1
EXHIBIT 4.6
EXECUTION COPY
ZILOG, INC.
9 1/2% SENIOR SECURED NOTES XXX XXXXX 0, 0000
XXXXXXXX AGREEMENT
February 00, 0000
Xxxxxxx, Xxxxx & Xx.
XxxxXxxxxx Securities Inc.
Citicorp Securities, Inc.
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Zilog, Inc., a Delaware corporation (the "Company"), has entered
into an Agreement and Plan of Merger (the "Merger Agreement"), dated as of July
20, 1997, as amended by Amendments Number One, Number Two and Number Three,
dated as of November 18, 1997, December 10, 1997 and January 26, 1998,
respectively, by and among the Company and the parties listed on the signature
pages thereto, pursuant to which TPG Zeus Acquisition Corporation, a Delaware
corporation, will be merged with and into the Company (the "Acquisition"). The
Acquisition is to be financed in part through (i) the Company's issuance of
voting and non voting common stock and preferred stock to TPG Partners II, L.P.
(and other investors) in exchange for $117.5 million in cash (the "Equity
Investment"), (ii) the issuance of the Notes (as defined herein). The Merger
Agreement, together with each of the other agreements among the parties to the
Merger Agreement referred to in the Merger Agreement are collectively referred
to herein as the "Acquisition Documents." The Company proposes, subject to the
terms and conditions stated herein, to issue and sell to Xxxxxxx, Xxxxx & Co.,
BancBoston Securities Inc. and Citicorp Securities, Inc. (the "Initial
Purchasers") an aggregate of $280,000,000 principal amount of the Company's
9-1/2% Senior Secured Notes due 2005 (the "Notes"), a portion of which is for
resale by the Initial Purchasers to qualified institutional buyers (within the
meaning of Rule 144A ("Rule 144A") under the Securities Act of 1933, as amended
(the "Securities Act")) ("QIBs") in reliance upon Rule 144A, and the remainder
of which is being offered by Xxxxxxx, Sachs & Co. (through Xxxxxxx Xxxxx
International, as selling agent), BancBoston Securities Inc. and Citicorp
Securities, Inc. outside the United States in reliance on Regulation S under the
Securities Act. The Notes and the Exchange Notes (as defined below) will be
fully and unconditionally guaranteed (the "Guarantees") as to payment of
principal, interest, liquidated damages, if any, and premium, if any, on a
senior secured basis, jointly and severally by each of the Guarantors listed on
Annex II hereto and certain future Subsidiaries of the Company (each a
"Guarantor," and collectively, the "Guarantors").
Capitalized terms used herein and not otherwise defined are used as
defined in the Offering Circular (as defined below). The obligations of the
Initial Purchasers under this Agreement are several and not joint.
2
1. The Company and each of the Guarantors, jointly and severally,
represents and warrants to, and agrees with, each of the Initial Purchasers
that:
(a) A preliminary offering circular, subject to completion dated
February 9, 1998 (the "Preliminary Offering Circular") and an offering circular,
dated February 23, 1998 (the "Offering Circular"), have been prepared in
connection with the offering of the Notes. Any reference to the Preliminary
Offering Circular or the Offering Circular shall be deemed to refer to and
include any Additional Issuer Information (as defined in Section 5(f)) furnished
by the Company prior to the completion of the distribution of the Notes. Neither
the Preliminary Offering Circular nor the Offering Circular nor any amendments
or supplements thereto did or will, as of their respective dates, contain an
untrue statement of a material fact or omit to state a material fact, necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the
Company or any Guarantor by or on behalf of the Initial Purchasers through
Xxxxxxx, Sachs & Co. expressly for inclusion in the Preliminary Offering
Circular or the Offering Circular or any amendments or supplements thereto;
(b) No registration of the Notes under the Securities Act, and no
qualification of an indenture under the Trust Indenture Act with respect
thereto, is required for the offer, sale and initial resale of the Notes by the
Initial Purchasers in the manner contemplated by this Agreement;
(c) Subsequent to the date of the most recent audited financial
statements included in the Offering Circular, except as set forth in the
Offering Circular on the dates as of which such information is provided, (i)
neither the Company nor any Guarantor has incurred any liabilities or
obligations, direct or contingent, which are material, individually or in the
aggregate, to the Company and the Guarantors, taken as a whole, nor entered into
any transaction not in the ordinary course of business, (ii) there has not been
any change in the Company's or any Guarantor's capital stock (except for the
issuance of shares of Common Stock upon exercise of stock options outstanding on
December 31, 1997) or increase in long-term debt or any payment of or
declaration to pay any dividends or other distribution with respect to the
capital stock of the Company or any Guarantor, (iii) neither the Company nor any
Guarantor has sustained any material loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
otherwise than as set forth in or contemplated by the Offering Circular and (iv)
there has not been any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs,
management, business, properties, results of operations, prospects or condition
(financial or otherwise), or stockholders' equity of the Company and the
Guarantors, taken as a whole, nor have any events occurred which, singly or in
the aggregate, have a material adverse effect on the issue or sale of the Notes
or the consummation of the transactions contemplated hereby (any change or event
described in (ii)-(iv) of this clause (c), a "Material Adverse Effect");
(d) The Company and each Guarantor has good and marketable title to all
real property and good and marketable title to all material personal property
owned respectively by each of them, in each case free and clear of all liens,
encumbrances and defects except such as
2
3
are described in the Offering Circular (including, without limitation, the
financial statements of the Company included therein) or such as do not
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company or any of the
Guarantors; and any real property and buildings held under lease by the Company
or any of the Guarantors are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company or any of the Guarantors;
(e) The Company has no subsidiaries other than the Guarantors. The
Company and each of the Guarantors has been duly incorporated and is validly
existing in good standing under the laws of its respective jurisdiction of
incorporation, with power and authority to own its properties and conduct its
business as described in the Preliminary Offering Circular and the Offering
Circular, and is duly qualified to do business as a foreign corporation and is
in good standing in all other jurisdictions where the ownership of its
properties or the conduct of its business requires such qualification except
where the failure to be so qualified would not have a Material Adverse Effect on
the Company and the Guarantors taken as a whole. The jurisdictions on Annex III
hereto are the material jurisdictions in which the Company operates;
(f) The Company and each of the Company's subsidiaries, as applicable,
has all requisite corporate power and authority to execute, deliver and perform
their obligations under this Agreement, the Indenture (as defined below), the
Notes, the Guarantees, the Registration Rights Agreement (as defined below), the
Exchange Notes, the Collateral Documents (as defined below) and the Pledge
Agreements (as defined below) (collectively, the "Operative Documents") and the
Acquisition Documents to which they are, or will be, a party and to consummate
the transactions contemplated hereby and thereby, including without limitation
the corporate power and authority to issue, sell and deliver the Notes and the
Exchange Notes and to issue the Guarantees of the Notes and the Exchange Notes,
as applicable, as provided herein and therein;
(g) Each of the Preliminary Offering Circular and the Offering Circular,
as of their respective dates, contains the information specified in Rule
144A(d)(4) under the Securities Act;
(h) The Company has an authorized capitalization as set forth in the
Offering Circular, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable; and all of the issued shares of capital stock of each of the
Guarantors have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares and as otherwise
required under applicable laws) are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims, except as described in the
Offering Circular;
(i) The Notes have been duly authorized and, when issued and delivered
pursuant to this Agreement and the Indenture, will have been duly executed,
authenticated, issued and delivered and will constitute valid and legally
binding obligations of the Company entitled to the benefits provided by the
Indenture to be dated the Time of Delivery (as defined below) (the "Indenture")
among the Company, the Guarantors and State Street Bank and Trust Company, as
trustee (the "Trustee"), under which they are to be issued, which will be
substantially in the form previously delivered to you; the Indenture has been
duly authorized and, when executed
3
4
and delivered by the Company, the Guarantors and the Trustee, the Indenture will
constitute a valid and legally binding instrument of the Company and each of the
Guarantors, enforceable against the Company and each of the Guarantors in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity (whether considered in a
proceeding in equity or at law); and the Notes and the Indenture will conform in
all material respects to the descriptions thereof in the Offering Circular and
will be in substantially the form previously delivered to you;
(j) This Agreement has been duly authorized, executed and delivered by
the Company and each of the Guarantors;
(k) The registration rights agreement (the "Registration Rights
Agreement"), to be dated the Time of Delivery, has been duly authorized by the
Company and each of the Guarantors and, when duly executed and delivered by the
Company and each of the Guarantors, will be the valid and legally binding
obligation of the Company and each of the Guarantors, enforceable against the
Company and each of the Guarantors in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity (whether considered in a proceeding in equity or at law)
or, with respect to provisions thereto relating to indemnification and
contribution, by applicable federal and state securities laws or principles of
public policy;
(l) The Exchange Notes have been duly and validly authorized for
issuance by the Company, and when issued and authenticated in accordance with
the terms of the Indenture and the Registration Rights Agreement, will be the
valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of the
Indenture, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors' rights
and to general principles of equity (whether considered in a proceeding in
equity or at law);
(m) The Guarantees of the Notes have been duly authorized by each of the
Guarantors and, when executed and delivered in accordance with the terms of the
Indenture and when the Notes have been issued and authenticated in accordance
with the terms of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be the valid and
legally binding obligations of the Guarantors, enforceable against the
Guarantors in accordance with their terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity (whether
considered in a proceeding in equity or at law). The Guarantees of the Notes,
when issued, will conform in all material respects to the description thereof in
the Offering Circular;
(n) The Guarantees of the Exchange Notes have been duly authorized by
each of the Guarantors and, when executed and delivered in accordance with the
terms of the Indenture and when the Exchange Notes are issued and authenticated
in accordance with the terms of the Indenture and the Registration Rights
Agreement, will be the valid and legally binding obligation of the Guarantors,
enforceable against the Guarantors in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
4
5
applicability relating to or affecting creditors' rights and to general
principles of equity (whether considered in a proceeding in equity or at law).
