Exhibit 10.3
CONFORMED COPY
KINDERCARE LEARNING CENTERS, INC.
$300,000,000
9-1/2% Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
February 10, 1997
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
BT SECURITIES CORPORATION
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
SALOMON BROTHERS INC
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
KinderCare Learning Centers, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell $300,000,000 principal amount of its
9-1/2% Senior Subordinated Notes due 2009 (the "Securities"). The Securities are
to be issued pursuant to an Indenture to be dated the Closing Date (as defined
in Section 3 hereof) (the "Indenture"), between the Company and Marine Midland
Bank, as trustee (the "Trustee"). The Company hereby confirms its agreement with
Chase Securities Inc. ("CSI") and BT Securities Corporation, Salomon Brothers
Inc and Xxxxx Xxxxxx Inc. (together, with CSI, the "Initial Purchasers") with
respect to the sale by the Company of the Securities to the Initial Purchasers.
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance on an exemption therefrom. The Company has
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prepared a preliminary offering memorandum dated January 23, 1997 (such
preliminary offering memorandum being hereinafter referred to as the
"preliminary offering memorandum"), and an offering memorandum dated February
10, 1997 (such offering memorandum, in the form first furnished to the Initial
Purchasers being hereinafter referred to as the "Offering Memorandum"), setting
forth information regarding the Company and the Securities for use in connection
with the offering of the Securities. Copies of the preliminary offering
memorandum have been, and copies of the Offering Memorandum will be, delivered
by the Company to the Initial Purchasers pursuant to the terms of this
Agreement. Any references herein to the preliminary offering memorandum and the
Offering Memorandum shall be deemed to include all amendments and supplements
thereto, unless otherwise noted. The Company hereby confirms that it has
authorized the use of the preliminary offering memorandum and the Offering
Memorandum in connection with the offering and sale of the Securities.
Holders (including subsequent transferees) of the Securities will
have the registration rights set forth in the Registration Rights Agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as any such Securities constitute
"Registrable Notes" (as defined in the Registration Rights Agreement). Pursuant
to the Registration Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission (the "Commission") (i) a registration
statement under the Securities Act (the "Exchange Offer Registration Statement")
registering an issue of a series of senior subordinated notes (the "Exchange
Securities") identical in all material respects to the Securities (except that
the Exchange Securities will not contain terms with respect to transfer
restrictions) to be offered in exchange for the Securities (the "Exchange
Offer") and (ii) under certain circumstances, a shelf registration statement
pursuant to Rule 415 under the Securities Act (the "Shelf Registration
Statement").
Capitalized terms used herein without definition have the respective
meanings specified therefor in the Offering Memorandum.
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1. Representations, Warranties and Agreements of the Company. The
Company represents and warrants to and agrees with the Initial Purchasers as of
the date hereof and as of the Closing Date that:
(a) Each of the preliminary offering memorandum and the Offering
Memorandum, as of its respective date, contains all the information that,
if requested by a prospective purchaser, would be required to be provided
pursuant to Rule 144A(d)(4) under the Securities Act. Each of the
preliminary offering memorandum and the Offering Memorandum, as of its
respective date, did not, and at the Closing Date, the Offering Memorandum
and any amendment or supplement thereto will not, contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to information contained in or omitted
from the preliminary offering memorandum or the Offering Memorandum (or
any supplement or amendment thereto) in reliance upon and in conformity
with written information relating to the Initial Purchasers furnished to
the Company by or on behalf of the Initial Purchasers specifically for use
therein (the "Initial Purchasers' Information"). The parties acknowledge
and agree that the Initial Purchasers' Information consists solely of the
last paragraph of text on the cover page of the Offering Memorandum, the
stabilization legend on page four of the Offering Memorandum and the
third, sixth and eighth paragraphs under the caption "Plan of
Distribution" in the Offering Memorandum.
(b) Each of the Company and the Subsidiaries (as defined below) has
been duly incorporated (or the equivalent thereof, in the case of
Subsidiaries other than Domestic Subsidiaries) and each Domestic
Subsidiary is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and the
Subsidiaries is duly qualified to do business and is in good standing (or
the equivalent thereof, in the case of Subsidiaries other than Domestic
Subsidiaries) as a foreign corporation in each jurisdiction in which its
ownership or lease of property or the conduct of its businesses requires
such qualification, and has all power and authority necessary to own or
hold its
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respective properties and to conduct the businesses in which it is engaged
as described in the Offering Memorandum, except where the failure to so
qualify or have such power or authority would not have, singly or in the
aggregate, a material adverse effect on the financial condition, results
of operations or business of the Company and the Subsidiaries considered
as a whole (a "Material Adverse Effect"). The term "Subsidiary" means each
person with at least nominal assets of which a majority of the voting
equity securities or other interests is owned, directly or indirectly, by
the Company as of the Closing Date, such persons being referred to
collectively as the "Subsidiaries". The only Subsidiaries of the Company
organized under the laws of the United States of America or any State
thereof or the District of Columbia are KinderCare Real Estate Corp. and
KC Development Corp (collectively, the "Domestic Subsidiaries").
(c) The Company has the capitalization as set forth in the Offering
Memorandum under the heading "Capitalization", and all the issued shares
of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable. The outstanding shares of
capital stock of each Subsidiary are validly authorized and issued and
fully paid and nonassessable (or the equivalent thereof, in the case of
Subsidiaries other than Domestic Subsidiaries) and are owned, directly or
indirectly, by the Company free and clear of any lien (other than any lien
on such capital stock pursuant to the Credit Facilities), charge,
encumbrance, security interest, restriction upon voting or transfer or any
other claim of any third party.
(d) This Agreement and the Agreement and Plan of Merger (the "Merger
Agreement") dated as of October 3, 1996, and as amended as of December 27,
1996, between KCLC Acquisition Corp., a Delaware corporation, and the
Company have been duly authorized and validly executed and delivered by
the Company. At the Closing Date the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission applicable to an indenture which is qualified thereunder.
The Indenture and the Registration Rights Agreement have been duly
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authorized by the Company. This Agreement and the Merger Agreement
constitute, and each of the Indenture and Registration Rights Agreement,
when duly executed and delivered in accordance with their terms by each
party thereto, will constitute, a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with their
terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws relating to
or affecting creditors' rights generally, and to general equitable
principles (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(e) On the Closing Date, the Securities will have been duly
authorized by the Company, and the Securities, the Indenture and the
Registration Rights Agreement will have been duly executed by the Company
and will conform in all material respects to the descriptions thereof
contained in the Offering Memorandum. When the Securities are issued,
authenticated and delivered in accordance with the Indenture and paid for
in accordance with the terms of this Agreement (assuming due
authorization, execution and delivery of the Indenture by the Trustee and
due authentication of the Securities by the Trustee), the Securities will
constitute valid and legally binding obligations of the Company,
enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
or other similar laws relating to or affecting creditors' rights
generally, and to general equitable principles (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(f) The execution, delivery and performance of the Indenture, the
Securities, the Registration Rights Agreement, the Merger Agreement and
this Agreement by the Company, the consummation of the transactions
contemplated hereby and thereby, and the fulfillment of the terms hereof
or thereof, will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets (other than any lien pursuant to the Credit
Facilities) of the Company
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or any Subsidiary pursuant to, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any Subsidiary is a party or by which the Company or any Subsidiary is
bound or to which any of their respective properties or assets is subject,
nor will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any Subsidiary or any statute or any
judgment, order, decree, rule or regulation of any court or arbitrator or
governmental agency or body having jurisdiction over the Company or any
Subsidiary or any of their respective properties or assets, except for any
such conflict, breach, violation, default, lien, charge or encumbrance
that would not have a Material Adverse Effect; and no consent, approval,
authorization or order of, or filing or registration with, any such court
or arbitrator or governmental agency or body under any such statute,
judgment, order, decree, rule or regulation is required for the execution,
delivery and performance of the Indenture, the Securities, the
Registration Rights Agreement, the Merger Agreement or this Agreement by
the Company or any Subsidiary or the consummation of the transactions
contemplated hereby and thereby which shall not have been obtained or made
on or prior to the Closing Date (other than (i) such consents, approvals,
authorizations or orders of, or filings or registrations with, the
Commission or any state securities regulatory authorities as may be
required to be obtained or made pursuant to this Agreement, the Merger
Agreement or the Registration Rights Agreement and (ii) consents,
approvals, authorizations or orders of, or filings or registrations with,
state and local licensing authorities which shall be obtained as soon as
practicable following receipt of notice of the necessity therefor in
connection with state and local child care licensing requirements and the
absence of which, singly or in the aggregate, would not have a Material
Adverse Effect). Attached hereto as Annex A is a complete and accurate
list of all of the material contracts of the Company.
