurer of its obligation to
satisfy in full any valid claim of the Company or any of its
subsidiaries.
(y) Accounting Controls. The Company and each of its subsidiaries maintain
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 computed with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(z) Minute Books. The minute books of the Issuers and their respective
subsidiaries have been made available to the Initial Purchaser and
counsel for the Initial Purchaser, and the minute books of the Issuers,
and the minute books of their respective subsidiaries, since their
respective dates of acquisition and, to the Company's knowledge,
subsequent to the subsidiaries' respective dates of acquisition (i)
contain a complete summary of all meetings and actions of the directors
and stockholders of the Issuers and their respective subsidiaries since
the time of their respective incorporation through the date of the
latest meeting and action, and (ii) accurately in all material respects
reflect all transactions referred to in such minutes.
(aa) Transactions with Management and Others. No relationship, direct or
indirect, exists between or among the Issuers or the Guarantors on the
one hand, and the directors, officers, stockholders, customers or
suppliers of the Issuers or the Guarantors on the other hand, which is
required to be described in the Offering Memorandum and which is not so
described.
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(bb) No outstanding Subscriptions. Except as described in the Offering
Memorandum, there are no outstanding subscriptions, rights, warrants,
calls or options to acquire, or instruments convertible into or
exchangeable for, or agreements or understandings with respect to the
sale or issuance of, any shares of capital stock of or other equity or
other ownership interest in the Issuers or their respective
subsidiaries
(cc) Solvency. On and immediately after the Closing Date, the Company (after
giving effect to the issuance of the Securities and to the other
transactions related thereto as described in the Offering Memorandum)
will be Solvent. As used in this paragraph, the term "Solvent" means,
with respect to a particular date, that on such date (i) the present
fair market value (or present fair saleable value) of the assets of the
Company are not less than the total amount required to pay the probable
liabilities of the Company on its total existing debts and liabilities
(including contingent liabilities) as they become absolute and matured,
(ii) the Company is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and commitments as they
mature and become due in the normal course of business, (iii) assuming
the sale of the Securities as contemplated by this Agreement and the
Offering Memorandum, the Company is not incurring debts or liabilities
beyond its ability to pay as such debts and liabilities mature and (iv)
the Company is not engaged in any business or transaction, and is not
about to engage in any business or transaction, for which their
property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in the industry in which the
Company is engaged. 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 the 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.
(dd) No Margin Securities. Neither the Company nor any of its subsidiaries
owns any "margin securities" as that term is defined in Regulations G
and U of the Board of Governors of the Federal Reserve System (the
"Federal Reserve Board"), and none of the proceeds of the sale of the
Securities 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 Securities to be considered a "purpose credit" within the
meanings of Regulation G, T, U or X of the Federal Reserve Board.
(ee) No Brokerage Fees. Other than the Underwriting Discount and fees paid
to an affiliate of the Initial Purchaser in connection with the New
Credit Facility (as defined in the Offering Memorandum), neither the
Company nor any of its subsidiaries nor Finance Corp. is a party to any
contract, agreement or understanding with any person that would give
rise to a valid claim against the Issuers or the Initial Purchaser for
a brokerage commission, finder's fee or like payment in connection with
the offering and sale of the Securities.
(ff) Compliance with 144A(d)(3). The Securities satisfy the eligibility
requirements of Rule 144A(d)(3) under the Securities Act.
(gg) No Offers to Buy. Neither the Issuers nor any of their affiliates has,
directly or through any agent, sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of, any security (as such
term is defined in the Securities Act), which is or will be integrated
with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
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(hh) No General Solicitation. None of the Issuers or any of their affiliates
or any other person acting on their behalf has engaged, in connection
with the offering of the Securities in the United States, in any form
of general solicitation or general advertising within the meaning of
Rule 502(c) of Regulation D under the Securities Act ("Regulation D")
or with respect to any such securities sold in reliance on Rule 903 of
Regulation S ("Regulation S") under the Securities Act, has offered or
will offer or sell the Securities by means of any directed selling
efforts within the meaning of Rule 902(b) of Regulation S.
(ii) Regulation S. None of the Issuers or any of their affiliates or any
other person acting on their behalf 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 term is defined in Regulation S) the
Securities or any security of the same class or series as the
Securities. 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 Securities except for this Agreement and the
Registration Rights Agreement.
(jj) No Registered Securities. There are no securities of the Issuers
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.
(kk) Compliance with Regulation M. The Issuers have not taken and will not
take, directly or indirectly, any action prohibited by Regulation M
under the Exchange Act in connection with the offering of the
Securities.
(ll) No Forward-Looking Statement. No forward-looking statement (within the
meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act) contained in the Preliminary Offering Memorandum or the
Offering Memorandum has been made or reaffirmed without a reasonable
basis or has been disclosed other than in good faith.
(mm) Formation Transactions. As of the Closing Date, the Formation will have
been completed as set forth in the Offering Memorandum in accordance
with applicable law.
