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EXECUTION COPY
Exhibit 4(c)
GST ACQUISITION CORP.
$125,000,000
10 1/2% Senior Subordinated Notes due 2007
PURCHASE AGREEMENT
April 29, 1997
CHASE SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXX XXXXXX INC.
c/o Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx xxxxx
Ladies and Gentlemen:
GST Acquisition Corp., a Delaware corporation ("GST"),
proposes to issue and sell to each of the initial purchasers named in Schedule I
hereto (the "Initial Purchasers"), $125,000,000 aggregate principal amount of
its 10 1/2% Senior Subordinated Notes due 2007 (the "Securities"). The
Securities will be issued pursuant to an Indenture to be dated as of May 6, 1997
(the "Indenture") between GST and Manufacturers and Traders Trust Company and
Agency Services, as trustee (the "Trustee"). GST hereby confirms its agreement
with the Initial Purchasers concerning the purchase of the Securities from GST
by the Initial Purchasers.
GST was organized by Greenwich Street Capital Partners, L.P.
to effect the recapitalization (the "Recapitalization") of Telex Communications
Group, Inc., a Delaware corporation ("Holdings") through the merger (the
"Merger") of GST with and into Holdings, with Holdings as the surviving
corporation of the Merger pursuant to the Recapitalization Agreement and Plan of
Merger, dated as of March 4, 1997 (the "Recapitalization Agreement"), among
Greenwich II LLC, a Delaware limited liability company, GST, and Holdings, as
amended. Simultaneously with the consummation of the Recapitalization and
Merger, the obligations of Holdings under the Securities will be assigned to and
assumed (the "Assignment and Assumption") by Telex Communications, Inc., a
wholly owned subsidiary of Holdings (the "Company"). In addition, as a condition
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to and in connection with the Recapitalization, the Company is making (i) a
tender offer (the "Tender Offer") to repurchase all of the $100 million
aggregate outstanding principal amount of the 12% Senior Notes due 2004 of the
Company (the "Telex Notes") and (ii) a solicitation of consents with respect to
certain amendments to the indenture pursuant to which the Telex Notes were
issued.
On the Closing Date (as defined in Section 3), (i) GST will be
merged with and into Holdings, with Holdings as the surviving corporation in the
Merger and (ii) the Company and the Trustee will enter into a supplemental
indenture to the Indenture (the "Supplemental Indenture") providing for the
express assumption by the Company of the covenants, agreements and undertakings
of Holdings, as successor by the Merger to GST, in the Indenture and under the
Securities. In addition, the Company shall not be a signatory to this Agreement
until following the effective time of the Merger (the "Effective Time") on the
Closing Date, at which time the Company shall become a party to this Agreement
by execution and delivery of a counterpart hereof. References to the Indenture
as of or after the Effective Time will refer to the Indenture as supplemented by
the Supplemental Indenture. The Recapitalization, the Merger, the Offering, the
Tender Offer and the Assignment and Assumption are collectively referred to
herein as the "Transactions".
The Securities will be offered and sold to the Initial
Purchasers without being registered under the Securities Act of 1933, as amended
(the "Securities Act"), in reliance upon an exemption therefrom. GST and the
Company have prepared a preliminary offering memorandum dated April 16, 1997
(the "Preliminary Offering Memorandum") and will prepare an offering memorandum
dated the date hereof (the "Offering Memorandum") setting forth information
concerning the Company and the Securities. Copies of the Preliminary Offering
Memorandum have been, and copies of the Offering Memorandum will be, delivered
by GST and the Company to the Initial Purchasers pursuant to the terms of this
Agreement. Any references herein to the Preliminary Offering Memorandum and the
Offering Memorandum shall be deemed to include all amendments and supplements
thereto, unless otherwise noted. GST and the Company hereby confirm that they
have authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Securities by the
Initial Purchasers in accordance with Section 2.
Holders of the Securities (including the Initial Purchasers
and their direct and indirect transferees) will be entitled to the benefits of
an Exchange and Registration Rights Agreement, substantially in the form
attached hereto as Annex A (the "Registration Rights Agreement"), pursuant to
which the Company will agree to file with the Securities and Exchange Commission
(the "Commission") (i) a registration statement under the Securities Act (the
"Exchange Offer Registration Statement") registering an
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issue of senior subordinated notes of the Company (the "Exchange Securities")
which are identical in all material respects to the Securities (except that the
Exchange Securities will not contain terms with respect to transfer
restrictions) and (ii) under certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement").
Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Offering Memorandum.
1. Representations, Warranties and Agreements of GST and the
Company. GST and, upon the execution and delivery by the Company of this
Agreement, the Company represents and warrants to, and agrees with, the Initial
Purchasers on and as of the date hereof and the Closing Date that:
(a) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its respective date, did not, and on the
Closing Date the Offering Memorandum will not, contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided that GST and, upon the execution and delivery
by the Company of this Agreement, the Company make no representation or
warranty as to information contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum in reliance upon and in
conformity with written information relating to the Initial Purchasers
furnished to GST by or on behalf of any Initial Purchaser specifically
for use therein (the "Initial Purchasers' Information").
(b) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its respective date, contains all of the
information that, if requested by a prospective purchaser of the
Securities, would be required to be provided to such prospective
purchaser pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Assuming the accuracy of the representations and
warranties of the Initial Purchasers contained in Section 2 and their
compliance with the agreements set forth therein, it is not necessary,
in connection with the issuance and sale of the Securities to the
Initial Purchasers and the offer, resale and delivery of the Securities
by the Initial Purchasers in the manner contemplated by this Agreement
and the Offering Memorandum, to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act").
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(d) The Company and each of its subsidiaries (i) have been
duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation, (ii) are duly qualified to do business and are in good
standing as foreign corporations in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and (iii) have all
power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged,
except, in the case of clauses (ii) and (iii), where the failure to so
qualify or have such power or authority would not, singularly or in the
aggregate, have a material adverse effect on the condition (financial
or otherwise), results of operations, business or prospects of the
Company and its subsidiaries taken as a whole (a "Material Adverse
Effect").
(e) Each of Holdings and GST (i) has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the State of Delaware, (ii) is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction
in which its ownership or lease of property or the conduct of its
businesses requires such qualification, and (iii) has all power and
authority necessary to own or hold its properties and to conduct the
businesses in which it is engaged, except, in the case of clauses (ii)
and (iii), where the failure to so qualify or have such power or
authority would not, singularly or in the aggregate, have a Material
Adverse Effect.
(f) The Company has an authorized capitalization as set forth
in the Offering Memorandum under the heading "Ownership of Capital
Stock"; all of the outstanding shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and the capital stock of the Company conforms in all
material respects to the description thereof contained in the Offering
Memorandum. All of the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company (or are owned by nominees of the Company or
directors of its subsidiaries), free and clear of any lien, charge,
encumbrance, security interest, restriction upon voting or transfer or
any other claim of any third party, except for the pledge of stock of
the Company by Holdings pursuant to the Credit Agreement, dated as of
May 6, 1997, among the Company and the several lenders from time to
time parties thereto, Xxxxxx Xxxxxxx Senior Funding, Inc., as
Documentation Agent, and The Chase Manhattan Bank, as Administrative
Agent.
(g) GST, Holdings, the Company and each subsidiary of the
Company party to one or more of the Transaction Documents referred to
below has full
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right, power and authority to execute and deliver this Agreement, the
Indenture, the Supplemental Indenture, the Registration Rights
Agreement, the Securities, and the Recapitalization Documents (as
defined in Section 15(d) hereto) (collectively, the "Transaction
Documents"), to the extent it is a party thereto, and to perform its
obligations hereunder and thereunder; and all corporate action required
to be taken for the due and proper authorization, execution and
delivery of each of the Transaction Documents and the consummation of
the transactions contemplated thereby have been duly and validly taken.
(h) This Agreement has been duly authorized, executed and
delivered by GST (which pursuant to Section 2 will issue and sell the
Securities hereunder) and following the Effective Time on the Closing
Date will have been duly authorized, executed and delivered by the
Company (which will assume all the obligations of Holdings, as
successor by the Merger to GST, under the Securities following the
Effective time on the Closing Date) and constitutes a valid and legally
binding agreement of GST and upon execution and delivery thereof by the
Company, will constitute a valid and legally binding agreement of the
Company, enforceable against GST and the Company, as the case may be,
in accordance with its terms, except to the extent that such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally and by general equitable
principles (whether considered in a proceeding in equity or at law).
