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Exhibit 4.4
EXECUTION COPY
OCTEL DEVELOPMENTS PLC
10% SENIOR NOTES DUE 2006
PURCHASE AGREEMENT
April 30, 1998
Xxxxxxx, Xxxxx & Co.,
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
As representatives of the several Purchasers
named in Schedule I hereto,
c/o Goldman, Sachs & Co.,
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Octel Developments PLC, a company organized under the laws of England and
Wales (the "Company"), proposes, subject to the terms and conditions stated
herein, to issue and sell to the Purchasers named in Schedule I hereto (the
"Purchasers") an aggregate of $150,000,000 principal amount of the 10% Senior
Notes due 2006 specified above (the "Notes"). The Notes will be
unconditionally guaranteed as to payment of principal, interest and any other
amounts due thereon (the "Guarantee") by Octel Corp, a Delaware corporation,
(the "Guarantor"). The Notes and the Guarantee are hereinafter collectively
called the "Securities".
In connection with the offering of the Securities and prior to the
execution of the Related Agreements (as defined below), Great Lakes Chemical
Corporation, a Delaware corporation ("Great Lakes"), which is currently the
parent corporation of the Guarantor, intends to distribute to the holders of
record of its common stock, par value $1.00 per share (the "Great Lakes Common
Stock"), one share of the common stock of the Guarantor, par value $0.01 per
share (the "Octel Common Stock"), for every four shares of Great Lakes Common
Stock owned by such holder at the close of business on May 18, 1998, (the
"Distribution"). Thereafter, the Guarantor will be an independent publicly
traded company. Accordingly, the Guarantor has filed with the Securities and
Exchange Commission (the "Commission") a Registration Statement on Form 10
registering the Octel Common Stock under the Securities Exchange Act of 1934,
as amended (the "Distribution Registration Statement").
In connection with the offering of the Securities and the filing of the
Distribution Registration Statement, the Guarantor and Great Lakes or their
respective subsidiaries shall enter into the Related Agreements (as defined
below), pursuant to which (i) Great Lakes intends to distribute to its
stockholders all of the outstanding shares of Octel Common Stock and transfer
certain of its businesses and assets to the Guarantor or its subsidiaries, (ii)
the Guarantor or its subsidiaries will transfer certain business and assets to
Great Lakes or its subsidiaries and (iii) the Company and Great Lakes, or their
respective subsidiaries, shall set forth certain of their respective
obligations regarding various tax liabilities, commercial arrangements and
service agreements. Capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Offering Circular (as
defined below).
1. Each of the Company and the Guarantor, jointly and severally,
represents and warrants to, and agrees with, each of the Purchasers that:
(a) A preliminary offering circular, dated April 17, 1998 (the
"Preliminary Offering Circular") and an offering circular, dated April 30,
1998 (the "Offering Circular"), in each case including the international
supplement thereto, have been prepared in connection with the offering of
the Securities. Any reference to the Preliminary Offering Circular or the
Offering Circular shall be deemed to refer to and include any Additional
Issuer Information (as defined in Section 5(f))
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furnished by the Company prior to the completion of the distribution of
the Securities. The Preliminary Offering Circular or the Offering
Circular and any amendments or supplements thereto did not and will not,
as of their respective dates, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company or the Guarantor by a Purchaser through Xxxxxxx, Xxxxx & Co.
expressly for use therein;
(b) Neither the Company, the Guarantor or any subsidiary of the
Guarantor that is a "significant subsidiary" as defined in Reg.
210.I-02(w) under Regulation S-X of the Commission (collectively, the
"Subsidiaries") has sustained since the date of the latest audited
financial statements included in the Offering Circular any material loss
or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Offering Circular; and, since the respective
dates as of which information is given in the Offering Circular, there has
not been any change in the capital stock or long-term debt of the Company,
the Guarantor or the Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company, the
Guarantor and the Subsidiaries taken as a whole (a "Material Adverse
Effect"), otherwise than as set forth or contemplated in the Offering
Circular;
(c) The Company, the Guarantor and the Subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case free
and clear of all liens, encumbrances and defects except such as are
described in the Offering Circular or such as do not materially affect the
value of such property and do not interfere with the use made and proposed
to be made of such property by the Company, the Guarantor and the
Subsidiaries and any real property and buildings held under lease by the
Company, the Guarantor and the Subsidiaries are held by it under valid,
subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such
property and buildings by them;
(d) The Company has been duly incorporated and is validly existing as
a company under the laws of England and Wales and the Guarantor has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of Delaware, each has corporate power and
authority to own its properties and conduct its business as described in
the Offering Circular, and each has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under
the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure to
be so qualified in any such jurisdiction; and each Subsidiary has been
duly incorporated and is, where applicable, validly existing as a company
under the laws of its jurisdiction of incorporation;
(e) The Guarantor has an authorized capitalization as set forth in
the Offering Circular, and all of the issued shares of capital stock of
the Guarantor have been duly and validly authorized and issued and are
fully paid and nonassessable; and all of the issued shares of capital
stock of each Subsidiary have been duly and validly authorized and issued,
are fully paid and non-assessable and (except for directors' qualifying
shares and except as otherwise set forth in the Offering Circular) are
owned directly or indirectly by the Guarantor, free and clear of all
liens, encumbrances, equities or claims;
(f) The Securities have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by
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the indenture to be dated as of May 1, 1998 (the "Indenture") between the
Company, the Guarantor and IBJ Xxxxxxxx Bank & Trust Company, as Trustee
(the "Trustee"), under which they are to be issued, which will be
substantially in the form previously delivered to you; the Guarantee has
been duly authorized and, upon the execution and delivery of the Indenture
by the Company, the Guarantor and the Trustee and the due authorization,
issuance and delivery of the related Notes, will constitute valid and
legally binding obligations of the Guarantor entitled to the benefits
provided by the Indenture; the Indenture has been duly authorized and,
when executed and delivered by the Company, the Guarantor and the Trustee,
the Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement in
the case of the Securities and the Indenture, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions thereof
under the heading "Description of the Notes" in the Offering Circular and
will be in substantially the form previously delivered to you;
(g) This Agreement and the Exchange and Registration Rights Agreement
have been duly authorized, executed and delivered by the Company and the
Guarantor;
(h) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale of
the Securities) will violate or result in a violation of Section 7 of the
Exchange Act, or any regulation promulgated thereunder, including, without
limitation, Regulations G, T, U, and X of the Board of Governors of the
Federal Reserve System;
(i) Prior to the date hereof, none of the Company, the Guarantor or
the Subsidiaries or any of their affiliates has taken any action which is
designed to or which has constituted or which might have been expected to
cause or result in stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Securities
or facilitate the sale or resale of the Securities;
(j) There is no "substantial U.S. market interest in the debt
securities of the Company or the Guarantor" within the meaning of Rule
903(c)(1) under the Act;
(k) The issue and sale of the Securities and the compliance by the
Company and the Guarantor, as the case may be, with all of the provisions
of the Securities, the Indenture and this Agreement and the consummation
of the transactions herein and therein contemplated 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 material to the Company,
the Guarantor and the Subsidiaries taken as a whole, to which the Company