(nn) Year 2000. The "Year 2000" dating changes necessary to permit correct
recording of year dates for 2000 and later years are not reasonably
expected to have a Material Adverse Effect.
2. PURCHASE AND RESALE OF THE SECURITIES.
(a) On the basis of the representations, warranties and agreements
contained herein, and subject to the terms and conditions set forth
herein, the Issuers agree to issue and sell to the Initial Purchaser,
and the Initial Purchaser agrees to purchase from the Issuers all of
the Securities at a purchase price equal to 97% of the principal amount
thereof. The Issuers shall not be obligated to deliver any of the
Securities except upon payment for all the Securities to be purchased
as provided herein.
(b) The Initial Purchaser has advised the Issuers that its proposes to
offer the Securities for resale upon the terms and subject to the
conditions set forth herein and in the Offering
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Memorandum. The Initial Purchaser, represents and warrants to, and
agrees with, the Issuers that (i) it is purchasing the Securities
pursuant to a private sale exempt from registration under the
Securities Act, (ii) it has not solicited offers for, or offered or
sold, and will not solicit offers for, or offer or sell, the Securities
(A) in the United States by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) of Regulation
D or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act or (B) with respect to any
securities sold in reliance on Rule 903 of Regulation S under the
Securities Act, by means of any directed selling efforts within the
meaning of Rule 902(b) of Regulation S and (iii) it has solicited and
will solicit offers for the Securities only from, and has offered or
sold and will offer, sell or deliver the Securities, as part of its
initial offering, only to persons whom it reasonably believes to be
qualified institutional buyers ("Qualified Institutional Buyers") as
defined in Rule 144A under the Securities Act, 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 in accordance
with Rule 144A. In addition, prior to making any sales under Regulation
S, the Initial Purchaser will receive any representations from the
prospective purchaser that are reasonably necessary to comply with
Regulation S. The Initial Purchaser agrees that, prior to or
simultaneously with the confirmation of sale by the Initial Purchaser
to any purchaser of any of the Securities purchased by the Initial
Purchaser from the Issuers pursuant hereto, the Initial Purchaser shall
furnish to that purchaser a copy of the Offering Memorandum (and any
amendment or supplement thereto that the Issuers shall have furnished
to the Initial Purchaser prior to the date of such confirmation of
sale). In addition to the foregoing, the Initial Purchaser acknowledges
and agrees that the Issuers and, for purposes of the opinions to be
delivered to the Initial Purchaser pursuant to Sections 5(d) and (e),
counsel for the Issuers and for the Initial Purchaser, respectively,
may rely upon the accuracy of the representations and warranties of the
Initial Purchaser and its compliance with its agreements contained in
this Section 2, and the Initial Purchaser hereby consents to such
reliance.
(c) The Issuers acknowledge and agree 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.
3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and payment for
the Securities shall be made at the offices of Xxxxx Xxxxxxxxxx LLP,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX, or at such other place as
shall be agreed upon by the Initial Purchaser and the Issuers, at 10:00
A.M., New York City time, on May 28, 1998, or at such other date or
time, not later than seven full business days thereafter, as shall be
agreed upon by the Initial Purchaser and the Issuers (such date and
time being referred to herein as the "Closing Date").
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The Securities to be purchased by the Initial Purchaser
hereunder and sold to Qualified Institutional Buyers shall be represented by one
or more global securities in book-entry form which will be deposited by or on
behalf of the Issuers with The Depository Trust Company ("DTC") or its
designated custodian. On the Closing Date, the Issuers shall deliver or cause to
be delivered the Securities to the Initial Purchaser against payment to or upon
the order of the Issuers of the purchase price by wire transfer payable in
Federal (same day) funds by causing DTC to credit the Securities to the account
of the Initial Purchaser at DTC.
Delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of the Initial Purchaser
hereunder. The Issuers shall make the certificates representing the Securities
available for inspection by the Initial Purchaser and for delivery to DTC or its
designated custodian in New York, New York, not later than one business day
prior to the Closing Date.