(i) Following the Effective Time on the Closing Date, the
Registration Rights Agreement will have been duly authorized by the
Company and, when duly executed and delivered in accordance with its
terms by each of the parties thereto will constitute a valid and
legally binding agreement of the Company enforceable against the
Company in accordance with its terms, except (i) to the extent that
such enforceability may be limited by applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws affecting creditors' rights generally and by general
equitable principles (whether considered in a proceeding in equity or
at law) or (ii) insofar as rights to indemnification and contribution
contained therein may be limited by Federal or state securities laws or
public policy.
(j) The Indenture has been duly authorized by GST and,
following the Effective Time on the Closing Date, will have been duly
authorized by the Company. The Indenture when duly executed and
delivered in accordance with its terms by each of the parties thereto,
will constitute a valid and legally binding agreement of GST and,
following the Effective Time on the Closing Date when the Supplemental
Indenture is executed by the Company (assuming the due
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authorization, execution and delivery by the Trustee), the Company,
enforceable against GST and, following the Effective Time on the
Closing Date, the Company in accordance with its terms, except to the
extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding
in equity or at law). Following the Effective Time on the Closing Date,
the Indenture will conform in all material respects to the requirements
of the Trust Indenture Act and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
(k) The Securities have been duly authorized by GST and,
following the Effective Time on the Closing Date, will have been duly
authorized by the Company and, when duly executed, authenticated,
issued and delivered as provided in the Indenture and paid for as
provided herein, will be duly and validly issued and outstanding and
will constitute valid and legally binding obligations of GST, and upon
the execution of the Supplemental Indenture, the Company entitled to
the benefits of the Indenture and enforceable against GST and the
Company, as the case may be, in accordance with their terms, except to
the extent that such enforceability may be limited by applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
and by general equitable principles (whether considered in a proceeding
in equity or at law).
(l) Each Transaction Document conforms in all material
respects to the description thereof contained in the Offering
Memorandum.
(m) The execution, delivery and performance by GST, Holdings,
the Company and each subsidiary of the Company of each of the
Transaction Documents to which it is a party, the issuance,
authentication, sale and delivery of the Securities and compliance by
GST, Holdings, the Company and each subsidiary of the Company with the
terms thereof and the consummation of the Transactions and the other
transactions contemplated by the Transaction Documents (i) will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or
assets of GST, Holdings, the Company or any of its subsidiaries
pursuant to, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which GST,
Holdings, the Company or any of its subsidiaries is a party or by which
GST, Holdings, the Company or any of its subsidiaries is bound or to
which any of the property or assets of GST, Holdings, the Company or
any
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of its subsidiaries is subject, nor (ii) will such actions result in
(a) any violation of the provisions of the charter or by-laws of GST,
Holdings, the Company or any of its subsidiaries or (b) any statute or
any judgment, order, decree, rule or regulation of any court or
arbitrator or governmental agency or body having jurisdiction over GST,
Holdings, the Company or any of its subsidiaries or any of their
properties or assets except, in the case of clauses (i) and (ii) (b),
for such actions as would not, individually or in the aggregate, have a
Material Adverse Effect and would not have a material adverse effect on
GST's, Holdings' or the Company's ability to perform its respective
obligations under the Transaction Documents; and no consent, approval,
authorization or order of, or filing or registration with, any such
court or arbitrator or governmental agency or body under any such
statute, judgment, order, decree, rule or regulation is required for
the execution, delivery and performance by GST, Holdings, the Company
and each subsidiary of the Company of each of the Transaction Documents
to which it is a party, the issuance, authentication, sale and delivery
of the Securities and compliance by GST, Holdings, the Company and each
subsidiary of the Company with the terms thereof and the consummation
of the transactions contemplated by the Transaction Documents, except
for such consents, approvals, authorizations, filings, registrations or
qualifications (i) which shall have been obtained or made prior to the
Closing Date and (ii) as may be required to be obtained or made under
the Securities Act and applicable state securities laws as provided in
the Registration Rights Agreement.
(n) To the best knowledge of GST and the Company, each of
Ernst & Young LLP and Xxxxxx Xxxxxxxx LLP are independent certified
public accountants with respect to the Company and its subsidiaries
within the meaning of Rule 101 of the Code of Professional Conduct of
the American Institute of Certified Public Accountants ("AICPA") and
its interpretations and rulings thereunder. The historical financial
statements (including the related notes) contained in the Offering
Memorandum comply in all material respects with the requirements
applicable to a registration statement on Form S-1 under the Securities
Act (except that certain supporting schedules are omitted); such
financial statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the
periods covered thereby and fairly present the financial position of
the entities purported to be covered thereby at the respective dates
indicated and the results of their operations and their cash flows for
the respective periods indicated; and the financial information
contained in the Offering Memorandum under the headings "Summary
Historical and Pro Forma Financial Information," "Capitalization,"
"Selected Historical and Pro Forma Financial Information,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Management--Executive
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Compensation" and "Management-- Stock Option Grants" are derived from
the accounting records of the Company and its subsidiaries and fairly
present the information purported to be shown thereby. The pro forma
financial information contained in the Offering Memorandum has been
prepared on a basis consistent with the historical financial statements
contained in the Offering Memorandum (except for the pro forma
adjustments specified therein), includes all material adjustments to
the historical financial information required by Rule 11-02 of
Regulation S-X under the Securities Act and the Exchange Act to reflect
the transactions described in the Offering Memorandum, gives effect to
assumptions made on a reasonable basis and fairly presents the
historical and proposed transactions contemplated by the Offering
Memorandum and the Transaction Documents. The other historical
financial and statistical information and data included in the Offering
Memorandum are, in all material respects, fairly presented.
(o) Except as described in the Offering Memorandum under
"Business-- Legal Proceedings", there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property or assets of the Company or any of its
subsidiaries is the subject which, singularly or in the aggregate, if
determined adversely to the Company or any of its subsidiaries, could
reasonably be expected to have a Material Adverse Effect; and to the
best knowledge of GST or the Company and its subsidiaries, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others.
(p) No action has been taken and no statute, rule, regulation
or order has been enacted, adopted or issued by any governmental agency
or body which prevents the issuance of the Securities or suspends the
sale of the Securities in any jurisdiction; no injunction, restraining
order or order of any nature by any federal or state court of competent
jurisdiction has been issued with respect to GST, Holdings, the Company
or any of its subsidiaries which would prevent or suspend the issuance
or sale of the Securities or the use of the Preliminary Offering
Memorandum or the Offering Memorandum in any jurisdiction; no action,
suit or proceeding is pending against or, to the best knowledge of GST
or the Company and its subsidiaries, threatened against or affecting
GST, Holdings, the Company or any of its subsidiaries before any court
or arbitrator or any governmental agency, body or official, domestic or
foreign, which could reasonably be expected to interfere with or
adversely affect the issuance of the Securities or in any manner draw
into question the validity or enforceability of any of the Transaction
Documents or any action taken or to be taken pursuant thereto; and GST,
Holdings, the Company and its subsidiaries have complied with any and
all
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requests by any securities authority in any jurisdiction for additional
information to be included in the Preliminary Offering Memorandum and
the Offering Memorandum.
(q) Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws, (ii) in default in any material
respect, and no event has occurred which, with notice or lapse of time
or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it is a party or by which it is bound
or to which any of its property or assets is subject or (iii) in
violation in any material respect of any law, ordinance, governmental
rule, regulation or court decree to which it or its property or assets
may be subject.
(r) The Company and each of its subsidiaries possess all
material licenses, certificates, authorizations and permits issued by,
and have made all material declarations and filings with, the
appropriate federal, state or foreign regulatory agencies or bodies
which are necessary or desirable for the ownership of their respective
properties or the conduct of their respective businesses as described
in the Offering Memorandum, except where the failure to possess or make
the same would not, singularly or in the aggregate, have a Material
Adverse Effect, and neither GST, the Company nor any of its
subsidiaries has received notification of any revocation or
modification of any such license, certificate, authorization or permit
or has any reason to believe that any such license, certificate,
authorization or permit will not be renewed in the ordinary course.