(g) KPMG Peat Marwick LLP ("Peat Marwick") are independent certified
public accountants with respect to the Company and its Subsidiaries (i)
within the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants ("AICPA") and its
interpretations and
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rulings thereunder and (ii) as required by the Securities Act and the
rules and regulations thereunder for financial statements included in a
definitive prospectus forming part of a registration statement on Form S-1
under the Securities Act. The historical financial statements (including
the related notes) included in the preliminary offering memorandum and the
Offering Memorandum comply in all material respects (except for the
inclusion of financial statement schedules) with the requirements
applicable to a Registration Statement on Form S-1 and have been prepared,
and fairly present in all material respects, the financial position of the
Company and the Subsidiaries on a consolidated basis at the respective
dates indicated and the results of their operations and cash flows for the
respective periods indicated, subject in the case of unaudited
consolidated financial statements to year-end audit adjustments, in
accordance with generally accepted accounting principles consistently
applied throughout such periods, except as otherwise disclosed therein;
and the financial information and financial data set forth in the Offering
Memorandum under the captions "Offering Memorandum Summary--Summary
Consolidated Financial and Other Data", "Capitalization", "Pro Forma
Consolidated Financial Statements", "Selected Historical Consolidated
Financial and Other Data" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations" are derived from the
accounting records of the Company, and fairly present in all material
respects the data purported to be shown. The pro forma financial
statements contained in the preliminary offering memorandum and the
Offering Memorandum have been prepared on a basis consistent with such
historical statements, except for the pro forma adjustments specified
therein, include all material adjustments to the historical financial data
required by Rule 11-02 of Regulation S-X to reflect the Merger, the
Financings and other related transactions, give effect to assumptions made
on a reasonable basis and present fairly in all material respects the
historical and proposed transactions contemplated by the preliminary
offering memorandum, the Offering Memorandum and this Agreement. The other
historical financial and statistical information and data included in the
preliminary offering memorandum and the Offering Memorandum are, in all
material respects, accurately presented.
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(h) There are no pending actions or suits or judicial, arbitral or
other administrative or other proceedings to which the Company or any
Subsidiary is a party or of which any property or assets of the Company or
any Subsidiary is the subject which, singly or in the aggregate, if
determined adversely to the Company or any Subsidiary, are reasonably
likely to have a Material Adverse Effect; and to the Company's knowledge,
no such proceedings are threatened or contemplated by governmental
authorities or others.
(i) Neither the Company nor any Subsidiary is (A) in violation of
its charter or by-laws, (B) in default in any respect, nor has any event
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which the Company
or any Subsidiary is a party or by which it is bound or to which any of
their respective property or assets is subject or (C) in violation in any
respect of any law, ordinance, governmental rule, regulation or court
decree to which the Company or any Subsidiary or their respective property
or assets may be subject, except any violation or default under clauses
(B) or (C) that would not reasonably be expected to have a Material
Adverse Effect.
(j) The Company and the Subsidiaries possess all material licenses,
certificates, authorizations and permits issued by, and have made all
declarations and filings with, the appropriate state, federal or foreign
regulatory agencies or bodies which are necessary for the ownership of
their respective properties or the conduct of their businesses as
described in the Offering Memorandum, except where the failure to possess
or make the same would not have, singly or in the aggregate, a Material
Adverse Effect, and neither the Company nor any Subsidiary has received
notification of any revocation or modification of any such license,
authorization or permit (other than with respect to state child care
licensing requirements in connection with the transactions contemplated by
the Merger Agreement) and none of them has any reasonable basis to believe
that any such license, certificate, authorization or permit will not be
renewed.
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(k) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and the rules and regulations of
the Commission thereunder.
(l) The Company and the Subsidiaries maintain insurance covering
their respective properties, operations, personnel and businesses
(including, without limitation, insurance against claims of alleged child
abuse), which insurance is in amounts and insures against such losses and
risks, in each case as is in accordance with customary industry practice
to protect their respective businesses. Neither the Company nor any
Subsidiary has received notice from any insurer or agent of such insurer
that capital improvements or other expenditures will have to be made in
order to continue such insurance.
(m) Except as disclosed in the Offering Memorandum, there are no
securities of the Company or any Subsidiary registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or
listed on a national securities exchange or quoted in a U.S. automated
inter-dealer quotation system.
(n) Except as disclosed in the Offering Memorandum (including with
respect to this Agreement), neither the Company nor any Subsidiary is a
party to any contract, agreement or understanding with any person that
would give rise to a valid claim against the Company or any Subsidiary or
the Initial Purchasers for a brokerage commission, finder's fee or like
payment in connection with the offering of the Securities.
(o) The Company and the Subsidiaries own or possess adequate rights
to use all patents, patent applications, trademarks, service marks, trade
names, trademark registrations, service xxxx registrations, copyrights,
licenses and know-how (including trade secrets and other unpatented or
unpatentable proprietary or confidential information, systems or
procedures) necessary for the conduct of their businesses, except where
the failure to own or possess such rights would not have a Material
Adverse Effect, and the Company has no reasonable basis to believe that
the conduct of their businesses will conflict with any such rights of
others which would reasonably be
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expected to have a Material Adverse Effect, and neither the Company nor
any Subsidiary has received any notice of any claim of conflict with any
such rights of others which, if such assertion of conflict were sustained,
would have a Material Adverse Effect.
(p) The Company and the Subsidiaries have good and marketable title
in fee simple to, or have valid rights to lease or otherwise use, all
items of real or personal property material to the business of the Company
and the Subsidiaries taken as a whole, in each case free and clear of all
liens, encumbrances, claims, defects and imperfections of title (other
than pursuant to the Credit Facilities) that would reasonably be expected
to have a Material Adverse Effect, it being understood that liens,
encumbrances, claims, defects and imperfections of title that do not
materially interfere with the use made or proposed to be made of such
property would not reasonably be expected to have a Material Adverse
Effect.
(q) Except as described in the Offering Memorandum or which would
not reasonably be expected to have a Material Adverse Effect, none of the
Company or its Subsidiaries has any liability for any prohibited
transaction or funding deficiency or any complete or partial withdrawal
liability with respect to any pension, profit sharing or other plan which
is subject to the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), to which the Company or any Subsidiary makes or ever
has made a contribution and in which any employee of the Company or any
Subsidiary is or has ever been a participant. With respect to such plans,
the Company and each of its Subsidiaries is in compliance with all
applicable provisions of ERISA, except where any non-compliance would not
reasonably be expected to have a Material Adverse Effect.
