COLEMAN CABLE, INC. (a Delaware corporation) 9% Senior Notes due 2018 PURCHASE AGREEMENT
EXHIBIT 1.0
$235,000,000
XXXXXXX CABLE, INC.
(a Delaware corporation)
(a Delaware corporation)
9% Senior Notes due 2018
PURCHASE AGREEMENT
January 26, 2010
January 26, 0000
Xxxx xx Xxxxxxx Securities LLC |
Xxxxx Fargo Securities, LLC |
As Initial Purchasers |
c/o Banc of America Securities LLC |
Xxx Xxxxxx Xxxx |
Xxx Xxxx, Xxx Xxxx 00000 |
Ladies and Gentlemen:
Xxxxxxx Cable, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
several Initial Purchasers named in Schedule A (the “Initial Purchasers”), acting severally and not
jointly, the respective amounts set forth in such Schedule A of an $235,000,000 aggregate principal
amount of its 9% Senior Notes due 2018 (the “Notes”), which will be unconditionally guaranteed as
to principal, premium, if any, and interest (the “Guarantees”) by the subsidiary of the Company
named in Schedule B hereto (the “Guarantor”).
The Notes will be issued pursuant to an Indenture (the “Indenture”) dated February 3, 2010,
among the Company, the Guarantor and Deutsche Bank National Trust Company, as Trustee (the
“Trustee”). Notes will be issued only in book-entry form in the name of Cede & Co., as nominee of
The Depository Trust Company (the “DTC”) pursuant to a letter of representations, to be dated on or
before the Closing Date (as defined in Section 2 hereof) (the “DTC Agreement”), among the Company,
the Trustee and the Depositary.
The holders of the Notes will be entitled to the benefits of a registration rights agreement,
to be dated as of February 3, 2010 (the “Registration Rights Agreement”), among the Company, the
Guarantor and the Initial Purchasers, pursuant to which the Company and the Guarantor will agree to
file with the Commission (as defined in Section 1 hereof), under the circumstances set forth
therein, (i) a registration statement under the Securities Act (as defined below) relating to
another series of debt securities of the Company with terms substantially identical to the Notes
(the “Exchange Notes”) to be offered in exchange for the Notes (the “Exchange Offer”) and (ii) to
the extent required by the Registration Statement, a shelf registration statement pursuant to Rule
415 of the Securities Act relating to the resale by certain holders of the Notes, and in each case,
to use its commercially reasonable efforts to cause such registration statements to be declared
effective. All references herein to the Exchange Notes and the Exchange Offer are only applicable
if the Company and the Guarantor are in fact required to consummate the Exchange Offer pursuant to
the terms of the Registration Rights Agreement.
This Agreement, the Registration Rights Agreement, the Indenture and the DTC Agreement are
hereinafter collectively referred to as the “Transaction Documents” and the execution and delivery
of the Transaction Documents and the transactions contemplated herein and therein are hereinafter
referred to as the “Transactions.”
The Notes (and the related Guarantees) will be offered and sold through the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the “Securities Act”), to
qualified institutional buyers in compliance with the exemption from registration provided by Rule
144A under the Securities Act (“Rule 144A”) and in offshore transactions in reliance on Regulation
S under the Securities Act (“Regulation S”). The Initial Purchasers have advised the Company that
they will offer and sell the Notes purchased by them hereunder in accordance with Section 3 hereof
as soon as the Initial Purchasers deem advisable.
In connection with the issuance of the Notes, the Company has commenced a cash tender offer
(the “Tender Offer”) for any and all of the
Company’s outstanding
97/8% Senior Notes due 2012 (the
“Existing 2012 Notes”) upon the terms and subject to the conditions set forth in that certain Offer
to Purchase dated as of January 20, 2010 (the “Offer to Purchase”). The net proceeds from the sale
of the Notes will be used to fund the purchase of the Existing 2012 Notes pursuant to the Tender
Offer or otherwise and pay related fees and expenses.
In connection with the sale of the Notes, the Company has prepared a preliminary offering
memorandum, dated January 20, 2010 (the “Preliminary Memorandum”), the Offering Memorandum (as
defined below) and a Final Offering Memorandum (as defined below), dated the date hereof. The
Final Memorandum, the Preliminary Memorandum and the Offering Memorandum are referred to herein as
a “Memorandum”. Each Memorandum sets forth certain information concerning the Company, the Notes,
the Transaction Documents and the Transactions. The Company hereby confirms that it has authorized
the use of the Preliminary Memorandum and the Final Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Notes by the Initial Purchasers
Prior to the time when the sales of the Notes were first made (the “Time of Sale”, which shall
be deemed to be 2:37 PM (New York time) on January 26, 2010), the Company has prepared and
delivered to the Initial Purchasers a pricing supplement (the “Pricing Supplement”) dated January
26, 2010. The Pricing Supplement together with the Preliminary Memorandum is referred to herein as
the “Offering Memorandum.”
Promptly after the Time of Sale and in any event no later than the second business day
following the Time of Sale, the Company will prepare and deliver to each Initial Purchaser a Final
Offering Memorandum, which will consist of the Preliminary Memorandum with such changes therein as
are required to reflect the information contained in the Pricing Supplement. From and after the
time such Final Memorandum is delivered to each Initial Purchaser, all references herein to the
Offering Memorandum shall be deemed to be a reference to both the Offering Memorandum and the Final
Memorandum.
1. Representations and Warranties of the Company and the Guarantor. The Company and
the Guarantor jointly and severally represent and warrant to, and agree with, each of the Initial
Purchasers that:
(a) The Preliminary Memorandum as of its date does not contain; the Offering Memorandum
at the Time of Sale and at the Closing Date; and the Final Memorandum as of its date and the
Closing Date, and any amendment or supplement thereto does not and will not contain any
untrue statement of a material fact or omit to state any material fact
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necessary to make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that the representations
or warranties set forth in this paragraph shall not apply to statements in or omissions from
any Memorandum or any amendment or supplement thereto made in reliance upon and in
conformity with information furnished in writing to the Company by the Initial Purchasers
expressly for use therein, as specified in Section 10. The Offering Memorandum contains,
and the Final Memorandum will contain, all the information specified in, and meeting the
requirements of, Rule 144A. The statistical and industry data and forward-looking
statements included in each Memorandum are based on or derived from sources that the Company
believes to be reliable and accurate and represent their good faith estimates that are made
on the basis of data derived from such sources.
(b) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware. The Company is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except where the failure to so qualify or be in good standing
would not have a Material Adverse Effect. “Material Adverse Effect” shall mean a material
existing or prospective adverse change in or effect on (i) the business, operations,
properties, assets, liabilities, shareholders’ equity, earnings, financial condition,
results of operations or management of the Company and its subsidiaries, considered as one
enterprise, whether or not in the ordinary course of business, or (ii) the ability of the
Company and the Guarantor to perform its obligations under the Notes or the Transaction
Documents.
(c) Each of the Company and the Guarantor has the requisite corporate power and
authority to own or lease its properties and conduct its business as described in each
Memorandum; and the Company has the requisite corporate power and authority to enter into
the Transaction Documents and to carry out all the terms and provisions hereof and thereof
to be carried out by them.
(d) The authorized, issued and outstanding capital stock of the Company is as set forth
in the Offering Memorandum. All of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and nonassessable; and none of
the outstanding shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any security holder of the Company.
(e) The Guarantor has been duly organized, is validly existing and is in good standing
under the laws of the State of Delaware and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a Material Adverse Effect; all of the
issued shares of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, and are owned directly or through
wholly-owned subsidiaries by the Company, free and clear of all liens, encumbrances,
equities or claims, although such shares are pledged under the Revolving Credit Facility (as
defined below).
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(f) Except to the extent prohibited under the existing amended and restated senior
secured revolving credit facility, dated April 2, 2007, as amended (the “Revolving Credit
Facility”) described in the Offering Memorandum, and except to the extent prohibited by the
Existing 2012 Notes issued under an indenture dated September 28, 2004, among the Company,
the Guarantors (as defined therein) and Deutsche Bank Trust Company Americas (the “Existing
Notes Indenture”) to be repurchased by the Company in connection with the Tender Offer, no
subsidiary of the Company is prohibited, directly or indirectly, from paying any dividends
to the Company, from making any other distribution on such subsidiary’s capital stock, from
repaying to the Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s property or assets to the Company or any other
subsidiary of the Company, except as provided by applicable laws or regulations, by the
Indenture or as disclosed in the Offering Memorandum.
(g) Except as otherwise disclosed in the Offering Memorandum, there are no outstanding
(i) securities or obligations of the Company convertible into or exchangeable for any
capital stock of the Company, (ii) warrants, rights or options to subscribe for or purchase
from the Company any such capital stock or any such convertible or exchangeable securities
or obligations or (iii) obligations of the Company to issue any such capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants, rights or
options.
(h) Deloitte & Touche LLP, who has certified certain of the financial statements
included in the Offering Memorandum (as specified more fully therein) and delivered its
report with respect to the audited financial statements of the Company in the Offering
Memorandum, is an independent auditor with respect to the Company within the meaning of the
Securities Act and the applicable rules and regulations thereunder, and any non-audit
services provided by Deloitte & Touche LLP to the Company or the Guarantor have been
approved by the Audit Committee of the Board of Directors of the Company.
(i) The financial statements (including the notes thereto) of the Company and its
consolidated subsidiaries in the Offering Memorandum fairly present the financial position,
results of operations, cash flows and changes in shareholders’ equity of the Company and its
consolidated subsidiaries as of the dates and for the periods specified therein; since the
date of the latest of such financial statements, there has been no change nor any
development or event involving a prospective change which has had or would reasonably be
expected to have a Material Adverse Effect; such financial statements have been prepared in
accordance with generally accepted accounting principles consistently applied throughout the
periods involved (except as otherwise expressly disclosed in the notes thereto) and comply
as to form in all material respects with the applicable accounting requirements of
Regulation S-X under the Securities Act; and the information set forth under the captions
“Management’s Discussion and Analysis of Financial Condition and Results of Operations” and
“Selected Consolidated Financial Data” in the Offering Memorandum that has been extracted
from the financial statements of the Company have been fairly extracted from the financial
statements of the Company and its consolidated subsidiaries fairly presents the information
included therein and has been compiled on a basis
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consistent with that of the audited financial statements included in the Offering
Memorandum.
(j) Except as disclosed in the Offering Memorandum, subsequent to the respective dates
as of which information is given in the Offering Memorandum, (i) none of the Company and its
subsidiaries have incurred any material liability or obligation, direct or contingent, or
entered into any material transaction in each case not in the ordinary course of business;
(ii) the Company has not purchased any of its outstanding capital stock, and has not
declared, paid or otherwise made any dividend or distribution of any kind on any class of
its capital stock; and (iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries.
