EXHIBIT 1.1
XXXXXXXXXXX INTERNATIONAL, INC.
$350,000,000
6 5/8% SENIOR NOTES DUE 2011
PURCHASE AGREEMENT
November 8, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
And
Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Ladies and Gentlemen:
Xxxxxxxxxxx International, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several Initial Purchasers named
in Schedule 1 hereto (the "Initial Purchasers") $350,000,000 in aggregate
principal amount of its 6 5/8% Senior Notes due 2011 (the "Notes") pursuant to
the terms of an Indenture dated as of May 17, 1996, as amended by the First
Supplemental Indenture dated and effective as of May 27, 1998, the Second
Supplemental Indenture dated and effective as of June 30, 2000 and the Third
Supplemental Indenture to be dated and effective as of the Closing Date (the
"Indenture"), by and among the Company and The Bank of New York, as trustee (the
"Trustee").
The Notes will be offered and sold to the Initial Purchasers pursuant
to an exemption from the registration requirements under the Securities Act of
1933, as amended (the "Securities Act"). The Company has prepared a preliminary
offering circular, dated November 6, 2001 (the "Preliminary Offering Circular")
and will prepare a final offering circular (the "Offering Circular"), to be
dated November 8, 2001, relating to the Company and the Notes. As used
herein, the term "Preliminary Offering Circular" and "Offering Circular" shall
include in each case the documents incorporated by reference therein. The terms
"supplement", "amendment" and "amend" as used herein with respect to the
Preliminary Offering Circular or the Offering Circular shall include all
documents deemed to be incorporated by reference in such Preliminary Offering
Circular or Offering Circular, as the case may be, that are filed subsequent to
the date of such Preliminary Offering Circular or Offering Circular, as the case
may be, with the Securities and Exchange Commission (the "Commission") pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act").
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the
Notes (and all securities issued in exchange therefor or in substitution
therefor) shall bear substantially the following legend:
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED
OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY
ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT:
(A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT; OR
(B) IT IS A NON-U.S. PERSON OUTSIDE THE UNITED STATES
ACQUIRING THE SECURITY IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT;
(2) REPRESENTS THAT:
(A) IT IS NOT USING THE ASSETS OF ANY PLAN SUBJECT TO
TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), TO ACQUIRE AND
HOLD THE SECURITY; OR
(B) ONE OR MORE PROHIBITED TRANSACTION STATUTORY OR
ADMINISTRATIVE EXEMPTIONS APPLY SUCH THAT THE USE OF PLAN
ASSETS TO ACQUIRE AND HOLD THE SECURITY WILL NOT CONSTITUTE A
NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975
OF THE CODE;
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(3) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) TO A
NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (D) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (E) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT AND WHICH CONTINUES TO BE EFFECTIVE UNDER THE SECURITIES ACT
AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH TRANSFER;
AND
(4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 3(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND.
The Initial Purchasers may make offers (the "Exempt Resales") of the
Notes purchased hereunder on the terms set forth in the Offering Circular, as
amended or supplemented, solely (i) to persons whom you reasonably believe to be
"qualified institutional buyers" as defined in Rule 144A under the Securities
Act ("QIBs") and (ii) outside the United States to persons other than U.S.
Persons in offshore transactions meeting the requirements of Regulation S under
the Securities Act ("Regulation S") (such persons specified in clauses (i) and
(ii) being referred to herein as the "Eligible Purchasers"). As used herein, the
terms "offshore transaction," "United States" and "U.S. Person" have the
respective meanings given to them in Regulation S. The Initial Purchasers
represent that they intend initially to offer the Notes to Eligible Purchasers
at the price specified on the cover page of the Offering Circular. Thereafter,
the offering price may be changed at any time without notice.
Holders (including subsequent transferees) of the Notes will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), by and among the Company and Credit Suisse
First Boston Corporation and Xxxxxx Brothers Inc. on behalf of the Initial
Purchasers, in a form to be mutually agreed upon and attached hereto as Annex A,
for so long as such Notes constitute "Transfer Restricted Securities" (as
defined in the Registration Rights Agreement). Pursuant to the Registration
Rights Agreement, the Company will agree to file with the Commission under the
circumstances set forth therein (i) a registration statement under the
Securities Act (the "Exchange Offer Registration Statement") relating to the
Company's 6 5/8% Senior Notes due 2011 (the "Exchange Notes") to be offered in
exchange for the Notes (such offer to exchange being referred to collectively as
the "Registered Exchange Offer") and (ii) if required by the terms of the
Registration Rights Agreement, a shelf registration statement pursuant to Rule
415 under the Securities Act (the "Shelf Registration Statement") relating to
the resale by certain holders of the Notes, and to use their best efforts to
cause such
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Registration Statements to be declared effective. This Agreement, the Notes, the
Exchange Notes, the Indenture and the Registration Rights Agreement are
hereinafter referred to collectively as the "Operative Documents." This is to
confirm the agreements concerning the purchase of the Notes from the Company by
the Initial Purchasers.