(r) There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of
toxic or other wastes or other hazardous substances by, due to, or caused
by the Company or any Subsidiary (or, to the best of the Company's
knowledge, any other entity for whose acts or omissions the Company or any
Subsidiary is or may reasonably be expected to be liable) upon any of the
property now or previously owned or leased by the Company or any
Subsidiary, or
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upon any other property, (i) in violation of any statute or any ordinance,
rule, regulation, order, judgment, decree or permit or (ii) which would,
under any statute or any ordinance, rule (including rule of common law),
regulation, order, judgment, decree or permit, give rise to any liability,
except in the case of both clauses (i) and (ii) for any violation or
liability which would not have, singly or in the aggregate with all such
violations and liabilities, a Material Adverse Effect; there has been no
disposal, discharge, emission or other release of any kind onto such
property or into the environment surrounding such property of any toxic or
other wastes or other hazardous substances with respect to which the
Company or any Subsidiary has knowledge, except for any such disposal,
discharge, emission or other release of any kind which would not have,
singly or in the aggregate with all such discharges and other releases, a
Material Adverse Effect.
(s) Neither the Company nor any affiliate (as such term is defined
in Rule 501(b) under the Securities Act) of the Company has, directly or
through any agent, sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any "security" (as defined in the
Securities Act), which is or will be integrated with the sale of the
Securities in a manner that would require the registration of the
Securities under the Securities Act.
(t) None of the Company or any affiliate (as such term is defined in
Rule 501(b) under the Securities Act) of the Company or any other person
acting on its or their behalf has engaged, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(u) Assuming the accuracy of the Initial Purchasers' representations
in Section 2 hereof and their compliance with the agreements set forth
therein, it is not necessary, in connection with the issuance and sale of
the Securities and the offer, resale and delivery of the Securities in the
manner contemplated by this Agreement and the Offering Memorandum, to
register the Securities under the Securities Act or to qualify the
Indenture under the Trust Indenture Act.
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(v) The Securities satisfy the eligibility requirements of Rule
144A(d)(3) under the Securities Act.
(w) The Company has not taken and will not take, directly or
indirectly, any action prohibited by Rule 10b-6 under the Exchange Act in
connection with the offering of the Securities.
(x) Except as described or summarized in the Offering Memorandum,
there are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, or agreements or
understandings with respect to the sale or issuance of, any shares of
capital stock of or other equity interest in the Company.
(y) Since the date as of which information is given in the Offering
Memorandum, (A) there has been no material adverse change or any
development involving a prospective material adverse change in the
financial condition or in the earnings or business of the Company and the
Subsidiaries taken as a whole, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by
the Company or any Subsidiary, other than those in the ordinary course of
business, which are material with respect to the Company and the
Subsidiaries taken as a whole, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock, except as contemplated by the Merger
Agreement.
2. Purchase by the Initial Purchasers. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
the Initial Purchasers, severally and not jointly, and the Initial Purchasers,
severally and not jointly, agree to purchase from the Company such respective
principal amounts of Securities as are set forth opposite the name of such
Initial Purchaser in Schedule I hereto at a purchase price equal to 97.25% of
the principal amount thereof, plus accrued interest, if any, from February 13,
1997, to the Closing Date.
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The Company shall not be obligated to deliver any of the Securities
except upon payment for all of the Securities to be purchased as provided
herein.
The Initial Purchasers have advised the Company that it is their
intention, as promptly as they deem appropriate after the Company shall have
furnished the Initial Purchasers with copies of the Offering Memorandum, to
resell the Securities pursuant to the procedures and upon the terms set forth in
the Offering Memorandum, including not to solicit any offer to buy or offer to
sell the Securities by means of any form of general solicitation or general
advertising (within the meaning of Regulation D under the Securities Act) or in
any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act. Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees with the Company that they have solicited and will solicit
offers for Securities only from, and will offer Securities only to, persons that
they reasonably believe to be (i) "Qualified Institutional Buyers" ("QIBs"), as
defined in Rule 144A under the Securities Act, or (ii) other Institutional
Accredited Investors, within the meaning of Rule 501(a) under the Securities
Act. The Initial Purchasers represent and warrant, severally and not jointly,
that they are either QIBs or Institutional Accredited Investors, in either case
with such knowledge and experience in financial and business matters as are
necessary to evaluate the merits and risks of an investment in the Securities,
and are acquiring their interest in the Securities not with a view to the
distribution or resale thereof, except resales in compliance with the
registration requirements or exemption provisions of the Securities Act and
neither they, nor anyone acting on their behalf, will offer the Securities so as
to bring the issuance and sale of the Securities within the provisions of
Section 5 of the Securities Act. The Company acknowledges and agrees that the
Initial Purchasers may sell Securities to any affiliate of an Initial Purchaser
and that any such affiliate may sell Securities purchased by it to the Initial
Purchasers. The Initial Purchasers agree that, prior to or simultaneously with
the confirmation of sale by the Initial Purchasers to any purchaser of any of
the Securities purchased by the Initial Purchasers from the Company pursuant
hereto, the Initial Purchasers shall furnish to that purchaser a copy of the
Offering Memorandum (and any amendment thereof or supplement thereto that the
Company shall have furnished to the Initial Purchasers prior to the date of such
confirmation of sale). In addition to the
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foregoing, the Initial Purchasers agree and understand that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Sections 5(c), (d), (e) and (f) hereof, counsel to the Company and to the
Initial Purchasers, respectively, may rely upon the accuracy and truth of the
foregoing representations, warranties and covenants in this Section 2 and the
Initial Purchasers hereby consent to such reliance.
3. Delivery of and Payment for the Securities. Delivery of and
payment for the Securities shall be made at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx, New York, New York, or at such other place as shall be agreed upon by
the Initial Purchasers and the Company, at 10:00 a.m., New York City time, on
February 13, 1997, or at such other time or date, not later than seven full
business days thereafter, as shall be agreed upon by the Initial Purchasers and
the Company (such time and date of payment and delivery being referred to herein
as the "Closing Date").
On the Closing Date, payment of the purchase price for the
Securities shall be made to the Company by wire or book-entry transfer of
same-day funds to such account or accounts as the Company shall specify prior to
the Closing Date or by such other means as the parties hereto shall agree prior
to the Closing Date against delivery to the Initial Purchasers of the
certificates evidencing the Securities. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of the Initial Purchasers hereunder. Upon delivery,
the Securities shall be in global form, registered in such names and in such
denominations as CSI on behalf of the Initial Purchasers shall have requested in
writing not less than two full business days prior to the Closing Date. The
Company agrees to make one or more global certificates evidencing the Securities
available for inspection by CSI on behalf of the Initial Purchasers in New York,
New York at least 24 hours prior to the Closing Date.