(k) The Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed in accordance
with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii) access to assets
is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
(l) The Company and its subsidiaries have established and maintain disclosure controls
and procedures (as such term is defined in Rules 13a-15 and 15d-15 under the Securities
Exchange Act of 1934 (as amended, the “Exchange Act”); the Company’s auditors and the Audit
Committee of the Board of Directors of the Company have been advised of: (i) any
significant deficiencies or material weaknesses in the design or operation of internal
controls which could adversely affect the Company’s ability to record, process, summarize,
and report financial data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company’s internal controls; and since
the date of the most recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with regard to
significant deficiencies and material weaknesses.
(m) This Agreement has been duly authorized, executed and delivered by the Company and
the Guarantor.
(n) The Registration Rights Agreement has been duly authorized by the Company and the
Guarantor and, on the Closing Date, will have been duly executed and delivered by the
Company and the Guarantor, and will constitute the legal, valid and binding obligations of
the Company and the Guarantor, enforceable against the Company and the Guarantor in
accordance with their respective terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof is subject to general
principles of equity; and the Registration Rights Agreement will conform to the description
thereof in the Offering Memorandum. The DTC Agreement has been duly authorized and, on the
Closing Date, will have been duly executed and
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delivered by, and will constitute a valid and binding agreement of, the Company,
except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting enforcement of creditors’ rights generally and except
as enforcement thereof is subject to general principles of equity.
(o) The Indenture conforms to the requirements of the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act”), and to the rules and regulations of the Securities and
Exchange Commission (the “Commission”) applicable to an indenture that is qualified
thereunder.
(p) The Notes have been duly authorized and, on the Closing Date, when executed and
authenticated in the manner provided for in the Indenture and delivered to and paid for by
the Initial Purchasers as provided in this Agreement, will constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity, and
will be entitled to the benefits of the Indenture and the Registration Rights Agreement; the
Guarantees have been duly authorized and, on the Closing Date, upon the due issuance and
delivery of the related Notes, will have been duly executed and delivered and will
constitute valid and legally binding obligations of the Guarantor, and will be entitled to
the benefits of the Indenture; the Exchange Notes (as defined in the Registration Rights
Agreement) have been duly authorized and, when executed and authenticated in the manner
provided for in the Registration Rights Agreement and the Indenture, will constitute the
legal, valid and binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally and except as enforcement thereof is subject to general principles of
equity, and will be entitled to the benefits of the Indenture and the Registration Rights
Agreement; and the Notes and the Exchange Notes will conform to the descriptions thereof in
the Final Memorandum.
(q) The Indenture has been duly authorized by the Company and the Guarantor and, at the
Closing Date, will have been duly executed and delivered by the Company and the Guarantor
and will constitute a valid and binding agreement of the Company and the Guarantor,
enforceable against the Company and the Guarantor in accordance with its terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting enforcement of creditors’ rights generally and except as
enforcement thereof is subject to general principles of equity; and the Indenture will
conform to the descriptions thereof in the Final Memorandum.
(r) The execution, delivery and performance by the Company and the Guarantor of this
Agreement and the other Transaction Documents, the issuance and sale of the Notes and the
compliance by the Company and the Guarantor with all of the provisions of the Notes, the
Indenture, the Registration Rights Agreement and this Agreement and the consummation of the
transactions contemplated hereby and thereby (including the Tender Offer) will not (i)
conflict with, result in a breach or violation of, or constitute
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a default under, any indenture, mortgage, deed of trust or loan agreement,
shareholders’ agreement or any other material agreement or instrument to which the Company
or the Guarantor is a party or by which the Company or the Guarantor is bound or any of
their respective properties are subject, or with the certificate of incorporation or by-laws
of the Company or the Guarantor, or any statute, rule or regulation or any judgment, order
or decree of any governmental authority or court or any arbitrator applicable to the Company
or the Guarantor, or (ii) require the consent, approval, authorization, order, registration
or filing or qualification with, any governmental authority or court, or body or arbitrator
having jurisdiction over the Company or the Guarantor, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer or sale of
the Notes and by Federal and state securities laws with respect to the obligations of the
Company and the Guarantor under the Registration Rights Agreement, except for such conflict,
breach, violation or default would not have a Material Adverse Effect.
(s) No legal or governmental proceedings or investigations are pending or threatened to
which the Company or the Guarantor is a party or to which any of the properties of the
Company or the Guarantor is subject, other than proceedings accurately described in the
Preliminary Memorandum and the Offering Memorandum and such proceedings or investigations
that would not, individually or in the aggregate, result in a Material Adverse Effect.
(t) There are no relationships, direct or indirect, between or among the Company or the
Guarantor, on the one hand, and the respective directors, officers, shareholders, customers
or suppliers of the Company or the Guarantor, on the other hand, that would be required by
the Securities Act to be disclosed in a prospectus were the Notes being issued and sold in a
public offering registered on Form S-1 under the Securities Act that are not so disclosed in
the Offering Memorandum; and there are no contracts or other documents that would be
required by the Securities Act to be disclosed in a prospectus were the Notes being issued
and sold in a public offering registered on Form S-1 under the Securities Act that are not
so disclosed in the Offering Memorandum.
(u) Each of the Company and the Guarantor is not now nor after giving effect to the
issuance of the Notes and the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby or described in the
Preliminary Memorandum or the Offering Memorandum, will be (i) insolvent, (ii) left with
unreasonably small capital with which to engage in its anticipated business or (iii)
incurring debts or other obligations beyond its ability to pay such debts or obligations as
they become due.
(v) The Company and its Affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act (“Regulation D”)) have not distributed and, prior to the later of (i) the
Closing Date and (ii) the completion of the distribution of the Notes, will not distribute
any offering material in connection with the offering and sale of the Notes other than the
(a) Preliminary Memorandum or any amendment or supplement thereto, (b) the Offering
Memorandum or any amendment or supplement thereto or (c) other written communications, in
each case used in accordance with Section 4(a). Each such communication by the Company or
its agents and representatives pursuant to subclause (c) of the
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preceding sentence (each, a “Company Additional Written Communication”), when taken
together with the Offering Memorandum, did not as of the Time of Sale, and at the Closing
Date will not, contain any 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 that this representation, warranty and
agreement shall not apply to statements in or omissions from each such Company Additional
Written Communication made in reliance upon and in conformity with information furnished to
the Company in writing by the Initial Purchasers expressly for use in any Company Additional
Written Communication.
(w) The Company and its subsidiaries have not sustained, since the date of the latest
audited financial statements included in the Offering Memorandum (exclusive of any amendment
or supplement thereto), any loss or interference with its business or properties from fire,
explosion, flood, accident or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree (whether domestic or
foreign) otherwise than as set forth in the Offering Memorandum (exclusive of any amendment
or supplement thereto), except to the extent that such would not have a Material Adverse
Effect; and, since such date, there has not occurred any change or development having a
Material Adverse Effect.
(x) The statements set forth in the Offering Memorandum under the captions “Description
of Certain Indebtedness”, “Description of Notes”, “Exchange Offer; Registration Rights”,
and “Notice to Investors”, insofar as such statements constitute summaries of legal
documents, fairly summarize in all material respects such documents.
(y) Except to the extent that such would not have a Material Adverse Effect, each of
the Company and the Guarantor has good and marketable title in fee simple to all items of
real property and good and marketable title to all personal property owned by each of them
except as set forth in the Offering Memorandum, free and clear of any pledge, lien,
encumbrance, security interest or other defect or claim of any third party. Any property
leased by the Company and the Guarantor is held under valid, subsisting and enforceable
leases, and there is no default under any such lease or any other event that with notice or
lapse of time or both would constitute a default thereunder, except to the extent that such
would not have a Material Adverse Effect.
(z) No “prohibited transaction” (as defined in Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986,
as amended from time to time (the “Code”)) or “accumulated funding deficiency” (as defined
in Section 302 of ERISA) or any of the events set forth in Section 4043(c) of ERISA (other
than events with respect to which the 30-day notice requirement under Section 4043 of ERISA
has been waived) has occurred, exists or is reasonably expected to occur with respect to any
employee benefit plan (as defined in Section 3(3) of ERISA) which the Company or the
Guarantor maintains, contributes to or has any obligation to contribute to, or with respect
to which the Company or the Guarantor has any liability, direct or indirect, contingent or
otherwise (a “Plan”); each Plan is in compliance in all material respects with applicable
law, including ERISA and the Code; neither the
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Company nor the Guarantor has incurred or expects to incur liability under Title IV of
ERISA with respect to the termination of, or withdrawal from, any Plan; and each Plan that
is intended to be qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or failure to act, which would
reasonably be expected to cause the loss of such qualification.
(aa) Except as disclosed in each Memorandum, (i) no labor dispute with the employees of
the Company or the Guarantor exists, is imminent or is threatened, and the senior officers
of the Company and the Guarantor are not aware of any existing, imminent or threatened labor
disturbance by the employees of any of their respective principal suppliers, manufacturers,
customers or contractors, (ii) no unfair labor practice complaint is pending or, to the
Company’s knowledge, threatened against the Company or any of its subsidiaries before the
National Labor Relations Board, and no grievance or arbitration proceeding arising out of or
under collective bargaining agreements is pending, or to the Company’s knowledge,
threatened, against the Company or any of its subsidiaries and (iii) no union representation
question exists with respect to the employees of the Company or any of its subsidiaries and,
to the Company’s knowledge there are no union organizing activities taking place, which in
the case of clauses (i) through (iii) would reasonably be expected to result in a Material
Adverse Effect.
(bb) No proceedings for the merger, consolidation, liquidation or dissolution of the
Company or the Guarantor or the sale of all or a material part of the assets of the Company
or the Guarantor is pending or contemplated.
(cc) The Company and the Guarantor own or otherwise possesses adequate
rights to use all material patents, trademarks, service marks, trade names and copyrights,
all applications and registrations for each of the foregoing, and all other material
proprietary rights and confidential information necessary to conduct their respective
businesses as currently conducted, except where the failure to own or otherwise possess such
rights would not have a Material Adverse Effect; neither the Company nor the Guarantor has received any notice, or is otherwise aware, of any infringement of or conflict
with the rights of any third party with respect to any of the foregoing.
(dd) Except to the extent that such would not have a Material Adverse Effect, the
Company and the Guarantor are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts and with such deductibles
as are prudent in the business in which it is engaged; and neither the Company nor the
Guarantor has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue their respective businesses at a cost
that would not have a Material Adverse Effect.