or the Guarantor or any of the Subsidiaries is a party or by which the
Company or the Guarantor or any of the Subsidiaries is bound or to which
any of the property or assets of the Company, the Guarantor or the
Subsidiaries is subject, nor will such action result in any violation of
the provisions of the Certificate of Incorporation or By-laws of the
Company or the Guarantor or any statute or any order, rule or regulation
of any court, central bank, stock exchange or governmental agency or body
("Governmental Agency") having jurisdiction over the Company, the
Guarantor or any of the Subsidiaries or any of their respective
properties; and such Governmental Authorizations ("Governmental
Authorizations") of or with any such Governmental Agency is required for
the issue and sale of the Securities or the consummation by the Company or
the Guarantor of the transactions contemplated by this Agreement or, the
Indenture, except for the filing of a registration statement by the
Company with the Commission pursuant to the Act pursuant to Section 5(k)
hereof and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the Securities by the
Purchasers;
(l) The execution, delivery and performance by the Company, the
Guarantor or the Subsidiaries, as the case may be, of the Transfer and
Distribution Agreement, the Tax Disaffiliation Agreement, the Corporate
Services Transition Agreement and the Supply and Toll Manufacturing
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Agreements (each as defined in the Offering Circular, and collectively,
the "Related Agreements") and this Agreement and the Exchange and
Registration Rights Agreement of even date hereof between the Company and
the Purchasers (the "Exchange and Registration Rights Agreement") will not
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over any of the Guarantor or the Subsidiaries or any of their
respective properties, or any agreement or instrument material to the
Guarantor and the Subsidiaries taken as a whole, to which any of the
Guarantor or the Subsidiaries is a party or by which any of the Guarantor
or the Subsidiaries is bound or to which any of the properties of the
Guarantor or the Subsidiaries is subject, or the charter or by-laws of the
Guarantor or the Subsidiaries;
(m) The Related Agreements have been duly authorized, executed and
delivered by the Guarantor or the Subsidiaries, as the case may be, and
conform in all material respects to the descriptions thereof in the
Offering Circular;
(n) The Related Agreements, this Agreement and the Exchange and
Registration Rights Agreement, assuming due execution and delivery by the
other parties thereto, constitute valid and legally binding obligations of
the Guarantor and the Company, as applicable, and are enforceable against
the Guarantor and the Company, as applicable, in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(o) The Guarantor has delivered to Xxxxxxx, Xxxxx & Co. true and
correct copies of the Related Agreements, in each case, in the form as
originally executed, and there have been no amendments or waivers thereto
or in the exhibits or schedules thereto other than those as to which
Xxxxxxx, Sachs & Co. shall have been advised;
(p) None of the Company, the Guarantor, or any of the Subsidiaries is
in violation of its respective certificates of incorporation or by-laws or
in default in the performance or observance of any material obligation,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(q) The statements set forth in the Offering Circular under the
caption "Description of the Notes", insofar as they purport to constitute
a summary of the terms of the Securities, under the caption "Certain
Federal Income Tax Consequences" and under the caption "Plan of
Distribution", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair;
(r) Each of the Company, the Guarantor and the Subsidiaries own or
possess or has the right to use trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, and presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company, the
Guarantor or the Subsidiaries, would individually or in the aggregate have
a material adverse effect on the Company, the Guarantor and the
Subsidiaries;
(s) Except as disclosed in the Offering Circular, none of the
Company, the Guarantor or the Subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or contamination
pursuant to any environmental laws, or is
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subject to any claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the aggregate
have a material adverse effect on the Company, the Guarantor and the
Subsidiaries taken as a whole; and neither the Company nor the Guarantor
is aware of any pending investigation which might lead to such a claim;
(t) Other than as set forth in the Offering Circular, there are no
legal or governmental proceedings pending to which the Company, the
Guarantor or the Subsidiaries is a party or of which any property of the
Company, the Guarantor or the Subsidiaries is the subject which, if
determined adversely to the Company, the Guarantor or the Subsidiaries,
would individually or in the aggregate have a Material Adverse Effect on
the current or future financial position, stockholders' equity or results
of operations of the Company, the Guarantor or the Subsidiaries or would
materially and adversely affect the ability of the Company or the
Guarantor to perform their obligations under the Indenture, the Related
Agreements, the Exchange and Registration Rights Agreement or this
Agreement; and, to the best of the Company's and the Guarantor's
knowledge, no such proceedings are threatened or contemplated by
Governmental Authorities or threatened by others;
(u) No Governmental Authorization is required to effect payments of
principal, premium, if any, and interest on the Securities or for the
Trustee to convert such payments into U.S. dollars for distribution to
Securityholders;
(v) All interest on the Securities may under the current laws and
regulations of England and Wales be paid in the currency of such
jurisdictions that may be converted into foreign currency that may be
freely transferred out of England and Wales, and all such interest and
other distributions on the Securities will not be subject to withholding
or other taxes under the laws and regulations of England and Wales and are
otherwise free and clear of any other tax, withholding or deduction in
England and Wales and without the necessity of obtaining any Governmental
Authorization in England and Wales;
(w) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on
behalf of the Purchasers to England and Wales or any political subdivision
or taxing authority thereof or therein in connection with (A) the
issuance, sale and delivery by the Company to or for the respective
accounts of the Purchasers of the Securities or (B) the sale and delivery
outside the United Kingdom by the Purchasers of the Securities to the
initial purchasers thereof;
(x) The Company, the Guarantor and the Subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders and
other concessions of and from all Governmental Agencies that are necessary
to own or lease their other properties and conduct their businesses as
described in the Offering Circular;
(y) When the Securities are issued and delivered pursuant to this
Agreement, the Securities will not be of the same class (within the
meaning of Rule 144A under the Act) as securities which are listed on a
national securities exchange registered under Section 6 of the United
States Exchange Act of 1934, as amended (the "Exchange Act") or quoted in
a U.S. automated inter-dealer quotation system;
(aa) The Guarantor will be subject to Section 13 or 15(d) of the
Exchange Act;
(bb) Neither the Company nor the Guarantor is, and after giving
effect to the offering and sale of the Securities, will not be an
"investment company", or an entity "controlled" by an "investment
company", as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(cc) Neither the Company, the Guarantor nor any person acting on its
or their behalf has offered or sold the Securities by means of any general
solicitation or general advertising within the meaning of Rule 502(c)
under the Act or, with respect to Securities sold outside the United
States
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to non-U.S. persons (as defined in Rule 902 under the Act), by means of
any directed selling efforts within the meaning of Rule 902 under the Act
and the Company, the Guarantor, any affiliate of the Company or the
Guarantor and any person acting on its or their behalf has complied with
and will implement the "offering restriction" within the meaning of such
Rule 902;
(dd) Within the preceding six months, neither the Company, the
Guarantor nor any other person acting on behalf of the Company or the
Guarantor has offered or sold to any person any Securities, or any
securities of the same or a similar class as the Securities, other than
Securities offered or sold to the Purchasers hereunder. The Company and
the Guarantor will take reasonable precautions designed to insure that any
offer or sale, direct or indirect, in the United States or to any U.S.