SECTION 1. Representations, Warranties and Agreements of the Company.
The Company represents, warrants and agrees that:
(a) The Preliminary Offering Circular and the Offering
Circular have been or will be prepared by the Company for use by the
Initial Purchasers in connection with the Exempt Resales. No order or
decree preventing the use of the Preliminary Offering Circular or the
Offering Circular, or any order asserting that the transactions
contemplated by this Agreement are subject to the registration
requirements of the Securities Act has been issued and no proceeding
for that purpose has commenced or is pending or, to the knowledge of
the Company, is contemplated.
(b) The Preliminary Offering Circular and the Offering
Circular as of their respective dates did not, and the Offering
Circular as of the Closing Date will not, contain any untrue statement
of a material fact or omit to state a material fact necessary, in order
to make the statements made therein, in the light of the circumstances
under which they were made, not misleading, except that this
representation and warranty does not apply to statements in or
omissions from the Preliminary Offering Circular and the Offering
Circular made in reliance upon and in conformity with information
relating to the Initial Purchasers furnished to the Company in writing
by or on behalf of the Initial Purchasers expressly for use therein, as
specifically identified in Section 8(e) hereof. The Company's Annual
Report on Form 10-K most recently filed with the Commission and all
subsequent reports which have been filed by the Company with the
Commission or sent to stockholders pursuant to the Exchange Act, when
they became effective or were filed with the Commission or were sent to
stockholders, did not include any untrue statements of a material fact
or omit to state any material fact necessary to make therein, in the
light of the circumstances under they were made, not misleading. Such
documents, when they were filed with the Commission, conformed in all
material respects to the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder.
(c) The Company and each of its subsidiaries (as defined in
Section 15) have been duly incorporated or organized and are validly
existing as corporations, limited liability companies or limited
partnerships in good standing under the laws of their respective
jurisdictions of formation, are duly qualified to do business and are
in good standing as foreign corporations, limited liability companies
or limited partnerships in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification except to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the consolidated financial position,
stockholders' equity, results of operations or business of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Effect");
and Schedule 2 hereto sets forth all of the Company's subsidiaries and
their respective jurisdictions of formation. The Company and each of
its subsidiaries have all
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power and authority necessary to own or hold their respective
properties and to conduct the businesses in which they are engaged as
described in the Offering Circular; and, except as indicated on
Schedule 2, none of the subsidiaries of the Company is a "significant
subsidiary", as such term is defined in Rule 405 of the rules and
regulations of the Commission under the Securities Act.
(d) All of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable; and all of the issued shares of capital stock or
similar ownership interest of each subsidiary of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable and, except as indicated on Schedule 2 and except for
directors' qualifying shares, are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims,
other than (i) liens, encumbrances, equities or claims described in the
Offering Circular and (ii) liens, encumbrances, equities or claims
that, if foreclosed upon or remedies thereunder sought, individually or
in the aggregate do not and would not have a Material Adverse Effect.
(e) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement, the
Indenture, the Notes, the Exchange Notes and the Registration Rights
Agreement.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The Registration Rights Agreement has been duly authorized
by the Company and, when duly executed by the proper officers of the
Company (assuming due execution and delivery by the Initial Purchasers)
and delivered by the Company, will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or
at law), and except as rights to indemnity and contribution thereunder
may be limited by U.S. federal or state securities laws or the policies
underlying such laws, and the Registration Rights Agreement, when
executed and delivered, will conform in all material respects to the
description thereof contained in the Offering Circular.
(h) The Indenture has been duly authorized by the Company and,
when duly executed by the proper officers of the Company (assuming due
execution and delivery by the Trustee) and delivered by the Company,
will constitute a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law); no
qualification of the Indenture under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), is required in connection with
the Exempt Resales and the
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Indenture, when executed and delivered, will conform in all material
respects to the description thereof contained in the Offering Circular.