The Guarantees of the Exchange Notes, when issued, will conform in all material
respects to the description thereof in the Offering Circular;
(o) Each of the Deed of Trust, Assignment of Rents, Security Agreement
and Fixture Filing dated the Time of Delivery among the Company and the Trustee.
as beneficiary (the "Deed of Trust"), the Company Security Agreement dated the
Time of Delivery between the Company and the Trustee (the "Company Security
Agreement"), the Subsidiary Security Agreement dated the Time of Delivery
between the Company, the Trustee and the other parties named therein (the
"Subsidiary Security Agreement"), the Copyright Security Agreement dated the
Time of Delivery between the Company, the Trustee and the other parties named
therein (the "Copyright Security Agreement"), and the Company and Subsidiary
Patent and Trademark Security Agreement dated the Time of Delivery among the
Company, the Trustee and each of the other parties named therein (the "Company
and Subsidiary Patent and Trademark Security Agreement" and, together with the
Deed of Trust, the Company Security Agreement, the Subsidiary Security Agreement
and the Copyright Security Agreement, the "Collateral Documents") and the
Company Pledge Agreement dated the Time of Delivery between the Company and the
Trustee (the "Company Pledge Agreement") and the Subsidiary Pledge Agreement
dated the Time of Delivery between the Company, each subsidiary of the Company
and the Trustee (the "Subsidiary Pledge Agreement" and, together with the
Company Pledge Agreement, the "Pledge Agreements"), has been duly authorized by
the Company and the subsidiaries of the Company named therein and when duly
executed and delivered by the Company and each of the Company's subsidiaries
named therein, will be the valid and legally binding obligation of the Company
and each of Company's subsidiaries named therein, enforceable against the
Company and each of the Company's subsidiaries named therein in accordance with
their terms, subject to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors' rights
and to general principles of equity (whether considered in a proceeding in
equity or at law). The security interests in the Collateral and Pledge under the
Collateral Documents and Pledge Agreements will conform in all material respects
to the description thereof in the Offering Circular;
(p) Except as disclosed in the Preliminary Offering Circular and the
Offering Circular, there are no outstanding (A) securities or obligations of the
Company or any of the Guarantors convertible into or exchangeable for any
capital stock of the Company or any such Guarantor, (B) warrants, rights or
options to subscribe for or purchase from the Company or any of the Guarantors
any such capital stock or any such convertible or exchangeable securities or
obligations, or (C) obligations of the Company or any of the Guarantors to issue
any shares of capital stock, any such convertible or exchangeable securities or
obligations, or any such warrants, rights or options;
(q) There are no holders of securities of the Company or any of the
Guarantors who, by reason of the execution of this Agreement or any other
Operative Document or Acquisition Document by the Company or the Guarantors, as
the case may be, or the consummation of the transactions contemplated hereby and
thereby, have the right to request or demand the Company or any of the
Guarantors to register under the Securities Act or analogous
5
6
foreign laws and regulations any securities held by them (other than pursuant to
the Registration Rights Agreement);
(r) None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Notes) will
violate or result in a violation of Section 7 of the United States Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or any regulation
promulgated thereunder, including, without limitation, Regulations G, T, U, and
X of the Board of Governors of the Federal Reserve System;
(s) Prior to the date hereof, none of the Company, the Guarantors or any
of their affiliates has taken any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company in
connection with the offering of the Notes;
(t) The issue and sale of the Notes and the compliance by the Company
and the Guarantors with all of the provisions of this Agreement and each of the
other Operative Documents and the consummation of the transactions herein and
therein contemplated (including consummation of the Acquisition and the
financing thereof) will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, (A) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Guarantors is a party or by which
the Company or any of the Guarantors is bound or to which any of the property or
assets of the Company or any of the Guarantors is subject, (B) the provisions of
the Certificate of Incorporation or By-laws of the Company or any of the
Guarantors or (C) (assuming compliance with all applicable state securities or
Blue Sky laws and assuming the accuracy of the representations and warranties of
the Initial Purchasers contained herein) any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of the Guarantors or any of their properties, and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Notes or the consummation by the Company and the Guarantors of the
transactions contemplated by this Agreement, the Acquisition Documents or any
other Operative Document, except for the filing of a registration statement by
the Company and the Guarantors with the Commission pursuant to the Securities
Act pursuant to Section 5(k) hereof and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Notes by the Initial Purchasers;
(u) Neither the Company nor any of the Guarantors is in violation of its
Certificate of Incorporation or By-laws or is in default in the performance or
observance of any material obligation, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other material
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(v) The statements set forth in the Offering Circular under the captions
"Description of Notes" and "Certain United States Federal Tax Considerations for
Non-United States Holders" insofar as they purport to constitute a summary of
the terms of the Notes and
6
7
insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(w) Other than as set forth in the Offering Circular, there are no legal
or governmental proceedings pending to which the Company or any of the
Guarantors is a party or of which any property of the Company or any of the
Guarantors is the subject which individually or in the aggregate is reasonably
likely to have a Material Adverse Effect; and, to the Company's knowledge, no
such proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(x) When the Notes are issued and delivered pursuant to this Agreement,
the Notes will not be of the same class (within the meaning of Rule 144A under
the Securities Act) as securities of the Company which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or quoted in
a U.S. automated inter-dealer quotation system;
(y) Neither the Company nor any of the Guarantors (A) is or (after
giving effect to the offering and sale of the Notes and the application of net
proceeds therefrom) will be an "investment company", or an entity "controlled"
by an "investment company", as such terms are defined in the United States
Investment Company Act of 1940, as amended (the "Investment Company Act") or (B)
is a "holding company," a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," as such terms are defined in the Public Utilities Holding Company Act
of 1935, as amended (the "Public Utilities Act"), or is a "public utility," as
such term is defined in the Federal Power Act, as amended (the "Federal Power
Act");
(z) None of the Company, the Guarantors or any person acting on its or
their behalf has offered or sold the Notes by means of any general solicitation
or general advertising within the meaning of Rule 502(c) under the Securities
Act or, with respect to Notes sold outside the United States to non U.S. persons
(as defined in Rule 902 under the Act), by means of any directed selling efforts
within the meaning of Rule 902 under Securities Act and the Company, any
affiliate of the Company and any person acting on its or their behalf has
complied with and will implement the "offering restriction" within the meaning
of such Rule 902, it being understood that the Company and the Guarantors make
no representation in this clause (z) as to the Initial Purchasers;
(aa) Within the preceding six months, none of the Company, the Guarantors
or any other person acting on behalf of the Company or any of the Guarantors has
offered or sold to any person any Notes, or any securities of the same or a
similar class as the Notes, other than the Notes offered or sold to the Initial
Purchasers hereunder. The Company and the Guarantors agree to take reasonable
precautions designed to insure that any offer or sale, direct or indirect, in
the United States or to any U.S. person (as defined in Rule 902 under the
Securities Act) of any Notes or any substantially similar security issued by the
Company or the Guarantors, within six months subsequent to the date on which the
distribution of the Notes has been completed (as notified to the Company by
Xxxxxxx, Xxxxx & Co.), is made under restrictions and other circumstances
reasonably designed not to affect the status of the offer and sale of the Notes
in the United States and to U.S. persons contemplated by this Agreement as
transactions exempt from the registration provisions of the Securities Act.