person (as defined in Rule 902 under the Act) of any Securities or any
substantially similar security issued by the Company, within six months
subsequent to the date on which the distribution of the Securities has
been completed (as notified to the Company by Xxxxxxx, Xxxxx & Co.), is
made under restrictions and other circumstances reasonably designed not to
affect the status of the offer and sale of the Securities in the United
States and to U.S. persons contemplated by this Agreement as transactions
exempt from the registration provisions of the Act;
(ee) The Company, the Guarantor and the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which they are engaged and neither the Company, the Guarantor nor any
such Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not result in a Material
Adverse Effect, except as described in or contemplated by the Offering
Circular; and
(ff) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Purchasers, and each of the Purchasers
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 97% of the principal amount thereof, plus accrued interest, if any,
from May 5, 1998 to the Time of Delivery hereunder, the principal amount of
Securities set forth opposite the name of such Purchaser in Schedule I hereto.
3. Upon the authorization by you of the release of the Securities, the
several Purchasers propose to offer the Securities for sale upon the terms and
conditions set forth in this Agreement and the Offering Circular and each
Purchaser hereby represents and warrants to, and agrees with the Company and
the Guarantor that:
(a) It will offer and sell the Securities only to persons who it
reasonably believes are "qualified institutional buyers" ("QIBs") within the
meaning of Rule 144A under the Act in transactions meeting the requirements of
Rule 144A;
(b) It is an "accredited investor" within the meaning of Rule 501 under
the Act; and
(c) It will not offer or sell the Securities by any form of general
solicitation or general advertising, including but not limited to the methods
described in Rule 502(c) under the Act.
4.(a) The Securities to be purchased by each Purchaser hereunder will be
represented by one or more global Securities in bearer form without coupons
which will be deposited by or on behalf of the Company with The Industrial Bank
of Japan (Luxembourg) S.A., as book-entry depositary (the "Book-Entry
Depositary"). The Book-Entry Depositary will issue a certificate less interest
in each global security representing a 100% interest in such underlying
Security to The Depository Trust Company ("DTC") or its designated custodian.
The Company will deliver the Securities to Xxxxxxx, Xxxxx & Co., for the
account of each Purchaser, against payment by or on behalf of such Purchaser of
the purchase price therefor by
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certified or official bank check or checks, payable to the order of the Company
in Federal (same day) funds, by causing the Book-Entry Depositary to instruct
DTC to credit the Securities to the account of Xxxxxxx, Sachs & Co. at DTC.
The Company will cause the certificates representing the Securities to be made
available to Xxxxxxx, Xxxxx & Co. for checking at least twenty-four hours prior
to the Time of Delivery (as defined below) at the office of the Book-Entry
Depositary (the "Designated Office"). The time and date of such delivery and
payment shall be 9:30 a.m., New York City time, on May 5, 1998 or such other
time and date as Xxxxxxx, Sachs & Co. and the Company may agree upon in
writing. Such time and date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Securities and any additional documents requested by the Purchasers
pursuant to Section 7(i) hereof, will be delivered at such time and date at the
offices of Cravath, Swaine & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000
(the "Closing Location"), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will be held at the
Closing Location at 8:30 a.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New
York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York are
generally authorized or obligated by law or executive order to close.
5. Each of the Company and the Guarantor, jointly and severally, agrees
with each of the Purchasers:
(a) To prepare the Offering Circular in a form approved by you; to make no
amendment or any supplement to the Offering Circular which shall be disapproved
by you promptly after reasonable notice thereof; and to furnish you with copies
thereof;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Securities for offering and sale under the securities
laws of such jurisdictions as you may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(c) To furnish the Purchasers with 5 copies of the Offering Circular and
each amendment or supplement thereto signed by an authorized officer of the
Company with the independent accountants' report(s) in the Offering Circular,
and any amendment or supplement containing amendments to the financial
statements covered by such report(s), signed by the accountants, and additional
copies thereof in such quantities as you may from time to time reasonably
request, and if, at any time prior to the expiration of nine months after the
date of the Offering Circular, any event shall have occurred as a result of
which the Offering Circular as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Offering Circular is
delivered, not misleading, or, if for any other reason it shall be necessary or
desirable during such same period to amend or supplement the Offering Circular,
to notify you and upon your request to prepare and furnish without charge to
each Purchaser and to any dealer in securities as many copies as you may from
time to time reasonably request of an amended Offering Circular or a supplement
to the Offering Circular which will correct such statement or omission or
effect such compliance;
(d) During the period beginning from the date hereof and continuing until
the date six months after the Time of Delivery, not to offer, sell contract to
sell or otherwise dispose of, except as provided hereunder any securities of
the Company that are substantially similar to the Securities;
(e) Not to be or become, at any time prior to the expiration of three
years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-
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amount certificate company that is or is required to be registered under
Section 8 of the Investment Company Act;
(f) At any time when the Company or the Guarantor is not exempt from
registration under Section 12(b) of the Exchange Act nor subject to Section 13
or 15(d) of the Exchange Act, for the benefit of holders from time to time of
Securities, to furnish at its expense, upon request, to holders of Securities
and prospective purchasers of securities information (the "Additional Issuer
Information") satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Act;
(g) If requested by you, to use its best efforts to cause the Securities
to be eligible for the PORTAL trading system of the National Association of
Securities Dealers, Inc.;
(h) To furnish to the holders of the Securities as soon as practicable
after the end of each fiscal year the Guarantor's annual report (including a
balance sheet and statements of income, stockholders' equity and cash flows of
the Guarantor and its consolidated subsidiaries certified by independent public
accountants) and prepared in conformity with generally accepted accounting
principles in the U.S. ("U.S. GAAP") and, as soon as practicable after the end
of each of the first three quarters of each fiscal year prepared in accordance
with U.S. GAAP (beginning with the fiscal quarter ending after the date of the
Offering Circular), consolidated summary financial information of the Company,
the Guarantor and the Subsidiaries for such quarter in reasonable detail;
(i) During a period of five years from the date of the Offering Circular,
to furnish to you copies of all reports or other communications (financial or
other) furnished to stockholders of the Guarantor, and to deliver to you (i) as
soon as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any securities exchange on which
the Securities, or any class of securities of the Guarantor is listed; and (ii)
such additional information concerning the business and financial condition of
the Guarantor as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of the
Guarantor and the Subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(j) During the period of three years after the Time of Delivery, the
Company and the Guarantor will not, and will not permit any of its respective
"affiliates" (as defined in Rule 144 under the Securities Act) to, resell any
of the Securities which constitute "restricted securities" under Rule 144 that
have been reacquired by any of them;
(k) The Company shall file and use its best efforts to cause to be
declared or become effective under the Securities Act, on or prior to 150 days
after the Time of Delivery, a registration statement on Form S-4 providing for
the registration of (i) another series of debt securities of the Company, with
terms identical to the Securities (the "Exchange Securities"), and the exchange
of the Securities for the Exchange Securities, all in a manner which will
permit persons who acquire the Exchange Securities to resell the Exchange
Securities pursuant to Section 4(1) of the Securities Act;
(l) Not to (and to cause the Subsidiaries not to) take, directly or
indirectly, any action which is designed to or which constitutes or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of
the Securities; and
(m) To use the net proceeds received by it from the sale of the Securities
pursuant to this Agreement in the manner specified in the Offering Circular
under the caption "Use of Proceeds".