(ee) (i) The Company and the Guarantor have complied with all laws,
ordinances, regulations and orders applicable to the Company and the Guarantor, and their
respective businesses, and neither the Company nor the Guarantor has received any
notice to the contrary; and (ii) each of the Company and the Guarantor possesses
all certificates, authorizations, permits, licenses, approvals, orders and franchises
(collectively, “Licenses”)
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necessary to conduct their respective businesses in the manner and to the full
extent now operated or proposed to be operated as described in the Offering Memorandum, in
each case issued by the appropriate federal, state, local or foreign governmental or
regulatory authorities (collectively, the “Agencies”), and each other federal, state and
local agency the regulations of which are applicable to the businesses or products of the
Company and the Guarantor; except in the case of (i) and (ii) where the failure to so comply
or to possess such Licenses would not have a Material Adverse Effect.
(ff) The operation of the business of the Company and the Guarantor in the
manner and to the full extent now operated or proposed to be operated as described in the
Offering Memorandum is in accordance with the Licenses, and all orders, rules and
regulations of the Agencies, and no event has occurred which permits (nor has an event
occurred which with notice or lapse of time or both would permit) the revocation or
termination of any necessary Licenses or which might result in any other impairment of the
rights of the Company therein or thereunder except to the extent that such revocation,
termination or other impairment would not have a Material Adverse Effect, and each of the
Company and the Guarantor is in compliance with all statutes, orders, rules and
regulations of the Agencies relating to or affecting its operations except to the extent
that its failure to comply would not have a Material Adverse Effect.
(gg) Except as described in the Offering Memorandum:
(i) Each of the Company and the Guarantor is and has been in
compliance with all applicable laws, statutes, ordinances, rules, regulations and
requirements, and all orders, judgments, decisions and decrees issued to the Company
or the Guarantor, in each case relating to: human health and safety; pollution;
management, disposal or release of any chemical substance, product or waste; and
protection, cleanup, remediation or corrective action relating to the environment or
natural resources (“Environmental Law”), except for any non-compliance that,
individually or in the aggregate, would not result in a Material Adverse Effect;
(ii) each of the Company and the Guarantor has obtained and is in
compliance with the conditions of all permits, authorizations, licenses, approvals
and variances necessary under any Environmental Law for the continued conduct in the
manner now conducted of their respective businesses (“Environmental Permits”),
except for any failure to obtain Environmental Permits or non-compliance that,
individually or in the aggregate, would not result in a Material Adverse Effect;
(iii) there are no past or present conditions or circumstances, including, to
the Company’s knowledge, pending changes in any Environmental Permits, (i) that are
likely to interfere with the conduct of the business of the Company and the
Guarantor in the manner now conducted, or (ii) which would interfere with compliance
with any Environmental Law or Environmental Permits, except for any such conditions
or circumstances that, individually or in the aggregate, would not result in a
Material Adverse Effect; and
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(iv) there are no past or present conditions or circumstances at, or arising
out of, their respective businesses, assets and properties of the Company and the
Guarantor or, to the Company’s knowledge, any business, assets or properties
formerly leased, operated or owned by the Company or the Guarantor, including but
not limited to on-site or off-site disposal or release of any chemical substance,
product or waste, which may give rise to: (i) liabilities or obligations for any
cleanup, remediation or corrective action under any Environmental Law; (ii) claims
arising under any Environmental Law for personal injury, property damage, or damage
to natural resources; (iii) liabilities or obligations incurred by the Company or
the Guarantor to comply with any Environmental Law; or (iv) fines or penalties
arising under any Environmental Law; except in each case for any that, individually
or in the aggregate, would not result in a Material Adverse Effect.
(hh) Neither the Company nor the Guarantor is in violation of its certificate of
incorporation or its bylaws, and no default or breach exists, and no event has occurred
that, with notice or lapse of time or both, would constitute a default in the due
performance and observation of any term, covenant or condition of any indenture, mortgage,
deed of trust, lease, loan agreement, shareholders’ agreement or any other material
agreement or instrument to which the Company or the Guarantor is a party or by which the
Company or the Guarantor is bound or to which any of their respective properties are
subject, except where such default would not result in a Material Adverse Effect.
(ii) Except to the extent that such would not have a Material Adverse Effect, the
Company and the Guarantor has filed all foreign, federal, state and local tax returns that
are required to be filed or has requested extensions thereof and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith and for which the Company and the
Guarantor retains adequate reserves.
(jj) Except as disclosed in the Offering Memorandum, as of the Closing Date, there are
no contracts, agreements or understandings between the Company or the Guarantor and any person granting such person the right to require the Company or the Guarantor
to file a registration statement under the Securities Act or to require the Company to
include any debt securities held by any person in any registration statement filed by the
Company under the Securities Act.
(kk) Neither the Company nor the Guarantor is, nor after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as described in the
Offering Memorandum will be, an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940, as amended
(the “Investment Company Act”).
(ll) Other than the Tender Offer, within the preceding six months, none of the Company
or any of its Affiliates has, directly or through any agent, made offers or sales of any
security of the Company, or solicited offers to buy or otherwise negotiated in
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respect of any securities of the Company of the same or a similar class as the Notes,
other than the Notes offered or sold to the Initial Purchasers hereunder.
(mm) None of the Company or any of its Affiliates has, directly or through any person
acting on its or their behalf (other than the Initial Purchasers, as to which no statement
is made), offered, solicited offers to buy or sold the Notes by any form of general
solicitation or general advertising (within the meaning of Regulation D) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities Act.
(nn) None of the Company or any of its Affiliates, nor any person acting on their
behalf (other than the Initial Purchasers, as to which no statement is made), has engaged or
will engage in any directed selling efforts with respect to the Notes, and each of them has
complied with and will comply with the offering restrictions requirement of Regulation S
under the Securities Act (“Regulation S”). Terms used in this paragraph have the meanings
given to them by Regulation S.
(oo) None of the Company or any of its Affiliates has taken, directly or indirectly,
any action designed to cause or result in, or which has constituted or which might
reasonably be expected to cause or result in, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Notes; nor has the
Company or any of its Affiliates paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company except as contemplated by this
Agreement).
(pp) The Notes satisfy the eligibility requirements of Rule 144A(d)(3) under the
Securities Act and will not be, at the Closing Date, of the same class as securities listed
on a national securities exchange registered under Section 6 of the Exchange Act or quoted
in a U.S. automated interdealer quotation system.
(qq) Assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 3 hereof and compliance by the Initial Purchasers with the procedures
set forth in Section 3 hereof, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchasers in the manner contemplated by this Agreement
and disclosed in the Offering Memorandum to register the Notes or the related Guarantees
under the Securities Act or to qualify the Indenture under the Trust Indenture Act.
(rr) None of the Transactions (including, without limitation, the use of proceeds from
the sale of the Notes) will violate or result in a violation of Section 7 of the Exchange
Act or any regulation promulgated thereunder, including, without limitation, Regulations T,
U and X of the Board of Governors of the Federal Reserve System.
(ss) There are, and during the last 12 months there have been, no material disputes
between the Company and any of its ten largest suppliers (“Material Suppliers”) (as measured
by dollar volume of goods purchased by the Company) or ten largest customers
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(“Material
Customers”) (as measured by dollar volume of products sold by the Company).
(tt) Except as disclosed in the Offering Memorandum, there are no agreements,
arrangements or understandings that will require the payment of any commissions, fees or
other remuneration to any investment banker, broker, finder, consultant or intermediary in
connection with the transactions contemplated by this Agreement.
(uu) The Company does not intend to treat any of the transactions contemplated by the
Transaction Documents as being a “reportable transaction” (within the meaning of Treasury
Regulation Section 1.6011-4). In the event the Company determines to take any action
inconsistent with such intention, it will promptly notify the Initial Purchasers thereof.
If the Company so notifies the Initial Purchasers, the Company acknowledges that one or more
of the Initial Purchasers may treat their purchase and resale of Notes as part of a
transaction that is subject to Treasury Regulation Section 301.6112-1, and such Initial
Purchaser or Initial Purchasers, as applicable, will maintain the lists and other records
required by such Treasury Regulation.
(vv) None of the Company, its subsidiaries, or to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company, any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that would result in a violation
by such Persons of Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without limitation, making use of the mails
or any means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA; and the
Company, its subsidiaries, and, to the knowledge of the Company, their respective Affiliates
have conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(ww) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance in all material respects with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the U.S. PATRIOT Act, the rules
and regulations thereunder, and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”) and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its subsidiaries
with respect to the Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(xx) None of the Company, any of its subsidiaries or, to the knowledge of the Company,
any director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of
Foreign
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Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the Offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.
Each certificate signed by any officer of the Company or the Guarantor and delivered to the Initial
Purchasers or their counsel shall be deemed to be a representation and warranty by the Company or
the Guarantor, as the case may be, to the Initial Purchasers as to the matters covered thereby.
2. Purchase, Sale and Delivery of the Notes. On the basis of the representations,
warranties, agreements and covenants herein contained and subject to the terms and conditions
herein set forth, each of the Company and the Guarantor agrees to issue and sell $235,000,000
aggregate principal amount of Notes, and each of the Initial Purchasers, severally and not jointly,
agrees to purchase from the Company and the Guarantor the principal amount of Notes set forth
opposite the name of such Initial Purchaser in Schedule A hereto at a purchase price equal to
96.597% of the principal amount thereof (the “Purchase Price”). One or more certificates in
definitive form or global form, as instructed by the Initial Purchasers for the Notes that the
Initial Purchasers have severally agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchasers request upon notice to
the Company not later than one full business day prior to the Closing Date (as defined below),
shall be delivered by or on behalf of the Company to Banc of America Securities LLC for the
accounts of the several Initial Purchasers, with any transfer taxes payable in connection with the
transfer of the Notes to the Initial Purchasers duly paid, against payment by or on behalf of the
Initial Purchasers of the Purchase Price therefor by wire transfer in immediately available funds
to the account of the Company. Such delivery of and payment for the Notes shall be made at the
offices of Xxxxxx Xxxxxx & Xxxxxxx LLP (“Counsel for the Initial Purchasers”), 00 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000 at 10:00 A.M., New York City time, on February 3, 2010, or at such other
place, time or date as Banc of America Securities LLC and the Company may agree upon, such time and
date of delivery against payment being herein referred to as the “Closing Date”. The Company will
make such certificate or certificates for the Notes available for examination by the Initial
Purchasers at the New York, NY offices of Counsel for the Initial Purchasers not later than 10:00
A.M., New York City time on the business day prior to the Closing Date.
3. Offering of the Notes and the Initial Purchasers’ Representations and Warranties.
Each of the Initial Purchasers, severally and not jointly, represents and warrants to and agree
with the Company that:
(i) it has not offered or sold, and will not offer or sell Notes except to (a) persons
who it reasonably believes are “qualified institutional buyers” within the meaning of Rule
144A (“Qualified Institutional Buyers”) in transactions meeting the requirements of Rule
144A or (b) upon the terms and conditions set forth in Annex I to this Agreement;
(ii) it has not distributed and, prior to the later of (x) the Closing Date and (y) the
completion of the distribution of the Notes, will not distribute any offering
-14-
material in
connection with the offering and sale of the Notes other than the (a) Preliminary Memorandum
or any amendment or supplement thereto, (b) the Offering Memorandum or any amendment or
supplement thereto or (c) Company Additional Written Communications;
(iii) it is an institutional “accredited investor” within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act; and
(iv) it has not offered or sold, and will not offer or sell the Notes using any form of
general solicitation or general advertising (within the meaning of Regulation D) or in any
manner involving a public offering within the meaning of Section 4(2) under the Securities
Act.