4. FURTHER AGREEMENTS OF THE ISSUERS AND THE GUARANTORS. The Issuers and the
Guarantors agree with the Initial Purchaser:
(a) 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 the light of the circumstances under
which they were made, not misleading; to advise the Initial Purchaser
promptly of any order preventing or suspending the use of the Preliminary
Offering Memorandum or the Offering Memorandum, of any 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 its 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;
(b) to furnish promptly to the Initial Purchaser and counsel for the Initial
Purchaser, without charge, as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum (and any amendments or supplements
thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the Offering Memorandum,
to furnish a copy thereof to the Initial Purchaser and counsel for the
Initial Purchaser and not to effect any such amendment or supplement to
which the Initial Purchaser shall reasonably object by notice to the
Issuers after a reasonable period to review;
(d) if, at any time prior to completion of the resale of the Securities by
the Initial Purchaser, 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 Issuers, to amend or supplement the
Offering Memorandum in order that the Offering Memorandum will
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not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, or if 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 with applicable law;
(e) for so long as the Securities are outstanding and are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities
Act, to furnish to holders of the Securities and prospective purchasers
of the Securities designated by such holders, upon request of such
holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act, unless
the Company is then subject to and in compliance with Section 13 or
15(d) of the Exchange Act (the foregoing agreement being for the
benefit of the holders from time to time of the Securities and
prospective purchasers of the Securities designated by such holders);
(f) for so long as the Securities are outstanding, to furnish to the
Initial Purchaser copies of any annual reports, quarterly reports and
current reports filed by the Company 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
Securities pursuant to the Indenture or the Exchange Act or any rule or
regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the Initial
Purchaser may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as
the Initial Purchaser may designate and to continue such qualifications
in effect for so long as required for the resale of the Securities; and
to arrange for the determination of the eligibility for investment of
the Securities under the laws of such jurisdictions as the Initial
Purchaser may reasonably request; provided that the Issuers and their
respective subsidiaries shall not be obligated to qualify as foreign
corporations 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 assist the Initial Purchaser in arranging for the Securities to be
designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market 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 for the
Securities to be eligible for clearance and settlement through DTC;
(i) not to, and to cause its affiliates not to, sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any security
(as such term is defined in the Securities Act) which could be
integrated with the sale of the Securities in a manner which would
require registration of the Securities under the Securities Act;
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(j) except following the effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, not
to, and to cause its affiliates not to, and not to authorize or
knowingly permit any person acting on their behalf to, solicit any
offer to buy or offer to sell the Securities by means of any form of
general solicitation or general advertising within the meaning of
Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act; and not to offer, sell,
contract to sell or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act to cease to be applicable to the offering and sale of
the Securities as contemplated by this Agreement and the Offering
Memorandum;
(k) during the period beginning from the date hereof and continuing to, and
including, the Closing Date, or the date on which this agreement is
terminated without having sold the Securities, or such earlier time as
the Initial Purchaser may notify the Issuers, 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 offering of, any
securities of the Issuers that are substantially similar to the
Securities;
(l) during the period from the Closing Date until two years after the
Closing Date, without the prior written consent of the Initial
Purchaser, not to, and not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities
that have been reacquired by any of them, except for Securities
purchased by the Issuers or any of their affiliates and resold in a
transaction registered under the Securities Act or pursuant to an
exemption from registration (if available);
(m) not to, for so long as the Securities are outstanding, be or become, or
be or become owned by, 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 to not be
or become, or be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder;
(n) in connection with the offering of the Securities, until the Initial
Purchaser shall have notified the Issuers of the completion of the
resale of the Securities, not to, and to cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to,
either alone or with one or more other persons, bid for or purchase,
for any account in which it or any of its affiliated purchasers has a
beneficial interest, any Securities, or attempt to induce any person to
purchase any Securities; and not to, and to cause its affiliated
purchasers not to, make bids or purchase for the purpose of creating
actual, or apparent, active trading in or of raising the price of the
Securities;
(o) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel
reasonably available upon request by the Initial Purchaser;
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(p) to furnish to the Initial Purchaser on the date hereof a copy of the
independent accountants' report included in the Offering Memorandum
signed by the accountants rendering such report;
(q) to do and perform all things required to be done and performed by it
under this Agreement that are within its control prior to or after the
Closing Date, and to use its best efforts to satisfy all conditions
precedent on its part to the delivery of the Securities;
(r) to not take any action prior to the execution and delivery of the
Indenture which, if taken after such execution and delivery, would have
violated any of the covenants contained in the Indenture;
(s) to not take any action prior to the Closing Date which would require
the Offering Memorandum to be amended or supplemented pursuant to
Section 4(d);
(t) prior to the Closing Date, not to issue any press release or other
communication directly or indirectly or hold any press conference with
respect to the Company, its condition, financial or otherwise, or
earnings, business affairs or business prospects (except for routine
oral marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the
Initial Purchaser is notified), without the prior written consent of
the Initial Purchaser, unless in the judgment of the Issuers and their
counsel, and after notification to the Initial Purchaser, such press
release or communication is required by law; and
(u) to apply the net proceeds from the sale of the Securities as set forth
in the Offering Memorandum under the heading "Use of Proceeds".
5. CONDITIONS OF INITIAL PURCHASER'S OBLIGATIONS. The obligations of the
Initial Purchaser hereunder are subject to the accuracy, when made and
on the Closing Date, of the representations and warranties of the
Issuers and the Guarantors contained herein, to the accuracy of the
statements of the Issuers and the Guarantors made in any certificates
pursuant to the provisions hereof, to the performance by the Issuers
and the Guarantors of their obligations hereunder, and to each of the
following additional terms and conditions:
(a) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of the Transaction Documents
and all other legal matters relating to the Transaction Documents and
the transactions contemplated hereby and thereby shall be reasonably
satisfactory in all material respects to counsel for the Initial
Purchaser, and the Issuers shall have furnished to such counsel all
documents and information that they may reasonably request to enable
them to pass upon such matters.