Neither the Company nor any of its affiliates or any person acting on its behalf
has engaged or will engage in any directed selling
7
8
efforts within the meaning of Regulation S under the Securities Act with respect
to the Notes or the Guarantees, it being understood that the Company and the
Guarantors make no representation in this clause (aa) as to the Initial
Purchasers;
(ab) None of the Company, the Guarantors or their respective affiliates
does business with the Government of Cuba or with any person or any affiliate
located in Cuba within the meaning of the provisions of Florida H.B. 1771,
codified as Section 517.075 of the Florida Statutes, and any regulations
promulgated thereunder;
(ac) The consolidated historical financial statements, together with
related schedules and notes, set forth in the Preliminary Offering Circular and
the Offering Circular comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under the
Securities Act and fairly present the consolidated financial position of the
Company and each of its Subsidiaries and the respective dates indicated and the
results of their operations and their cash flows for the respective periods
indicated, in accordance with generally accepted accounting principles
consistently applied throughout such periods (except as otherwise disclosed
therein). The pro forma financial statements contained in the Offering Circular
have been prepared on a basis consistent with such historical statements, except
for the pro forma adjustments specified therein, and give effect to assumptions
made on a reasonable basis and present fairly the historical and proposed
transactions contemplated by this Agreement, the other Operative Documents and
the Acquisition Documents. The other financial and statistical information and
data included in the Preliminary Offering Circular and the Offering Circular,
historical and pro forma, are, in all material respects, prepared on a basis
consistent with such financial statements and the books and records of the
Company and the Guarantors;
(ad) Ernst & Young LLP, who have certified certain financial statements
of the Company, are independent public auditors as required by the Securities
Act and the rules and regulations of the Commission thereunder;
(ae) The Company and each of the Guarantors has complied in all material
respects with all material laws, regulations and orders applicable to it or its
businesses, except as set forth in the Offering Circular;
(af) (i) The Company and each of the Guarantors has all certificates,
consents, exemptions, orders, permits, licenses, authorizations, or other
approvals (each, an "Authorization") of and from, and has made all declarations
and filings with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals, necessary
or required to engage in the business currently conducted by it in the manner
described in the Offering Circular, except to the extent that a failure to hold
or to have obtained any such Authorization will not have a Material Adverse
Effect on the Company and Guarantors taken as a whole; (ii) all such
Authorizations are valid and in full force and effect and (iii) the Company and
each of the Guarantors is in compliance in all material respects with the terms
and conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities and governing bodies having jurisdiction with respect
thereto;
(ag) Except as set forth in the Offering Circular, the Company and each
of the Guarantors owns or possesses or has the right to use the patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or
8
9
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, the "Intellectual
Property") presently employed by it in connection with, and material to, the
operation of the businesses now operated by it, and neither the Company nor any
of the Guarantors has received any notice of infringement of or conflict with
asserted rights of others with respect to the foregoing which, individually or
in the aggregate, would be reasonably likely to result in a Material Adverse
Effect. Except as set forth in the Offering Circular, to the knowledge of the
Company, the use of such Intellectual Property in connection with the business
and operations of the Company and the Guarantors does not infringe on the rights
of any person;
(ah) All material tax returns required to be filed by the Company or any
of the Guarantors in all jurisdictions have been timely and duly filed, other
than those filings being contested in good faith. There are no tax returns of
the Company or any of the Guarantors that are currently being audited by state,
local or federal taxing authorities or agencies (and with respect to which the
Company or any of the Guarantors has received notice). All material taxes,
including withholding taxes, penalties and interest, assessments, fees and other
charges due or claimed to be due from such entities have been paid, other than
those being contested in good faith and for which adequate reserves have been
provided or those currently payable without penalty or interest;
(ai) The Company and each of the Guarantors maintains insurance covering
its properties, operations, personnel and businesses which insures against such
losses and risks as are adequate in accordance with its reasonable business
judgment to protect the Company and the Guarantors and their businesses. Neither
the Company nor the Guarantors has received notice from any insurer or agent of
such insurer that substantial capital improvements or other expenditures will
have to be made in order to continue such insurance. All such insurance is
outstanding and duly in force on the date hereof and will be outstanding and
duly in force at the Time of Delivery;
(aj) Except as disclosed in the Preliminary Offering Circular and the
Offering Circular (including, without limitation, the documents incorporated by
reference therein), there are no business relationships or related party
transactions which would be required to be disclosed therein by Item 404 of
Regulation S-K of the Commission and each business relationship or related party
transaction described therein is a fair and accurate description of the
relationships and transactions so described in all material respects;
(ak) The Company and each of the Guarantors is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the regulations
and published interpretations thereunder ("ERISA"); no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company or any Guarantor would have any liability; neither
the Company nor any of the Guarantors has incurred or expects to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "pension plan" or (ii) Section 412 or 4971 of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Company or any
Guarantor would have any liability that is intended to be qualified
9
10
under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or by failure to act, which would cause the loss of such
qualification;
(al) There is (i) no material unfair labor practice complaint pending
against the Company or any of the Guarantors, or, to the knowledge of the
Company, threatened against any of them, before the National Labor Relations
Board or any state or local labor relations board, and no significant grievance
or significant arbitration proceeding arising out of or under any collective
bargaining agreement is so pending against the Company or any of the Guarantors,
or, to the knowledge of the Company, threatened against any of them, (ii) no
material strike, labor dispute, slowdown or stoppage pending against the Company
or any of the Guarantors nor, to the knowledge of the Company, threatened
against the Company or any of the Guarantors and (iii) to the knowledge of the
Company, no union representation question existing with respect to the employees
of the Company or any of the Guarantors and, to the knowledge of the Company, no
union organizing activities are taking place;
(am) The Company and each of the Guarantors reviews from time to time the
effect of Environmental Laws (as defined below) and the disposal of hazardous or
toxic substances, wastes, pollutants and contaminants on the business, assets,
operations and properties of the Company and each of the Guarantors, as
applicable, and identifies and evaluates associated costs and liabilities
(including, without limitation, any material capital and operating expenditures
required for clean-up, closure of properties and compliance with environmental,
safety or similar laws or regulations applicable to it or its business or
property relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), all permits, licenses and approvals, all related
constraints on operating activities and all potential liabilities to third
parties). On the basis of such reviews, the Company has reasonably concluded
that such associated costs and liabilities would not have a Material Adverse
Effect. Except as set forth in the Offering Circular, the Company and the
Guarantors have been in compliance in all material respects with all material
Environmental Laws, permits, licenses and approvals required of them under