6. (a) Each of the Company and the Guarantor, jointly and severally
covenants and agrees with the several Purchasers that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Company's and the Guarantor's counsel and accountants in connection with the
issue of the Securities and all other expenses in connection with the
preparation, printing and filing of the Preliminary Offering Circular and the
Offering Circular and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the Purchasers and dealers; (ii) the cost
of printing or
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producing any Agreement among Purchasers, this Agreement, the Indenture, the
Blue Sky and Legal Investment Memoranda, closing documents (including any
compilations thereof) and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iii) all expenses in connection
with the qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Securities;
(v) the cost of preparing the Securities; (vi) the fees and expenses of the
Trustee and any agent of the Trustee and the fees and disbursements of counsel
for the Trustee in connection with the Indenture and the Securities; (vii) any
cost incurred in connection with the designation of the Securities for trading
in PORTAL (viii) all expenses and taxes arising as a result of the issuance,
sale and delivery of the Securities, of the sale and delivery outside of
England and Wales of the Securities by the Purchasers to the initial purchasers
thereof in the manner contemplated under the Purchase Agreement, including, in
any such case, any English or Welsh income, capital gains, withholding,
transfer or other tax asserted against a Purchaser by reason of the purchase
and sale of the Securities pursuant to the Purchase Agreement; and (ix) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in this Section, and
Sections 8 and 11 hereof, the Purchasers will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
(b) The Company covenants and agrees with the several Purchasers that it
will register the Securities on the Luxembourg Stock Exchange ("LSE"), as soon
as practicable, but in no event later than 30 days prior to the first interest
payment date on the Notes.
7. The obligations of the Purchasers hereunder shall be subject, in their
discretion, to the condition that all representations and warranties and other
statements of the Company and the Guarantor herein are, at and as of the Time
of Delivery, true and correct, the condition that the Company and the Guarantor
shall have performed all of its respective obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) Cravath, Swaine & Xxxxx, counsel for the Purchasers, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to the matters covered in paragraphs (i) through (ix) below as well as
such other related matters as you may reasonably request, and such counsel
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters;
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Delaware, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Offering Circular;
(ii) The Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued and are fully paid
and nonassessable;
(iii) This Agreement has been duly authorized, executed and delivered by
the Company;
(iv) The Securities have been duly authorized, executed, authenticated,
issued and delivered and constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture; and the
Securities and the Indenture conform to the descriptions thereof in the
Offering Circular; The Securities have been duly authorized by the Company;
the temporary global Security has been duly executed, authenticated, issued
and delivered and constitutes a valid and legally binding obligation of the
Company;
(v) The Indenture has been duly authorized, executed and delivered by
the parties thereto and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as
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to enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(vi) The statements set forth in the Offering Circular under the caption
"Description of the Notes", insofar as they purport to constitute a summary
of the terms of the Securities, under the caption "Certain Federal Income Tax
Consequences" and under the caption "Underwriting", insofar as they purport
to describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(vii) No registration of the Securities under the Act, and no
qualification of an indenture under the United States Trust Indenture Act of
1939 with respect thereto, is required for the offer, sale and initial resale
of the Securities by the Purchasers in the manner contemplated by this
Agreement;
(viii) Such counsel has no reason to believe that the Offering Circular
and any further amendments or supplements thereto made by the Company prior
to the Time of Delivery (other than the financial statements therein, as to
which such counsel need express no opinion) contained as of its date or
contains as of the Time of Delivery an untrue statement of a material fact or
omitted or omits, as the case may be, to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and
(ix) Neither the Company nor the Guarantor is an "investment company" or
an entity "controlled" by an "investment company", as such terms are defined
in the Investment Company Act.
(b) Xxxxxxxx & Xxxxx, counsel for the Company, shall have furnished to you
their written opinion, dated the Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Annex III hereto;
(c) Skadden, Arps, Slate, Xxxxxxx & Xxxx, special counsel for Great
Lakes, shall have furnished to you their written opinion, dated the Time of
Delivery, in form and substance satisfactory to you, to the effect set forth in
Annex IV hereto;
(d) Linklaters & Paines, English law counsel for the Company, shall have
furnished to you their written opinion dated the Time of Delivery, in form and
substance satisfactory to you, to the effect set forth in Annex V hereto;
(e) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, Ernst & Young LLP shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in
Annex II hereto;
(f) (i) Neither the Company, the Guarantor nor the Subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Circular, and (ii)
since the respective dates as of which information is given in the Offering
Circular there shall not have been any change in the capital stock, short-term
debt or long-term debt of the Company, the Guarantor or the Subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity or
results of operations of the Company, the Guarantor and the Subsidiaries,
otherwise than as set forth or contemplated in the Offering Circular, the
effect of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Purchasers so material and adverse as to make it impracticable
or inadvisable to proceed with the offering or the delivery of the Securities
on the terms and in the manner contemplated in this Agreement and in the
Offering Circular;
(g) Concurrently with or prior to the issuance and sale of the Securities
by the Company and the Guarantor, the Related Agreements shall have been
executed on terms that conform in all material respects to the description
thereof in the Offering Circular, and Xxxxxxx, Xxxxx & Co. shall have received
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true and correct copies of all documents pertaining thereto and evidence
reasonably satisfactory to Xxxxxxx, Sachs & Co. of such execution;
(h) On or after the date hereof (i) no downgrading shall have occurred in
the rating accorded the Company's or the Guarantor's debt securities by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has under
surveillance or review, with possible negative implications, its rating of any
of the Company's or the Guarantor's debt securities;
(i) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange (the "NYSE") or LSE; (ii) a suspension
or material limitation in trading in the Company's securities on the NYSE or
LSE, if any such Securities are listed thereon; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York State
authorities; (iv) a change or development involving a prospective change in
taxation in England or Wales affecting the Company, the Securities or the
transfer thereof or the imposition of exchange controls by the United States or
England and Wales; (v) the outbreak or escalation of hostilities involving the
United States or England and Wales or the declaration by the United States or
England and Wales of a national emergency or war, if the effect of any such
event specified in this Clause (vi) in the judgment of the Purchasers makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Offering Circular; or (vii) the occurrence of any material adverse change in
the existing, financial, political or economic conditions in the United States
or England and Wales or elsewhere which, in the judgment of the Purchasers,
would materially and adversely affect the financial markets or the markets for
the Securities and other debt securities;
(j) The Securities have been designated for trading on PORTAL; and
(k) Each of the Company and the Guarantor shall have furnished or caused
to be furnished to you at the Time of Delivery certificates of officers of the
Company and the Guarantor satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Guarantor herein at and
as of such Time of Delivery, as to the performance by each of the Company and
the Guarantor of all of its obligations hereunder to be performed at or prior
to such Time of Delivery, as to the matters set forth in subsections (a) and
(e) of this Section and as to such other matters as you may reasonably request.