(s) The Company and each of its subsidiaries have filed all
federal, state, local and foreign income and franchise tax returns
required to be filed through the date hereof and have paid all taxes
due thereon, and no tax deficiency has been determined adversely to the
Company or any of its subsidiaries which has had (nor does GST, the
Company or any of its subsidiaries have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have) a Material Adverse
Effect.
(t) Neither GST, the Company nor any of its subsidiaries is
(i) an "investment company" or a company "controlled by" an investment
company within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and the rules and regulations
of the Commission thereunder or (ii) a "holding company" or a
"subsidiary company" of a holding company or an "affiliate" thereof
within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
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(u) The Company and each of its subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(v) The Company and each of its subsidiaries have insurance
covering their respective properties, operations, personnel and
businesses, adequate and suitable for its business and comparable to
insurance customarily carried by comparable companies similarly
situated and carrying on the same or similar business. Neither the
Company nor any of its subsidiaries has received notice from any
insurer or agent of such insurer that material capital improvements or
other material expenditures are required or necessary to be made in
order to continue such insurance.
(w) The Company and each of its subsidiaries own or possess
adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses and know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures)
necessary for the conduct of their respective businesses; except where
the failure to own or possess such rights or use such intellectual
properties would not individually or in the aggregate, have a Material
Adverse Effect; and the conduct of their respective businesses will not
conflict in any material respect with, and GST, the Company and its
subsidiaries have not received any notice of any claim of conflict
with, any such rights of others where such claim would not
individually, or together with other claims, have a Material Adverse
Effect.
(x) The Company and each of its subsidiaries have good and (in
the case of real property) marketable title in fee simple to, or have
valid rights to lease or otherwise use, all items of real and personal
property which are material to the business of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances,
claims and defects and imperfections of title except such as (i) do not
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries or (ii) could not
reasonably be expected to have a Material Adverse Effect.
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(y) No material labor disturbance by or dispute with the
employees of the Company or any of its subsidiaries exists or, to the
best knowledge of GST or the Company, is contemplated or threatened.
(z) No "prohibited transaction" (as defined in Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations thereunder
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986, as
amended from time to time (the "Code")) or "accumulated funding
deficiency" (as defined in Section 302 of ERISA) or any of the events
set forth in Section 4043(b) of ERISA (other than events with respect
to which the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred with respect to any employee benefit plan of
the Company or any of its subsidiaries which could reasonably be
expected to have a Material Adverse Effect; each such employee benefit
plan is in compliance in all material respects with applicable law,
including ERISA and the Code; the Company and each of its subsidiaries
have not incurred and do not expect to incur liability under Title IV
of ERISA with respect to the termination of, or withdrawal from, any
pension plan for which the Company or any of its subsidiaries would
have any liability; and for each such pension plan that is intended to
be qualified under Section 401(a) of the Code there is an application
pending with the Internal Revenue Service for such qualification and
the Company will use its best efforts to take all actions to so qualify
such plans.
(aa) There has been no storage, generation, transportation,
handling, treatment, disposal, discharge, emission or other release of
any kind of toxic or other wastes or other hazardous substances by, due
to or caused by the Company or any of its subsidiaries (or, to the best
knowledge of GST or the Company, any other entity (including any
predecessor) for whose acts or omissions the Company or any of its
subsidiaries is or could reasonably be expected to be liable) upon any
of the property now or previously owned or leased by the Company or any
of its subsidiaries, or upon any other property, in violation of any
statute or any ordinance, rule, regulation, order, judgment, decree or
permit or which would, under any statute or any ordinance, rule
(including rule of common law), regulation, order, judgment, decree or
permit, give rise to any liability, except for any violation or
liability that could not reasonably be expected to have, singularly or
in the aggregate with all such violations and liabilities, a Material
Adverse Effect; and there has been no disposal, discharge, emission or
other release of any kind onto such property or into the environment
surrounding such property of any toxic or other wastes or other
hazardous substances with respect to which the Company has knowledge,
except for any such disposal, discharge, emission or other release of
any kind which could not reasonably be expected to have,
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singularly or in the aggregate with all such discharges and other
releases, a Material Adverse Effect.
(bb) Neither the Company nor, to the best knowledge of GST or
the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company has (i) used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (iii) violated or
is in violation of any provision of the Foreign Corrupt Practices Act
of 1977; or (iv) made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment, except for any such use, payment or
violation that, individually or in the aggregate, would not have a
Material Adverse Effect.
(cc) On and immediately after the Closing Date, the Company
(after giving effect to the issuance and assumption of the Securities
and to the other transactions related thereto as described in the
Offering Memorandum) will be Solvent. As used in this paragraph, the
term "Solvent" means, with respect to a particular date, that on such
date (i) the present fair market value (or present fair saleable value)
of the assets of the Company is not less than the total amount required
to pay the probable liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) as they become
absolute and matured, (ii) the Company is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations
and commitments as they mature and become due in the normal course of
business, (iii) assuming the sale and assumption of the Securities as
contemplated by this Agreement and the Offering Memorandum, the Company
is not incurring debts or liabilities beyond its ability to pay as such
debts and liabilities mature and (iv) the Company is not engaged in any
business or transaction, and is not about to engage in any business or
transaction, for which its property would constitute unreasonably small
capital after giving due consideration to the prevailing practice in
the industry in which the Company is engaged. In computing the amount
of such contingent liabilities at any time, it is intended that such
liabilities will be computed at the amount that, in the light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
(dd) Except as described in the Offering Memorandum, there are
no outstanding subscriptions, rights, warrants, calls or options to
acquire, or instruments convertible into or exchangeable for, or
agreements or understandings with respect to the sale or issuance of,
any shares of capital stock of or other equity or other ownership
interest in the Company or any of its subsidiaries.
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(ee) Neither the Company nor any of its subsidiaries owns any
"margin securities" as that term is defined in Regulations G and U of
the Board of Governors of the Federal Reserve System (the "Federal
Reserve Board"), and none of the proceeds of the sale of the Securities
will be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring
any indebtedness which was originally incurred to purchase or carry any
margin security or for any other purpose which might cause any of the
Securities to be considered a "purpose credit" within the meanings of
Regulation G, T, U or X of the Federal Reserve Board.
(ff) Neither GST, Holdings, the Company nor any of its
subsidiaries is a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against GST,
Holdings, the Company or the Initial Purchasers for a brokerage
commission, finder's fee or like payment in connection with the
offering and sale of the Securities, other than the fees payable to the
Initial Purchasers in connection with the Offering and sale of the
Securities.
(gg) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Securities Act.
(hh) Neither GST, the Company nor any of its affiliates has,
directly or through any agent, sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of, any security (as such
term is defined in the Securities Act), which is or will be integrated
with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(ii) None of GST, the Company or any of its affiliates or any
other person acting on its or their behalf has engaged, in connection
with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act.
(jj) Except for the Telex Notes, there are no securities of
the Company registered under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or listed on a national securities
exchange or quoted in a U.S. automated inter dealer quotation system.
(kk) None of GST, the Company or the Company's affiliates has
taken and will not take, directly or indirectly, any action prohibited
by Regulation M under the Exchange Act in connection with the offering
of the Securities.
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(ll) None of GST, the Company or any of its subsidiaries does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Florida Statutes Section 517.075.
(mm) Since the date as of which information is given in the
Offering Memorandum, except as otherwise stated therein, (i) there has
been no material adverse change or any development involving a
prospective material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs, management or business
prospects of the Company, whether or not arising in the ordinary course
of business, (ii) the Company has not incurred any material liability
or obligation, direct or contingent, other than in the ordinary course
of business, (iii) the Company has not entered into any material
transaction other than in the ordinary course of business and (iv)
there has not been any change in the capital stock or long-term debt of
the Company, or any dividend or distribution of any kind declared, paid
or made by the Company on any class of its capital stock.
(nn) Prior to the Closing Date, the Recapitalization and
Merger will have been authorized by GST and Holdings and their
respective shareholders.
(oo) No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act)
contained in the Preliminary Offering Memorandum or the Offering
Memorandum has been made or reaffirmed without a reasonable basis or
has been disclosed other than in good faith.