4. Further Agreements of the Company. The Company agrees with the
Initial Purchasers:
(a) to advise the Initial Purchasers promptly and, if requested,
confirm such advice in writing, of the happening of any event which makes
any statement of a material fact made in the Offering Memorandum untrue
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or which requires the making of any additions to or changes in the
Offering Memorandum (as amended or supplemented from time to time) in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading and not to effect such amendment or
supplementation without the consent of the Initial Purchasers (such
consent not to be unreasonably withheld); to advise the Initial Purchasers
promptly of any order preventing or suspending the use of the preliminary
offering memorandum or the Offering Memorandum, of any suspension of the
qualification of the Securities for offering or sale in any jurisdiction
and of the initiation or threatening of any proceeding for any such
purpose; and to use reasonable best efforts to prevent the issuance of any
such order preventing or suspending the use of the preliminary offering
memorandum or the Offering Memorandum or suspending any such qualification
and, if any such suspension is issued, to obtain the lifting thereof at
the earliest possible time;
(b) to furnish promptly to each of the Initial Purchasers and
counsel for the Initial Purchasers, without charge, as many copies of the
preliminary offering memorandum and the Offering Memorandum (and any
amendments or supplements thereto) as may be reasonably requested; and the
Company hereby consents to the use of the preliminary offering memorandum
and the Offering Memorandum, and any amendments and supplements thereto,
in connection with resales of the Securities;
(c) if the delivery of the Offering Memorandum is required at any
time prior to the expiration of nine months after the time of the issue of
the Offering Memorandum in connection with the sale of the Securities and
if at such time any events shall have occurred as a result of which the
Offering Memorandum as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made when the Offering Memorandum is
delivered, not misleading, or if for any other reason it shall be
necessary at such time to amend or supplement the Offering Memorandum in
order to comply with any law, to notify the Initial Purchasers immediately
thereof, and
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to prepare promptly and furnish to the Initial Purchasers an amended
Offering Memorandum or a supplement to the Offering Memorandum which will
correct such statement or omission or effect such compliance. The Initial
Purchasers' delivery of any such amendment or supplement shall not
constitute a waiver of any of the conditions set forth in Section 5
hereof;
(d) prior to making any amendment or supplement to the Offering
Memorandum, to furnish a copy thereof to each of the Initial Purchasers
and counsel for the Initial Purchasers and not to effect any such
amendment or supplement to which the Initial Purchasers shall reasonably
object by notice to the Company after a reasonable period to review,
provided, however, that notwithstanding the Initial Purchasers' objection
such amendment or supplement may be effected if counsel to the Company
reasonably determines that the Company would be adversely affected if such
amendment or supplement is not effected;
(e) for a period of three years following the Closing Date, to
furnish to the Initial Purchasers all public reports and all reports,
documents, information and financial statements furnished by the Company
to the Commission pursuant to the Indenture or the Exchange Act or any
rule or regulation of the Commission thereunder;
(f) for so long as it is required to do so under the Indenture and
at any time that it is not subject to Section 13 or 15(d) of the Exchange
Act, upon request of any holder of the Securities, to furnish to such
holder, and to any prospective purchaser or purchasers of the Securities
designated by such holder, information satisfying the requirements of
subsection (d)(4) of Rule 144A under the Securities Act. This covenant is
intended to be for the benefit of the holders from time to time of the
Securities, and prospective purchasers of the Securities designated by
such holders;
(g) to use the proceeds from the sale of the Securities in the
manner described in the Offering Memorandum under the caption "Use of
Proceeds";
17
(h) to assist the Initial Purchasers in arranging for the Securities
to be designated PORTAL Market securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the PORTAL Market
and for the Securities to be eligible for clearance and settlement through
The Depository Trust Company ("DTC");
(i) in connection with the offering of the Securities, to make its
officers, employees, independent accountants and legal counsel reasonably
available upon request by the Initial Purchasers;
(j) to do and perform all things required to be done and performed
by it under this Agreement that are within its control prior to or after
the Closing Date and to use its best efforts to satisfy all conditions
precedent on its part to the delivery of the Securities;
(k) except following the effectiveness of the Exchange Offer
Registration Statement or Shelf Registration Statement, as the case may
be, neither the Company nor any of its affiliates (as such term is defined
in Rule 501(b) under the Securities Act) will, and the Company will not
authorize or knowingly permit any person acting on its or their behalf to,
solicit any offer to buy or offer to sell the Securities by means of any
form of general solicitation or general advertising (as such terms are
used in Regulation D under the Securities Act) or in any manner involving
a public offering within the meaning of Section 4(2) of the Securities
Act;
(l) to not, and to ensure that no affiliate (as such term is defined
in Rule 501(b) under the Securities Act) of the Company will, offer, sell
or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner that would require the
registration of the Securities under the Securities Act;
(m) to cause each Security to bear the legend set forth in the form
of Security attached as Exhibit A to the Indenture until such legend shall
no longer be necessary or advisable because the Securities are no
18
longer subject to the restrictions on transfer described therein;
(n) promptly to take from time to time such action as the Initial
Purchasers may reasonably request to qualify the Securities for offering
and sale under the securities or Blue Sky laws of such jurisdictions as
the Initial Purchasers may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the
Securities; provided, however, that in connection therewith neither the
Company nor any Subsidiary shall be required to qualify as a foreign
corporation or to file a general consent to service of process or to
subject itself to taxation in respect of doing business in any
jurisdiction where it is not so qualified or 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 Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(o) to comply with the Registration Rights Agreement and all
agreements set forth in the representation letter of the Company to DTC
relating to the approval of the Securities for "book-entry" transfer;
(p) for a period of 90 days from the date of the Offering
Memorandum, to not offer for sale, sell, contract to sell or otherwise
dispose of, directly or indirectly, or file a registration statement for,
or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by the Company or any of its
Subsidiaries (other than the Securities or the Exchange Securities)
without the prior written consent of the Initial Purchasers, which consent
shall not be unreasonably withheld. The Company will not offer, sell,
contract to sell or otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale, contract or
disposition would cause the exemption afforded by Section 4(2) of the
Securities Act to cease to be applicable to the offer and sale of the
Securities as contemplated by this Agreement and the Offering Memorandum;
19
(q) in connection with the offering, until the Initial Purchasers
shall have notified the Company of the completion of the resale of the
Securities, neither the Company nor any of its affiliated purchasers (as
defined in Rule 10b-6 under the Exchange Act), either alone or with one or
more other persons, will bid for or purchase, for any account in which it
or any of its affiliated purchasers has a beneficial interest, any
Securities, or attempt to induce any person to purchase any Securities;
and neither it nor any of its affiliated purchasers will make bids or
purchases for the purpose of creating actual, or apparent, active trading
in the Securities or of raising the price of the Securities;
(r) during the period from the Closing Date until three years after
the Closing Date, without the prior written consent of the Initial
Purchasers, to not, and not permit any of its affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of the Securities that
have been reacquired by them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered
under the Securities Act; and
(s) to not take any action prior to the execution and delivery of
the Indenture which, if taken after such execution and delivery, would
have violated any of the covenants contained in the Indenture.
5. Conditions of Initial Purchasers' Obligations. The respective
obligations of the Initial Purchasers hereunder are subject to the accuracy, on
and as of the date hereof and on the Closing Date, of the representations and
warranties of the Company contained herein, to the accuracy of the statements of
officers of the Company made in any certificates delivered pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers as promptly as practicable on or
following the date of this Agreement or at such other date and time as to
which the Initial Purchasers may agree; and no stop order suspending the
sale of the Securities in any jurisdiction shall have been issued and no
20
proceeding for that purpose shall have been commenced or shall be pending
or threatened.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of the Securities, the Indenture, the
Registration Rights Agreement, the Merger Agreement, this Agreement and
the Offering Memorandum, and all other legal matters relating to the
Securities, the Indenture, the Registration Rights Agreement, the Merger
Agreement, this Agreement and the transactions contemplated hereby shall
be reasonably satisfactory in all material respects to the Initial
Purchasers, and the Company shall have furnished to the Initial Purchasers
all documents and information that they or their counsel may reasonably
request to enable them to pass upon such matters; and none of the Initial
Purchasers shall have discovered and disclosed to the Company on or prior
to the Closing Date that the Offering Memorandum or any amendment or
supplement thereto contains an untrue statement of a fact which, in the
opinion of counsel for the Initial Purchasers, is material or omits to
state any fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein not misleading.