8.(a) The Company and the Guarantor will jointly and severally indemnify
and hold harmless each Purchaser against any losses, claims, damages or
liabilities, joint or several, to which such Purchaser may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Offering Circular or the Offering Circular, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, and will reimburse each Purchaser for any legal or
other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company and the Guarantor, as the case
may be, shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Offering Circular or the Offering Circular or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company or the Guarantor, as the case may be, by any Purchaser
through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Purchaser will indemnify and hold harmless the Company and the
Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering Circular or
the Offering Circular, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact or
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necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary Offering
Circular or the Offering Circular or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company or the Guarantor, as the case may be, by such Purchaser through
Xxxxxxx, Sachs & Co. expressly for use therein; and will reimburse the Company
or the Guarantor, as the case may be, for any legal or other expenses
reasonably incurred by the Company, or the Guarantor, as the case may be, in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission to so notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses
of other counsel or any other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from
all liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantor on the one hand and the Purchasers on
the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantor on the one hand and the Purchasers on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantor on the one hand and the Purchasers on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Purchasers, in
each case as set forth in the Offering Circular. 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 Company or the
Guarantor on the one hand or the Purchasers on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Guarantor and the
Purchasers agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by pro rata allocation (even if
the Purchasers were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount paid or
payable by an
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indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), no Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to
investors were offered to investors exceeds the amount of any damages which
such Purchaser has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company and the Guarantor under this Section 8
shall be in addition to any liability which the Company and the Guarantor may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Purchaser within the meaning of the Act; and
the obligations of the Purchasers under this Section 8 shall be in addition to
any liability which the respective Purchasers may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and the Guarantor and to each person, if any, who controls the Company
and the Guarantor within the meaning of the Act.
(f) Notwithstanding any contrary provision of this Section 8, the Company
and the Guarantor shall not indemnify and hold harmless any of the Purchasers
for any losses, claims, damages or liabilities to the extent that such losses,
claims, damages or liabilities arise from, or are connected to, any action for
punitive or exemplary damages or any other monetary damages not measured by
actual damages.
9.(a) If any Purchaser shall default in its obligation to purchase the
Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after
such default by any Purchaser you do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms. In the event
that, within the respective prescribed periods, you notify the Company that you
have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the
Company shall have the right to postpone the Time of Delivery for a period of
not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Offering Circular, or in any other documents or
arrangements, and the Company agrees to prepare promptly any amendments to the
Offering Circular which in your opinion may thereby be made necessary. The
term "Purchaser" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the Company shall have
the right to require each non-defaulting Purchaser to purchase the principal
amount of Securities which such Purchaser agreed to purchase hereunder and, in
addition, to require each non-defaulting Purchaser to purchase its pro rata
share (based on the principal amount of Securities which such Purchaser agreed
to purchase hereunder) of the Securities of such defaulting Purchaser or
Purchasers for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Purchaser from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Purchaser or Purchasers by you and the Company as
provided in subsection (a) above, the aggregate principal amount of Securities
which remains unpurchased exceeds one-eleventh of the aggregate principal
amount of all the Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting Purchasers to
purchase Securities of a defaulting Purchaser or Purchasers, then this
Agreement shall thereupon terminate, without liability on the part of any
non-defaulting Purchaser or the Company, except for the expenses to be borne by
the Company and the
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Purchasers as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Guarantor and the several Purchasers,
as applicable, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Purchaser or any controlling person of any
Purchaser, or the Company, the Guarantor or any officer or director or
controlling person of the Company or the Guarantor, as applicable, and shall
survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Guarantor shall then be under any liability to any
Purchaser except as provided in Sections 6 and 8 hereof; but, if for any other
reason, the Securities are not delivered by or on behalf of the Company as
provided herein, the Company and the Guarantor will reimburse the Purchasers
through you for all out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Purchasers in making preparations for the purchase, sale and delivery of the
Securities, but neither the Company nor the Guarantor shall then be under any
further liability to any Purchaser except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Purchasers, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Purchaser made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Purchasers shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs
& Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company or the Guarantor set forth
in the Offering Circular, Attention: Secretary; provided, however, that any
notice to a Purchaser pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Purchaser at its address
set forth in its Purchasers' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Purchasers, the Company and the Guarantor and, to the extent provided
in Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company, the Guarantor or any Purchaser, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Purchaser shall be
deemed a successor or assign by reason merely of such purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding arising out of or based upon this Agreement may be
instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. The
Company and the Guarantor have appointed CT Corporation System, with offices on
the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, as its authorized agent
(the "Authorized Agent") upon whom process may be served in any such action
arising out of or based on this Agreement or the transactions contemplated
hereby which may be instituted in any New York Court by any Purchaser or by any
person who controls any Purchaser, expressly consents to the jurisdiction of
any such court in respect of any such action, and waives any other requirements
of or objections to personal jurisdiction with respect thereto. Such
appointment shall be irrevocable. Each of the Company and the Guarantor
represents and warrants that the Authorized Agent has agreed to act as such
agent for service of process and agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the
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Authorized Agent and written notice of such service to the Company or the
Guarantor shall be deemed, in every respect, effective service of process upon
the Company or the Guarantor, as the case may be.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Guarantor will indemnify
each Purchaser against any loss incurred by such Purchaser as a result of any
variation as between (i) the rate of exchange at which the United States dollar
amount is converted into the judgment currency for the purpose of such judgment
or order and (ii) the rate of exchange at which an Purchaser is able to
purchase United States dollars with the amount of judgment currency actually
received by such Purchaser. The foregoing indemnity shall constitute a
separate and independent obligation of each of the Company and the Guarantor
and shall continue in full force and effect notwithstanding any such judgment
or order as aforesaid. The term "rate of exchange" shall include any premiums
and costs of exchange payable in connection with the purchase of or conversion
into United States dollars.