2. Purchase and Resale of the Securities. (a) On the basis of
the representations, warranties and agreements contained herein, and subject to
the terms and conditions set forth herein, GST agrees to issue and sell to each
of the Initial Purchasers, severally and not jointly, and each of the Initial
Purchasers, severally and not jointly, agrees to purchase from GST, the
principal amount of Securities set forth opposite the name of such Initial
Purchaser on Schedule 1 hereto at a purchase price equal to 97% of the principal
amount thereof. GST shall not be obligated to deliver any of the Securities
except upon payment for all of the Securities to be purchased as provided
herein.
(b) The Initial Purchasers have advised GST and the Company
that they propose to offer the Securities for resale upon the terms and subject
to the conditions set forth herein and in the Offering Memorandum. Each Initial
Purchaser, severally and not jointly, represents and warrants to, and agrees
with, GST and the Company that (i) it is purchasing the Securities pursuant to a
private sale exempt from registration under the Securities Act, (ii) it has not
solicited offers for, or offered or sold, and will not solicit
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offers for, or offer or sell, the Securities by means of any form of general
solicitation or general advertising within the meaning of Rule 502(c) of
Regulation D under the Securities Act ("Regulation D") or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act and (iii) it has solicited and will solicit offers for the Securities only
from, and has offered or sold and will offer, sell or deliver the Securities, as
part of its initial offering, only to persons whom it reasonably believes to be
qualified institutional buyers ("Qualified Institutional Buyers") as defined in
Rule 144A under the Securities Act, or if any such person is buying for one or
more institutional accounts for which such person is acting as fiduciary or
agent, only when such person has represented to it that each such account is a
Qualified Institutional Buyer to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A and in each case, in
transactions in accordance with Rule 144A. Each Initial Purchaser, severally and
not jointly, agrees that, prior to or simultaneously with the confirmation of
sale by such Initial Purchaser to any purchaser of any of the Securities
purchased by such Initial Purchaser from GST pursuant hereto, such Initial
Purchaser shall furnish to that purchaser a copy of the Offering Memorandum (and
any amendment or supplement thereto that GST shall have furnished to such
Initial Purchaser prior to the date of such confirmation of sale). In addition
to the foregoing, each Initial Purchaser acknowledges and agrees that the
Company and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Sections 5(d), (e) and (f), counsel for the Company and
for the Initial Purchasers, respectively, may rely upon the accuracy of the
representations and warranties of the Initial Purchasers and their compliance
with their agreements contained in this Section 2, and each Initial Purchaser
hereby consents to such reliance.
(c) GST and the Company acknowledge and agree that the Initial
Purchasers may sell Securities to any affiliate of an Initial Purchaser and that
any such affiliate may sell Securities purchased by it to an Initial Purchaser.
3. Delivery of and Payment for the Securities. (a) Delivery of
and payment for the Securities shall be made at the offices of Debevoise &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as
shall be agreed upon by the Initial Purchasers, GST and the Company, at 10:00
A.M., New York City time, on May 6, 1997, or at such other time or date, not
later than seven full business days thereafter, as shall be agreed upon by the
Initial Purchasers, GST and the Company (such date and time of payment and
delivery being referred to herein as the "Closing Date").
(b) On the Closing Date, payment of the purchase price for the
Securities shall be made to GST by wire or book-entry transfer of same-day funds
to such account or accounts as GST shall specify prior to the Closing Date or by
such other means as the parties hereto shall agree prior to the Closing Date
against delivery to the Initial
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Purchasers of the certificates evidencing the Securities. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of the Initial Purchasers hereunder.
Upon delivery, the Securities shall be in global form, registered in such names
and in such denominations as the Initial Purchasers shall have requested in
writing not less than two full business days prior to the Closing Date. GST
agrees to make one or more global certificates evidencing the Securities
available for inspection by the Initial Purchasers in New York, New York at
least 24 hours prior to the Closing Date.
4. Further Agreements of GST and the Company. GST and, upon
execution and delivery by the Company of this Agreement, the Company agree with
each of the Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if
requested, confirm such advice in writing, of the happening of any
event which makes any statement of a material fact made in the Offering
Memorandum untrue or which requires the making of any additions to or
changes in the Offering Memorandum (as amended or supplemented from
time to time) in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; to advise
the Initial Purchasers promptly of any order preventing or suspending
the use of the Preliminary Offering Memorandum or the Offering
Memorandum, of any suspension of the qualification of the Securities
for offering or sale in any jurisdiction and of the initiation or
threatening of any proceeding for any such purpose; and to use its best
efforts to prevent the issuance of any such order preventing or
suspending the use of the Preliminary Offering Memorandum or the
Offering Memorandum or suspending any such qualification and, if any
such suspension is issued, to obtain the lifting thereof at the
earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of
the Preliminary Offering Memorandum and the Offering Memorandum (and
any amendments or supplements thereto) as may be reasonably requested;
(c) prior to making any amendment or supplement to the
Offering Memorandum, to furnish a copy thereof to each of the Initial
Purchasers and counsel for the Initial Purchasers and not to effect any
such amendment or supplement to which the Initial Purchasers shall
reasonably object by notice to the Company after a reasonable period to
review;
(d) if, at any time prior to completion of the distribution of
the Securities by the Initial Purchasers, any event shall occur or
condition exist as a result of
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which it is necessary, in the opinion of counsel for the Initial
Purchasers or counsel for the Company, to amend or supplement the
Offering Memorandum in order that the Offering Memorandum will not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Offering Memorandum to comply with applicable law, to promptly
prepare such amendment or supplement as may be necessary to correct
such untrue statement or omission or so that the Offering Memorandum,
as so amended or supplemented, will comply with applicable law;
(e) for so long as the Securities are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, to furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon request
of such holders or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act, unless the Company is then subject to and in compliance
with Section 13 or 15(d) of the Exchange Act (the foregoing agreement
being for the benefit of the holders from time to time of the
Securities and prospective purchasers of the Securities designated by
such holders);
(f) for so long as the Securities are outstanding, to furnish
to the Initial Purchasers copies of any annual reports, quarterly
reports and current reports filed by the Company with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be
designated by the Commission, and such other documents, reports and
information as shall be furnished by the Company to the Trustee or to
the holders of the Securities pursuant to the Indenture or the Exchange
Act or any rule or regulation of the Commission thereunder;
(g) to promptly take from time to time such actions as the
Initial Purchasers may reasonably request to qualify the Securities for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may designate and to continue
such qualifications in effect for so long as required for the resale of
the Securities; and to arrange for the determination of the eligibility
for investment of the Securities under the laws of such jurisdictions
as the Initial Purchasers may reasonably request; provided that the
Company and its subsidiaries shall not be obligated to qualify as
foreign corporations in any jurisdiction in which they are not so
qualified or to subject itself to taxation in respect to doing business
in any jurisdiction in which it is not otherwise so subject or to file
a general consent to service of process in any jurisdiction;
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(h) to assist the Initial Purchasers in arranging for the
Securities to be designated Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of
Securities Dealers, Inc. ("NASD") relating to trading in the PORTAL
Market and for the Securities to be eligible for clearance and
settlement through the Depository Trust Company ("DTC");
(i) not to, and to cause its affiliates not to, sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of
any security (as such term is defined in the Securities Act) which
could be integrated with the sale of the Securities in a manner which
would require registration of the Securities under the Securities Act;
(j) except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case
may be, not to, and to cause its affiliates not to, and not to
authorize or knowingly permit any person acting on their behalf to,
solicit any offer to buy or offer to sell the Securities by means of
any form of general solicitation or general advertising within the
meaning of Regulation D or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act; and not to
offer, sell, contract to sell or otherwise dispose of, directly or
indirectly, any securities under circumstances where such offer, sale,
contract or disposition would cause the exemption afforded by Section
4(2) of the Securities Act to cease to be applicable to the offering
and sale of the Securities as contemplated by this Agreement and the
Offering Memorandum;
(k) for a period of 90 days from the date of the Offering
Memorandum, not to offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement
for, or announce any offer, sale, contract for sale of or other
disposition of any debt securities issued or guaranteed by the Company
or any of its subsidiaries (other than the Securities) without the
prior written consent of the Initial Purchasers;
(l) during the period from the Closing Date until two years
after the Closing Date, without the prior written consent of the
Initial Purchasers, not to, and not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the
Securities that have been reacquired by them, except for Securities (i)
purchased by the Company or any of its affiliates (other than Xxxxx
Xxxxxx Inc.) and resold in a transaction registered under the
Securities Act or (ii) purchased by Xxxxx Xxxxxx Inc. and resold in a
transaction registered under or exempt from the Securities Act;
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(m) not to, for so long as the Securities are outstanding, be
or become, or be or become owned by, an open-end investment company,
unit investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act, and to not be or become, or be or become owned by, a closed-end
investment company required to be registered, but not registered
thereunder;
(n) in connection with the offering of the Securities, until
Chase Securities Inc. ("CSI"), on behalf of the Initial Purchasers,
shall have notified the Company of the completion of the resale of the
Securities, not to, and to cause its affiliated purchasers (as defined
in Regulation M under the Exchange Act) (other than Xxxxx Xxxxxx Inc.)