(b) The Offering Memorandum (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Initial Purchaser
as promptly as practicable on or following the date of this Agreement
or at such other date and time as to which the Initial Purchaser may
agree; and no stop order suspending the sale of the
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Securities in any jurisdiction shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or
threatened.
(c) The Initial Purchaser shall not have discovered and disclosed to the
Issuers 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 counsel for the Initial Purchaser, is
material or omits to state any 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.
(d) Xxxxx, Xxxx, Xxxxx, Xxxxxxxx & Xxxxxxxx shall have furnished to the
Initial Purchaser such counsel's written opinion, as counsel to the
Issuers and the Guarantors, addressed to the Initial Purchaser and
dated the Closing Date, in form and substance reasonably satisfactory
to the Initial Purchaser, to the effect that:
(i) Each of the Issuers has been duly organized and is validly existing and
in good standing under the laws of their respective jurisdictions of
organization, and has full corporate power and authority to conduct its
business as described in the Preliminary Offering Memorandum and the
Offering Memorandum. To such counsel's knowledge, all of the capital
stock or other ownership interest of each of the Issuers have been duly
and validly authorized and issued, are fully paid and nonassessable.
Parent is the sole member of the Company and has no material operations
or assets except for its membership interest in the Company. Parent has
an authorized capitalization as set forth in the Offering Memorandum.
Parent has been duly incorporated and is validly existing and in good
standing as a corporation under the laws of the State of New York and
has full corporate power and authority to conduct its business as
described in the Preliminary Offering Memorandum and the Offering
Memorandum. Each of the subsidiaries of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, and each such
subsidiary has full corporate power and authority to conduct its
business as described in the Preliminary Offering Memorandum and the
Offering Memorandum. To such counsel's knowledge, all of the issued
shares of capital stock of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and
nonassessable, and all such shares are owned of record by the Company,
free and clear of all liens, encumbrances, equities or claims.
(ii) The Indenture has been duly authorized, executed and delivered by the
Issuers and the Guarantors and, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and legally
binding obligation of the Issuers and the Guarantors enforceable
against the Issuers and the Guarantors in accordance with their
respective terms, except to the extent that such enforceability may be
limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law); the Indenture conforms
in all material respects to the requirements of the Trust Indenture Act
and the applicable rules and regulations thereunder; the Securities
have been duly
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authorized, executed and issued by the Issuers 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 Issuers enforceable against the
Issuers in accordance with their terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law) and
entitled to the benefits of the Indenture; and the Guarantees have been
duly authorized, executed and delivered by the Guarantors and, when
duly authorized, executed and delivered by the Guarantors, will
constitute valid and legally binding obligations of the Guarantors
enforceable against the Guarantors in accordance with their terms,
except to the extent that such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws affecting creditors'
rights generally and by general equitable principles (whether
considered in a proceeding in equity or at law).
(iii) The Issuers have all requisite right, power and authority to execute
and deliver each of the Transaction Documents and to perform their
respective obligations thereunder; and all corporate action required to
be taken for the due and proper authorization, execution and delivery
of each of the Transaction Documents and the consummation of the
transactions contemplated thereby have been duly and validly taken.
(iv) Each of the Guarantors has full right, power and authority to execute
and deliver each of the Transaction Documents to which it is a party
and to perform its obligations thereunder; and all corporate action
required to be taken for the due and proper authorization, execution
and delivery of each of the Transaction Documents by each Guarantor
have been duly and validly taken.
(v) Each of the Purchase Agreement and the Registration Rights Agreement
has been duly authorized, executed and delivered by the Issuers and the
Guarantors and constitutes a valid and legally binding agreement of the
Issuers and the Guarantors enforceable against the Issuers and the
Guarantors in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law) and
except to the extent that the indemnification provisions thereof may be
unenforceable.
(vi) Each Transaction Document and the Operating Agreement conform in all
material respects to the description thereof contained in the Offering
Memorandum (including without limitation, the caption "Description of
Notes").
(vii) The issue and sale of the Securities by the Issuers and the compliance
by the Issuers and the Guarantors with all of the provisions of each of
the Transaction Documents will not breach or result in a default under
any agreement or instrument known to such counsel to which the Issuers
or their respective subsidiaries is a party or by which
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the Issuers or their respective subsidiaries is bound or to which any
of the properties or assets of the Issuers or their respective
subsidiaries is subject, except for such breaches or defaults as would
not have a Material Adverse Effect, nor will such action violate the
Certificate of Incorporation or By-laws of the Company or of any of its
subsidiaries or any statute or any rule, regulation or to such
counsel's knowledge, order issued by any court or governmental agency
or body or court having jurisdiction over the Issuers or their
respective subsidiaries or any of their properties, except for such
violations as would not have a Material Adverse Effect.