4. Covenants of the Company. The Company covenants and agrees with the Initial
Purchasers that:
(a) As promptly as practicable following the Time of Sale, the Company will prepare the
Final Memorandum, which shall consist of the Preliminary Memorandum as modified by the
information contained in the Pricing Supplement, in the form approved by the Initial
Purchasers and prior to the completion of the distribution will not amend or supplement the
Offering Memorandum or Pricing Supplement without first furnishing to the Initial Purchasers
a copy of such proposed amendment or supplement and will not use any amendment or supplement
to which the Initial Purchaser may reasonably object.
(b) The Company will furnish to the Initial Purchasers as promptly as practicable
during the period referred to in paragraph (c) below, without charge, as many copies of the
Offering Memorandum and any amendments and supplements thereto as they reasonably may
request.
(c) At any time prior to the completion of the distribution of the Notes by the Initial
Purchasers, if any event occurs or condition exists as a result of which the Offering
Memorandum, as then amended or supplemented, would include any untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, or if it should be
necessary to amend or supplement the Offering Memorandum to comply with applicable law, the
Company will promptly (i) notify the Initial Purchasers of the same; (ii) subject to the
requirements of paragraph (a) of this Section 4, prepare and provide to the Initial
Purchasers, at its own expense, an amendment or supplement to the Offering Memorandum so
that the statements in the Offering Memorandum as so amended or supplemented will not, in
the light of the circumstances when the Offering Memorandum is delivered to a purchaser, be
misleading or so that the Offering Memorandum, as amended or supplemented, will comply with
applicable law; and (iii) supply any supplemented or amended Offering Memorandum to the
Initial Purchasers, without charge, in such quantities as may be reasonably requested.
(d) Following the consummation of the Exchange Offer or the effectiveness of an
applicable shelf registration statement and for so long as the Securities are outstanding
-15-
if, in the judgment of the Initial Purchasers, or any of its affiliates (as such term is
defined in the Securities Act) are required to deliver a prospectus in connection with sales
of, or market-making activities with respect to, the Notes, to periodically amend the
applicable registration statement so that the information contained therein complies with
the requirements of Section 10 of the Securities Act, to amend the applicable registration
statement or supplement the related prospectus or the documents incorporated therein
when necessary to reflect any material changes in the information provided therein so that
the registration statement and the prospectus will not contain any 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 existing as of the date the prospectus is so
delivered, not misleading and to provide the Initial Purchasers with copies of each
amendment or supplement filed and such other documents as the Initial Purchasers may
reasonably request.
The Company hereby expressly acknowledges that the indemnification and contribution
provisions of Section 7 hereof are specifically applicable and relate to each offering
memorandum, registration statement, prospectus, amendment or supplement referred to in this
Section 4(d).
(e) The Company will (i) qualify the Notes and the Guarantees for sale by the Initial
Purchasers under the laws of such jurisdictions as the Initial Purchasers may designate and
(ii) maintain such qualifications for so long as required for the sale of the Notes by the
Initial Purchasers; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or to take any
action that would subject it to service of process in suits, other than those arising out of
the offering or sale of the Notes, in any jurisdiction where it is not now so subject. The
Company will promptly advise the Initial Purchasers of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes for sale in
any jurisdiction or the initiation or threatening of any proceeding for such purpose.
(f) At any time prior to the completion of the distribution of the Notes by the Initial
Purchasers, the Company will deliver to the Initial Purchasers such additional information
concerning the business and financial condition of the Company as the Initial Purchasers may
from time to time reasonably request and whenever it or any of its subsidiaries publishes or
makes available to the public (by filing with any regulatory authority or securities
exchange or by publishing a press release or otherwise) any information that would
reasonably be expected to be material in the context of the issuance of the Notes under this
Agreement, shall promptly notify the Initial Purchasers as to the nature of such information
or event. The Company will likewise notify the Initial Purchasers of (i) any decrease in
the rating of the Notes or any other debt securities of the Company by any nationally
recognized statistical rating organization (as defined in Rule 436(g)(2) under the
Securities Act) or (ii) any notice or public announcement given of any intended or potential
decrease in any such rating or that any such securities rating agency has under surveillance
or review, with possible negative implications, its rating of the Notes, as soon as the
Company becomes aware of any such decrease, notice or public announcement. The Company will
also, for a period of five years from the Closing Date, deliver to
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the Initial Purchasers,
as soon as available and without request, copies of any reports and financial statements
furnished to or filed with the Commission.
(g) At any time when the Company is not subject to Section 13 or 15 of the Exchange Act
and any Securities or Exchange Securities remain outstanding, the Company will furnish to
Banc of America Securities LLC and, upon request, to each of the
other Initial Purchasers, any reports provided by the Company to the Trustee on behalf
of the holders of the Notes pursuant to Section 3.18 of the Indenture.
(h) The Company will not, and will not permit any of its Affiliates to, resell any of
the Notes that have been acquired by any of them, other than pursuant to an effective
registration statement under the Securities Act or in accordance with Rule 144 under the
Securities Act.
(i) Except as contemplated in the Registration Rights Agreement, none of the Company or
any of its Affiliates, nor any person acting on its or their behalf (other than the Initial
Purchasers or any of their respective Affiliates, as to which no statement is made) will,
directly or indirectly, make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of the Notes under the
Securities Act.
(j) None of the Company or any of its Affiliates, nor any person acting on its or their
behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which
no statement is made), will solicit any offer to buy or offer to sell the Notes by means of
any form of general solicitation or general advertising (within the meaning of Regulation D)
or in any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(k) None of the Company or any of its Affiliates, nor any person acting on their behalf
(other than the Initial Purchasers, as to which no statement is made), has engaged or will
engage in any directed selling efforts with respect to the Notes, and each of them has
complied with and will comply with the offering restrictions requirement of Regulation S
under the Securities Act (“Regulation S”). Terms used in this paragraph have the meanings
given to them by Regulation S.
(l) None of the Company or any of its Affiliates, nor any person acting on its or their
behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which
no statement is made), will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any securities of the same or a similar class as the Notes, other
than the Notes offered or sold to the Initial Purchasers hereunder in a manner which would
require the registration under the Securities Act of the Notes.
(m) So long as any of the Notes are “restricted securities” within the meaning of Rule
144(a)(3) under the Securities Act, at any time that the Company is not then subject to
Section 13 or 15(d) of the Exchange Act, the Company will provide at its expense to each
holder of the Notes and to each prospective purchaser (as designated by such holder) of the
Notes, upon the request of such holder or prospective purchaser, any
-17-
information required to
be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be
for the benefit of the holders, and the prospective purchasers designated by such holders
from time to time, of the Notes.)
(n) The Company will apply the net proceeds from the sale of the Notes as set forth
under “Use of Proceeds” in the Offering Memorandum.
(o) Until completion of the distribution, neither the Company nor any of its Affiliates
will take, directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of
the Notes.
(p) For so long as any Notes are outstanding, the Company and its subsidiaries will
conduct its operations in a manner that will not subject the Company or any subsidiary to
registration as an investment company under the Investment Company Act.
(q) Each Note will bear a legend substantially to the following effect until such
legend shall no longer be necessary or advisable because the Notes are no longer subject to
the restrictions on transfer described therein:
“THE NOTE (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX
SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND THE NOTE
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE NOTE EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE NOTE
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH NOTE
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE
UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A
UNDER THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (c) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 000 XXXXXXXXXX
-00-
(XX
XXXXXXXXXX) XX (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER OF THE NOTE EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN BE MADE AS TO THE AVAILABILITY
OF THE EXEMPTION PROVIDED BY RULE 144 FOR RESALE OF THE NOTE EVIDENCED
HEREBY.”
(r) The Company will not, directly or indirectly, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to the Notes (other than the Notes offered
pursuant to this Agreement) for a period of 30 days after the date hereof, without the prior
written consent of Banc of America Securities LLC.
(s) The Company will, promptly after it has notified the Initial Purchasers of any
intention by the Company to treat the Transactions as being a “reportable transaction”
(within the meaning of Treasury Regulation Section 1.6011-4), deliver a duly completed copy
of IRS Form 8886 or any successor form to the Initial Purchasers.
(t) Each of the Company and the Guarantor acknowledge and agree that: (i) the
purchase and sale of the Notes pursuant to this Agreement, including the determination of
the offering price of the Notes and any related discounts and commissions, is an
arm’s-length commercial transaction between the Company and the Guarantor, on the one hand,
and the several Initial Purchasers, on the other hand, and the Company and the Guarantor are
capable of evaluating and understanding and understand and accept the terms, risks and
conditions of the transactions contemplated by this Agreement; (ii) in connection with each
transaction contemplated hereby and the process leading to such transaction each Initial
Purchaser is and has been acting solely as a principal and is not the agent or fiduciary of
the Company, the Guarantor or their respective affiliates, stockholders, creditors or
employees or any other party; (iii) no Initial Purchaser has assumed or will assume an
advisory or fiduciary responsibility in favor of the Company or the Guarantor with respect
to any of the transactions contemplated hereby or the process leading thereto (irrespective
of whether such Initial Purchaser has advised or is currently advising the Company or the
Guarantor on other matters) or any other obligation to the Company and the Guarantor except
the obligations expressly set forth in this Agreement; (iv) the several Initial Purchasers
and their respective affiliates may be engaged in a broad range of transactions that involve
interests that differ from those of the Company and the Guarantor and that the several
Initial Purchasers have no obligation to disclose any of such interests by virtue of any
fiduciary or advisory relationship; and (v) the Initial Purchasers
-19-
have not provided any
legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby
and the Company and the Guarantor have consulted their own legal, accounting, regulatory and
tax advisors to the extent they deemed appropriate. The Company and the Guarantor hereby
waive and release, to the fullest extent permitted by law, any claims that the Company and
the Guarantor may have against the several Initial Purchasers with respect to any breach or
alleged breach of fiduciary duty.
The Initial Purchasers may, in their sole discretion, waive in writing the performance by the
Company or the Guarantor of any one or more of the foregoing covenants or extend the time for their
performance.