not to, either alone or with one or more other persons, bid for or
purchase, for any account in which such purchasers has a beneficial
interest, any Securities, or attempt to induce any person to purchase
any Securities; and not to, and to cause its affiliated purchasers
(including Xxxxx Xxxxxx Inc.) not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of
raising the price of the Securities;
(o) in connection with the offering of the Securities, to make
its officers, employees, independent accountants and legal counsel
reasonably available upon request by the Initial Purchasers;
(p) to furnish to each of the Initial Purchasers on the date
hereof a copy of the independent accountants' report included in the
Offering Memorandum signed by the accountants rendering such report;
(q) to do and perform all things required to be done and
performed by it under this Agreement that are within its control prior
to or after the Closing Date, and to use its best efforts to satisfy
all conditions precedent contained herein on its part to the delivery
of the Securities;
(r) to not take any action prior to the execution and delivery
of the Indenture and the Supplemental Indenture which, if taken after
such execution and delivery, would have violated any of the covenants
contained in the Indenture;
(s) to use its best efforts to not take any action prior to
the Closing Date which would require the Offering Memorandum to be
amended or supplemented pursuant to Section 4(d);
(t) prior to the Closing Date, not to issue any press release
or other communication directly or indirectly or hold any press
conference with respect to
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the Company, its condition, financial or otherwise, or earnings,
business affairs or business prospects (except for routine oral
marketing communications in the ordinary course of business and
consistent with the past practices of the Company and of which the
Initial Purchasers are notified), without the prior written consent of
the Initial Purchasers, unless in the judgment of the Company and its
counsel, and after notification to the Initial Purchasers, such press
release or communication is required by law; and
(u) to apply the net proceeds from the sale of the Securities
as set forth in the Offering Memorandum under the heading "Use of
Proceeds".
5. Conditions of Initial Purchasers' Obligations. The
respective obligations of the several Initial Purchasers hereunder are subject
to the accuracy, on and as of the date hereof and the Closing Date, of the
representations and warranties of GST and the Company contained herein, to the
accuracy of the statements of the Company and its officers made in any
certificates delivered pursuant hereto, to the performance by GST and the
Company of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Offering Memorandum (and any amendments or supplements
thereto) shall have been printed and copies distributed to the Initial
Purchasers as promptly as practicable on or following the date of this
Agreement or at such other date and time as to which the Initial
Purchasers may agree; and no stop order suspending the sale of the
Securities in any jurisdiction shall have been issued and no proceeding
for that purpose shall have been commenced or shall be pending or
threatened.
(b) None of the Initial Purchasers shall have discovered and
disclosed to the Company on or prior to the Closing Date that the
Offering Memorandum or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of counsel for the
Initial Purchasers, is material or omits to state any fact which, in
the opinion of such counsel, is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of each of the Transaction
Documents and the Offering Memorandum, and all other legal matters
relating to the Transaction Documents and the transactions contemplated
thereby (including the Transactions), shall be satisfactory in all
material respects to the Initial Purchasers, and GST and the Company
shall have furnished to the Initial
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Purchasers all documents and information that they or their counsel may
reasonably request to enable them to pass upon such matters.
(d) Debevoise & Xxxxxxxx shall have furnished to the Initial
Purchasers their written opinion, as counsel to the Company, addressed
to the Initial Purchasers and dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchasers,
substantially to the effect set forth in Annex B-1 hereto.
(e) Xxxx Xxxxxxxxx, Esq. shall have furnished to the Initial
Purchasers, as General Counsel of the Company, his written opinion
addressed to the Initial Purchasers and dated the Closing Date, in form
and substance reasonably satisfactory to the Initial Purchasers,
substantially to the effect set forth in Annex B-2 hereto.
(f) Xxxxxxxx, Xxxxxx & Finger shall have furnished to the
Initial Purchasers, as special Delaware counsel of the Company, its
written opinion as to the validity of the Merger addressed to the
Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers.
(g) The Initial Purchasers shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
Initial Purchasers may reasonably require, and the Company shall have
furnished to such counsel such documents and information as they
request for the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Initial Purchasers
(i) a letter of Ernst & Young LLP, addressed to the Initial Purchasers
and dated the date hereof, in form and substance satisfactory to the
Initial Purchasers, and (ii) a letter of Xxxxxx Xxxxxxxx LLP, addressed
to the Initial Purchasers and dated the date hereof in form and
substance satisfactory to the Initial Purchasers (the "Initial
Letters").
(i) The Company shall have furnished to the Initial Purchasers
letters (the "Bring-Down Letters") of each of Ernst & Young LLP, and
Xxxxxx Xxxxxxxx LLP, addressed to the Initial Purchasers and dated the
Closing Date (i) confirming that they are independent public
accountants with respect to the Company and its subsidiaries within the
meaning of Rule 101 of the Code of Professional Conduct of the AICPA
and its interpretations and rulings thereunder, (ii) stating, as of the
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date of such respective Bring-Down Letter (or, with respect to matters
involving changes or developments since the respective dates as of
which specified financial information is given in the Offering
Memorandum, as of a date not more than three business days prior to the
date of such Bring-Down Letters), that the conclusions and findings of
such accountants with respect to the financial information and other
matters covered by the Initial Letters are accurate and (iii)
confirming in all material respects the conclusions and findings set
forth in the Initial Letters. In addition, the Company shall have
received letters from Ernst & Young LLP consenting to the use, in
connection with the offering of the Securities, of the audited
financial statements of the Company prepared by such accountants and
included in the Offering Memorandum.
(j) The Company shall have furnished to the Initial Purchasers
a certificate, dated the Closing Date, of its chief executive officer
and its chief financial officer stating that (A) such officers have
carefully examined the Offering Memorandum, (B) in their opinion, the
Offering Memorandum, as of its date, did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and since the date of the Offering
Memorandum, no event has occurred which should have been set forth in a
supplement or amendment to the Offering Memorandum so that the Offering
Memorandum (as so amended or supplemented) would not include any untrue
statement of a material fact and would not omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and (C) as of the Closing Date, the
representations and warranties of the Company in this Agreement are
true and correct in all material respects, the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder on or prior to the Closing Date, and
subsequent to the date of the most recent financial statements
contained in the Offering Memorandum, there has been no material
adverse change in the financial position or results of operation of the
Company or any of its subsidiaries, or any change, or any development
including a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects
of the Company and its subsidiaries taken as a whole, except as set
forth in the Offering Memorandum.
(k) The Initial Purchasers shall have received a counterpart
of the Registration Rights Agreement which shall have been executed and
delivered by a duly authorized officer of the Company.
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(l) The Indenture and the Supplemental Indenture shall have
been duly executed and delivered by GST, Holdings and, following the
Effective Time on the Closing Date, the Company, as the case may be,
and the Trustee, and the Securities shall have been duly executed and
delivered by GST and, following the Effective Time on the Closing Date,
the Company and duly authenticated by the Trustee.
(m) The Company shall have entered into the Senior Credit
Facilities and the Company shall have satisfied, or ensured the
satisfaction of, all conditions precedent to initial funding under the
Senior Credit Facilities.
(n) At the Closing Date, after giving effect to the
consummation of the transactions contemplated by the Transaction
Documents (including, without limitation, the Transactions), there
shall exist no default or event of default under the Indenture and the
Senior Credit Facilities.