(viii) Except for such consents, approvals, authorizations, registrations or
qualifications (i) which shall have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained under
applicable state securities laws in connection with the purchase and
distribution of the Securities by the Initial Purchaser, no consent,
approval, authorization, order, registration or qualification of or
with any governmental agency or body or to such counsel's knowledge,
court is required for the issue and sale of the Securities by the
Issuers and the compliance by the Issuers with all of the provisions of
the Purchase Agreement, except for such consents or approvals the
failure so to obtain would not have a Material Adverse Effect.
(ix) The descriptions in the Offering Memorandum of statutes, legal and
governmental proceedings and contracts and other documents are accurate
in all material respects; and the statements in the Offering Memorandum
under the headings "Certain Federal Income Tax Consequences", to the
extent that they constitute summaries of matters of law or regulation
or legal conclusions, have been reviewed by such counsel and fairly
summarize the matters described therein in all material respects.
(x) Neither the Company nor any of its subsidiaries (A) is in violation of
its charter or by-laws, (B) is in default, and no event has occurred,
which, with notice or lapse of time or both, would constitute a
default, in the due performance or observance of any term, covenant or
condition contained in any agreement or instrument known to such
counsel to which it is a party or by which it is bound or to which any
of its properties or assets is subject or (C) is in violation of any
law, ordinance, governmental rule, regulation or to such counsel's
knowledge court decree to which it or, its property or assets may be
subject or has failed to obtain any license, permit, certificate,
franchise or other governmental authorization or permit necessary to
the ownership of its property or to the conduct of its business except,
in the case of clauses (B) and (C), for those defaults, violations or
failures which, either individually or in the aggregate, would not be
reasonably likely to have a Material Adverse Effect.
(xi) Neither the Company nor any of its subsidiaries is an "investment
company" within the meaning of the Investment Company Act and the rules
and regulations of the Commission thereunder.
(xii) To such counsel's knowledge, other than as set forth in the Offering
Memorandum, there are no legal or governmental proceedings pending to
which the Issuers or their respective subsidiaries are a party or of
which any property or asset of the Issuers or
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their respective subsidiaries is the subject which, if determined
adversely to the Issuers or their respective subsidiaries, could
reasonably be expected to have a Material Adverse Effect; and to such
counsel's knowledge no such proceedings are threatened or contemplated.
(xiii) Assuming the accuracy of the representations, warranties and agreements
of the Issuers and of the Initial Purchaser contained in the Purchase
Agreement, no registration of the Securities under the Securities Act
or qualification of the Indenture under the Trust Indenture Act is
required in connection with the issuance and sale of the Securities by
the Issuers and the offer, resale and delivery of the Securities by the
Initial Purchaser in the manner contemplated by the Purchase Agreement
and the Offering.
(xiv) To such counsel's knowledge, other than as set forth in the Offering
Memorandum, (A) the Issuers and the Guarantors possess such
certificates, authorizations or permits issued by the appropriate
state, federal or foreign regulatory agencies or bodies necessary to
conduct the business now operated by them, except where the failure to
possess such certificates, authorizations or permits would not be
reasonably expected to have a Material Adverse Effect, and (B) neither
the Issuers nor any Guarantor has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singularly or in the aggregate, if the
subject of an unfavorable decision, ruling, or finding, would be
reasonably expected to have such a Material Adverse Effect.
Such counsel shall also have furnished to the Initial
Purchaser a written statement, addressed to the Initial Purchaser and dated the
Closing Date, in form and substance satisfactory to the Initial Purchaser, to
the effect that (x) such counsel has acted as counsel to the Issuers in
connection with the preparation of the Preliminary Offering Memorandum and the
Offering Memorandum and (y) such counsel has no reason to believe that the
Offering Memorandum or any amendment 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), as of the date
thereof and as of the Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
References to the Offering Memorandum in this paragraph (d)
include any supplements thereto at the Closing Date.
(e) The Initial Purchaser shall have received from Xxxxx Xxxxxxxxxx LLP,
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 Issuers shall have furnished to such
counsel such documents as they request for enabling them to pass upon
such matters.
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(f) At the time of the execution of this Agreement, the Initial Purchaser
shall have received from each of Price Waterhouse LLP, Xxxxxxxx &
Xxxxxxx, LLP and BDO Xxxxxxx, LLP, respectively, a letter, addressed to
the Initial Purchaser and dated such date, in form and substance
satisfactory to the Initial Purchaser (i) confirming that they are
independent certified public accountants with respect to, as
applicable, Parent, the Company and its subsidiaries within the meaning
of the Securities Act and the applicable published rules and
regulations thereunder and (ii) stating the conclusions and findings of
such firm with respect to the financial statements and certain
financial information contained in the Preliminary Offering Memorandum
or the Offering Memorandum.