(c) Xxxxxxx Xxxxxxx & Xxxxxxxx, shall have furnished to the Initial
Purchasers its written opinion, as special counsel to the Company,
addressed to the Initial Purchasers and dated the Closing Date, in form
and substance reasonably satisfactory to the Initial Purchasers, to the
effect that:
(i) no consent, approval, authorization, order, registration
or qualification of or with any federal or New York governmental
agency or body or any Delaware governmental agency or body acting
pursuant to the Delaware General Corporation law or, to the
knowledge of such counsel, any federal or New York court or any
Delaware court acting pursuant to the Delaware General Corporation
Law is required for the issue and sale of the Securities by the
Company to the Initial Purchasers and the resale by the Initial
Purchasers in accordance with the Purchase Agreement, and the
compliance by the Company with all of the provisions of this
Agreement, except
21
for such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the
Securities by the Initial Purchasers;
(ii) neither the Company nor any Domestic Subsidiary is an
"investment company" within the meaning of the Investment Company
Act and the rules and regulations of the Commission thereunder;
(iii) each of this Agreement, the Merger Agreement and the
Registration Rights Agreement constitutes a valid and legally
binding agreement of the Company, enforceable against the Company in
accordance with its terms (assuming the due authorization, execution
and delivery thereof by the Company and the other parties thereto)
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing and except to the extent
that indemnification or contribution provisions may be
unenforceable;
(iv) the Indenture constitutes a valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms (assuming due authorization, execution and
delivery by the Company and the Trustee), subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting creditors'
rights generally, general equitable principles (regardless of
whether enforcement is considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing; the
Securities (assuming due authorization, execution and delivery by
the Company), upon the due authentication and delivery thereof by
the Trustee pursuant to the Indenture and upon payment and delivery
in accordance with this Agreement, will be duly and validly issued
22
and outstanding and will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Indenture
and enforceable against the Company in accordance with their terms,
subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally, general
equitable principles (regardless of whether enforcement is
considered in a proceeding in equity or at law) and an implied
covenant of good faith and fair dealing; and the Indenture, the
Securities, the Merger Agreement, the Registration Rights Agreement,
the Voting Agreement and the Stockholders' Agreement (assuming it is
signed in the form attached as an Exhibit to the Merger Agreement),
conform in all material respects to the descriptions thereof
contained in the Offering Memorandum; and
(v) assuming the accuracy of the representations, warranties
and agreements of the Company and each Subsidiary contained in
paragraphs (s) and (t) of Section 1 of this Agreement and of the
Initial Purchasers in Section 2 of this Agreement, no registration
of the Securities under the Securities Act of 1933, as amended, and
no qualification of the Indenture under the Trust Indenture Act of
1939, as amended, is required for the offer and sale of the
Securities by the Company to the Initial Purchasers or the initial
reoffer and resale of the Securities by the Initial Purchasers
solely in the manner contemplated by the Offering Memorandum, this
Agreement and the Indenture.
Such counsel shall state that they have participated in conferences
with representatives of the Company, representatives of the independent
auditors of the Company and representatives of the Initial Purchasers at
which conferences the contents of the Offering Memorandum, any amendment
thereof and supplement thereto and related matters were discussed, and,
although such counsel assume no responsibility for the accuracy or
completeness or fairness of the Offering Memorandum, any amendment thereof
or supplement thereto (except as expressly provided above), nothing has
come to the attention of such
23
counsel to cause such counsel to believe that the Offering Memorandum or
any amendment thereof or supplement thereto (other than the financial
statements and other financial and statistical information contained
therein, as to which such counsel need express no belief) as of its date
or such Closing Date, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the federal laws of the United States of
America, the laws of the State of New York, and the General Corporation
Law of Delaware and may rely as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of the
Company and public officials which are furnished to the Initial
Purchasers.
(d) Xxxxxx & Bird shall have furnished to the Initial Purchasers its
written opinion, as counsel to the Company, addressed to the Initial
Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, to the effect that:
(i) each of the Domestic Subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation;
(ii) the outstanding shares of common stock of the Company and
each Domestic Subsidiary have been duly and validly authorized and
issued and are fully paid and nonassessable under the General
Corporation Law of the State of Delaware and neither the Company nor
any Domestic Subsidiary has any outstanding preferred stock;
(iii) the Company has full corporate power and authority to
execute and deliver the Indenture, the Securities, the Registration
Rights Agreement, the Merger Agreement and this Agreement and to
perform its obligations hereunder and thereunder; and the execution
and delivery of the Indenture,
24
the Securities, the Registration Rights Agreement, the Merger
Agreement and this Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly and
validly authorized by the Company;
(iv) each of this Agreement, the Merger Agreement and the
Registration Rights Agreement has been duly authorized, executed and
delivered by the Company;
(v) each of the Indenture and the Securities have been duly
authorized, executed and delivered by the Company;
(vi) the execution, delivery and performance by the Company of
the Indenture, the Securities, the Registration Rights Agreement,
the Merger Agreement and this Agreement and the fulfillment of the
terms hereof and thereof, do not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets (other than any
lien pursuant to the Credit Facilities) of the Company or any
Domestic Subsidiary pursuant to any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument specified on
Annex B, except for any such conflicts, breaches, violations or
defaults which would not reasonably be expected to have a Material
Adverse Effect, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any Domestic
Subsidiary or any statute, or, to the knowledge of such counsel, any
judgment, order, decree, rule or regulation of any Federal or
Georgia or, to the extent acting pursuant to the Delaware General
Corporation Law, Delaware court or governmental agency or body or
arbitrator having jurisdiction over the Company or any Domestic
Subsidiary or any of their respective properties or assets; and no
consent, approval, authorization or order of, or filing or
registration with, any such court or arbitrator or governmental
agency or body is required under any such statute, judgment, order,
decree, rule or regulation known to such counsel for the
25
execution, delivery and performance of the Indenture, the
Securities, the Merger Agreement or the Registration Rights
Agreement by the Company; provided, however, that the foregoing may
exclude (A) state securities laws or Blue Sky laws, (B) any such
consents, approvals, authorizations, or order of, or filings or
registrations with, the Commission and any state securities
regulatory authorities as may be required to be obtained or made
pursuant to the Registration Rights Agreement; (C) any law, rule or
regulation of the government of the United States or any state
applicable to the Company and its Subsidiaries because of the
specific type of business in which each engages; (D) filing of the
Registration Statement on Form S-4 in connection with the Merger;
(E) the filing of a Certificate of Merger with the Secretary of
State of the State of Delaware; and (F) the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvement Act of 1976; provided, further, however, that
such counsel need not express any opinion as to whether the offering
of the Securities may be made without registration under the
Securities Act.
(vii) neither the Company nor any Domestic Subsidiary is in
violation of any terms or provisions of its respective charter or
by-laws; and
(viii) to the knowledge of such counsel, no default exists and
no event has occurred which, with notice, lapse of time or both,
would constitute a default in the due performance and observance of
any term, covenant or condition of any agreement specified on Annex
B and which would reasonably be expected to have a Material Adverse
Effect.