(o) The Initial Purchasers shall have received (i) copies of
each of the Recapitalization Documents (and any amendments thereto and
there shall have been no material amendments, alterations,
modifications or waivers of any provisions of the Recapitalization
Agreement since the date of this Agreement), and the documentation
evidencing the Senior Credit Facilities (and any amendments thereto)
(the "Bank Documents"), in each case certified by the secretary of the
Company or GST, as the case may be, as being true, complete and correct
and (ii) evidence, reasonably satisfactory to them, that (A) each of
the Transactions shall have been or is being consummated in accordance
with the terms of the Recapitalization Documents and (B) the initial
funding shall have occurred or is occurring under the Bank Documents
and the Company shall have received or is receiving approximately $140
million in gross cash proceeds therefrom. The Bank Documents and the
Recapitalization Documents shall be in form and substance reasonably
satisfactory to the Initial Purchasers.
(p) The Company shall have received valid tenders from Holders
of the requisite amount of Telex Notes as specified in and in
accordance with the Tender Offer Documents (as defined in Section 15(e)
hereto).
(q) Following the Effective Time on the Closing Date, the
Initial Purchasers shall have received a counterpart to this Agreement
executed by the Company.
(r) The Certificate of Merger with respect to the Merger shall
have been filed with the Secretary of State of Delaware.
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(s) The Initial Purchasers shall have received a solvency
opinion, dated the Closing Date, of Valuation Research Corp., addressed
to the Initial Purchasers as to the solvency of Holdings and the
Company immediately after the consummation of the Transactions and
otherwise in form and substance reasonably satisfactory to the Initial
Purchasers.
(t) The Securities shall have been approved by the NASD for
trading in the PORTAL Market.
(u) If any event shall have occurred that requires GST or the
Company, as the case may be, under Section 4(d) to prepare an amendment
or supplement to the Offering Memorandum, such amendment or supplement
shall have been prepared, the Initial Purchasers shall have been given
a reasonable opportunity to comment thereon, and copies thereof shall
have been delivered to the Initial Purchasers reasonably in advance of
the Closing Date.
(v) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or
proposed withdrawal of any rule or regulation under the Securities Act
or the Exchange Act by the Commission or any amendment or proposed
amendment thereof by the Commission which in the judgment of the
Initial Purchasers would materially impair the ability of the Initial
Purchasers to purchase, hold or effect resales of the Securities as
contemplated hereby.
(w) Subsequent to the execution and delivery of this Agreement
or, if earlier, the dates as of which information is given in the
Offering Memorandum (exclusive of any amendment or supplement thereto),
there shall not have been any change in the capital stock or long-term
debt or any change, or any development involving a prospective change,
in or affecting the condition (financial or otherwise), results of
operations, business or prospects of the Company and its subsidiaries
taken as a whole, the effect of which, in any such case described
above, is, in the judgment of the Initial Purchasers, so material and
adverse as to make it impracticable or inadvisable to proceed with the
sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum (exclusive
of any amendment or supplement thereto).
(x) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Securities; and no injunction,
restraining order or order of any other nature by any
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federal or state court of competent jurisdiction shall have been issued
as of the Closing Date which would prevent the issuance or sale of the
Securities.
(y) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Securities or any of the Company's other debt securities or preferred
stock by any "nationally recognized statistical rating organization",
as such term is defined by the Commission for purposes of Rule
436(g)(2) of the rules and regulations of the Commission under the
Securities Act and (ii) no such organization shall have publicly
announced that it has under surveillance or review (other than an
announcement with positive implications of a possible upgrading), its
rating of the Securities or any of the Company's other debt securities
or preferred stock.
(z) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange, the American Stock
Exchange or the over-the-counter market shall have been suspended or
limited, or minimum prices shall have been established on any such
exchange or market by the Commission, by any such exchange or by any
other regulatory body or governmental authority having jurisdiction, or
trading in any securities of the Company on any exchange or in the
over-the-counter market shall have been suspended or (ii) any
moratorium on commercial banking activities shall have been declared by
federal or New York state authorities or (iii) an outbreak or
escalation of hostilities or a declaration by the United States of a
national emergency or war or (iv) a material adverse change in general
economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in the case of this clause (iv),
is, in the judgment of the Initial Purchasers, so material and adverse
as to make it impracticable or inadvisable to proceed with the sale or
the delivery of the Securities on the terms and in the manner
contemplated by this Agreement and in the Offering Memorandum
(exclusive of any amendment or supplement thereto).
(aa) The Company shall have furnished to the Initial
Purchasers such additional documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order
to evidence the accuracy of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions
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hereof only if they are in form and substance reasonably satisfactory to counsel
for the Initial Purchasers.
6. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers, in their absolute
discretion, by notice given to and received by GST prior to delivery of and
payment for the Securities if, prior to that time, any of the events described
in Section 5(v), (w), (x), (y) or (z) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date,
any Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities which such defaulting Purchaser agreed but failed to
purchase by other persons satisfactory to GST and the non-defaulting Initial
Purchasers, but if no such arrangements are made within 36 hours after such
default, this Agreement shall terminate without liability on the part of the
non-defaulting Initial Purchasers, GST or the Company, except that GST and the
Company will continue to be liable for the payment of expenses to the extent set
forth in Sections 8 and 12 and except that the provisions of Sections 9 and 10
shall not terminate and shall remain in effect. As used in this Agreement, the
term "Initial Purchasers" includes, for all purposes of this Agreement unless
the context otherwise requires, any party not listed in Schedule 1 hereto that,
pursuant to this Section 7, purchases Securities which a defaulting Initial
Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting
Initial Purchaser of any liability it may have to GST or any non-defaulting
Initial Purchaser for damages caused by its default. If other persons are
obligated or agree to purchase the Securities of a defaulting Initial Purchaser,
either the non-defaulting Initial Purchasers or GST may postpone the Closing
Date for up to seven full business days in order to effect any changes that in
the opinion of counsel for the Company or counsel for the Initial Purchasers may
be necessary in the Offering Memorandum or in any other document or arrangement,
and GST agrees to promptly prepare any amendment or supplement to the Offering
Memorandum that effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If (a) this
Agreement shall have been terminated pursuant to Section 6, (b) GST shall fail
to tender the Securities for delivery to the Initial Purchasers for any reason
permitted under this Agreement or (c) the Initial Purchasers shall decline to
purchase the Securities for any reason permitted under this Agreement, GST
agrees to reimburse the Initial Purchasers for such out-of-pocket expenses
(including reasonable fees and disbursements of counsel) as shall have been
reasonably incurred by the Initial Purchasers in connection with this Agreement
and the proposed purchase and resale of the Securities. If this Agreement is
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terminated pursuant to Section 7 by reason of the default of one or more of the
Initial Purchasers, GST shall not be obligated to reimburse any defaulting
Initial Purchaser on account of such expenses.
9. Indemnification. (a) GST and, following the execution and
delivery of this Agreement by the Company, the Company shall indemnify and hold
harmless each Initial Purchaser, its affiliates, their respective officers,
directors, employees, representatives and agents, and each person, if any, who
controls any Initial Purchaser within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 9(a) and
Section 10 as an Initial Purchaser), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating to
purchases and sales of the Securities), to which that Initial Purchaser may
become subject under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Offering Memorandum or the Offering Memorandum or in any
amendment or supplement thereto or in any information provided by the Company
pursuant to Section 4(e) or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and shall reimburse each Initial Purchaser promptly
upon demand for any legal or other expenses reasonably incurred by that Initial
Purchaser in connection with investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that neither GST nor the Company shall be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with any Initial Purchasers' Information; and
provided, further, that with respect to any such untrue statement in or omission
from the Preliminary Offering Memorandum, the indemnity agreement contained in
this Section 9(a) shall not inure to the benefit of any such Initial Purchaser
to the extent that the sale to the person asserting any such loss, claim,
damage, liability or action was an initial resale by such Initial Purchaser and
any such loss, claim, damage, liability or action of or with respect to such
Initial Purchaser results from the fact that both (A) to the extent required by
applicable law, a copy of the Offering Memorandum was not sent or given to such
person at or prior to the written confirmation of the sale of such Securities to
such person and (B) the untrue statement in or omission from the Preliminary
Offering Memorandum was corrected in the Offering Memorandum unless, in either
case, such failure to deliver the Offering Memorandum was a result of
non-compliance by GST or the Company with Section 4(b).