applicable Environmental Laws;
(an) None of the Company, the Guarantors or, to the Company's knowledge,
any director, officer, agent, employee or other person associated with or acting
on behalf of the Company or any of the Guarantors, has used any corporate funds
during the last five years for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made any unlawful payment
to any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or made any bribe, rebate, payoff, influence payment,
kickback or other unlawful payment;
(ao) The Company and each of the Guarantors maintains 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 accountability for assets; (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 thereto;
10
11
(ap) Other than as contemplated by or described in this Agreement, any
other Operative Document, the Preliminary Offering Circular, the Offering
Circular or the Proxy Statement Prospectus furnished to the Company Stockholders
requesting approval of the Acquisition, there is no broker, finder or other
party that is entitled to receive from the Company or any of the Guarantors any
brokerage or finder's fee or other fee or commission as a result of any of the
transactions contemplated by this Agreement, any of the Operative Documents or
any Acquisition Document;
(aq) The Company has delivered or will deliver at Closing to the Initial
Purchasers true and correct, executed copies of each of (i) the Operative
Documents (other than the Exchange Notes and the guarantees relating thereto),
in each case, which has been executed prior to or on the date hereof, (ii) the
Credit Agreement dated as of February 27, 1998 among the Company, as Borrower,
the banks and other lenders from time to time party thereto and Bank Boston,
N.A., as Administrative Agent (the "New Credit Facility"), and (iii) the other
Acquisition Documents (collectively, the documents described in items (ii) of
this clause (aq), the "Transaction Documents"), and there have been no
amendments, alterations, modifications or waivers to any of the foregoing
documents or in the exhibits or schedules thereto other than those as to which
the Initial Purchasers shall previously have been advised and shall not have
reasonably objected after being furnished a copy thereof;
(ar) The Company is subject to Section 13 or 15(d) of the Exchange Act;
and
(as) Each of the Acquisition Documents has been duly and validly
authorized by the Company and, when duly executed and delivered by the Company,
will be the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general applicability
relating to or affecting creditor's rights, to general principles of equity
(whether considered in a proceeding in equity or at law);
(at) Subject to the terms and conditions of this Agreement, the security
interest granted by the Company and its subsidiaries under the Collateral
Documents and the Pledge Agreements will constitute a valid and perfected
security interest in (i) the Collateral (as defined in the Collateral
Documents), (ii) all of the Company's right, title and interest in the
outstanding capital stock of all of its directly and indirectly owned domestic
Subsidiaries, 65% of the capital stock of its foreign subsidiaries and all
subsidiary intercompany notes owed to the Company or any of its domestic
subsidiaries (the "Pledge") and (iii) all distributions or allocations of
distributable cash, property, securities, or other assets from the Pledge
together with all substitutes and replacements for and proceeds of the
foregoing, subject to no equal or prior security interest other than Permitted
Liens of any other creditor of the Company, in each case, securing payment and
performance of the Company's obligations under the Notes, the Indenture, the
Collateral Documents and the Pledge Agreements to which the Company or any of
its subsidiaries is a party. On the Closing Date, such security interest will
constitute a first priority lien and security interest with respect to the
Collateral and Pledge, subject to no security interests of any other person
other than Permitted Liens and those that have been released from or
subordinated to the Collateral and Pledge, and no filings, registrations,
recordings, deliveries or other actions will be required in order to perfect (or
maintain the perfection or priority of) the security interest in such Collateral
or Pledge created under the Collateral Documents and Pledge Agreements, other
than filings, recordings, deliveries or other actions which, at or prior to the
11
12
Time of Delivery, will have been made by or on behalf of the Company and such
continuation statements and other Uniform Commercial Code filings as may be
necessary in the future with respect to the personal property included within
the Deed of Trust. All taxes, fees and other governmental charges due in
connection with such filings, recordings, deliveries or other actions will have
been paid.
(au) Subject to the terms and conditions of this Agreement, the execution
by the Company of the Pledge Agreements and delivery to the Trustee of the
Pledge pursuant thereto, shall cause the Trustee, for the ratable benefit of the
holders of Notes, to have, as security for the payment of the obligations under
the Indenture and the Notes, a valid, duly perfected security interest (as to
the creation of which no consent is required by a third party or such consents
have been obtained) in the Pledge and the actions described in this section (au)
are the only actions, recordings and filings necessary to establish the validity
of such security interest in the Pledge. From and after the date hereof, the
liens or security interests created by the Pledge will be duly perfected,
creating a first priority interest subject to Permitted Liens in the Trustee for
the ratable benefit of the holders of the Notes in the Pledge over all other
liens and security interests in respect of the Pledge, whether now existing or
hereafter created.
2. Subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to each of the Initial Purchasers, and each of the
Initial Purchasers agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 97.0% of the principal amount thereof, plus
accrued interest, if any, from February 27, 1998 to the Time of Delivery
hereunder, the principal amount of the Notes set forth opposite the name of such
Initial Purchaser in Schedule I hereto.
3. Upon authorization by you of the release of the Notes, the Initial
Purchasers propose to offer the Notes for sale upon the terms and conditions set
forth in this Agreement and the Offering Circular and each Initial Purchaser
hereby represents and warrants, and agrees with the Company and the Guarantors,
that:
(a) It will offer and sell the Notes only (i) to persons who it
reasonably believes are QIBs in transactions meeting the requirements of Rule
144A or (ii) upon the terms and conditions set forth in Annex I to this
Agreement;
(b) It is an institutional "Accredited Investor" (within the meaning of
Rule 501 of the Securities Act); and
(c) It has not offered and will not offer or sell the Notes by any form
of general solicitation or general advertising, including but not limited to the
methods described in Rule 502(c) under the Securities Act.
4. (a) The Notes to be purchased by each Initial Purchaser hereunder
will be represented by one or more definitive global Notes in book-entry form
which will be deposited by or on behalf of the Company with The Depository Trust
Company ("DTC") or its designated custodian; provided, however, that such Notes,
if any, as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours'
prior to notice to the Company (such request to include the authorized
denominations and the names in which they are to be registered), shall be
delivered in definitive certificated form. The Company will deliver the Notes to
Xxxxxxx, Sachs & Co., for
12
13
the account of each Initial Purchaser, against payment by or on behalf of such
Initial Purchaser of the purchase price therefor by wire transfer of Federal
(same day) funds by causing DTC to credit the Notes to the account of Xxxxxxx,
Xxxxx & Co. at DTC. The Company will cause the certificates representing the
Notes to be made available to Xxxxxxx, Sachs & Co. for checking at least
twenty-four hours prior to the Time of Delivery. The time and date of such
delivery and payment shall be 9:30 a.m., New York City time, on February 27,
1998 or such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may
agree upon in writing. Such time and date are herein called the "Time of
Delivery."
(b) The documents to be delivered at the Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Notes and any additional documents requested by the
Initial Purchasers pursuant to Section 7(m) hereof, will be delivered at such
time and date at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxx, Xxx Xxxx 00000 (the "Closing Location"). A meeting will be held at the
Closing Location at 4:00 p.m., New York City time, on the New York Business Day
next preceding the Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to be closed.