16. Time shall be of the essence of this Agreement.
17. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one
and the same instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us one for the Company and the Guarantor and each of the Purchasers
plus one for each counsel counterparts hereof, and upon the acceptance hereof
by you, on behalf of each of the Purchasers, this letter and such acceptance
hereof shall constitute a binding agreement between each of the Purchasers and
the Company and the Guarantor. It is understood that your acceptance of this
letter on behalf of each of the Purchasers is pursuant to the authority set
forth in a form of Agreement among Purchasers, the form of which shall be
submitted to the Company for examination upon request, but without warranty on
your part as to the authority of the signers thereof.
Very truly yours,
Octel Developments PLC
By:
-----------------------------------
Name:
Title:
Octel Corp.
By:
-----------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
By:
-----------------------------------------------
(Xxxxxxx, Sachs & Co.)
On behalf of each of the Purchasers
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SCHEDULE I
Principal
Amount of
Securities
to be
Purchaser Purchased
----------------------------------------------------- ------------
Xxxxxxx, Xxxxx & Co.................................. $ 97,500,000
Xxxxxx Brothers Inc.................................. 26,250,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated... 26,250,000
Total........................................... $150,000,000
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ANNEX I
(1) The Securities have not been and will not be registered under the Act
and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S
under the Act or pursuant to an exemption from the registration requirements of
the Act. Each Purchaser represents that it has offered and sold the
Securities, and will offer and sell the Securities (i) as part of their
distribution at any time and (ii) otherwise until 40 days after the later of
the commencement of the offering and the Time of Delivery, only in accordance
with Rule 903 of Regulation S, Rule 144A under the Act or pursuant to paragraph
2 of this Annex I under the Act. Accordingly, each Purchaser agrees that
neither it, its affiliates nor any persons acting on its or their behalf has
engaged or will engage in any directed selling efforts with respect to the
Securities, and it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Purchaser agrees that, at or
prior to confirmation of sale of Securities (other than a sale pursuant to Rule
144A), it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit of,
U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act. Terms
used above have the meaning given to them by Regulation S."
Terms used in this paragraph have the meanings given to them by Regulation S.
Each Purchaser further agrees that it has not entered and will not enter
into any contractual arrangement with respect to the distribution or delivery
of the Securities, except with its affiliates or with the prior written consent
of the Company.
In addition,
(A) except to the extent permitted under U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D) (the "D Rules"), (i) each Purchaser agrees that it has
not offered or sold, and during the restricted period will not offer or
sell, Securities in bearer form to a person who is within the United
States or its possessions or to a U.S. person, and (ii) it has not
delivered and will not deliver within the United States or its possessions
definitive Securities in bearer form that are sold during the restricted
period;
(B) each Purchaser represents and agrees that it has, and throughout
the restricted period will have, in effect procedures reasonably designed
to ensure that its employees or agents who are directly engaged in selling
Securities in bearer form are aware that such Securities may not be
offered or sold during the restricted period to a person who is within the
United States or its possessions or to a United States person, except as
permitted by the D Rules;
(C) if it is a United States person, each such Purchaser represents
that it is acquiring the Securities in bearer form for purposes of resale
in connection with their original issuance and if it retains Securities in
bearer form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6); and
(D) with respect to each affiliate that acquires from it Securities
in bearer form for the purpose of offering or selling such Securities
during the restricted period, such Purchaser either (i) repeats and
confirms the representations and agreements contained in clauses (A), (B)
and (C) on its behalf or (ii) agrees that it will obtain from such
affiliate for the Company's benefit the representations and agreements
contained in clauses (A), (B) and (C).
Terms used in this paragraph have the meanings given to them by the United
States Internal Revenue Code and regulations thereunder, including the D Rules.
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(2) Notwithstanding the foregoing, Securities in registered form may be
offered, sold and delivered by the Purchasers in the United States and to U.S.
persons pursuant to Section 3 of this Agreement without delivery of the written
statement required by paragraph (1) above.
(3) Each Purchaser further represents and agrees that (i) it has not
offered or sold and prior to the date six months after the date of issue of the
Securities will not offer or sell any Securities to persons in the United
Kingdom except to persons whose ordinary activities involve them in acquiring,
holding, managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995, (b) it
has complied, and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom,
and (c) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issuance of
the Securities to a person who is of a kind described in Article 11(3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may otherwise lawfully be
issued or passed on.
(4) Each Purchaser agrees that it will not offer, sell or deliver any of
the Securities in any jurisdiction outside the United States except under
circumstances that will result in compliance with the applicable laws thereof,
and that it will take at its own expense whatever action is required to permit
its purchase and resale of the Securities in such jurisdictions. Each
Purchaser understands that no action has been taken to permit a public offering
in any jurisdiction outside the United States where action would be required
for such purpose. Each Purchaser agrees not to cause any advertisement of the
Securities to be published in any newspaper or periodical or posted in any
public place and not to issue any circular relating to the Securities, except
in any such case with Xxxxxxx, Sachs & Co.'s express written consent and then
only at its own risk and expense.
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ANNEX II
Pursuant to Section 7(d) of the Purchase Agreement, the accountants shall
furnish letters to the Purchasers to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries under rule 101 of the American Institute
of Certified Public Accountants' Code of Professional Conduct, and its
interpretations and rulings;
(ii) In our opinion, the combined financial statements and financial
statement schedules audited by us and included in the Offering Circular
comply as to form in all material respects with the applicable
requirements of the Exchange Act and the related published rules and
regulations;
(iii) The unaudited selected financial information with respect to
the consolidated results of operations and financial position of the
Guarantor for the four most recent fiscal years included in the Offering
Circular agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such four
fiscal years;
(iv) On the basis of limited procedures not constituting an audit in
accordance with generally accepted auditing standards, consisting of a
reading of the latest available interim financial statements of the
Guarantor and the Subsidiaries, inspection of the minute books of the
Guarantor and the Subsidiaries since the date of the latest audited
financial statements included in the Offering Circular, inquiries of
officials of the Guarantor and the Subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) at March 31, 1998, there was any decrease in combined Great
Lakes investment or net current assets of the Company as compared
with the amounts shown in the December 31, 1997 audited combined
balance sheet included in the Offering Circular; or
(B) for the period from January 1, 1998 to March 31, 1998,
there were any decreases, as compared with the corresponding period
in the preceding year, in combined net sales or combined operating
income, except in all instances for any decreases that the Offering
Circular discloses have occurred or may occur.