5. Expenses.
(a) Whether or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, the Company and the Guarantor will pay or cause to be paid all expenses
incident to the performance of their obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company’s counsel and the Company’s accountants in connection
with the issuance and sale of the Notes and all other fees or expenses in connection with the
preparation of each Memorandum, the Transaction Documents and all amendments and supplements
thereto, including all printing costs associated therewith, and the delivering of copies thereof to
the Initial Purchasers, in the quantities requested, (ii) all costs and expenses related to the
transfer and delivery of the Notes to the Initial Purchasers, including any transfer or other taxes
payable thereon, (iii) the cost of producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Notes under state securities laws and all expenses in
connection with the qualification of the Notes for offer and sale under state securities laws as
provided in Section 4(d) hereof, including filing fees and the reasonable fees and disbursements of
Counsel for the Initial Purchasers in connection with such qualification and in connection with the
Blue Sky or legal investment memorandum, (iv) any fees charged by rating agencies for the rating of
the Notes, (v) any filing fees incident to, and any reasonable fees and disbursements of counsel to
the Initial Purchasers in connection with the review by the Financial Industry Regulatory
Authority, if any, of the terms of the sale of the Notes or the Exchange Notes, (vi) the costs and
charges of the Trustee and any transfer agent, registrar or depositary, (vii) the cost of the
preparation, issuance and delivery of the Notes, (viii) all costs and expenses relating to investor
presentations, including any “road show” presentations undertaken in connection with the marketing
of the offering of the Notes, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel and lodging expenses of the representatives
(including the Initial Purchasers) and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, and (x) all other costs and
expenses incident to the performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. Except as provided in this Section 5(a), or in
Section 5(b) or Section 7 hereof, the Initial Purchasers shall pay their own expenses, including
the fees and disbursements of their counsel.
(b) If the sale of the Notes provided for herein is not consummated because any condition to
the obligations of the Initial Purchasers set forth in Section 6 hereof is not satisfied because of
any failure, refusal or inability on the part of the Company to perform all obligations
-20-
and satisfy
all conditions on its part to be performed or satisfied hereunder other than by reason of a default
by any of the Initial Purchasers, the Company will reimburse the Initial Purchasers upon demand for
all reasonable out-of-pocket expenses (including reasonable counsel fees and disbursements) that
shall have been incurred by them in connection with the proposed purchase and sale of the Notes.
6. Conditions to the Initial Purchasers’ Obligations. The obligations of the several
Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the
representations and warranties of the Company in Section 1 hereof, in each case as of the date
hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the Company’s officers made pursuant to the provisions hereof, to the performance by
the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date,
of Winston & Xxxxxx LLP, counsel for the Company, in form and substance satisfactory to the
Initial Purchasers to the effect set forth in Exhibit A hereto.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of
Xxxxxx Xxxxxx & Xxxxxxx LLP, Counsel for the Initial Purchasers, with respect to
the issuance and sale of the Notes and such other related matters as the Initial Purchasers
may reasonably require, and the Company shall have furnished to such counsel such documents
as it may reasonably request for the purpose of enabling it to pass upon such matters. In
rendering such opinion, such counsel may rely as to certain matters of law upon the opinion
of Winston & Xxxxxx LLP referred to in Section 6(a).
(c) The Initial Purchasers shall have received on each of the date hereof and the
Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in
form and substance satisfactory to the Initial Purchasers and Counsel for the Initial
Purchasers, from Deloitte & Touche LLP, independent auditors of the Company, containing
statements and information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the financial statements and certain financial information
contained in the Offering Memorandum; provided that the letter shall use a “cut-off
date” within three days of the date of such letter and that their procedures shall extend to
financial information in the Final Memorandum not contained in the Preliminary Memorandum.
References to the Offering Memorandum in this paragraph (c) with respect to either letter
referred to above shall include any amendment or supplement thereto at the date of such
letter.
(d) (i) None of the Company nor the Guarantor, shall have sustained, since the date of
the latest audited financial statements included in the Final Memorandum (exclusive of any
amendment or supplement thereto), any loss or interference with their respective businesses
or properties from any labor dispute or court or governmental action, order or decree
(whether domestic or foreign) otherwise than as set forth in the Offering Memorandum
(exclusive of any amendment or supplement thereto); and (ii) since the respective dates as
of which information is given in the Preliminary Memorandum or the Offering Memorandum,
there shall not have been any change in the long-term debt of the
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Company or the Guarantor,
or any change in or effect on or any development having a prospective change in or effect on
the business, operations, properties, assets, liabilities, shareholders’ equity, earnings,
condition (financial or otherwise), results of operations or management of the Company or
the Guarantor, whether or not in the ordinary course of business, otherwise than as set
forth in each such Memorandum (exclusive of any amendment or supplement thereto), the effect
of which, in any such case described in
clause (i) or (ii), is, in the sole judgment of the Initial Purchasers, so material and
adverse as to make it impracticable or inadvisable to market the Notes on the terms and in
the manner described in the Offering Memorandum (exclusive of any amendment or supplement
thereto).
(e) The Initial Purchasers shall have received a certificate, dated the Closing Date
and in form and substance satisfactory to the Initial Purchasers, of the Chief Executive
Officer and the Chief Financial Officer of the Company and the Guarantor as to the accuracy
of the representations and warranties of the Company in this Agreement at and as of the
Closing Date; that the Company has performed all covenants and agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing Date; and as
to the matters set forth in Section 6(d).
(f) There shall not have been any decrease in the rating of the Notes or any of the
Company’s other debt securities by any “nationally recognized statistical rating agency”, as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities
Act, and no such organization shall have publicly announced that it has under surveillance
or review its ratings of the Securities or any of the Company’s other debt securities or any
notice or public announcement given of any intended or potential decrease in any such rating
or that any such securities rating agency has under surveillance or review, with possible
negative implications, its rating of the Notes.
(g) The Notes shall be eligible for clearance and settlement through DTC, Clearstream
Banking and the Euroclear System as indirect participants of DTC.
(h) The Company and the Guarantor shall have executed and delivered the Indenture, in
form and substance reasonably satisfactory to the Initial Purchasers, and the Initial
Purchasers shall have received executed copies thereof. The Company and the Guarantor shall
have executed and delivered the Registration Rights Agreement, in form and substance
reasonably satisfactory to the Initial Purchasers, and the Initial Purchasers shall have
received such executed counterparts.
(i) All of the conditions to closing set forth in the documents relating to the Tender
Offer shall have been satisfied in all material respects other than the consummation of the
offer and sale of the Notes hereunder. On the Closing Date, the Company shall have given
irrevocable notice to the trustee under the Existing Notes Indenture of the Company’s
election to use any proceeds remaining from this offering after the Tender Offer is
consumated and any related fees and expenses are paid to redeem Existing 2012 Notes
outstanding following the consummation of the Tender Offer pro rata (which notice may be
delivered to holders of the Existing 2012 Notes following consummation of the Tender Offer).
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(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial
Purchasers shall have received such further certificates, documents or other information as
they may have reasonably requested from the Company.
If any condition specified in this Section 6 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Initial Purchasers by notice to the Company at
any time on or prior to the Closing Date, which termination shall be without liability on the part
of any party to any other party, except that Sections 5 and 7 hereof shall at all times be
effective and shall survive such termination.
7. Indemnification and Contribution.
(a) The Company and the Guarantor, jointly and severally, agree to indemnify and hold harmless
each Initial Purchaser, its affiliates, directors and officers and each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any Initial Purchaser against any losses, claims, damages or liabilities, joint or several, to
which such Initial Purchaser or such other person may become subject, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained in the Preliminary
Memorandum, the Pricing Supplement, any Company Additional Written Communication or the Offering
Memorandum or any amendment or supplement thereto; or (ii) the omission or alleged omission to
state in the Preliminary Memorandum or the Offering Memorandum or any amendment or supplement
thereto a material fact necessary to make the statements therein, in the light of the circumstances
in which they were made, not misleading, and will reimburse, as incurred, each Initial Purchaser
and each such other person for any legal or other expenses reasonably incurred by such Initial
Purchaser or such other person in connection with investigating, defending against , settling,
paying or appearing as a third-party witness in connection with any such loss, claim, damage,
liability or action; provided, however, that the Company and the Guarantor will not
be liable in any such case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Memorandum, the Offering Memorandum or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished to the Company by
such Initial Purchaser specifically for use therein as set forth in Section 10 hereof.
(b) Each Initial Purchaser, severally and not jointly, will indemnify and hold harmless the
Company and the Guarantor and their respective affiliates, directors, officers, and each person, if
any, who controls any of the Company or the Guarantor within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities
to which the Company, the Guarantor, any such affiliates, directors or officers or such controlling
person may become subject, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in the Preliminary Memorandum, the Pricing Supplement, any
Company Additional Written Communication or the Offering Memorandum or any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in the Preliminary Memorandum or the
Offering Memorandum or any amendment or supplement thereto a material fact necessary to make the
statements therein, in the light of the circumstances under
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which they were made, 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 reliance upon and in conformity with written
information furnished to the Company by the Initial Purchasers specifically for use therein as set
forth in Section 10 hereof and, subject to the limitation set forth immediately preceding this clause, will reimburse as incurred, any legal or
other expenses reasonably incurred by the Company or the Guarantor or any such affiliates,
directors or officers or such controlling person in connection with investigating, defending
against or appearing as a third-party witness in connection with, any such loss, claim, damage,
liability or action in respect thereof.
(c) Promptly after receipt by any person to whom indemnity may be available under this Section
7 (the “indemnified party”) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any person from whom indemnity may be
sought under this Section 7 (the “indemnifying party”), notify such indemnifying party of the
commencement thereof; but the failure so to notify such indemnifying party will not relieve such
indemnifying party from any liability which it may have to such indemnified party otherwise than
under this Section 7. In case any such action is brought against any indemnified party, and such
indemnified party notifies the relevant indemnifying party of the commencement thereof, such
indemnifying party will be entitled to participate therein and, to the extent that it may wish, to
assume the defense thereof, jointly with any other indemnifying party similarly notified, with
counsel satisfactory to such indemnified party; provided, however, that if the
named parties in any such action (including impleaded parties) include both the indemnified party
and the indemnifying party and the indemnified party shall have concluded, based on advice of
outside counsel, that representation of both parties by the same counsel would present such counsel
with a conflict of interest, the indemnifying party shall not have the right to direct the defense
of such action on behalf of such indemnified party or parties and such indemnified party or parties
shall have the right to select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from an indemnifying party to an indemnified party of its election
so to assume the defense thereof and approval by such indemnified party of counsel appointed to
defend such action, such indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense thereof, unless (i)
such indemnified party shall have employed separate counsel in accordance with the proviso to the
immediately preceding sentence or (ii) such indemnifying party does not promptly retain counsel
satisfactory to such indemnified party or (iii) such indemnifying party has authorized the
employment of counsel for such indemnified party at the expense of the indemnifying party. After
such notice from an indemnifying party to an indemnified party, such indemnifying party will not be
liable for the costs and expenses of any settlement of such action effected by such indemnified
party without the written consent of such indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified party, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the indemnified party or any other
person that may be entitled to indemnification hereunder is a party to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an unconditional release of the
indemnified party and such other persons from all liability arising out of such claim, action, suit
or proceeding.