Such counsel shall state that they participated in conferences with
officers of the Company in connection with the preparation by the Company
of its Annual Report on Form 10-K for the year ended May 31, 1996 (as
amended by Form 10-K/A filed with the Commission on September 30, 1996)
and its Quarterly Reports on Form 10-Q for the sixteen weeks ended
September 20, 1996, both of which are incorporated by reference in the
Offering Memorandum. In addition, such counsel
26
shall state that they participated in certain conferences with the current
officers of the Company, other special counsel to the Company,
representatives of the independent auditors of the Company and
representatives of the Initial Purchasers at which conferences the
contents of the Offering Memorandum, any amendment thereof and supplement
thereto and related matters were discussed. Such counsel shall further
state that although such counsel has not independently verified and
assumes no responsibility for the accuracy, completeness or fairness of
statements contained in the Offering Memorandum, any amendment thereof or
supplement thereto, that, on the basis of the foregoing, nothing has come
to the attention of such counsel that causes such counsel to believe that
the Offering Memorandum (as amended or supplemented), as of its date or
the Closing Date, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that such counsel need
express no opinion as to financial statements and related notes, schedules
and other historical and pro forma financial and statistical data
contained or incorporated by reference in the Offering Memorandum or any
supplement or amendment thereto.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the federal laws of the United States of
America, the laws of the State of Georgia, and the General Corporation Law
of Delaware and may rely as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and
public officials which are furnished to the Initial Purchasers.
(e) Xxxxxxx X. Xxxxx, Esq., General Counsel of the Company shall
have furnished to the Initial Purchasers her written opinion, addressed to
the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of
27
incorporation; each of the Company and the Domestic Subsidiaries is
duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its businesses requires such
qualification (other than those jurisdictions in which the failure
to so qualify would not have a Material Adverse Effect) and has all
corporate power and authority necessary to own or hold its
properties and to conduct the businesses in which it is engaged as
described in the Offering Memorandum (except where the failure to
have such power or authority would not have a Material Adverse
Effect);
(ii) there is no pending or, to the best knowledge of counsel,
threatened action or suit or judicial, arbitral or other
administrative or other proceeding to which the Company or any
Subsidiary is a party or of which any of their respective properties
or assets is the subject that, singly or in the aggregate, if
determined adversely to the Company or any Subsidiary is reasonably
likely to have a Material Adverse Effect or would materially and
adversely affect the ability of the Company to perform its
obligations under this Agreement, the Registration Rights Agreement,
the Merger Agreement or the Indenture; and
(iii) neither the Company nor any Domestic Subsidiary is in
violation of any terms or provisions of (A) any license, permit,
judgment, decree or order or (B) any statute, rule or regulation, in
each case pertaining to matters other than child care licensing
rules and regulations, which violation in any case referred to in
(A) or (B) above is reasonably likely to have a Material Adverse
Effect.
Such counsel shall also confirm that there are no material Federal
rules dealing with child care licensing matters, and that she has advised
the Company regarding state and local child care licensing rules and
regulations while serving as counsel to the Company. Such counsel shall
also state that, insofar as is known to her, based solely upon such
experience and subject to the qualifications and limitations set
28
forth below, all consents, approvals, authorizations, and orders of state
and local child care licensing authorities have been obtained except for
such consents, approvals, authorizations or orders which the Company has
indicated that it will obtain as soon as practicable following
notification from any appropriate governmental authority of its failure to
have obtained any such required consents, approvals, authorizations or
orders and the absence of which would not have a Material Adverse Effect.
Such counsel shall state that she has participated in certain
conferences with representatives of the Company, representatives of the
independent auditors of the Company and representatives of the Initial
Purchasers at which conferences the contents of the Offering Memorandum,
any amendment thereof and supplement thereto and related matters were
discussed, and, although such counsel assumes no responsibility for the
accuracy or completeness or fairness of the Offering Memorandum, any
amendment thereof or supplement thereto, nothing has come to the attention
of such counsel to cause such counsel to believe that the Offering
Memorandum or any amendment thereof or supplement thereto (other than the
financial statements and other financial and statistical information
contained therein, as to which such counsel need express no belief) as of
its date or such Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading.
In rendering such opinion, such counsel may state that her opinion
is limited to matters governed by the federal laws of the United States of
America, the laws of the State of Alabama, and the General Corporation Law
of Delaware and may rely as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of the Company and
public officials which are furnished to the Initial Purchasers.
(f) The Initial Purchasers shall have received from Cravath, Swaine
& Xxxxx ("CS&M"), counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to such matters as the
29
Initial Purchasers may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(g) At the time of the execution of this Agreement, the Company
shall have furnished to the Initial Purchasers a letter of Peat Marwick,
dated the date hereof (the "Initial Letter"), in form and substance
reasonably satisfactory to the Initial Purchasers, containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to initial purchasers with respect to the financial statements
and certain financial information contained in the Offering Memorandum.
(h) On the Closing Date, the Company shall have furnished to the
Initial Purchasers a letter (the "bring-down letter") of Peat Marwick,
addressed to the Initial Purchasers and dated the Closing Date confirming,
as of the date of the bring-down letter (or, with respect to matters
involving changes or developments since the respective dates as of which
specified financial information is given in the Offering Memorandum, as of
a date not more than three days prior to the date of the bring-down
letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its Initial Letter.
(i) The Company shall have furnished to the Initial Purchasers a
certificate, dated the Closing Date, of its Chief Financial Officer and
its Treasurer stating that (A) such officers have carefully examined the
Offering Memorandum, (B) in their opinion, as of its date and the Closing
Date, the Offering Memorandum did not, and does not, include any untrue
statement of a material fact and did not, and does not, omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, and since the date of the Offering Memorandum, no
event has occurred which should have been set forth in a supplement or
amendment to the Offering Memorandum so that the Offering Memorandum (as
so amended or supplemented) as of the Closing Date would not include any
untrue statement of a material fact and would not omit to state a material
fact
30
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading
and (C) as of the Closing Date, the representations and warranties of the
Company in this Agreement are true and correct in all material respects,
the Company has complied with all agreements and satisfied in all material
respects all conditions on its part to be performed or satisfied hereunder
on or prior to the Closing Date, and subsequent to the date of the most
recent financial statements contained in the Offering Memorandum, there
has been no event or development that can reasonably be expected to result
in a Material Adverse Effect, except as set forth in the Offering
Memorandum.
(j) Subsequent to the execution and delivery of this Agreement or,
if earlier, the dates as of which information is given in the Offering
Memorandum (exclusive of any amendment or supplement thereto), there shall
not have been any event or development that can reasonably be expected to
result in a Material Adverse Effect or any change specified in the letters
referred to in paragraphs (g) or (h) of this Section, the effect of which,
in any such case described above, is, in the judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or delivery of the Securities on
the terms and in the manner contemplated in the Offering Memorandum
(exclusive of any amendment or supplement).
(k) No action shall have been taken and no statute, rule,
injunction, regulation or order shall have been enacted, adopted or issued
by any federal or state court of competent jurisdiction or any
governmental agency which would, as of the Closing Date, prevent the
issuance or sale of the Securities.