5. The Company and the Guarantors agree with each of the Initial
Purchasers:
(a) To prepare the Preliminary Offering Circular and the Offering
Circular in a form approved by you; to make no amendment or any supplement to
the Preliminary Offering Circular or the Offering Circular unless you have been
given reasonable notice thereof and shall not have objected after being
furnished with copies of such proposed amendment or supplement; and to furnish
you with copies of such amendment or supplement;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Notes for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with such
laws so as to permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the distribution of
the Notes, provided that in connection therewith neither the Company nor any of
the Guarantors shall be required to qualify as a foreign corporation, to file a
general consent to service of process or to subject itself to taxation in excess
of a nominal dollar amount in any jurisdiction;
(c) To furnish the Initial Purchasers, by 10:00 a.m. on the day
after the date thereof, date with copies of the Preliminary Offering Circular,
the Offering Circular and each amendment or supplement thereto with the
independent accountants' report(s) in the Offering Circular, and any amendment
or supplement containing amendments to the financial statements covered by such
report(s), signed by the accountants, and additional copies thereof in such
quantities as you may from time to time reasonably request, and if, at any time
prior to the expiration of nine months after the date of the Offering Circular,
any event shall have occurred as a result of which the Offering Circular as then
amended or supplemented would include an untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made when such
13
14
Offering Circular is delivered, not misleading, or, if for any other reason it
shall be necessary or desirable during such same period to amend or supplement
the Offering Circular, to notify you and upon your request to prepare and
furnish without charge to each Initial Purchaser and to any dealer in securities
as many copies as you may from time to time reasonably request of an amended
Offering Circular or a supplement to the Offering Circular which will correct
such statement or omission or effect such compliance;
(d) During the period beginning from the date hereof and
continuing until the date six months after the Time of Delivery, not to offer,
sell contract to sell or otherwise dispose of, except as provided hereunder and
under the Registration Rights Agreement, any securities of the Company that are
substantially similar to the Notes, without your prior written consent;
(e) Not to be or become, at any time prior to the expiration of
three years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act;
(f) At any time when the Company is not subject to Section 13 or
15(d) of the Exchange Act, for the benefit of holders from time to time of the
Notes, to furnish at its expense, upon request, to holders of the Notes and
prospective purchasers of Notes information (the "Additional Issuer
Information") satisfying the requirements of subsection (d)(4)(i) of Rule 144A
under the Securities Act;
(g) If requested by you, to use its best efforts to cause such
Notes to be eligible for the PORTAL trading system of the National Association
of Securities Dealers, Inc.;
(h) Whether or not required by the rules and regulations of the
Commission, so long as any Notes are outstanding, to furnish to the Holders of
Notes (i) definitive reports containing all quarterly and annual financial
information that would be required to be contained in a filing with the SEC on
Forms 10-Q and 10-K, if the Company or the Guarantors were required to file such
forms, including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" that describes the financial condition and results of
operations of the Company and the Guarantors and their consolidated Subsidiaries
and, with respect to the annual information only, a report thereon by the
Company's and the Guarantor's certified independent accountants and (ii) all
current reports that would be required to be filed with the Commission on Form
8-K, if the Company were required to file such reports, in each case within the
time periods set forth in the Commission's rules and regulations.
(i) During a period of five years from the date of the Offering
Circular (so long as any of the Notes or Exchange Notes remain outstanding),
during any period in which the Company is required to have common stock
registered under Section 12 of the Exchange Act, to furnish to you copies of all
reports or other communications (financial or other) furnished to shareholders
of the Company, and to deliver to you (i) as soon as they are available, copies
of any reports and financial statements furnished to or filed with the
Commission or any securities exchange on which the Notes or any class of
securities of the Company or any Guarantor is listed; and (ii) such additional
information concerning the business and financial condition of the Company or
any Guarantor as you may from time to time reasonably request (such financial
14
15
statements to be on a consolidated basis to the extent the accounts of the
Company and the Guarantors are consolidated in reports furnished to shareholders
of the Company generally or to the Commission);
(j) During the period ending two years after the Time of Delivery,
not to and not to permit any of its "affiliates" (as defined in Rule 144 under
the Securities Act) to, resell any of the Notes which constitute "restricted
securities" under Rule 144 that have been reacquired by any of them other than
in compliance with Rule 144;
(k) To use the net proceeds received by it from the sale of the
Notes pursuant to this Agreement in the manner specified in the Offering
Circular under the caption "Use of Proceeds;" and
(l) To use their best efforts to effect the completion of the
Acquisition as described in the Offering Circular and the Transaction Documents
in all material respects.
(m) To comply with the agreements in the Operative Documents.
(n) To use their best efforts to do all things necessary to
perfect, to the extent permitted by law, a first priority security interest
subject to Permitted Liens in favor of the Trustee for the benefit of the
holders of Notes, in the Collateral and the Pledge.
6. The Company and the Guarantors covenant and agree with each Initial
Purchaser that the Company will pay or cause to be paid the following: (i) the
fees, disbursements and expenses of the Company's and the Guarantors' counsel
and accountants in connection with the issue of the Notes and all other expenses
in connection with the preparation and printing of the Preliminary Offering
Circular and the Offering Circular and any amendments and supplements thereto
and the mailing and delivering of copies thereof to the Initial Purchasers and
dealers; (ii) the cost of printing or producing any agreement among Initial
Purchasers, this Agreement, the Indenture, the Collateral Documents, the Pledge
Agreements, the Blue Sky and Legal Investment Memoranda, closing documents
(including any compilations thereof) and any other documents in connection with
the offering, purchase, sale and delivery of the Notes; (iii) all expenses in
connection with the qualification of the Notes for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the fees and
disbursements of counsel for the Initial Purchasers in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(iv) any fees charged by securities rating services for rating the Notes; (v)
the cost of preparing the Notes; (vi) the fees and expenses of the Trustee and
any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Notes; (vii) any cost incurred
in connection with the designation of the Notes for trading in PORTAL; (viii) to
the extent required under the Collateral Documents and Pledge Agreements, fees
and expenses related to the filing and recording or otherwise creating and
perfecting all necessary security interests pursuant to the Collateral Documents
and Pledge Agreements, including any title, lien or judgment searches conducted
to confirm the priority of the Collateral, or any title or other insurance
obtained with respect to the Collateral and (ix) all other costs and expenses
incident to the performance of its obligations hereunder and under the
Indenture, Registration Rights Agreement and each other Operative Document which
are not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section 6, and Sections 8 and 11
hereof, the Initial Purchasers will pay all of
15
16
their own costs and expenses, including the fees of their counsel and transfer
taxes on resale of any of the Notes by them.
7. The obligations of the Initial Purchasers hereunder shall be
subject, in their discretion, to the condition that all representations and
warranties and other statements of the Company and the Guarantors herein are, at
and as of the Time of Delivery, true and correct, the condition that the Company
and the Guarantors shall have performed all of their respective obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers, shall have
furnished to you such opinion or opinions, dated the Time of Delivery, with
respect to such matters as you may reasonably request, and Xxxxxx & Xxxxxxx
shall have received such papers and information as they may reasonably request
to enable them to pass upon such matters.