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(d) (i) In circumstances in which the indemnity agreement provided for in the preceding
paragraphs of this Section 7 is unavailable or insufficient, for any reason, to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities (including, with
out limitation, any legal or other expenses incurred in connection with defending or
investigating any action or claim) (or actions in respect thereof) (“Losses”), the Company and the
Guarantor, on the one hand, and the Initial Purchasers, on the other, in order to provide for just
and equitable contribution, agree to contribute to the amount paid or payable by such indemnified
party as a result of such Losses to which the Company and the Guarantor, on the one hand, and the
Initial Purchasers, on the other, may be subject, in such proportion as is appropriate to reflect
(i) the relative benefits received by the Company and the Guarantor, on the one hand, and the
Initial Purchasers, on the other, from the offering of the Notes or (ii) if the allocation provided
by the foregoing clause (i) is unavailable for any reason, not only such relative benefits but also
the relative fault of the Company and the Guarantor, on the one hand, and the Initial Purchasers,
on the other, in connection with the statements or omissions or alleged statements or omissions
that resulted in such Losses. The relative benefits received by the Company and the Guarantor, on
the one hand, and the Initial Purchasers, on the other, shall be deemed to be in the same
proportion as the total proceeds from the offering (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the Initial Purchasers from the
Company in connection with the purchase of the Notes hereunder as set forth in the Final
Memorandum. The relative fault of the parties 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, the
Guarantor or the Initial Purchasers, the parties’ intent, relative knowledge, access to information
and opportunity to correct or prevent such statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company, the Guarantor and the Initial
Purchasers agree that it would not be just and equitable if contribution were determined by pro
rata allocation or by any other method of allocation that does not take into account the equitable
considerations referred to above. Notwithstanding any other provision of this paragraph (d), the
Initial Purchasers shall not be obligated to make contributions hereunder that in the aggregate
exceed the total underwriting discounts and commissions received by such Initial Purchaser from the
Company in connection with the purchase of the Notes hereunder, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers’ respective obligations to contribute hereunder are several in proportion to their
respective obligations to purchase Notes as set forth on Schedule A hereto and not joint. For
purposes of this paragraph (d), each person, if any, who controls an Initial Purchaser within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act and each other person
listed in Section 7(a) hereof shall have the same rights to contribution as such Initial Purchaser,
and each affiliate, director or officer of the Company or the Guarantor and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, shall have the same rights to contribution as the Company and the Guarantor.
(e) The obligations of the Company and the Guarantor under this Section 7 shall be in addition
to any obligations or liabilities which the Company and the Guarantor may otherwise have and the
obligations of the respective Initial Purchasers under this Section 7 shall be in addition to any
obligations or liabilities which the Initial Purchasers may otherwise have.
-25-
8. Default of One or More of the Several Initial Purchasers. If any one or more of
the several Initial Purchasers shall fail or refuse to purchase Notes that it or they have agreed
to
purchase hereunder on the Closing Date, and the aggregate number of Notes which such
defaulting Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase does
not exceed 10% of the aggregate number of the Notes to be purchased on such date, the other Initial
Purchasers shall be obligated, severally, in the proportions that the number of Notes set forth
opposite their respective names on Schedule A bears to the aggregate number of Notes set forth
opposite the names of all such non-defaulting Initial Purchasers, or in such other proportions as
may be specified by the Initial Purchasers with the consent of the non-defaulting Initial
Purchasers, to purchase the Notes which such defaulting Initial Purchaser or Initial Purchasers
agreed but failed or refused to purchase on the Closing Date. If any one or more of the Initial
Purchasers shall fail or refuse to purchase Notes and the aggregate number of Notes with respect to
which such default occurs exceeds 10% of the aggregate number of Notes to be purchased on the
Closing Date, and arrangements satisfactory to the Initial Purchasers and the Company for the
purchase of such Notes are not made within 48 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser. No action taken
pursuant to this Section 8 shall relieve any defaulting Initial Purchaser from liability in respect
of its default. In any such case either the Initial Purchasers or the Company shall have the right
to postpone the Closing Date, as the case may be, but in no event for longer than seven days in
order that the required changes, if any, to the Final Memorandum or any other documents or
arrangements may be effected.
As used in this Agreement, the term “Initial Purchaser” shall be deemed to include any person
substituted for a defaulting Initial Purchaser under this Section 8. Any action taken under this
Section 8 shall not relieve any defaulting Initial Purchaser from liability in respect of any
default of such Initial Purchaser under this Agreement.
9. Survival. The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, the Guarantor, their respective officers, and the
several Initial Purchasers 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 (i)
any investigation made by or on behalf of the Company, the Guarantor, their respective officers or
directors or any controlling person referred to in Section 7 hereof or any Initial Purchaser and
(ii) delivery of and payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 5 and 7 hereof shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement.
10. Termination. The Initial Purchasers may terminate this Agreement with respect to
the Notes by notice to the Company at any time on or prior to the Closing Date in the event that
the Company shall have failed, refused or been unable to perform in any material respect all
obligations and satisfy in any material respect all conditions on its part to be performed or
satisfied hereunder at or prior thereto or if, at or prior to the Closing Date (i) trading in
securities generally on the New York Stock Exchange, the NASDAQ Stock Market or in the
over-the-counter market shall have been suspended or minimum or maximum prices shall have been
established on any such exchange or market; (ii) there has been a material disruption in
commercial banking or securities settlement, payment or clearance services in the United States;
(iii) a banking moratorium shall have been declared by New York or United States authorities; (iv)
there shall have
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been (A) an outbreak or escalation of hostilities between the United States and
any foreign power, (B) an outbreak or escalation of any other insurrection or armed conflict
involving the
United States, (C) the occurrence of any other calamity or crisis involving the United States
or (D) any change in general economic, political or financial conditions which has an effect on the
U.S. financial markets, currency exchange rates or controls or the international financial markets
that, in the case of any event described in this clause (iv), in the sole judgment of the Initial
Purchasers, makes it impracticable or inadvisable to proceed with the offer, sale and delivery of
the Notes as disclosed in the Preliminary Memorandum or the Offering Memorandum, exclusive of any
amendment or supplement thereto; (v) in the judgment of the Initial Purchasers there shall have
occurred any Material Adverse Effect; or (v) the Company shall have sustained a loss by fire,
explosion, flood, accident or other calamity of such character, whether or not covered by
insurance, the effect of which, in the sole judgment of the Initial Purchasers, is so material and
adverse as to make it impracticable or inadvisable to market the Notes on the terms and in the
manner described in the Offering Memorandum (exclusive of any amendment or supplement thereto).
Any termination pursuant to this Section 10 shall be without liability of any party to any other
party except as provided in Section 5 and 7 hereof.
11. Information Supplied by Initial Purchasers. The statements set forth under the
heading “Plan of Distribution” in the Preliminary Memorandum and the Offering Memorandum, to the
extent such statements relate to the Initial Purchasers, constitute the only information furnished
by the Initial Purchasers to the Company for the purposes of Sections 1(a) and 7 hereof.
12. Notices. All communications hereunder shall be in writing and, if sent to the
Initial Purchasers, shall be delivered or sent by mail, telex or facsimile transmission and
confirmed in writing to Banc of America Securities LLC, Xxx Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Legal Department, with a copy to Xxxxxx Xxxxxx & Xxxxxxx llp, 00 Xxxx Xxxxxx,
Xxx Xxxx, XX 00000, Attention: Xxxx Xxxxxxxx, Esq. and if sent to the Company, shall be delivered
or sent by mail, telex or facsimile transmission and confirmed in writing to the Company at Xxxxxxx
Cable, Inc., 0000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx with a
copy to Winston & Xxxxxx LLP, 00 X. Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxxx, Esq.
13. Successors. This Agreement shall inure to the benefit of and shall be binding
upon the several Initial Purchasers, the Company and the Guarantor and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy or claim under or
in respect of this Agreement, or any provisions herein contained, this Agreement and all conditions
and provisions hereof being intended to be and being for the sole and exclusive benefit of the
several Initial Purchasers, the Company and the Guarantor and their respective successors and legal
representatives, and for the benefit of no other person, except that (i) the indemnities of the
Company contained in Section 7 of this Agreement shall also be for the benefit of any person or
persons who control any Initial Purchasers within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange
Act and (ii) the indemnities of the Initial Purchasers contained in
Section 7 of this Agreement shall also be for the benefit of the affiliates, directors and officers
of the Company and the Guarantor, and any person or persons who control the Company or the
Guarantor within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
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Act.
No purchaser of Notes from any Initial Purchaser shall be deemed a successor to such Initial
Purchaser because of such purchase.
14. Applicable Law. This Agreement shall be governed by the laws of the State of New
York applicable to agreements made and to be performed in such state without regard to conflicts of
law principles thereof.
15. Consent to Jurisdiction and Service of Process. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the transactions contemplated hereby
(“Related Proceedings”) may be instituted in the federal courts of the United States of America
located in the City and County of New York or the courts of the State of New York in each case
located in the City and County of New York (collectively, the “Specified Courts”), and each party
irrevocably submits to the exclusive jurisdiction (except for suits, actions, or proceedings
instituted in regard to the enforcement of a judgment of any Specified Court in a Related
Proceeding a “Related Judgment”, as to which such jurisdiction is non-exclusive) of the Specified
Courts in any Related Proceeding. Service of any process, summons, notice or document by mail to
such party’s address set forth above shall be effective service of process for any Related
Proceeding brought in any Specified Court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any Specified Proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that
any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum.
Each party not located in the United States irrevocably appoints CT Corporation System, as its
agent to receive service of process or other legal summons for purposes of any Related Proceeding
that may be instituted in any Specified Court.
16. General Provisions. This Agreement constitutes the entire agreement of the
parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter hereof. This
Agreement may be executed in two or more counterparts, each one of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same instrument. Delivery of
an executed counterpart of a signature page to this Agreement by telecopier, facsimile or other
electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually
executed counterpart thereof. This Agreement may not be amended or modified unless in writing by
all of the parties hereto, and no condition herein (express or implied) may be waived unless waived
in writing by each party whom the condition is meant to benefit. The section headings herein are
for the convenience of the parties only and shall not affect the construction or interpretation of
this Agreement.
[The remainder of this page is intentionally left blank.]
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If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
| Very truly yours, XXXXXXX CABLE, INC. |
||||
| By: | Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
| GUARANTOR: CCI INTERNATIONAL, INC. |
||||
| By: | Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Executive Vice President and Chief Financial Officer |
|||
The foregoing Purchase Agreement is hereby confirmed and accepted by the Initial Purchasers as
of the date first above written.