(l) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Securities
or any of the Company's other debt securities or preferred stock by any
"nationally recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of the rules and
regulations of the Commission under the Securities Act, and (ii) no such
organization shall have publicly announced that it has under surveillance
or review
31
(other than an announcement with positive implications of a possible
upgrading), its rating of the Securities or any of the Company's other
debt securities or preferred stock.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or
the over-the-counter market shall have been suspended or limited, or
minimum prices shall have been established on any such exchange or such
market by the Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, or trading in securities of
the Company on any exchange or in the over-the-counter market shall have
been suspended or (ii) any moratorium on commercial banking activities
shall have been declared by Federal or New York State authorities or (iii)
an outbreak or escalation of hostilities or a declaration by the United
States of a national emergency or war or (iv) a material adverse change in
general economic, political or financial conditions (or the effect of
international conditions on the financial markets in the United States
shall be such) the effect of which, in the case of this clause (iv), is,
in the judgment of the Initial Purchasers, so material and adverse as to
make it impracticable or inadvisable to proceed with the sale or the
delivery of the Securities on the terms and in the manner contemplated by
this Agreement and in the Offering Memorandum (exclusive of any amendment
or supplement thereto).
(n) The Company and the Initial Purchasers shall have executed and
delivered the Registration Rights Agreement.
(o) The Securities shall have been approved by the NASD for trading
in the PORTAL Market; provided that CSI shall have performed all of the
obligations required to be performed by it in connection with such PORTAL
application.
(p) The Indenture shall have been duly executed and delivered by the
Company and the Trustee and the Securities shall have been duly executed
and delivered by the Company and duly authenticated by the Trustee.
32
(q) There shall not have occurred any invalidation of Rule 144A under
the Securities Act by any court or any withdrawal or proposed withdrawal
of any rule or regulation under the Securities Act or the Exchange Act by
the Commission or any amendment or proposed amendment thereof by the
Commission which in the judgment of the Initial Purchasers would
materially impair the ability of the Initial Purchasers to purchase, hold
or effect resales of the Securities as contemplated hereby.
(r) The Company shall have furnished to the Initial Purchasers a
copy of the solvency letter of Valuation Research, Inc. addressed to The
Chase Manhattan Bank.
(s) The Merger Agreement shall have been executed and delivered by
the parties thereto and shall be in force and effect.
(t) The Initial Purchasers shall be satisfied that the Merger and
the Credit Facilities shall have been consummated or will be consummated
simultaneously with the offering of the Securities on the terms described
in the Offering Memorandum.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
in all material respects to CS&M.
6. Termination. The obligations of the Initial Purchasers hereunder
may be terminated by the Initial Purchasers, in their absolute discretion, by
notice given to and received by the Company prior to delivery of and payment for
the Securities if, prior to that time, any of the events described in Section
5(j), (k), (l) or (m) shall have occurred and be continuing.
7. Defaulting Initial Purchasers. (a) If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the non-defaulting Initial Purchasers may make arrangements for the
purchase of the Securities which such defaulting Initial Purchaser agreed but
failed to purchase by other persons satisfactory to the Company and the
non-defaulting Initial Purchasers, but if no such arrangements are made within
33
36 hours after such default, then, (i) if the principal amount of defaulted
Securities does not exceed 10% of the principal amount of Securities to be
purchased on such date, each of the non-defaulting Initial Purchasers shall be
obligated, severally and not jointly, to purchase the full amount thereof in the
proportions that their respective obligations hereunder bear to the obligations
of all non-defaulting Initial Purchasers, or (ii) if the principal amount of
defaulted Securities exceeds 10% of the principal amount of Securities to be
purchased on such date, this Agreement shall terminate without liability on the
part of any non-defaulting Initial Purchaser or the Company, except that the
Company will continue to be liable for the payment of expenses to the extent set
forth in Sections 8 and 12 except that the provisions of Sections 9 and 10 shall
not terminate and shall remain in effect.
As used in this Agreement, the term "Initial Purchaser" includes,
for all purposes of this Agreement unless the context otherwise requires, any
party not listed in Schedule I hereto who, pursuant to this Section 7, purchases
Securities which a defaulting Initial Purchaser agreed but failed to purchase.
(b) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company or any non-defaulting
Initial Purchaser for damages caused by its default. If other persons are
obligated or agree to purchase the Securities of a defaulting Initial Purchaser,
either the non-defaulting Initial Purchasers or the Company may postpone the
Closing Date for up to seven full business days in order to effect any changes
that in the opinion of counsel for the Company or counsel for the Initial
Purchasers may be necessary in the Offering Memorandum or in any other document
or arrangement, and the Company agrees to make promptly any amendment or
supplement to the Offering Memorandum that effects any such changes.
8. Reimbursement of Initial Purchasers' Expenses. If this Agreement
is terminated pursuant to Section 6 or if for any reason the purchase of the
Securities by the Initial Purchasers is not consummated, the Company shall
remain responsible (except to a defaulting Initial Purchaser) for the expenses
to be paid or reimbursed by it pursuant to Section 12 and the respective
obligations of the Company and the Initial Purchasers pursuant to Sections 9 and
10 shall remain in effect. In addition, if the purchase of the
34
Securities by the Initial Purchasers is not consummated because any condition to
the obligations of the Initial Purchasers set forth in Section 5 hereof (other
than Section 5(m)) is not satisfied or because of any refusal, inability or
failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by the Initial
Purchasers, the Company will reimburse the Initial Purchasers upon demand
accompanied by reasonable supporting documentation for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with this Agreement and the
proposed purchase and sale of the Securities.
9. Indemnification. (a) The Company shall indemnify and hold
harmless the Initial Purchasers, their affiliates, and their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls any Initial Purchaser within the meaning of the Securities Act
or the Exchange Act (collectively referred to for the purposes of this Section 9
and Section 10 as the Initial Purchasers), to the fullest extent lawful, against
any loss, claim, damage, expense or liability, joint or several, or any action
in respect thereof, to which an Initial Purchaser may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of or is
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in the preliminary offering memorandum or the Offering Memorandum
or in any amendment or supplement thereto or any information provided by the
Company pursuant to Section 4(e) or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and shall reimburse each Initial Purchaser promptly upon
demand for any legal or other expenses reasonably incurred by that Initial
Purchaser in connection with investigating or preparing to defend or defending
against or appearing as a third party witness in connection with any such loss,
claim, damage, liability, expense or action promptly following receipt of
reasonably detailed statements itemizing such expenses; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon any such
35
untrue statement or alleged untrue statement or omission or alleged omission
from any of such documents in reliance upon and in conformity with the Initial
Purchasers' Information; and provided further that with respect to any such
untrue statement or omission made in the preliminary offering memorandum, the
foregoing indemnity shall not inure to the benefit of any Initial Purchaser from
whom the person asserting such loss, claim, damage, liability or action
purchased the Securities, to the extent that such sale was an initial resale by
such Initial Purchaser and any such loss, claim, damage, liability or action of
such Initial Purchaser is a result of the fact that both (i) to the extent
required by applicable law, a copy of the Offering Memorandum was not sent or
given to such person at or prior to the written confirmation of the sale of such
Securities to such person, and (ii) the untrue statement or omission in the
preliminary offering memorandum was corrected in the Offering Memorandum unless,
in either case, such failure to deliver the Offering Memorandum was a result of
non-compliance by the Company with Section 4(c).