(b) Pillsbury Madison & Sutro LLP and as to matters of enforceability
under New York law and under the captions "Description of the Notes," "The
Recapitalization," and "Description of Revolving Credit Facility," Cleary,
Gottlieb, Xxxxx & Xxxxxxxx, and as to matters under Idaho law, independent Idaho
Counsel to the Company, in each case, counsel for the Company, shall have
furnished to you their written opinion, dated the Time of Delivery, in form and
substance satisfactory to you, to the effect that:
i. The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Delaware, with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Offering Circular, including the issuance of the Notes as
contemplated in the Offering Circular;
ii. Each of the Guarantors has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and all of the issued shares of capital stock of
each of the Guarantors have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned of record by the Company or another
Guarantor (such counsel being entitled to rely in respect of the opinion in this
clause upon opinions of local counsel or the Company's General Counsel and in
respect of matters of fact upon certificates of officers of the Company or the
Guarantors, provided that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions and certificates);
iii. The authorized, issued and outstanding capital stock of the
Company is as set forth in the Offering Circular, and all of the issued shares
of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of the Company's General
Counsel and in respect of matters of fact upon certificates of officers of the
Company or the Guarantors, provided that such counsel shall state that they
believe that both you and they are justified in relying upon such opinions and
certificates);
iv. The Company and each of the Guarantors has been duly qualified
as a foreign corporation for the transaction of business and is in good standing
under the laws of each jurisdiction set forth on Annex III;
16
17
v. To the counsel's knowledge and other than as set forth in the
Offering Circular, there are no legal or governmental proceedings pending to
which the Company or any of the Guarantors is a party or of which any property
of the Company or any of the Guarantors is the subject which, if determined
adversely to the Company or any of the Guarantors, would individually or in the
aggregate have a material adverse effect on the consolidated financial position
or results of operations of the Company;
vi. This Agreement has been duly authorized, executed and
delivered by the Company and the Guarantors;
vii. The Notes have been duly authorized, executed and delivered by
the Company, and (assuming the due authorization, execution and delivery of the
Indenture by the Trustee and due authentication and delivery of the Notes by the
Trustee in accordance with the terms of the Indenture and this Agreement)
constitute valid and legally binding obligations of the Company entitled to the
benefits provided by the Indenture and enforceable against the Company in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity (whether considered in a
proceeding in equity or at law);
viii. The Guarantees of the Notes by each Guarantor listed on
Annex II hereto have been duly authorized, executed and delivered by the
Guarantors, and (assuming the due authorization, execution and delivery of the
Indenture by the Trustee and due authentication and delivery of the Notes by the
Trustee in accordance with the terms of the Indenture and this Agreement)
constitute valid and legally binding obligations of the Guarantors enforceable
against the Guarantors in accordance with their terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general principles of equity
(whether considered in a proceeding in equity or at law);
ix. The Indenture has been duly authorized, executed and delivered
by the Company and the Guarantors and (assuming the due authorization, execution
and delivery thereof by the Trustee) constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general principles of equity
(whether considered in a proceeding in equity or at law);
x. The Registration Rights Agreement has been duly authorized by
the Company and the Guarantors and is the valid and legally binding obligation
of the Company and the Guarantors, enforceable against the Company and the
Guarantors in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general principles of equity (whether
considered in a proceeding in equity or at law) and with respect to provisions
thereto relating to indemnification and contribution, to applicable federal and
state securities laws and principles of public policy;
xi. The Exchange Notes have been duly and validly authorized for
issuance by the Company, and when issued and authenticated in accordance with
the terms of the Indenture, will be the valid and legally binding obligations of
the Company, enforceable
17
18
against the Company in accordance with their terms and entitled to the benefits
of the Indenture, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general applicability relating to or affecting creditors'
rights and to general principles of equity (whether considered in a proceeding
in equity or at law);
xii. The Guarantees of the Exchange Notes by each of the Guarantors
listed on Annex II hereto have been duly and validly authorized by the
Guarantors, and when the Exchange Notes are issued and authenticated in
accordance with the terms of the Indenture, will be the valid and legally
binding obligations of the Guarantors, enforceable against the Guarantors in
accordance with their terms, subject to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general principles of equity (whether considered in a
proceeding in equity or at law);
xiii. Each of the Collateral Documents and the Pledge Agreements has
been duly authorized by the Company and the Guarantors of the Company named
therein and when duly executed and delivered by the Company and each of the
Guarantors named therein, will be the valid and legally binding obligation of
the Company and the Guarantors named therein, enforceable against the Company
and the Guarantors named therein in accordance with their terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity (whether considered in a proceeding in equity or at law).
The Collateral Documents and the Pledge Agreements will conform in all material
respects with the descriptions thereof in the Offering Circular;
xiv. The issue and sale of the Notes, the execution and delivery of
this Agreement , the Collateral Documents and the Pledge Agreements and each of
the other Transaction Documents by the Company and the Guarantors and the
performance by each of them of their respective obligations hereunder and
thereunder will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, (A) any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
required to be filed as a material contract exhibit to the Company's Form 10-K
for the year ended December 31, 1996 or Forms 10-Q for the quarters ended March
31, 1997, June 30, 1997 and September 30, 1997 to which the Company or any of
the Guarantors is a party or by which the Company or any of the Guarantors is
bound or to which any of the property or assets of the Company or any of the
Guarantors is subject, (B) the Certificate of Incorporation or By-laws of the
Company or any of the Guarantors or (C) to such counsel's knowledge, any statute
or any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the Guarantors or any of their
properties;
xv. No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Notes or the consummation by the Company
and the Guarantors of the transactions contemplated by this Agreement and each
of the other Operative Documents, except that such counsel need not express any
opinion in such paragraph as to federal or state securities or Blue Sky laws;
xvi. Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or to such counsel's
knowledge in default in the
18
19
performance or observance of any material obligation, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
the properties may be bound;
xvii. The statements set forth in the Offering Circular under the
captions "Description of Notes," "Description of Revolving Credit Facility,"
"The Recapitalization" and "Certain United States Federal Tax Considerations for
Non-United States Holders" insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate, complete and fair;
xviii. The Exchange Act Reports (other than the financial statements
and related schedules therein, as to which such counsel need express no such
opinion), when they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act, and the rules and
regulations of the Commission thereunder;
xix. Assuming the accuracy of the representations of the Initial
Purchasers and Company contained herein, the offer, sale and delivery of the
Notes to the Initial Purchasers, and the initial resales by the Initial
Purchasers in the manner contemplated by the Purchase Agreement and the Offering
Circular, do not require registration under the Securities Act, and the
Indenture is not required to be qualified under the Trust Indenture Act of 1939,
as amended;
xx. The Offering Circular, as of its date, and each amendment or
supplement thereto, as of its date, if any, contains the information specified
in Rule 144A(d)(4) under the Securities Act;
xxi. Neither the issuance or sale of the Notes or the Guarantees
nor the application of the proceeds thereof by the Company as set forth in the
Offering Circular will violate Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System or analogous foreign laws and
regulations;
xxii. Neither the Company nor any of the Guarantors (A) is or (after
giving effect to the offering and sale of the Notes and the application of net
proceeds therefrom) will be an "investment company," or an entity "controlled"
by an "investment company," as such terms are defined in the Investment Company
Act or (B) is a "holding company," a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," as such terms are defined in the Public Utilities Act or
is a "public utility," as such term is defined in the Federal Power Act; and
xxiii. Each of the Acquisition Documents has been duly authorized,
executed and delivered by the Company, and constitutes a valid and legally
binding obligation of the Company enforceable against the Company in accordance
with their terms, subject to bankruptcy, insolvency, reorganization, moratorium
and other laws of general applicability relating to or affecting creditors'
rights and to general principles of equity (whether considered in a proceeding
in equity or at law).
19
20
xxiv. The financing statements naming the Company as debtor and the
Trustee as secured party, together with all schedules and exhibits thereto (the
"Financing Statements") to be filed with the California Secretary of State, the
Santa Xxxxx Recorder's Officer, the Idaho Secretary of State, and the Texas
Secretary of State and (the "Filing Offices") are in appropriate forms for
filing in the Filing Offices. Upon the proper filing of the Financing Statements
in the Filing Offices, the security interest subject to Permitted Liens in favor
of the Trustee in the Collateral will be perfected to the extent a security
interest in such Collateral can be perfected by filing a financing statement
under the provisions of Division 9 of the California Commercial Code and the
analogous provisions of the Idaho Commercial Code and Texas Commercial Code.
xxv. The provisions of the Pledge Agreements, together with
delivery to the Trustee in the State of New York of the certificates
representing the shares identified on Schedule I to each of the Pledge
Agreements (the "Pledged Shares") and blank stock powers with respect thereto
signed by the Company, are sufficient to create in favor of the Trustee a valid
and perfected security interest under the New York UCC in all right, title and
interest of the Company and the relevant subsidiaries in the Pledged Shares.