BANC OF AMERICA SECURITIES LLC
XXXXX FARGO SECURITIES, LLC
XXXXX FARGO SECURITIES, LLC
By:
|
Banc of America Securities LLC | |||
By:
|
/s/ Xxxxxxx X. Xxxxxx, Xx.
|
|||
| Title: Director |
SCHEDULE A
| Aggregate | ||||
| Principal Amount of | ||||
| Securities to be | ||||
| Initial Purchasers | Purchased | |||
Banc of America Securities LLC |
$ | 141,000,000 | ||
Xxxxx Fargo Securities, LLC |
94,000,000 | |||
Total |
$ | 235,000,000 | ||
Schedule A-1
SCHEDULE B
GUARANTOR
CCI INTERNATIONAL, INC.
Schedule B-1
EXHIBIT A
FORM OF OPINION OF WINSTON & XXXXXX LLP
February [3], 0000
Xxxx xx Xxxxxxx Securities LLC
Xxxxx Fargo Securities, LLC
As Initial Purchasers
Xxxxx Fargo Securities, LLC
As Initial Purchasers
[•]
[•]
[•]
[•]
[•]
| Re: | Sale by Xxxxxxx Cable, Inc. of $235,000,000 Aggregate Principal Amount of [•]% Senior Notes due 2018 of Xxxxxxx Cable, Inc. |
Ladies and Gentlemen:
We have acted as special counsel to Xxxxxxx Cable, Inc., a Delaware corporation (the
“Company”) and the Guarantor (as defined below) in connection with the sale by the Company
of $235,000,000 aggregate principal amount of its [•]% Senior Notes due 2018 (the “Notes”).
The Notes will be issued pursuant to an indenture, dated as of February [3], 2010 (the
“Indenture”), by and between the Company, the Guarantor (as defined below) and Deutsche
Bank National Trust Company, as trustee (the “Trustee”). The Notes will be guaranteed by
CCI International, Inc., a Delaware corporation (the “Guarantor”). The Notes will be sold
pursuant to a purchase agreement, dated as of January 26, 2010 (the “Purchase Agreement”),
by and among the Company, the Guarantor and Banc of America Securities LLC and Xxxxx Fargo
Securities, LLC, as the initial purchasers (the “Initial Purchasers”).
This opinion letter is being furnished to you at our client’s request pursuant to Section 6(a)
of the Purchase Agreement. Capitalized terms used but not defined herein shall have the meanings
set forth in the Purchase Agreement.
In rendering the opinions set forth herein, we have examined originals or copies, certified or
otherwise identified to our satisfaction of:
| (i) | the preliminary offering memorandum, dated January 20, 2009 (the “Preliminary Offering Memorandum”); | ||
| (ii) | the pricing supplement, dated January 26, 2009 (the “Pricing Supplement”); | ||
| (iii) | the final offering memorandum, dated January [26], 2010 (the “Offering Memorandum”); |
A-1
| (iv) | the Purchase Agreement; | ||
| (v) | the registration rights agreement dated as of the date hereof among the Company, the Guarantor and the Initial Purchasers (the “Registration Rights Agreement); | ||
| (vi) | the Indenture; | ||
| (vii) | the form of Notes and Guarantees and a specimen of the certificates representing the Notes; | ||
| (viii) | the certificate of incorporation of the Company and Guarantor, as each is currently in effect; | ||
| (ix) | the by-laws of the Company and of the Guarantor, each as currently in effect; and | ||
| (x) | certain resolutions adopted by the Board of Directors of each of the Company and the Guarantor, in each case relating to the authorization, issuance and sale of the Notes and Guarantees and the transactions referred to herein. |
The Preliminary Offering Memorandum and the Pricing Supplement are hereinafter collectively
referred to as the “Pricing Disclosure Package.” The Purchase Agreement, the Registration
Rights Agreement and the Indenture are hereinafter collectively referred to as the “Transaction
Documents.” In addition, we have examined (a) such other agreements, instruments and
documents, and such questions of law and (b) originals or copies, certified or otherwise identified
to our satisfaction, of such records of the Company and such agreements, certificates of public
officials, certificates of officers or representatives of the Company and the Guarantor, and we
have made such inquiries of officers of the and representatives of the Company and the Guarantor,
in each case as we have deemed relevant, appropriate or necessary as the basis for the opinions set
forth herein. As to any facts material to the opinions and beliefs expressed herein that were not
independently established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and others.
In rendering the opinions expressed below, we have, with your consent, assumed the legal
capacity of all natural persons, that the signatures of persons signing all documents in connection
with which this opinion letter is rendered are genuine, that all documents submitted to us as
originals or duplicate originals are authentic and that all documents submitted to us as copies,
whether certified or not, conform to authentic original documents. Additionally, we have, with
your consent, assumed and relied upon the following:
(a) the accuracy and completeness of all certificates and other statements, documents,
records, financial statements and papers reviewed by us, and the accuracy of all
representations, warranties, schedules and exhibits contained in the Transaction Documents
with respect to the factual matters set forth therein;
(b) all parties to the documents reviewed by us (other than the Company and the
Guarantor) are duly organized, validly existing and in good standing under the laws of their
respective jurisdictions of formation and under the laws of all jurisdictions where
A-2
they are conducting their businesses or otherwise required to be so qualified, and all
parties to the documents (other than the Company and the Guarantor) have full power and
authority to execute, deliver and perform under such documents and all such documents have
been duly authorized, executed and delivered by such parties; and
(c) each Transaction Document constitutes the legal, valid and binding obligation of
each party thereto (other than the Company and the Guarantor), enforceable against such
party in accordance with its terms.
Whenever our opinion with respect to the existence or absence of facts is indicated to be
based on our knowledge or awareness, we are referring solely to the actual present knowledge of the
particular Winston & Xxxxxx LLP attorneys who have represented the Company and the Guarantor in
connection with transactions contemplated by the Transaction Documents. Except as expressly set
forth herein, we have not undertaken any independent investigation, examination or inquiry to
determine the existence or absence of any facts (and have not caused the review of any court file
or indices) and no inference as to our knowledge concerning any facts should be drawn from the fact
that such representation has been undertaken by us.
Based upon the foregoing and subject to the assumptions, qualifications and other matters
stated herein, we are of the opinion that:
1. The Company is validly existing as a corporation and in good standing under the laws
of the State of Delaware; and has all requisite corporate power to conduct its business as
described in the Pricing Disclosure Package and the Offering Memorandum and to execute and
deliver the Transaction Documents and perform its obligations thereunder. The Company is
duly qualified to do business in each jurisdiction set forth on Exhibit A hereto.
2. The Guarantor is validly existing as a corporation and in good standing under the
laws of the State of Delaware and has all requisite corporate power to conduct its business
as described in the Pricing Disclosure Package and the Offering Memorandum.
3. The Purchase Agreement has been duly executed and delivered by the Company and the
Guarantor.
4. The Indenture has been duly executed and delivered by the Company and the Guarantor
and constitutes the valid and binding obligation of the Company and the Guarantor
enforceable against the Company and the Guarantor in accordance with its terms.
5. The Registration Rights Agreement has been duly executed and delivered by the
Company and the Guarantor and constitutes the valid and binding obligation of the Company
and the Guarantor enforceable against the Company and the Guarantor in accordance with its
terms.
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6. The Notes and the Guarantees have been duly authorized by the Company and the
Guarantor, are in the form contemplated by the Indenture and, assuming due authentication
thereof by the Trustee and upon payment and delivery in accordance with the terms of the
Purchase Agreement, will constitute valid and binding obligations of the Company and the
Guarantor, enforceable against the Company and the Guarantor in accordance with their terms
and entitled to the benefits of the Indenture.
7. The Exchange Notes have been duly authorized by the Company, and when executed,
issued, authenticated and delivered in exchange for the Notes in accordance with the terms
of the Registration Rights Agreement and the Indenture, the Exchange Notes will constitute
valid and binding obligations of the Company, enforceable against the Company in accordance
with their terms and entitled to the benefits of the Indenture.
8. When executed, issued and delivered in exchange for the Guarantees in accordance
with the terms of the Registration Rights Agreement and the Indenture, the Exchange Note
Guarantees will constitute valid and binding obligations of the Guarantor, enforceable
against the Guarantor in accordance with their terms.
9. Assuming (i) the representations of the Initial Purchasers contained in the Purchase
Agreement are true, correct and complete and (ii) compliance by the Initial Purchasers with
their covenants set forth in the Purchase Agreement, it is not necessary in connection with
the offer, sale and delivery of the Notes to the Initial Purchasers pursuant to the Purchase
Agreement or the offer and resales of the Notes by the Initial Purchasers, in the manner
contemplated by the Purchase Agreement and described in the Offering Memorandum, to register
the Notes under the Securities Act of 1933, as amended, or to qualify the Indenture under
the Trust Indenture Act of 1939, as amended. We express no opinion, however, as to when or
under what circumstances any Notes initially sold by the Initial Purchasers may be reoffered
or resold.
10. To our knowledge, there are no legal or governmental proceedings involving or
affecting the Company or any Guarantor, or any of their respective properties or assets that
would be required to be described in a prospectus pursuant to the Securities Act of 1933, as
amended, that are not described in the Offering Memorandum.
11. The statements made in the Offering Memorandum under the captions “Description of
Other Indebtedness,” “Description of Notes” and “Certain U.S. Federal Income Tax
Considerations,” in each case insofar as such statements constitute summaries of legal
matters, documents or proceedings referred to therein, fairly present the information called
for with respect to such legal matters, documents and proceedings and fairly summarize the
matters referred to therein in all material respects.
12. Each of the Company and the Guarantor is not and, after giving effect to the
issuance and sale of the Notes in accordance with the terms of the Purchase Agreement and
the application of the net proceeds therefrom, will not be, an “investment company” within
the meaning of the Investment Company Act of 1940, as amended.
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13. Neither the execution and delivery by the Company or the Guarantor of the
Transaction Documents, nor the performance by the Company and the Guarantor of their
respective obligations thereunder: (a) violates any order, judgment or decree known to us
and applicable to the Company; (b) violates any law or regulation (including any applicable
order or decree of any court or governmental instrumentality known to us) applicable to the
Company which in our experience is typically applicable to transactions of the type
contemplated by the Transaction Documents (except we express no opinion as to any law which
might be violated by any misrepresentation or omission or a fraudulent act); (c) violates
any provision of the certificate of incorporation or the bylaws of the Company or the
Guarantor; (d) breaches or results in a default under ay contract, agreement or instrument
set forth on Schedule I hereto (collectively, the “Applicable Documents”); or (e)
causes the creation of any security interest or lien upon any property of the Company or the
Guarantor pursuant to any of the Applicable Documents. With respect to our opinion set
forth in this paragraph 13, however, we express no opinion as to (i) any violation resulting
from cross-default provisions under an agreement not listed on Schedule I, or (ii) any
violation or breach of an Applicable Document which involves any calculation, numerical
conclusion, accounting conclusion or calculation or other quantitative assessment, and to
the extent that any Applicable Documents are governed by the laws of any jurisdiction other
than the State of New York, our opinion relating to those Applicable Documents is based
solely upon the plain meaning of their language without regard to interpretation or
construction that might be indicated by the laws governing those Applicable Documents.