(i) The Notes have been duly and validly authorized by the
Company and when duly executed by the Company in accordance with the
terms of the Indenture (assuming due authentication of the Notes by the
Trustee) and when issued and delivered to the Initial Purchasers
against payment therefor in accordance with the terms hereof will
constitute valid and 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 and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law); and the Notes, when issued and delivered, will
conform in all material respects to the description thereof contained
in the Offering Circular.
(j) On the Closing Date, the Exchange Notes will have been
duly and validly authorized by the Company and, if and when duly issued
and authenticated in accordance with the terms of the Indenture and
delivered in accordance with the Exchange Offer provided for in the
Registration Rights Agreement, will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, subject
to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
(k) The execution, delivery and performance of this Agreement
and the other Operative Documents by the Company and the consummation
of the transactions contemplated hereby and thereby (including the use
of proceeds from the sale of the Notes as described under the caption
"Use of Proceeds") will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement, license or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, (ii) result in any
violation of the provisions of the charter or bylaws of the Company or
any of its subsidiaries or any statute, (iii) result in any violation
of any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries,
any of their properties or assets or (iv) except as may be required in
connection with the registration of the Notes or the Exchange Notes
under the Securities Act in accordance with the Registration Rights
Agreement, qualification of the Indenture under the Trust Indenture Act
and compliance with the securities or Blue Sky laws of various
jurisdictions, require any consent, approval, authorization or order
of, or filing or registration with, any person or any such court or
governmental agency or body; except for such consent, approval,
authorization or order, which if not obtained would, or such conflict,
breach, violation or default which would, for purposes of clauses (i),
(iii) and (iv) above, either individually or in the aggregate, not have
a Material Adverse Effect.
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(l) Except as provided in the Registration Rights Agreement,
there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to include any securities of the Company owned or to be owned
by such person within the coverage of the Exchange Offer Registration
Statement or the Shelf Registration Statement.
(m) Since the date of the latest audited financial statements
included in the Offering Circular, except as otherwise stated therein,
(i) there has been no change, nor any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company that could
reasonably be expected to result in a Material Adverse Effect, and,
except as disclosed in the Offering Circular, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(n) The historical consolidated financial information
(including the related notes) included in the Offering Circular present
fairly in all material respects the financial condition and results of
operations and cash flows of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved; and the
assumptions used in preparing the pro forma financial statements
incorporated by reference in the Offering Circular provide a reasonable
basis for presenting the significant effects directly attributable to
the transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the pro
forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(o) Xxxxxx Xxxxxxxx LLP, who has certified certain financial
statements of the Company, and whose report appears in the Offering
Circular, along with Ernst & Young LLP who will each deliver the
letters referred to in Sections 7(i) and 7(j) hereof, are certified
independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable rules and regulations
thereunder adopted by the Commission.
(p) Each of the Company and its subsidiaries has such material
permits, licenses, patents, franchises, certificates of need and other
approvals or authorizations of governmental or regulatory authorities
("Permits") as are necessary under applicable law to own its properties
and to conduct its businesses in the manner described in the Offering
Circular; each of the Company and its subsidiaries has fulfilled and
performed, in all material respects, all of its material obligations
with respect to the Permits, and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of
the holder of any such Permit, and none of the Permits contains any
restriction that is materially burdensome (other than such burdens as
are common or customary to such Permits) to any of the Company or its
subsidiaries, in each case, subject in each case to such qualifications
as may be set forth in the Offering Circular and, except where the
failure to have such Permit or fulfill such obligation or where such
revocation,
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termination or restriction could not reasonably be expected to have a
Material Adverse Effect.
(q) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others.
(r) The Company is not (i) in violation of its charter or
bylaws, (ii) in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute
such a default, in the due performance or observance of any term,
covenant or condition contained in any material indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument to which
it is a party or by which it is bound or to which any of its properties
or assets is subject, except where such default could not reasonably be
expected to have a Material Adverse Effect, or (iii) in violation in
any respect of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject
except where such violation could not reasonably be expected to have a
Material Adverse Effect.
(s) The Company is not, and upon the sale of the Notes and the
application of the proceeds of such sale as described in the Offering
Circular, the Company will not be an "investment company" within the
meaning of such term under the Investment Company Act of 1940, as
amended (the "Investment Company Act") and the rules and regulations of
the Commission thereunder.