Upon such delivery and assuming that the Trustee acquires in security interest
in the Pledged Shares without knowledge of any adverse claims, the Trustee will
acquire its security interest free of adverse claims (including other consensual
security interests). No government filings or recordings are required in order
to perfect (or maintain the perfection or priority of) the security interests
created in the Pledged Shares.
xxvi. The execution and delivery by the Company of each of the
Collateral Documents, and the performance of the Company thereunder, will not
violate any provision of existing Idaho law or regulation applicable to the
Company or conflict with the result in the breach of any order, writ,
injunction, ordinance, resolution or decrees of any Idaho governmental authority
which is binding on the Company or its properties.
xxvii. The Deed of Trust is in form satisfactory for recording and
for filing as a fixture filing under the Idaho UCC. The recording of the Deed of
Trust in the office of Canyon County, Idaho is the only recording necessary to
publish notice of and establish record of the rights of the parties thereto and
to perfect the lien and security interest granted by the parties thereto and to
perfect the lien and security interest granted by the Company pursuant to the
Deed of Trust in the real property (including fixtures) covered thereby. Upon
the execution and delivery of the Deed of Trust, such lien and security interest
shall be created and upon the recording of the Deed of Trust as aforesaid, such
lien and security interest shall be perfected as security for the Notes.
xxviii.The Deed of Trust creates a valid lien as security for the
Notes in favor of the Trustee in the Trust Estate (as defined therein) to the
extent the UCC Idaho UCC is applicable thereto.
xxix. Except for nominal filing fees, no recording, filing,
privilege or other tax must be paid in connection with the execution, delivery,
recordation or enforcement of the Deed of Trust in the State of Idaho.
20
21
xxx. No further action is required for the due execution and
delivery or performance or recording of the Collateral Documents or for the
validity or enforcement of any Lien created thereunder or for the perfection of
the security interests of the Trustee in the Collateral, except as that
performed by the Company.
xxxi. It is not necessary for the Trustee, solely in connection with
the transactions contemplated by the Collateral Documents to qualify to do
business in the States of Idaho, Texas or California in order to carry out the
transactions contemplated hereby; it being understood that with respect to
matters covered by Texas law, California law will be assumed to apply.
Such counsel has no reason to believe that (A) the Offering Circular, as
of its date, and any amendment or supplement thereto, as of its date, contain an
untrue statement of material fact or omit to state any material fact necessary
to make the statements therein, in light of the circumstances in which they were
made, not misleading, or (B) the Offering Circular, as amended or supplemented
as of the Time of Delivery, contains any untrue statement of material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) On the date of the Offering Circular prior to the execution of this
Agreement and also at the Time of Delivery, Ernst & Young LLP shall have
furnished to you letters, dated the respective dates of delivery thereof, in
form and substance reasonably satisfactory to you and your counsel.
(d) Neither the Company nor any of the Guarantors shall have sustained
(i) since the date of the latest audited financial statements included in the
Offering Circular any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Offering Circular, and (ii) since the
respective dates as of which information is given in the Offering Circular there
shall not have been any change in the capital stock (except for the issuance of
shares of Common Stock upon exercise of stock options outstanding on December
31, 1997) or long-term debt of the Company or any of the Guarantors or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, shareholders' equity or results
of operations of the Company and the Guarantors, otherwise than as set forth or
contemplated in the Offering Circular, the effect of which, in any such case
described in clause (i) or (ii), is in the judgment of the Initial Purchasers so
material and adverse as to make it impracticable or inadvisable to proceed with
the offering or the delivery of the Notes on the terms and in the manner
contemplated in this Agreement and in the Offering Circular.
(e) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no
such organization shall have publicly announced that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities.
21
22
(f) On or after the date hereof there shall not have occurred any of the
following: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange or on the Nasdaq National Market
("NASDAQ"); (ii) a suspension or material limitation in trading in the Company's
securities listed on the New York Stock Exchange; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities; (iv) the outbreak or escalation of hostilities involving the United
States or the declaration by the United States of a national emergency or war,
if the effect of any such event specified in this clause (iv) in the judgment of
the Initial Purchasers makes it impracticable or inadvisable to proceed with the
offering of the Notes on the terms and in the manner contemplated hereby and in
the Offering Circular; or (v) the occurrence of any material adverse change in
the existing financial, political or economic conditions in the United States or
elsewhere which, in the judgment of the Initial Purchasers, would materially and
adversely affect the financial markets or the market for the Notes.
(g) The Notes shall have been designated for trading on PORTAL.
(h) The Company and the Guarantors shall have furnished or caused to be
furnished to you at the Time of Delivery certificates of officers of the Company
and the Guarantors reasonably satisfactory to you as to the accuracy of the
representations and warranties of the Company and the Guarantors herein at and
as of such Time of Delivery, as to the performance by the Company and the
Guarantors of all of their respective obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in the first
paragraph of this Section 7 and in subsections (d) and (e) of this Section 7 and
as to such other matters as you may reasonably request.
(i) The Company, the Guarantors and the Trustee shall have entered into
the Indenture and the Initial Purchasers shall have received counterparts,
conformed as executed thereof.
(j) The Company, the Guarantors and the Initial Purchasers shall have
entered into the Registration Rights Agreement and the Initial Purchasers shall
have received counterparts, conformed as executed thereof.
(k) The Company, the Trustee and the other parties named therein shall
have entered into the Collateral Documents and the Pledge Agreements and the
Initial Purchasers shall have received counterparts, conformed as executed
thereof, which shall be reasonably satisfactory to the Initial Purchasers and
their counsel.
(l) At and as of the Time of Delivery, (1) each of the Transaction
Documents shall be in full force and effect, and there have been no material
amendments, alterations, modifications or waivers to any of them or in the
exhibits or schedules thereto (other than those as to which the Initial
Purchasers shall previously have been advised and shall not have reasonably
objected after being furnished a copy thereof) and (2) there shall exist no
conditions that would constitute a default (or an event that with notice or the
lapse of time, or both would constitute a default) under the New Credit
Facility.
(m) Xxxxxx & Xxxxxxx shall have been furnished with such documents, in
addition to those set forth above, as they may reasonably require for the
purpose of enabling them to
22
23
review or pass upon the matters referred to in this Section 7 and in order to
evidence the accuracy, completeness or satisfaction in all material respects of
any of the representations, warranties or conditions herein contained.
(n) Prior to the closing date, the Company and the Guarantors shall have
furnished to the Initial Purchasers (1) certified copies of each of the
Transaction Documents and (2) such further information, certificates and
documents as the Initial Purchasers may reasonably request.
(o) The Company shall have entered into and furnished to the Initial
Purchasers certified copies of the executed Acquisition Documents, which shall
be reasonably satisfactory to the Initial Purchasers and their counsel.
(p) The Acquisition (including the financing thereof) shall have been
consummated simultaneously with the release of the Notes to the satisfaction of
the Initial Purchasers and their counsel.
(q) The Initial Purchasers shall have received evidence reasonably
satisfactory to the Initial Purchasers of the taking of all actions with respect
to the Collateral Documents, the Pledge Agreements and such other security
documents as may be necessary to cause the perfection of the liens and security
interests created, or purported to be created, by the Collateral Documents and
the Pledge Agreements.
