Exhibit 1
High River Limited Partnership
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dated as of October 27, 1999
Xx. Xxxx Xxxxxxx Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxx Services Corp.
Dear Xx. Xxxxxxxxx:
This letter agreement shall confirm our understanding
regarding the purchase by Xxxx Xxxxxxxxx ("Buyer") of 18,455,200 shares (the
"Shares") of common stock, no par value, of Xxxxxx Services Corp. ("Xxxxxx")
held by High River Limited Partnership ("Seller").
1. Purchase and Sale of Shares. Upon the terms and subject to the conditions set
forth herein, Seller hereby sells and transfers the Shares, and the Buyer will
purchase the Shares from Seller. The purchase price for the Shares shall be one
million five hundred thousand dollars ($1,500,000.00) which shall be payable as
follows: (a) three hundred thousand dollars ($300,000.00) in cash by wire
transfer in immediately available funds; and (b) one million two hundred
thousand dollars ($1,200,000.00) by delivery of a secured promissory note (the
"Note") of Buyer payable to Seller in the form of Exhibit A hereto.
2. Representations and Warranties of Buyer. As an inducement to Seller to enter
into this letter agreement and to consummate the transactions contemplated
hereby, Buyer hereby represents and warrants to Seller as follows:
(a) Buyer has the right, power and authority to enter into, and perform
its obligations under, this letter agreement. Upon the execution of this letter
agreement by each of the parties hereto, this letter agreement will constitute
the legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms. No consent or approval of any third party or
governmental agency or authority is required for such party to execute and
deliver this letter agreement or to perform its obligations hereunder. In
addition, upon execution and delivery of the Note by Buyer, the Note will
constitute the legal, valid and binding obligation of Buyer, enforceable against
Buyer in accordance with its terms;
(b) Buyer is a sophisticated purchaser with respect to the purchase of
the Shares and has relied on its own independent investigation, not on any
information or representations
furnished by Seller (except as set forth herein) in determining to enter into
this letter agreement, and acknowledges that the purchase price may vary from
any distributions that the Buyer may ultimately recover on account of the Shares
and is aware that additional information regarding the Shares may be obtained
from various court or other public files;
(c) Buyer acknowledges and understands that Seller may possess material
non-public information not known or available to Buyer (the "Excluded
Information"), and Buyer agrees that Seller shall have no liability to Buyer to
the extent such liability is caused by non-disclosure of the Excluded
Information; provided, however, that the foregoing limitation of liability shall
not in any way limit the liability of Seller for a breach of its representations
and warranties in this letter agreement;
(d) except as otherwise expressly provided herein, the sale of the
Shares by Seller to Buyer is irrevocable and is on an "as is" basis without
recourse to Seller; and
(e) No broker, finder or other person or entity acting pursuant to the
authority of Buyer is entitled to any broker's fee or other commission in
connection with the transactions contemplated hereby.
3. Representations and Warranties of Seller. As an inducement to Buyer to enter
into this letter agreement and to consummate the transactions contemplated
hereby, Seller hereby represents and warrants to Buyer as follows:
(a) Seller has the right, power and authority to enter into, and
perform its obligations under, this letter agreement. Upon the execution of this
letter agreement by each of the parties hereto, this letter agreement will
constitute the legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms. No consent or approval of any third
party or governmental agency or authority is required for such party to execute
and deliver this letter agreement or to perform its obligations hereunder.
(b) Seller is the legal and beneficial owner of the Shares. Seller is
transferring the Shares to Buyer free and clear of any pledges, voting trust
arrangements, liens, claims, charges, encumbrances or security interests;
(c) Seller is a sophisticated seller with respect to the sale of the
Shares and has relied on its own independent investigation, not on any
information or representations furnished by Buyer (except as set forth herein)
in determining to enter into this letter agreement, and acknowledges that the
purchase price may vary from any distributions that the Buyer may ultimately
recover on account of the Shares and is aware that additional information
regarding the Shares may be obtained from various court or other public files;
(d) Seller acknowledges and understands that Buyer may possess material
non-public
information not known or available to Seller (the "Information"), and Seller
agrees that Buyer shall have no liability to Seller to the extent such liability
is caused by non-disclosure of the Information; provided, however, that the
foregoing limitation of liability shall not in any way limit the liability of
Buyer for a breach of its representations and warranties in this letter
agreement; and
(e) No broker, finder or other person or entity acting pursuant to the
authority of Seller is entitled to any broker's fee or other commission in
connection with the transactions contemplated hereby.
4. Confidentiality. Each of the parties hereto agrees that the terms of this
letter agreement are confidential and may not be disclosed by any party hereto,
except as may be required by law and except to principals and authorized
representatives of the parties hereto, without the written consent of all of the
parties. Except as may be required by law, any public announcement regarding
this letter agreement or the transactions contemplated herein may not be made by
any party without the prior consent of all other parties hereto.
5. General Provisions.
(a) This letter agreement shall be governed by and interpreted in
accordance with the laws of the State of New York, without regard to the
conflicts of law provisions thereof.
(b) Buyer and Seller each hereby irrevocably consents to the personal
jurisdiction of the courts of the State of New York and of the United States of
America sitting in the Southern District of New York, in either case sitting in
the borough of Manhattan, in any action to enforce, interpret or construe any
provision of this letter agreement or of any other agreement or document
delivered in connection with this letter agreement. Each party further
irrevocably agrees that any action to enforce, interpret or construe any
provision of this letter agreement will be brought only in either of those
courts and not in any other court unless the courts designated herein refuse to
accept jurisdiction over of such actions based upon jurisdiction or venue
defenses.
(c) This letter agreement may be executed in separate counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
(d) This letter agreement shall supersede all prior agreements, written
or oral, by or among any of the parties hereto with respect to the subject
matter hereof and may not be amended or otherwise modified except in writing
signed by all of the parties hereto.
(e) From and after the date hereof, Buyer and Seller each covenant and
agree to execute and deliver all such agreements, instruments and documents and
to take all such further
actions as the other party hereto may reasonably deem necessary from time to
time to carry out the intent and purposes of this letter agreement and to
consummate the transactions contemplated hereby.
(f) The captions and headings hereunder are for convenience only and
shall not affect the interpretations or construction of this letter agreement.
Very truly yours,
HIGH RIVER LIMITED PARTNERSHIP
By: Riverdale LLC, General Partner
By: /s/ Xxxx X. Icahn
Xxxx X. Icahn, Member
ACCEPTED AND AGREED TO AS
OF THE DATE FIRST ABOVE WRITTEN:
By:/s/ Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Gumpert Xxxxxxxxx
[Signature Page of Xxxxxxxxx Letter Agreement Re: Xxxxxx Services Corp.]