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its affiliates, and their respective
officers, directors, employees, representatives and agents, and each person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for the purposes of this Section 9 and
Section 10 as the Compan, to the same extent as the foregoing indemnity from the
Company to each Initial Purchaser, against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the Company may
become subject, whether commenced or threatened, under the Securities Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise, insofar as such loss, claim, damage, expense, liability or
action arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the preliminary offering memorandum or
the Offering Memorandum or in any amendment or supplement thereto or (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, but in each case only to
the extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with the Initial
Purchasers' Information, and shall reimburse the Company for any legal or other
36
expenses reasonably incurred by the Company in connection with investigating or
preparing to defend or defending against or appearing as a third party witness
in connection with any such loss, claim, damage, liability, expense or action
promptly following receipt of reasonably detailed statements itemizing such
expenses.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 9(a) or 9(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 9 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and, provided further that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 9. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that an
indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel for the
indemnified party will be at the expense of such indemnified party unless (1)
the employment of counsel by the indemnified party has been authorized in
writing by the indemnifying party, (2) the indemnified party has reasonably
concluded (based upon advice of counsel to the indemnified party) that there may
be legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party, (3)
a conflict or potential conflict exists (based upon advice of counsel to the
indemnified
37
party) between the indemnified party and the indemnifying party (in which case
the indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party has not
in fact employed counsel reasonably satisfactory to the indemnified party to
assume the defense of such action within a reasonable time after receiving
notice of the commencement of the action, in each of which cases the reasonable
fees, disbursements and other charges of counsel will be at the expense of the
indemnifying party or parties. It is understood that the indemnifying party or
parties shall not, in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the reasonable fees, disbursements and
other charges of more than one separate firm of attorneys (in addition to any
local counsel) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 9(a) and 9(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with its written consent or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment. No indemnifying party shall, without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
The obligations of the Company and the Initial Purchasers in this
Section 9 and in Section 10 are in addition to any other liability that the
Company or the Initial Purchasers, as the case may be, may otherwise have,
including in respect of any breaches of representations, warranties and
agreements made herein by any such party.
10. Contribution. If the indemnification provided for in Section 9
is unavailable or insufficient to hold harmless an indemnified party under
Section 9(a) or (b),
38
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Initial Purchasers on the other
from the offering of the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Initial
Purchasers on the other with respect to the statements or omissions that
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Initial Purchasers on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by or on behalf of the Company
bear to the total discounts received by the Initial Purchasers with respect to
the Securities purchased under this Agreement, in each case as set forth in the
table on the cover page of the Offering Memorandum. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company on the one hand
or to the Initial Purchasers' Information on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Initial Purchasers agree that it would not be just and equitable if
contributions pursuant to this Section 10 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 10 shall be deemed
to include, for purposes of this Section 10, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 10, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the
39
total price at which the Securities purchased from the Company by it were
offered to investors less the amount of any damages which such Initial Purchaser
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The Initial Purchasers' obligations to contribute as provided in
this Section 10 are several in proportion to their respective purchase
obligations and not joint.
11. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Initial Purchasers, the Company
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Initial Purchasers, the Company and their respective
affiliates and successors and the controlling persons and officers and directors
referred to in Sections 9 and 10 and their heirs and legal representatives and
other than holders and prospective purchasers of the Securities as provided in
Section 4(e), any legal or equitable right, remedy or claim under or in respect
of this Agreement or any provision contained herein.
12. Expenses. The Company agrees with the Initial Purchasers to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Securities; (b) the costs incident to the preparation, printing
and distribution of any preliminary offering memorandum, the Offering Memorandum
and any amendments and supplements thereto; (c) the costs of reproducing and
distributing this Agreement, the Registration Rights Agreement and the
Indenture; (d) the costs incident to the preparation, issuance and delivery of
the certificates for the Securities to the Initial Purchasers; (e) the fees and
expenses of qualifying the Securities under the securities laws of the several
jurisdictions as provided in Section 4(n) and of preparing, printing and
distributing a Blue Sky Memorandum (including related reasonable fees and
expenses of CS&M); (f) any fees charged by securities rating services for rating
the Securities; (g) all fees and expenses of the Trustee; (h) all costs incident
to and fees and expenses of the inclusion of the Securities on the
40
PORTAL Market system and the approval of the Securities for book-entry transfer
by DTC; and (i) all other costs and expenses incident to the performance of the
obligations of the Company under this Agreement (other than each parties'
respective share of the costs and expenses incurred in connection with the
roadshow); provided, however, that, except as otherwise provided in this Section
12 and in Section 8 the Initial Purchasers shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Securities that they may sell and the expenses of advertising any
offering of the Securities made by the Initial Purchasers.
13. Survival. The respective indemnities, rights of contribution,
representations, warranties, agreements and statements made by or on behalf of
the Company and the Initial Purchasers and any of their respective affiliates,
representatives, officers, directors or controlling persons contained in this
Agreement or in any certificate delivered pursuant to this Agreement, shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation or statement as to the results thereof made by or
on behalf of any of them or any person controlling any of them.
14. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by
mail, telex or facsimile transmission to Chase Securities Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Legal Department; and
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Offering Memorandum, Attention: Chief Financial Officer; General Counsel;
provided, however, that any notice to the Initial Purchasers pursuant to Section
9(c) shall be delivered or sent by mail, telex or facsimile transmission to the
Initial Purchasers at their addresses set forth on the signature page hereof.
Any such statements, requests, notices or agreements shall take
effect at the time of receipt thereof.
41
15. Business Day. For purposes of this Agreement, "business day"
means any day on which the New York Stock Exchange, Inc. is open for trading.
16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
17. Counterparts. This Agreement may be executed in one or more
counterparts (which may include counterparts delivered by facsimile) and, if
executed in one or more counterparts, the executed counter parts shall each be
an original, but all such counterparts shall together constitute one and the
same instrument.
18. Amendments. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of this
Agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Initial Purchasers in accordance with its terms. Initial Purchasers, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
KINDERCARE LEARNING CENTERS, INC.,
by /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
and Chief Financial Officer
Accepted:
CHASE SECURITIES INC.,
By ________________________________
Name:
Title:
BT SECURITIES CORPORATION,
By ________________________________
Name:
Title:
SALOMON BROTHERS INC,
By ________________________________
Name:
Title:
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of this
Agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Initial Purchasers in accordance with its terms. Initial Purchasers, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
KINDERCARE LEARNING CENTERS, INC.,
by_______________________________________
Name:
Title:
Accepted:
CHASE SECURITIES INC.,
By /s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
BT SECURITIES CORPORATION,
By ________________________________
Name:
Title:
SALOMON BROTHERS INC,
By ________________________________
Name:
Title:
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of this
Agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Initial Purchasers in accordance with its terms. Initial Purchasers, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
KINDERCARE LEARNING CENTERS, INC.,
by_______________________________________
Name:
Title:
Accepted:
CHASE SECURITIES INC.,
By ________________________________
Name:
Title:
BT SECURITIES CORPORATION,
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
SALOMON BROTHERS INC,
By ________________________________
Name:
Title:
19. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing is in accordance with your understanding of this
Agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and the several
Initial Purchasers in accordance with its terms. Initial Purchasers, kindly
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
KINDERCARE LEARNING CENTERS, INC.,
by_______________________________________
Name:
Title:
Accepted:
CHASE SECURITIES INC.,
By ________________________________
Name:
Title:
BT SECURITIES CORPORATION,
By ________________________________
Name:
Title:
SALOMON BROTHERS INC,
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXX XXXXXX INC.,
By /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
Address for Notices:
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
BT SECURITIES CORPORATION
000 Xxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Legal Department
SALOMON BROTHERS INC
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxx
XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Legal Department
Schedule I
Principal
Amount of Senior
Initial Purchaser Subordinated Notes
----------------- ------------------
Chase Securities Inc. $165,000,000
BT Securities Corporation 45,000,000
Salomon Brothers Inc 45,000,000
Xxxxx Xxxxxx Inc. 45,000,000
------------
TOTAL $300,000,000
============