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(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless GST, the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls GST or the Company within the meaning of the Securities Act or
the Exchange Act (collectively referred to for purposes of this Section 9(b) and
Section 10 as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company may become subject under the Securities Act, the Exchange Act, any other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering Memorandum
or in any amendment or supplement thereto or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with any Initial
Purchasers' Information, and shall reimburse the Company promptly upon demand
for any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party shall have the right to employ its own counsel in any such
action, but the fees, expenses and other
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charges of such counsel for the indemnified party will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) a conflict or
potential conflict exists (based upon advice of counsel to the indemnified
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (3) the indemnifying party has not
in fact employed counsel reasonably satisfactory to the indemnified party to
assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment for the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending proceeding in
respect of which any indemnified party is a party and indemnity has been sought
hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
The obligations of GST, the Company and the Initial Purchasers
in this Section 9 and in Section 10 are in addition to any other liability that
GST, the Company or the Initial Purchasers, as the case may be, may otherwise
have, including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
10. Contribution. If the indemnification provided for in
Section 9 is unavailable or insufficient to hold harmless an indemnified party
under Section 9(a) or 9(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by GST and the Company on the
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one hand and by the Initial Purchasers on the other hand from the offering of
the Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of GST and the Company on the one hand and the Initial Purchasers on the
other hand with respect to the statements or omissions that resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations. The relative benefits received by GST
or the Company on the one hand and the Initial Purchasers on the other hand with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by or on behalf of the Company,
on the one hand, and the total discounts and commissions received by the Initial
Purchasers with respect to the Securities purchased under this Agreement, on the
other hand, bear to the total gross proceeds from the sale of the Securities
under this Agreement, in each case as set forth in the table on the cover page
of the Offering Memorandum. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to the Company or information supplied by GST and the Company on the one
hand or to any Initial Purchasers' Information on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. GST, the Company and the
Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 10 were to be determined by pro rata
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 10 shall be deemed
to include, for purposes of this Section 10, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 10, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total discounts and
commissions received by such Initial Purchaser with respect to the Securities
purchased by it under this Agreement exceeds the amount of any damages which
such Initial Purchaser has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial Purchasers'
obligations to contribute as provided in this Section 10 are several in
proportion to their respective purchase obligations and not joint.
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31
11. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, GST,
and, after the execution and delivery of this Agreement, the Company and their
respective successors. This Agreement and the terms and provisions hereof are
for the sole benefit of only those persons, except as provided in Sections 9 and
10 with respect to affiliates, officers, directors, employees, representatives,
agents and controlling persons of the Initial Purchasers, GST, and, after the
execution and delivery of this Agreement, the Company and in Section 4(e) with
respect to holders and prospective purchasers of the Securities. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Section 11, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
12. Expenses. GST and, upon the execution and delivery of this
Agreement by the Company, the Company jointly and severally agree with the
Initial Purchasers to pay (a) the costs incident to the authorization, issuance,
sale, preparation and delivery of the Securities and any taxes payable in that
connection; (b) the costs incident to the preparation, printing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and any
amendments or supplements thereto; (c) the costs of reproducing and distributing
each of the Transaction Documents; (d) the costs incident to the preparation,
printing and delivery of the certificates evidencing the Securities, including
stamp duties and transfer taxes, if any, payable upon issuance of the
Securities; (e) the fees and expenses of the Company's counsel and independent
accountants; (f) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(h) and of
preparing, printing and distributing Blue Sky Memoranda (including related fees
and expenses of counsel for the Initial Purchasers); (g) any fees charged by
rating agencies for rating the Securities; (h) the fees and expenses of the
Trustee and any paying agent (including related fees and expenses of any counsel
to such parties); (i) all expenses and application fees incurred in connection
with the application for the inclusion of the Securities on the PORTAL Market
and the approval of the Securities for book-entry transfer by DTC; and (j) all
other costs and expenses incident to the performance of the obligations of GST
and the Company under this Agreement which are not otherwise specifically
provided for in this Section 12; provided, however, that except as provided in
this Section 12 and Section 8, the Initial Purchasers shall pay their own costs
and expenses, including counsel's fees and expenses.
13. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of GST, the Company and
the Initial Purchasers contained in this Agreement or made by or on behalf of
GST or the Company or the Initial Purchasers pursuant to this Agreement or any
certificate delivered pursuant hereto shall survive the delivery of and payment
for the Securities and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any
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investigation made by or on behalf of any of them or any of their respective
affiliates, officers, directors, employees, representatives, agents or
controlling persons.
14. Notices, etc.. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent
by mail or telecopy transmission to Chase Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxx (telecopier
no.: (000) 000-0000); or
(b) if to GST or the Company, shall be delivered or sent by
mail or telecopy transmission to the address of the Company set forth
in the Offering Memorandum, Attention: Xxxx Xxxxxxxxx (telecopier no.:
(000) 000-0000) with a copy to: Debevoise & Xxxxxxxx, 000 Xxxxx Xxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx (telecopier no.:
(000) 000-0000); and Greenwich Street Capital Partners, L.P., 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
Xxxxxxxx X. Xxxxxx (telecopier no.: (212) 816- 0166);
provided that any notice to an Initial Purchaser pursuant to Section 9(c) shall
also be delivered or sent by mail to such Initial Purchaser at its address set
forth on the signature page hereof. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Initial Purchasers by CSI.
15. Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act, (c) except where otherwise expressly provided, the
term "affiliate" has the meaning set forth in Rule 405 under the Securities Act,
(d) "Recapitalization Documents" means the collective reference to the
Recapitalization Agreement and each of the other agreements to be executed and
delivered on or prior to the Closing Date pursuant thereto or in connection
therewith and (e) "Tender Offer Documents" means the collective reference to the
Telex Notes and any other documents necessary to consummate the Tender Offer.
16. Initial Purchasers' Information. The parties hereto
acknowledge and agree that the Initial Purchasers' Information consists solely
of the following information in the Preliminary Offering Memorandum and the
Offering Memorandum: (i) the last paragraph on the front cover page concerning
the terms of the offering by the Initial Purchasers; (ii) the legend on the
inside front cover page concerning over-allotment and trading activities by the
Initial Purchasers; and (iii) the statements concerning the Initial
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Purchasers contained in the last three paragraphs under the heading "Plan of
Distribution" and the paragraph under the heading "Related
Transactions--Relationships Between GSCP and the Initial Purchasers."
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
18. Counterparts. This Agreement may be executed in one or
more counterparts (which may include counterparts delivered by telecopier) and,
if executed in more than one counterpart, the executed counterparts shall each
be deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
19. Amendments. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
20. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
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If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among GST and, following the
execution and delivery by the Company of this Agreement on the Closing Date, the
Company and the several Initial Purchasers in accordance with its terms.
Very truly yours,
GST ACQUISITION CORP.
By______________________________
Name:
Title:
TELEX COMMUNICATIONS, INC.
By______________________________
Name:
Title:
Accepted:
CHASE SECURITIES INC.
By_______________________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
0 Xxxxx Xxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
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XXXXXX XXXXXXX & CO. INCORPORATED
By______________________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
XXXXX XXXXXX INC.