References to the Offering Memorandum in this paragraph (f)
and in paragraph (g) below include any supplement thereto at the date of the
letter.
(g) On the Closing Date, the Initial Purchaser shall have received a letter
(the "bring-down letter") from Price Waterhouse LLP addressed to the
Initial Purchaser and dated the Closing Date (i) confirming, 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 three business days prior to the date of the
bring-down letter), the conclusions and findings of such firm with
respect to the financial information and other matters covered by its
letter delivered to the Initial Purchaser concurrently with the
execution of this Agreement pursuant to Section 5(f) above (the
"initial letter").
(h) Each of the Company and Finance Corp. shall have furnished to the
Initial Purchaser a certificate, dated the Closing Date, of its
President or a Vice President and its chief financial officer stating
that (A) such officers have carefully examined the Offering Memorandum
(B) in their opinion, the Offering Memorandum, and its date and as of
the Closing Date, 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 of the Offering Memorandum, 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 Issuers and the Guarantors in this Agreement are true
and correct, each of the Issuers and the Guarantors 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 operation of the Company and its subsidiaries,
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 and its subsidiaries
taken as a whole, except as set forth in the Offering Memorandum.
(i) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Offering Memorandum any loss
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or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Memorandum or (ii)
since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or
any change, or any development involving a prospective change, in or
affecting the business, general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries taken as a whole, otherwise than as set forth in
the Offering Memorandum, the effect of which, in any such case
described in clause (i) or (ii), is, in the 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 Securities on
the terms and in the manner contemplated in the Offering Memorandum
exclusive of any supplement.
(j) The Initial Purchaser shall have received a counterpart of the
Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of each of the Issuers and the
Guarantors.
(k) The Indenture shall have been duly executed and delivered by the
Issuers, the Guarantors and the Trustee, and the Securities shall have
been duly executed and delivered by the Issuers and duly authenticated
by the Trustee.
(l) The Securities shall have been approved by the NASD for trading in the
PORTAL Market.
(m) If any event shall have occurred that requires the Issuers under
Section 4(d) 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.
(n) 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 judgment of the Initial Purchaser would
materially impair the ability of the Initial Purchaser to purchase,
hold or effect resales of the Securities as contemplated hereby.
(o) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Securities; and no injunction, restraining
order or order of any other nature by any 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 Securities.
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(p) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Securities
or any of the Issuers' other debt securities by any "nationally
recognized statistical rating organization," as that term is defined by
the Commission for purposes of Rule 436(g)(2) of the Rules and
Regulations 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 possible upgrading), its rating of the
Securities or any of the Issuers' other debt securities.
(q) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange
or in the over-the-counter market, or trading in any securities of the
Issuers on any exchange or in the over-the-counter market, shall have
been suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having
jurisdiction, (ii) a banking moratorium shall have been declared by
Federal or state authorities, (iii) the United States shall have become
engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv)
there shall have occurred such a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of the Initial Purchaser,
impracticable or inadvisable to proceed with the sale or delivery of
the Securities on the terms and in the manner contemplated in the
Offering Memorandum.
(r) At the Closing Date, the Formation shall have been completed as
described in the Offering Memorandum, and the Company shall have
provided to the Initial Purchaser all documents with respect thereto as
it may reasonably request.
(s) The Company shall have furnished to the Initial Purchaser or its
counsel such further certificates and documents as the Initial
Purchaser or such counsel reasonably request.
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.
6. 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 Issuers prior to delivery of and
payment for the Securities if, prior to that time, any of the events
described in Sections 5(i), 5(p) or 5(q) shall have occurred.
7. REIMBURSEMENT OF INITIAL PURCHASER'S EXPENSES. If (a) this Agreement
shall have been terminated pursuant to Section 6, (b) the Issuers shall
fail to tender the Securities for delivery to the Initial Purchaser for
any reason permitted under this Agreement or (c) the Initial Purchaser
shall decline to purchase the Securities for any reason permitted under
this
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Agreement, the Issuers shall reimburse the Initial Purchaser for the
fees and expenses of its counsel and for such other out-of-pocket
expenses as shall have been reasonably incurred by it in connection
with this Agreement and the proposed purchase and resale of the
Securities, and upon demand the Issuers shall pay the full amount
thereof to the Initial Purchaser.