(r) Subject to Permitted Liens, the Company shall have caused a valid,
perfected first priority lien and security interest in all of the right title
and interest of the Company in and to the Collateral and the Pledge to be
granted to the Trustee for the equal and ratable benefit of the holder of the
Notes. The Company and its applicable subsidiaries shall have duly executed and
delivered to the Trustee, for the equal and ratable benefit of the holders of
Notes, the Collateral Documents and Pledge Agreements to which the Company or
any of its subsidiaries is a party and other appropriate instruments, in form
and substance satisfactory to the Initial Purchasers, for the purpose of
securing the payment and performance of the obligations under the Indenture and
such documents shall have been recorded and filed as required by applicable law
or reasonably required by the Initial Purchasers in order to record and perfect
the first priority lien and security interest created by the Collateral
Documents and Pledge Agreements to which the Company and any of its subsidiaries
is a party in the Collateral and the Pledge and all taxes, fees and other
governmental charges payable in connection with said recording and filing shall
have been paid by the Company.
(s) The Company shall have delivered to the Trustee evidence
satisfactory to the Initial Purchasers that (i) all insurance policies of the
Company covering the Collateral provide that the insurance company issuing such
policies will give the Trustee at least 30 days prior written notice of its
cancellation, non-renewal or other material change in coverage thereunder, (ii)
the Trustee for the benefit of the holders of the Notes, has been named
mortgagee and loss payee under a standard mortgage clause with respect to the
insurance policies covering the Collateral to the extent required by the
Collateral Documents and (iii) the Trustee shall be named as additional named
insured under the Company's liability insurance policies.
23
24
8. (a) The Company and the Guarantors will, jointly and severally,
indemnify and hold harmless each Initial Purchaser against any losses, claims,
damages or liabilities, joint or several, to which it may become subject, under
the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Preliminary Offering Circular or the Offering Circular, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading, and will reimburse each Initial Purchaser for any legal
or other expenses reasonably incurred by it in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that neither the Company nor any of the Guarantors shall be liable in
any such case to any Initial Purchaser to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the Preliminary
Offering Circular or the Offering Circular or any such amendment or supplement
in reliance upon and in conformity with written information furnished to the
Company or any of the Guarantors by such Initial Purchaser through Xxxxxxx,
Sachs & Co. expressly for inclusion in the Preliminary Offering Circular or the
Offering Circular.
(b) Each Initial Purchaser will, severally and not jointly,
indemnify and hold harmless the Company and the Guarantors against any losses,
claims, damages or liabilities to which the Company or any of the Guarantors may
become subject, under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Circular or the Offering Circular, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact or necessary to
make the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Preliminary Offering Circular or
the Offering Circular or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such Initial
Purchaser through Xxxxxxx, Xxxxx & Co. expressly for inclusion in the
Preliminary Offering Circular or the Offering Circular and will reimburse the
Company and the Guarantors for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such action or
claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
24
25
indemnifying party shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim), unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other from the offering of the Notes. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Guarantors on the one hand and Initial Purchasers
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantors on the one hand and Initial
Purchasers on the other hand shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Notes (before deducting expenses)
received by the Company bear to the total underwriting discounts and commissions
received by the Initial Purchasers, in each case as set forth in the Offering
Circular. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and the Guarantors on the one hand or the Initial
Purchasers on the other hand and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to investors were offered to
investors exceeds the amount of any damages which such Initial Purchaser has
otherwise been
25
26
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Initial Purchasers' obligations in this subsection (d)
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and the Guarantors under this
Section 8 shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Initial Purchaser within
the meaning of the Securities Act; and the obligations of the Initial Purchasers
under this Section 8 shall be in addition to any liability which the respective
Initial Purchaser may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and the Guarantors and
to each person, if any, who controls the Company and the Guarantors within the
meaning of the Securities Act. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
indemnification from any person who was not guilty of such fraudulent
misrepresentation.
9. (a) If any Initial Purchaser shall default in its obligation to
purchase the Notes which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Notes on the terms contained herein. If within thirty-six hours after such
default by any Initial Purchaser you do not arrange for the purchase of such
Notes, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Notes on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Notes, or the Company notifies you that it has so arranged for
the purchase of such Notes, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Offering Circular,
or in any other documents or arrangements, and the Company agrees to prepare
promptly any amendments to the Offering Circular which in your opinion may
thereby be made necessary. The term "Initial Purchaser" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Notes.
(b) If, after giving effect to any arrangements for the purchase
of the Notes of a defaulting Initial Purchaser or Initial Purchasers by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of such Notes which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Notes, then the Company shall have the
right to require each non-defaulting Initial Purchaser to purchase the principal
amount of Notes which such Initial Purchaser agreed to purchase hereunder and,
in addition, to require each non-defaulting Initial Purchaser to purchase its
pro rata share (based on the principal amount of Notes which such Initial
Purchaser agreed to purchase hereunder) of the Notes of such defaulting Initial
Purchaser or Initial Purchasers for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Initial Purchaser from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Notes of a defaulting Initial Purchaser or Initial Purchasers by you and
the Company as provided in subsection (a) above, the aggregate principal amount
of Notes which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of all the Notes, or if the Company shall
26
27
not exercise the right described in subsection (b) above to require
non-defaulting Initial Purchasers to purchase Notes of a defaulting Initial
Purchaser or Initial Purchasers, then this Agreement shall thereupon terminate,
without liability on the part of any non-defaulting Initial Purchaser or the
Company, except for the expenses to be borne by the Company and the Initial
Purchasers as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Initial Purchaser from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Guarantors and the Initial Purchasers,
as set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Initial Purchaser or any controlling person of any Initial
Purchaser, or the Company or any Guarantor or any officer or director or
controlling person of the Company or any Guarantor, and shall survive delivery
of and payment for the Notes.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and the Guarantors shall not then be under any liability to any
Initial Purchaser except as provided in Sections 6 and 8 hereof; but if for any
other reason the Notes are not delivered by or on behalf of the Company and the
Guarantors as provided herein, the Company and the Guarantors will reimburse the
Initial Purchasers through you for all out-of-pocket expenses approved in
writing by you, including fees and disbursements of counsel, reasonably incurred
by the Initial Purchasers in making preparations for the purchase, sale and
delivery of the Notes, but the Company and the Guarantors shall then be under no
further liability to any Initial Purchaser except as provided in Sections 6 and
8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Initial Purchasers, and the parties hereto shall be entitled to act and rely
upon any statement, request, notice or agreement on behalf of any Initial
Purchaser made or given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of
you as the representative of the Initial Purchasers.
13. All statements, requests, notices and agreements hereunder shall be
in writing, and if to the Initial Purchasers shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to the Company
or the Guarantors shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company or the Guarantor, as the case may be,
set forth in the Offering Circular, provided, however, that any notice to an
Initial Purchaser pursuant to Section 8(c) hereof shall be delivered or sent by
mail, telex or facsimile transmission to such Initial Purchaser at its address
set forth in its Initial Purchasers' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by Xxxxxxx, Xxxxx &
Co. upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the
benefit of, the Initial Purchasers, the Company, the Guarantors and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and the Guarantors and each person who controls the Company, any of the
Guarantors or any Initial Purchaser, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any
27
28
right under or by virtue of this Agreement. No purchaser of any of the Notes
from any Initial Purchaser shall be deemed a successor or assign by reason
merely of such purchase.
15. Time shall be of the essence of this Agreement.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
17. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
28
29
Please confirm that the foregoing correctly sets forth the agreement among
the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
ZILOG, INC.
By: /s/ XXXXX X. XXXX
-----------------------------------
Name: Xxxxx X. Xxxx
Title Chairman, CEO & President
ZILOG EUROPE
By: /s/ XXXXX X. XXXX
-----------------------------------
Name: Xxxxx X. Xxxx
Title President
ZILOG TOA COMPANY
By: /s/ XXXXX X. XXXX
-----------------------------------
Name: Xxxxx X. Xxxx
Title President
XXXXXXX, SACHS & CO.
BANCBOSTON SECURITIES INC.
CITICORP SECURITIES, INC.
By: XXXXXXX, XXXXX & CO.
/s/ XXXXXXX, SACHS & CO.
----------------------------------------
(Xxxxxxx, Xxxxx & Co.)