In connection with the preparation of the Pricing Disclosure Package and the Offering
Memorandum, we, as counsel to the Company and Guarantor, participated in conferences with the
officers and other representatives of the Company and the Guarantor, representatives of the
independent public accountants for the Company and the Guarantor, the Initial Purchasers and
counsel for the Initial Purchasers at which the contents of the Pricing Disclosure Package and the
Offering Memorandum and related matters were discussed. We have not independently checked the
accuracy or completeness of, or otherwise verified, and accordingly are not passing upon and assume
no responsibility for the accuracy, completeness, or fairness of the statements contained in the
Pricing Disclosure Package or the Offering Memorandum (except to the extent specified in paragraph
11 above). However, based on the foregoing, no facts came to our attention that causes us to
believe that the Pricing Disclosure Package as of the date thereof, or the Offering Memorandum, as
of the date thereof or the date hereof, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact required to be stated therein or necessary to
make the statements contained therein, in light of the circumstances under which they were made,
not misleading (it being understood that we express no view with respect to the financial
statements and related notes and, the other financial data included in or appended as exhibits to
the Pricing Disclosure Package or the Offering Memorandum).
The opinions expressed herein are based upon and are limited to the laws of the State of New
York, the General Corporation Law of the State of Delaware and the laws of the United States of
America and we express no opinion with respect to the laws of any other state or jurisdiction. The
opinions expressed herein based on the laws of the State of New York and the United States of
America are limited to the laws generally applicable in transactions of the type
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described in the Purchase Agreement. In addition, the opinions as expressed herein are
subject to the following qualifications:
(a) as to our opinions set forth in paragraphs 4, 5, 6, 7 and 8 hereof, we express no
opinion as to the enforceability of cumulative remedies to the extent such cumulative
remedies purport to or would have the effect of compensating the party entitled to the
benefits thereof in amounts in excess of the actual loss suffered by such party;
(b) requirements in the Transaction Documents specifying that provisions thereof may
only be waived in writing may not be valid, binding or enforceable to the extent that an
oral agreement or an implied agreement by trade practice or course of conduct has been
created modifying any provision of such documents;
(c) we express no opinion with respect to the validity, binding effect or
enforceability of any purported waiver, release or disclaimer under any of the Transaction
Documents relating to statutory or equitable rights and defenses of the Company and the
Guarantor which are not subject to waiver, release or disclaimer;
(d) certain other rights, remedies and waivers contained in the Transaction Documents
may be rendered ineffective, or limited by, applicable laws, rules, regulations,
constitutional requirements or judicial decisions governing such provisions, but such laws,
rules, regulations, constitutional limitations and judicial decisions do not, in our
opinion, make the Transaction Documents inadequate for the practical realization of the
benefits provided by such Transaction Documents, although they may result in a delay thereof
(and we express no opinion with respect to the economic consequences of any such delay);
(e) we express no opinion with respect to any provisions of the Transaction Documents
purporting to appoint the Trustee as attorney-in-fact or agent for the Company and the
Guarantor;
(f) our opinions are subject to the effect of bankruptcy, fraudulent conveyance or
transfer, insolvency, reorganization, arrangement, liquidation, conservatorship, and
moratorium laws and are subject to limitations imposed by other laws and judicial decisions
of general application relating to or affecting the rights and remedies of creditors, and
general principles of equity (regardless of whether enforcement is considered in proceedings
at law or in equity) upon the availability of injunctive relief or other equitable remedies;
(h) the enforcement of provisions imposing liquidated damages, penalties or an increase
in interest rate upon the occurrence of certain events may be limited in certain
circumstances;
(i) any rights to indemnity or contribution may be limited by applicable federal and
state securities laws and by public policy considerations;
A-6
(j) we express no opinion as to the severability of any provision of any of the
Transaction Documents;
(k) we have not been called upon to, and accordingly do not, express any opinion as to
the various state securities or “blue sky” laws which may be applicable to the transactions
contemplated by the Transaction Documents; and
(l) we express no opinion with respect to the validity, binding effect or
enforceability of any provision of the Transaction Documents purporting to establish
evidentiary standards or a consent to jurisdiction and venue or waiving service of process
or demand or notice and hearing or constitutional rights (including a jury trial).
Our opinions set forth in this letter are based upon the facts in existence and laws in effect
on the date hereof and we expressly disclaim any obligation to update our opinions herein,
regardless of whether changes in such facts or laws come to our attention after the delivery
hereof.
This opinion is rendered to you in connection with the closing of the referenced offering
occurring today. This opinion is solely for your benefit and is not to be used, circulated, quoted
or otherwise referred to for any other purpose without our express prior written permission.
Notwithstanding the foregoing, this opinion letter may be relied upon by Deutsche Bank Trust
Company Americas, as Trustee under the Indenture.
Very truly yours,
Winston & Xxxxxx LLP
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EXHIBIT A
Arkansas
Illinois
Massachusetts
North Carolina
South Carolina
Texas
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Schedule I
| 1. | Amended and Restated Credit Agreement dated as of April 2, 2007 among Xxxxxxx Cable, Inc., the Subsidiary Borrowers, the Lenders, National City Business Credit Inc., as Syndication Agent, PNC Bank, National Association, Xxxxx Fargo Foothill, LLC and Associated Bank, National Association, as Documentation Agents, Wachovia Bank, National Association, as Administrative Agent, and Wachovia Bank, National Association, as Issuing Bank. | |
| 2. | Third Amendment to Amended and Restated Credit Agreement and Consent dated as of January 19, 2010 among Xxxxxxx Cable, Inc., the Subsidiary Borrowers, the Lenders, and Wachovia Bank, National Association, as administrative agent to for the Lenders. | |
| 3. | Second Amendment to Amended and Restated Credit Agreement and Consent dated as of June 18, 2009 among Xxxxxxx Cable, Inc., the Subsidiary Borrowers, the Lenders, and Wachovia Bank, National Association, as administrative agent to for the Lenders. | |
| 4. | First Amendment to Amended and Restated Credit Agreement and Consent dated as of November 1, 2007 among Xxxxxxx Cable, Inc., the Subsidiary Borrowers, the Lenders, and Wachovia Bank, National Association, as administrative agent to for the Lenders. | |
| 5. | Indenture dated September 28, 2004 by and between Xxxxxxx Cable Inc., the Note Guarantors from time to time party thereto and Deutsche Bank Trust Company Americas, as Trustee. | |
| 6. | Severance and Restrictive Covenant Agreement dated as of May 7, 2009 between Xxxxxxx Cable, Inc. and Xxxxxxx X. XxXxxxxxxx. | |
| 7. | Amended and Restated Employment Agreement dated as of December 30, 2008 between Xxxxxxx Cable, Inc. and Xxxxxxx Xxxxx. | |
| 8. | Amended and Restated Employment Agreement dated as of December 29, 2008 by and between Xxxxxxx Cable, Inc. and Xxxxxxx X. Xxxxxx. | |
| 9. | Amended and Restated Employment Agreement dated as of December 29, 2008 between Xxxxxxx Cable, Inc. and Xxxxxxx Xxxx. | |
| 10. | Amended and Restated Employment Agreement dated as of December 30, 2008 between Xxxxxxx Cable, Inc. and G. Xxxx Xxxxxx. | |
| 11. | Lease dated February 1, 2008 by and between DJR Venture, LLC and Xxxxxxxxxxx, LLC. | |
| 12. | Indemnification Agreement dated as of November 13, 2007 by and between Xxxxxx Capital LLC and Xxxxxxx Cable, Inc. | |
| 13. | Tax Matters Agreement dated as of September 30, 2006 by and between Xxxxxxx Cable, Inc. and the Stockholders listed on Schedule I thereto. |
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| 14. | Xxxxxxx Cable, Inc. 2006 Long-Term Incentive Plan. |
| 15. | Shareholders Agreement dated as of by and among Xxxxxxx Cable, Inc. and the existing holders of the Company’s common stock listed on the signature pages thereto. |
| 16. | Lease dated as of September 11, 2003 by and between Panattoni Development Company, LLC and Xxxxxxx Cable, Inc. |
A-10
ANNEX I
Each Initial Purchaser understands that:
Such Initial Purchaser agrees that it has not offered or sold and will not offer or sell the
Notes in the United States or to, or for the benefit or account of, a U.S. Person (other than a
distributor), in each case, as defined in Rule 902 of Regulation S (i) as part of its distribution
at any time and (ii) otherwise until 40 days after the later of the commencement of the offering of
the Notes pursuant hereto and the Closing Date, other than in accordance with Regulation S or
another exemption from the registration requirements of the Securities Act. Such Initial Purchaser
agrees that, during such 40-day restricted period, it will not cause any advertisement with respect
to the Notes (including any “tombstone” advertisement) to be published in any newspaper or
periodical or posted in any public place and will not issue any circular relating to the Notes,
except such advertisements as permitted by and include the statements required by Regulation S.
Such Initial Purchaser agrees that, at or prior to confirmation of a sale of Notes by it to
any distributor, dealer or person receiving a selling concession, fee or other remuneration during
the 40-day restricted period referred to in Rule 903 of Regulation S, it will send to such
distributor, dealer or person receiving a selling concession, fee or other remuneration a
confirmation or notice to substantially the following effect:
“The Notes covered hereby have not been registered under the U.S. Securities Act of
1933, as amended (the “Securities Act”), and may not be offered and sold within the
United States or to, or for the account or benefit of, U.S. persons (i) as part of
your distribution at any time or (ii) otherwise until 40 days after the later of the
date the Notes were first offered to persons other than distributors in reliance on
Regulation S and the Closing Date, except in either case in accordance with
Regulation S under the Securities Act (or in accordance with Rule 144A under the
Securities Act or to accredited investors in transactions that are exempt from the
registration requirements of the Securities Act), and in connection with any
subsequent sale by you of the Notes covered hereby in reliance on Regulation S under
the Securities Act during the period referred to above to any distributor, dealer or
person receiving a selling concession, fee or other remuneration, you must deliver a
notice to substantially the foregoing effect. Terms used above have the meanings
assigned to them in Regulation S under the Securities Act.”
Such Initial Purchaser agrees that the Notes offered and sold in reliance on Regulation S will
be represented upon issuance by a global security that may not be exchanged for definitive
securities until the expiration of the 40-day restricted period referred to in Rule 903 of
Regulation S and only upon certification of beneficial ownership of such Notes by non-U.S. persons
or U.S. persons who purchased such Notes in transactions that were exempt from the registration
requirements of the Securities Act.
Annex I-1