By___________________________________
Authorized Signatory
Address for notices pursuant to Section 9(c):
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
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SCHEDULE 1
Principal Amount
Initial Purchasers of Securities
------------------ ----------------
Chase Securities Inc. $ 75,000,000
Xxxxxx Xxxxxxx & Co. Incorporated 25,000,000
Xxxxx Xxxxxx Inc. 25,000,000
------------
Total $125,000,000
============
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ANNEX A
[Form of Exchange and Registration Rights Agreement]
38
ANNEX B-1
Form of Opinion of Debevoise & Xxxxxxxx, Counsel for the Company
Debevoise & Xxxxxxxx shall have furnished to the Initial
Purchasers their written opinion, as counsel to the Company, addressed to the
Initial Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, substantially to the effect set forth
below:
(i) each of GST and the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of Delaware, is duly qualified to do business and is in good
standing as a foreign corporation in _______________________, which
jurisdictions are all of the domestic jurisdictions identified by
management of the Company to such counsel in which the Company or its
domestic subsidiaries own property or have significant operations and
has all requisite corporate power and authority necessary to own or
hold its properties and to conduct the businesses in which it is
engaged (except where the failure to so qualify or have such power or
authority would not, singularly or in the aggregate, have a Material
Adverse Effect);
(ii) the Company has an authorized capitalization as set
forth in the Offering Memorandum, and all of the outstanding shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and the capital stock of
the Company conforms in all material respects to the description
thereof contained in the Offering Memorandum;
(iii) the statements in the Offering Memorandum under the
heading "Certain Federal Income Tax Considerations", insofar as such
statements purport to summarize the Federal laws of United States,
fairly summarize such provisions described therein in all material
respects; and such counsel does not have actual knowledge of any
current or pending legal or governmental actions, suits or proceedings
which would be required to be described in the Offering Memorandum if
the Offering Memorandum were a prospectus included in a registration
statement on Form S-1 which are not described as so required;
(iv) the Indenture, as supplemented by the Supplemental
Indenture conforms, in all material respects with the requirements of
the Trust Indenture Act and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder;
39
(v) each of GST and the Company has full right, power and
authority to execute and deliver each of the Transaction Documents to
which it is a party and to perform its obligations thereunder; and all
corporate action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction
Documents and the consummation of the transactions contemplated thereby
have been duly and validly taken;
(vi) each of the Purchase Agreement and the Registration
Rights Agreement has been duly authorized, executed and delivered by
GST and the Company, as the case may be, and constitutes a valid and
legally binding agreement of GST and the Company enforceable against
GST and the Company in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights generally and
to general equity principles (whether considered in a proceeding in
equity or at law), an implied covenant of good faith and fair dealing,
the possible judicial application of foreign laws or foreign
governmental or judicial action affecting creditors' rights and, in the
case of indemnification and contribution provisions therein,
considerations of public policy;
(vii) each of the Indenture and the Supplemental Indenture
has been duly authorized, executed and delivered by GST, Holdings and
the Company, as the case may be, and, assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a valid and
legally binding agreement of GST and the Company enforceable against
GST and the Company in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights generally and
to general equity principles (whether considered in a proceeding in
equity or at law), an implied covenant of good faith and fair dealing,
the possible judicial application of foreign laws or foreign
governmental or judicial action affecting creditors' rights and, in the
case of indemnification and contribution provisions therein,
considerations of public policy;
(viii) the Securities have been duly authorized and issued by
GST and the Company and, assuming due authentication thereof by the
Trustee in accordance with the terms of the Indenture and upon payment
and delivery in accordance with the Purchase Agreement and the
Indenture (as supplemented by the Supplemental Indenture), will
constitute valid and legally binding obligations of GST and the Company
entitled to the benefits of the Indenture and enforceable against GST
and the Company in accordance with their terms, except as may be
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limited by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights generally and
to general equity principles (whether considered in a proceeding in
equity or at law), an implied covenant of good faith and fair dealing,
the possible judicial application of foreign laws or foreign
governmental or judicial action affecting creditors' rights and, in the
case of indemnification and contribution provisions therein,
considerations of public policy;
(ix) The Recapitalization and Merger have been duly
consummated in accordance with the terms of the Recapitalization
Agreement and all applicable requirements of law; the Recapitalization
Agreement has been duly authorized, executed and delivered by GST and
Holdings and constitutes a valid and legally binding agreement of GST
and Holdings enforceable against GST [and Holdings] in accordance with
its terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally and by general equitable
principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law);
(x) each Transaction Document, to the extent described in
the Offering Memorandum, conforms in all material respects to the
description thereof contained in the Offering Memorandum;
(xi) the execution, delivery and performance by GST, Holdings
and the Company, as the case may be, of each of the Purchase Agreement,
the Indenture, the Supplemental Indenture, the Registration Rights
Agreement and the Recapitalization Agreement, the compliance by GST,
Holdings and the Company, as the case may be, with the terms thereof,
the consummation of the transactions contemplated by such documents and
the issuance, authentication, sale and delivery of the Securities 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 of the
agreements and instruments listed on Exhibit A hereto (which agreements
and instruments have been certified by GST, Holdings and the Company to
such counsel to constitute all the material agreements or instruments
to which the Issuer, Holdings, the Obligor or any of its domestic
subsidiaries is a party or by which the Issuer, Holdings, the Obligor
or any of its domestic subsidiaries is bound or to which any of the
property or assets of the Issuer, Holdings, the Obligor or any of its
domestic subsidiaries is subject and which relate to the transactions
contemplated by the Transaction Documents (other than the Transaction
Documents)), nor will such actions result in any violation of the
provisions of the charter or by-laws of GST, Holdings, the Company or
any of its
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subsidiaries or any existing Federal or New York State, statute, rule
or regulation or, to the knowledge of counsel, any judgment, order,
decree of any Federal or New York State court or arbitrator or
governmental agency or body having jurisdiction over GST, Holdings, the
Company or any of its subsidiaries or any of their properties or
assets; and no consent, approval, authorization or order of, or filing
or registration with, any such court or arbitrator or governmental
agency or body under any such statute, judgment, order, decree, rule or
regulation is required for the execution, delivery and performance by
GST, Holdings and the Company, as the case may be, of each of the
Purchase Agreement, the Indenture, the Supplemental Indenture, the
Registration Rights Agreement [or the Recapitalization Agreement], the
issuance, authentication, sale and delivery of the Securities and
compliance by GST, Holdings and the Company, as the case may be, with
the terms thereof and the consummation of the transactions contemplated
by the Transaction Documents, except for such consents, approvals,
authorizations, filings, registrations or qualifications (i) which have
been obtained or made prior to the Closing Date, (ii) as may be
required under state securities or Blue Sky laws in connection with the
purchase and resale of the Securities by the Initial Purchasers, and
(iii) as may be required under the Securities Act of 1933, as amended
(the "Act"), the Trust Indenture Act of 1939, as amended, or state
securities or Blue Sky laws in connection with the Exchange Offer
contemplated in the Offering Memorandum;
(xii) to the best knowledge of such counsel, and other than
as set forth or contemplated in the Offering Memorandum there are no
pending actions or suits or judicial, arbitral, rule-making,
administrative or other proceedings to which GST, the Company or any of
its subsidiaries is a party or of which any property or assets of GST,
the Company or any of its subsidiaries is the subject which question
the validity or enforceability of any of the Transaction Documents or
any action taken or to be taken pursuant thereto; and to the best
knowledge of such counsel, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(xiii) neither GST, the Company nor any of its subsidiaries is
in violation of its charter or by-laws;
(xiv) neither GST, the Company nor any of its subsidiaries is
(A) an "investment company" or a company "controlled by" an investment
company within the meaning of the Investment Company Act of 1940, as
amended, and the rules and regulations of the Commission thereunder,
without taking account of any exemption under the Investment Company
Act arising out of the number of holders of GST's or the Company's
securities or (B) a "holding company" or a
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"subsidiary company" of a holding company or an "affiliate" thereof
within the meaning of the Public Utility Holding Company Act of 1935,
as amended;
(xv) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities will violate Regulation G, T, U or X of the
Federal Reserve Board;
(xvi) assuming the accuracy of the representations,
warranties and agreements of GST, the Company and of the Initial
Purchasers contained in the Purchase Agreement, the issuance, offer and
sale of the Securities to the Initial Purchasers and the initial resale
and delivery of the Securities in the manner contemplated by the
Purchase Agreement and the Offering Memorandum are exempt from the
registration requirements of the Securities Act, and it is not
necessary to qualify the Indenture (as supplemented by the Supplemental
Indenture) under the Trust Indenture Act; and
(xvii) The descriptions in the Offering Memorandum of statutes
and contracts and other documents are accurate in all material respects
and fairly present, as to such statutes and contracts and other
documents described therein, the information that would be required to
be presented with respect thereto if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 under the
Securities Act.
Such counsel shall also state that they themselves have not
checked the accuracy or completeness of, or otherwise verified, and are not
passing upon and assume no responsibility for the accuracy or completeness of,
the information contained or incorporated by reference in the Offering
Memorandum, except to the limited extent stated in paragraphs (ii), (iii) and
(ix) above. In the course of such counsel's review, such counsel has
participated in conferences with certain officers and other representatives of
the Company, representatives of its independent public accountants and
representatives of the Initial Purchasers, at which the contents of the Offering
Memorandum were discussed, and in the course of that review and discussion, but
without independent check or verification, no facts have come to such counsel's
attention that have caused such counsel to believe that any part of the Offering
Memorandum contains an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel shall express no opinion as to
the financial statements or other financial, accounting or statistical data
included in an of the documents mentioned in this paragraph.
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In rendering such opinion, such counsel may rely as to matters
of fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials which are furnished to the Initial
Purchasers.
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ANNEX B-2
[Form of Opinion of General Counsel]