(v) In addition to the examination referred to in their report(s)
included in the Offering Circular and the limited procedures, inspection
of minute books, inquiries and other procedures referred to in paragraphs
(iii) and (iv) above, they have carried out certain specified procedures,
not constituting an audit in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Purchasers, which are derived from the
general accounting records of the Guarantor and the Subsidiaries, which
appear in the Offering Circular, and have compared certain of such
amounts, percentages and financial information with the accounting records
of the Guarantor and the Subsidiaries and have found them to be in
agreement.
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April 30, 1998
Dear Ernst & Young
Xxxxxxx, Xxxxx & Co., as representatives of the Purchasers of Senior Notes
due 2006 to be issued by Octel Developments PLC (the "Company"), will be
reviewing certain information relating to the Company that will be included
(incorporated by reference) in the Offering Circular. This review process,
applied to the information relation to the issue, is (will be) substantially
consistent with the due diligence review process that we would perform if this
placement of securities were being registered pursuant to the Securities Act of
1933 (the Act). It is recognized however that what is "substantially
consistent" may vary from situation to situation and may not be the same as
that done in a registered offering of the same securities for the same issuer
and whether the procedures being, or to be, followed will be "substantially
consistent" will be determined by us on a case-by-case basis. We are
knowledgeable with respect to the due diligence review process that would be
performed if this placement of securities were being registered pursuant to the
Act. We hereby request that you deliver to us a "comfort" letter concerning
the financial statements of the issuer and certain statistical and other data
included in the offering document. We will contact you to identify the
procedures we wish you to follow and the form we wish the comfort letter to
take.
Very truly yours,
_____________________________________
(Xxxxxxx, Sachs & Co.)
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ANNEX III
Pursuant to Section 7(b) of the Purchase Agreement, Xxxxxxxx & Xxxxx shall
furnish their written opinion to the Purchasers to the effect that:
(i) After giving effect to the Distribution in the manner
contemplated by the Related Agreements, (i) the Guarantor's
authorized capital stock will be as set forth under the heading
"Security Ownership of Certain Beneficial Owners" in the
Offering Circular and (ii) all of the issued and outstanding
shares of capital stock of the Guarantor will be validly issued,
fully paid and non-assessable;
(ii) Each of the Subsidiaries incorporated in the U.S.
(each, a ("U.S. Subsidiary") is a corporation validly existing
and in good standing under the laws of its jurisdiction of
incorporation; and all of the issued shares of capital stock of
each such U.S. Subsidiary have been duly and validly authorized
and issued, are fully paid and nonassessable, and (except for
directors' qualifying shares) are owned directly or indirectly
by the Company or the Guarantor, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Company or the Guarantor or the
U.S. Subsidiaries, provided that such counsel shall state that
they believe that both you and they are justified in relying
upon such opinions and certificates);
(iii) To the best of such counsel's knowledge and other
than as set forth in the Offering Circular, there are no legal
or governmental proceedings pending to which the Company, the
Guarantor or the Subsidiaries is a party or of which any
property of the Company, the Guarantor or the Subsidiaries is
the subject which, if determined adversely to the Company, the
Guarantor or the Subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or
results of operations of the Company, the Guarantor or the
Subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(iv) Each of the Purchase Agreement and the Exchange and
Registration Rights Agreement has been duly executed and
delivered by the Guarantor. Assuming due authorization,
execution and delivery by the Company and the Purchasers, and
the due authorization by the Guarantor, the Purchase Agreement
and the Exchange and Registration Rights Agreement constitute
valid and legally binding obligations of the Company and the
Guarantor, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws affecting
creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity);
(v) The Notes, the Related Agreements and the Indenture
have been duly executed, authenticated, issued and delivered by
the Company assuming due authorization, execution and delivery,
to the extent applicable, by the Trustee and the Company, as the
case may be, and the due authorization by the Guarantor, the
Indenture constitutes and the Notes and the Guarantee, when
authenticated in accordance with the terms of the Indenture and
delivered to and paid for by the Purchasers in accordance with
the terms of the Purchase Agreement, will constitute valid and
legally binding obligations of the Company and the Guarantor, as
the case may be, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and similar laws affecting
creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is
sought in a proceeding at law or in equity);
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(vi) The execution and delivery by the Company and the Guarantor,
as the case may be, of the Purchase Agreement, the Exchange and
Registration Rights Agreement, the Related Agreements, the
Guarantee and the Indenture and the performance of its agreements
therein and the consummation of the sale of the Notes to you in
accordance with the Purchase Agreement do not (i) based on our
review of the Guarantor's Articles of Incorporation and Bylaws,
violate such Articles of Incorporation or Bylaws or (ii)
constitute a violation by the Company or the Guarantor, as the
case may be, of any applicable provision of any law, statute or
regulation (except that we express no opinion in this paragraph
as to compliance with any disclosure requirement or any
prohibition against fraud or misrepresentation or as to whether
performance of the indemnification or contribution provisions in
the Purchase Agreement would be permitted) or (iii) breach, or
result in a default under, any existing obligation of the Company
or the Guarantor, as the case may be, under any of the agreements
listed on Schedule A hereto (provided that we express no opinion
as to compliance with any financial test or cross default
provision in any such agreement);
(vii) To our knowledge, no consent, approval, authorization or order of
any governmental agency under U.S. Federal law is required for
the consummation of the Related Agreements, provided that this
paragraph does not cover or address any law or legal issue
identified on Schedule B hereto;
(viii) To our knowledge, neither the Company nor the Guarantor was
required to obtain any consent, approval, authorization or order
of governmental agency for the issuance, delivery and sale of
the Notes being issued and sold by it under the Purchase
Agreement and the Indenture except for any such consent,
approval, authorization or order which may be required under the
so-called "Blue Sky" or securities laws of any states (as to
which we express no opinion or advice);
(ix) To our knowledge, there is no action, suit,
proceeding or investigation before or by any court or
governmental agency or body, domestic or foreign, pending or
threatened against, the Guarantor, the Company or the
Subsidiaries that (i) has caused such counsel to conclude that
such action, suit, proceeding or investigation is required to be
described in the Offering Circular but is not so described or
(ii) would be reasonably likely to adversely affect the
consummation of any of the transactions contemplated by the
Purchase Agreement or the Indenture, including without
limitation the issuance and sale of the Notes and the Guarantee;
(x) It is not necessary in connection with (i) the offer,
sale and delivery of the Notes to the several Purchasers
pursuant to the Purchase Agreement or (ii) the resales of the
Notes by the several Purchasers in the manner contemplated in
the Offering Circular to register the Notes under the Securities
Act or to qualify an indenture in respect thereof under the
United States Trust Indenture Act of 1939;
(xi) Neither the Guarantor or the Company is an
"investment company" as defined in the Investment Company Act of
1940;
(xii) The statements set forth in the Offering Circular under the
caption "Description of the Notes", insofar as they purport to
constitute a summary of the terms of the Securities and under the
caption "Plan of Distribution", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(xiii) The Notes, the Guarantee and the Indenture conform in all
material respects to the descriptions thereof contained in the
Offering Circular, and the description in the Offering Circular
of United States federal income tax matters under the heading
"Certain Federal Income Tax Consequences" is accurate in all
material respects and fairly presents the information required to
be shown.