8. INDEMNIFICATION OF INITIAL PURCHASER AND THE ISSUERS.
(a) Indemnification of Initial Purchaser. The Issuers and each Guarantor,
jointly and severally, shall indemnify and hold harmless the Initial
Purchaser and each person, if any, who controls the Initial Purchaser
within the meaning of the Securities Act (collectively referred to for
the purposes of this Section 8 as the Initial Purchaser) against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which that Initial Purchaser may become subject,
under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum or the Offering
Memorandum or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state in the Preliminary Offering
Memorandum or the Offering Memorandum or in any amendment or supplement
thereto a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse the
Initial Purchaser for any legal or other expenses reasonably incurred
by the Initial Purchaser in connection with investigating or preparing
to defend or defending 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 foregoing
indemnification agreement with respect to the Preliminary Offering
Memorandum shall not inure to the benefit of the Initial Purchaser from
whom the person asserting any such loss, claim, damage or liability
purchased Securities, if (i) a copy of the Offering Memorandum (as then
amended or supplemented) was required by law to be delivered to such
person at or prior to the written confirmation of the sale of
Securities to such person, (ii) a copy of the Offering Memorandum (as
then amended or supplemented) was not sent or given to such person by
or on behalf of Initial Purchaser and (iii) the Offering Memorandum (as
so amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage or liability; and further provided, however,
that the Issuers and the Guarantors 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 (i) an untrue statement or
alleged untrue statement in or omission or alleged omission from the
Preliminary Offering Memorandum or the Offering Memorandum or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Issuers and the Guarantors through the
Initial Purchaser specifically for use therein, which information the
parties hereto agree is limited to the Initial Purchaser's Information.
(b) Indemnification of Issuers, Directors and Officers. The Initial
Purchaser shall indemnify and hold harmless the Issuers and each
Guarantor, their respective directors, and each person, if any, who
controls the Issuers or Guarantor within the meaning of the Securities
Act (collectively referred to for the purposes of this Section 8 as the
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Issuers), against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Issuers or any
Guarantor may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of
or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Preliminary Offering Memorandum 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 written
information furnished to the Issuers through the Initial Purchaser
specifically for use therein, and shall reimburse the Issuers or such
Guarantor for any legal or other expenses reasonably incurred by the
Issuers or such Guarantor in connection with investigating or preparing
to defend or defending against or appearing as third party witness in
connection with any such loss, claim, damage, liability or action as
such expenses are incurred; provided that the parties hereto hereby
agree that such written information provided by the Initial Purchaser
consists solely of the Initial Purchaser's Information.
(c) Actions; Notification. Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under this Section 8, notify
the indemnifying party in writing of the claim or the commencement of
that action; provided, however, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may
have under this Section 8 except to the extent it has been materially
prejudiced by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to
the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not
be liable to the indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, that any indemnified party shall have
the right to employ separate counsel in any such action and to
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the employment thereof has been specifically authorized by the
indemnifying party in writing, (ii) such indemnified party shall have
been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to
those available to the indemnifying party and in the reasonable
judgment of such counsel it is advisable for such indemnified party to
employ separate counsel or (ii) the indemnifying party has failed to
assume the
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defense of such action and employ counsel reasonably satisfactory to
the indemnified party, in which case, if such indemnified party
notifies the indemnifying party in writing that it elects to employ
separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of
such action on behalf of such indemnified party, it being understood,
however, that the indemnifying party shall not, in connection with any
one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for
all such indemnified parties, which firm shall be designated in writing
by the Initial Purchaser, if the indemnified parties under this Section
9 consist of the Initial Purchaser or any of its respective officers,
employees or controlling persons, or by the Issuers, if the indemnified
parties under this Section 8 consist of the Issuers or any of the
Issuers' directors, officers, employees or controlling persons. Each
indemnified party, as a condition of the indemnity agreements contained
in Sections 8(a) and 8(b), shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any such action
or claim. Subject to the provisions of Section 8(d) below, 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 for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested that an indemnifying party
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of
the nature contemplated by this Section 8 effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the request for reimbursement,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of
such settlement.
(e) Contribution. If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
Section 8(a) or (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 Issuers and the Guarantors on the one hand and the
Initial Purchaser on the other from the offering of the 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 and the Guarantors 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
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action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers and the
Guarantors 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 Securities purchased
under this Agreement (before deducting expenses) received by the
Issuers and the Guarantors bear to the total underwriting discounts and
commissions received by the Initial Purchaser with respect to the
Securities purchased 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 the
omission or alleged omission to state a material fact relates to
information supplied by the Issuers and the Guarantors on the one hand
or the Initial Purchaser on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission; provided that the
parties hereto agree that the written information furnished to the
Issuers by the Initial Purchaser for use in the Preliminary Offering
Memorandum, or the Offering Memorandum consists solely of the Initial
Purchaser's Information. The Issuers and the Initial Purchaser agree
that it would not be just and equitable if contributions pursuant to
this Section 8(e) 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 8(e) shall be deemed to include, for purposes of this Section
8(e), 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
8(e), the Initial Purchaser shall not be required to contribute any
amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were
offered to the public less 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.
The obligations of the Issuers, the Guarantors and the Initial
Purchaser in this Section 8 are in addition to any other liability which the
Issuers, the Guarantors or the Initial Purchaser, as the case may be, may
otherwise have.
9. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the Initial Purchaser, the Issuers,
the Guarantors and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give
any person, firm or corporation, other than the Initial Purchaser, the
Issuers, the Guarantors and their respective successors and the
controlling persons and officers and directors referred to in Section 8
and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
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10. EXPENSES. The Issuers and the Guarantors agree with the Initial
Purchaser to pay (a) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Securities and any taxes payable
in that connection; (b) the costs incident to the preparation, printing
and distribution of the Preliminary Offering Memorandum, the Offering
Memorandum, any amendments and exhibits thereto, the costs of printing,
reproducing and distributing the applicable Transaction Documents by
mail, telex or other means of communications; (c) all expenses and
listing fees incurred in connection with the application for quotation
of the Securities on the PORTAL Market and the approval of the
Securities for book-entry transfer by DTC; (d) any applicable listing
or other fees; (e) the fees and expenses of qualifying the Securities
under the securities laws of the several jurisdictions as provided in
Section 4(g) and of preparing, printing and distributing Blue Sky
Memoranda and Legal Investment Surveys (including related fees and
expenses of counsel to the Initial Purchaser); (f) any fees charged by
securities rating services for rating the Securities; (g) all fees and
expenses of the Trustee and any agent thereof; and (h) all other costs
and expenses incident to the performance of the obligations of the
Issuers under this Agreement (including, without limitation, the fees
and expenses of counsel to the Issuers and the fees and expenses of
Price Waterhouse LLP, BDO Xxxxxxx, LLP and Greenberg, Xxxxxxxxxx, Xxxx
& Xxxxxxx, P.C.; provided that, except as otherwise provided in this
Section 10 and in Section 7, the Initial Purchaser shall pay its own
costs and expenses, including the fees and expenses of its counsel, any
transfer taxes on the Securities which it may sell and the expenses of
advertising any offering of the Securities made by the Initial
Purchaser.
11. SURVIVAL. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Issuers, the
Guarantors 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 Securities 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.
12. NOTICES, ETC. 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, telex
or facsimile transmission to Societe Generale Securities Corporation,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High
Yield Capital Markets, Telephone: (000) 000-0000, Telecopy: (212)
278-6178;
(b) if to the Issuers or the Guarantors, shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set
forth in the Offering Memorandum, Attention: Xxxx Xxxxxx, Telephone:
(000) 000-0000, Telecopy: (000) 000-0000;
provided, however, that any notice to the Initial Purchaser pursuant to Section
8(c) shall be delivered or sent by mail, telex or facsimile transmission to the
Initial Purchaser at its address set forth in its acceptance telex, which
address will be supplied to any other party hereto by the Initial Purchaser upon
request. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Company and the Guarantors shall be entitled
to act and rely upon any request, consent, notice or agreement given or made by
the Initial Purchaser.
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13. DEFINITIONS OF CERTAIN TERMS. For purposes of this Agreement, (a)
"business day" means any day on which the New York Stock Exchange, Inc.
is open for trading and (b) "subsidiary" has the meaning set forth in
Rule 405 of the Rules and Regulations.
14. INITIAL PURCHASER'S INFORMATION. The parties hereto acknowledge and
agree that, for all purposes of this Agreement, the Initial Purchaser's
Information consists solely of the following information in the
Offering Memorandum: (i) the last paragraph on the front cover page
concerning the terms of the offering by the Initial Purchaser; (ii) the
legend on the inside front cover page concerning over-allotment and
trading activities by the Initial Purchaser; and (iii) the statements
concerning the Initial Purchaser contained in the fifth and sixth
paragraphs under the heading "Plan of Distribution."
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. JOINT AND SEVERAL LIABILITY. Each subsidiary of the Company, by its
execution and delivery of a counterpart to this Agreement, agrees that
it shall be joint and severally liable for all obligations and
liabilities of the Issuers.
17. 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
instrument.
18. 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.
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If the foregoing is in accordance with your understanding of
the agreement between the Issuers, the Guarantors and the Initial Purchaser,
kindly indicate your acceptance in the space provided for that purpose below.
Very truly yours,
KEY COMPONENTS, LLC
By___________________________
Name:
Title:
KEY COMPONENTS FINANCE CORP.
By___________________________
Name:
Title:
XXXXXX LOCK, INC.
By___________________________
Name:
Title:
X.X. XXXXXXX MANUFACTURING CO., INC.
By___________________________
Name:
Title:
ESP LOCK PRODUCTS, INC.
By___________________________
Name:
Title:
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Accepted:
SOCIETE GENERALE SECURITIES CORPORATION
By___________________________________
Name:
Title:
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ANNEX A
Form of Exchange and Registration Rights Agreement
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SCHEDULE I
Subsidiaries of the Company
Xxxxxx Lock, Inc.
X.X. Xxxxxxx Manufacturing Co., Inc.
ESP Lock Products, Inc.
Key Components Finance Corp.
32