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(xiv) Such counsel has no reason to believe that the Offering Circular
and any further amendments or supplements thereto made by the
Company or the Guarantor prior to the Time of Delivery (other
than the financial statements therein, as to which such counsel
need express no opinion) contained as of its date or contains as
of the Time of Delivery an untrue statement of a material fact or
omitted or omits, as the case may be, to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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ANNEX IV
Pursuant to Section 7(c) of the Purchase Agreement, Skadden, Arps, Slate,
Xxxxxxx & Xxxx shall furnish their written opinion to the Purchasers to the
effect that:
(i) The Guarantor is a corporation validly existing and in good
standing under the laws of its jurisdiction of incorporation;
(ii) The Guarantor has the corporate power to own and lease its
properties and to conduct its business as described in the
Offering Circular;
(iii) Each of the Purchase Agreement and the Exchange and
Registration Rights Agreement has been duly authorized by the
Guarantor.
(iv) The Notes, the Guarantee, the Related Agreements and the
Indenture have been duly authorized by the Guarantor.
(v) The execution and delivery by the Guarantor of the
Purchase Agreement, the Exchange and Registration Rights
Agreement, the Related Agreements, the Guarantee and the
Indenture and the performance of its agreements therein and the
consummation of the sale of the Notes to you in accordance with
the Purchase Agreement will not conflict with the Certificate of
Incorporation or Bylaws of the Guarantor.
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XXXXX X
Xxxxxxxx to Section 7(d) of the Purchase Agreement, Linklaters & Paines
shall furnish their written opinion to the Purchasers to the effect that:
(i) The Company is a corporation validly existing under
the laws of its jurisdiction of incorporation;
(ii) The Company's subsidiaries in the United Kingdom are
corporations validly existing under the laws of their
jurisdictions of incorporation;
(iii) The Company has the corporate power to own and lease
its properties and to conduct its business as described in the
Offering Circular;
(iv) The Company is qualified to do business and is in
good standing in each jurisdiction listed opposite its name on
Schedule A hereto;
(v) Each of the Purchase Agreement and the Exchange and
Registration Rights Agreement has been duly authorized, executed
and delivered by the Company.
(vi) No Governmental Authorization of or with any
Governmental Agency in England and Wales is required for the
issue and sale of the Securities or the consummation by the
Company or the Guarantor of the transactions contemplated by
this Agreement or the Indenture;
(vii) The Indenture has been duly authorized, executed,
authenticated, issued and delivered by the Company;
(viii) The execution and delivery by the Company of the Purchase
Agreement, the Exchange and Registration Rights Agreement, and
the Indenture and the performance of its agreements therein and
the consummation of the sale of the Notes to you in accordance
with the Purchase Agreement do not (i) based on our review of
the Company's Memorandum and Articles of Association, violate
such or (ii) constitute a violation by the Company of any
applicable provision of any law, statute or regulation (except
that we express no opinion in this paragraph as to compliance
with any disclosure requirement or any prohibition against fraud
or misrepresentation or as to whether performance of the
indemnification or contribution provisions in the Purchase
Agreement would be permitted) or (iii) breach, or result in a
default under, any existing obligation of the Company under any
of the agreements listed on Schedule B hereto (provided that we
express no opinion as to compliance with any financial test or
cross default provision in any such agreement);
(ix) No Governmental Authorization of or with any
Governmental Agency in England and Wales is required for the
issue and sale of the Securities or the consummation by the
Company or the Guarantor of the transactions contemplated by
this Agreement or the Indenture;
(x) No stamp or other issuance or transfer taxes or
duties and no capital gains, income, withholding or other taxes
are payable by or on behalf of the Purchasers to England and
Wales or to any political subdivision or taxing authority
thereof or therein in connection with (A) issuance, sale and
delivery by the Company of the Securities to or for the
respective accounts of the Purchasers or (B) the sale and
delivery outside England and Wales by the Purchasers of the
Securities to the initial purchasers thereof in the manner
contemplated herein;
(xi) Each of the Company's and the Guarantor's agreement
to the choice of law provisions set forth in Section 14 hereof
will be recognized by the courts of England
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and Wales; each of the Company and the Guarantor can xxx and be
sued in its own name under the laws of England and Wales; the
irrevocable submission of the Company and the Guarantor to the
exclusive jurisdiction of a New York Court, the waiver by the
Company and the Guarantor of any objection to the venue of a
proceeding of a New York Court and the agreement of each of the
Company and the Guarantor that this Agreement shall be governed
by and construed in accordance with the laws of the State of New
York are legal, valid and binding; service of process effected in
the manner set forth in Section 14 hereof will be effective,
insofar as the law of England and Wales is concerned, to confer
valid personal jurisdiction over the Company or the Guarantor;
and judgment obtained in a New York Court arising out of or in
relation to the obligations of each of the Company and the
Guarantor under this Agreement would be enforceable against each
of the Company and the Guarantor in the courts of England and
Wales.
(xii) Neither the Company nor the Guarantor is entitled to
any immunity on the basis of sovereignty or otherwise in respect
of its obligations under this Agreement and could successfully
interpose any such immunity as a defense to any suit or action
brought or maintained in respect of its obligations under this
Agreement; and the waiver by the Company and the Guarantor of
immunity to jurisdiction (including the waiver of sovereign
immunity to which the Company or the Guarantor may become
entitled subsequent to the date of this Agreement) and immunity
to pre-judgment attachment, post-judgment attachment and
execution in any suit, action or proceeding against it arising
out of or based on this Agreement is a valid and binding
obligation of the Company and the Guarantor under the laws of
England and Wales;
(xiii) The indemnification and contribution provisions set forth in
Section 8 hereof do not contravene the laws of England and
Wales;
(xiv) All interest on the Securities may under the current
laws and regulations of England and Wales to be paid in the
currency of such jurisdictions may be converted into foreign
currency that may be freely transferred out of England and Wales
and all interest and other distributions on the Securities will
not be subject to withholding or other taxes under the laws and
regulations of England and Wales and are otherwise free and
clear of any other tax, withholding or deduction in England and
Wales and without the necessity of obtaining any Governmental
Authorization in England and Wales; and
(xv) No Governmental Authorization or with any Governmental Agency is
required to effect payments of principal, premium, if any, and
interest on the Securities.
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