(t) Neither the Company nor any other affiliate (as defined in
Rule 501(b) of Regulation D under the Securities Act ("Regulation D"))
of the Company has directly, or through any agent (provided that no
representation is made as to the Initial Purchasers or any person
acting on their behalf) (i) 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 could be integrated with the offering
and sale of the Notes in a manner that would require the registration
of the Notes under the Securities Act or (ii) engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D, including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar
or meeting whose attendees have been invited by any general
solicitation or general advertising) in connection with the offering of
the Notes nor will the Company nor any other affiliate of the Company
engage in any of those activities described in clauses (i) and (ii) in
connection with the offering of the Notes.
(u) When issued and delivered pursuant to this Agreement, the
Notes will not be of the same class (within the meaning of Rule 144A
under the Securities Act) as securities of the Company that are listed
on a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a U.S. automated inter-dealer
quotation system.
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(v) None of the Company nor any of its affiliates or any
person acting on their behalf has engaged or will engage in any
directed selling efforts within the meaning of Regulation S with
respect to the Notes, and the Company and its affiliates and all
persons acting on their behalf (provided that no representation is made
as to the Initial Purchasers or any person acting on their behalf) have
complied with and will comply with the offering restrictions
requirements of Regulation S in connection with the offering of the
Notes outside of the United States. The sales of the Notes pursuant to
Regulation S are not part of a plan or scheme to evade the registration
provision of the Securities Act.
(w) No "nationally recognized statistical rating organization"
as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act (i) has informed the Company that it has imposed or is
considering imposing any condition (financial or otherwise) on the
Company's retaining any rating assigned as of the date hereof to the
Company or any of their respective securities or (ii) has indicated to
the Company that it is considering (A) the downgrading, suspension or
withdrawal of, or any review for a possible change that does not
indicate the direction of the possible change in any rating so assigned
or (B) any negative change in the outlook for any rating of the
Company.
(x) The Company has not taken, and will not take, any action
that might cause this Agreement or the issuance or sale of the Notes to
violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part
221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of
the Federal Reserve System.
The Company understands that the Initial Purchasers and, for purposes
of the opinions to be delivered to you pursuant to Section 7 hereof, counsel to
the Company and counsel to the Initial Purchasers, will rely upon the accuracy
and truth of the foregoing representations and hereby consents to such reliance.
SECTION 2. Representations, Warranties and Agreements of the Initial
Purchasers. Each of the Initial Purchasers, severally and not jointly,
represents and warrants to, and agrees with, the Company that:
(a) Such Initial Purchaser is a QIB and an "accredited
investor" within the meaning of Regulation D of the Securities Act with
such knowledge and experience in financial and business matters as are
necessary in order to evaluate the merits and risks of an investment in
the Notes.
(b) Such Initial Purchaser (i) is not acquiring the Notes with
a view to any distribution thereof or with any present intention of
offering or selling any of the Notes in a transaction that would
violate the Securities Act or the securities laws of any State of the
United States or any other applicable jurisdiction; (ii) in connection
with the Exempt Resales, will solicit offers to buy the Notes only
from, and will offer to sell the Notes only to, the Eligible Purchasers
in accordance with this Agreement and on the terms contemplated by the
Offering Circular and (iii) will not offer or sell the Notes by, nor
has it offered or sold the Notes by, or otherwise engaged in, any form
of general solicitation or general advertising (within the meaning of
Regulation D), including, but not limited to, advertisements, articles,
notices or other communications published in any newspaper,
9
magazine, or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising) in connection with the offering of
the Notes.
(c) The Notes have not been and will not be registered under
the Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. Persons except in
accordance with Regulation S under the Securities Act or pursuant to an
exemption from the registration requirements of the Securities Act. The
Initial Purchasers represent that they have not offered, sold or
delivered the Notes, and will not offer, sell or deliver the Notes (i)
as part of their distribution at any time or (ii) until the expiration
of the "40-day distribution compliance period" within the meaning of
Rule 903 of Regulation S under the Securities Act (such period, the
"Distribution Compliance Period"), within the United States or to, or
for the account or benefit of U.S. Persons, except in accordance with
Rule 144A under the Securities Act. Accordingly, such Initial Purchaser
represents and agrees that neither it, nor its affiliates nor any
persons acting on its behalf has engaged or will engage in any directed
selling efforts within the meaning of Rule 901(b) of Regulation S under
the Securities Act with respect to the Notes, and such Initial
Purchaser, its affiliates and all persons acting on its behalf have
complied and will comply with the offering restrictions requirements of
Regulation S.
(d) Such Initial Purchaser agrees that, at or prior to
confirmation of a sale of Notes in "offshore transactions" within the
meaning of Regulation S, it will have sent to each distributor, dealer
or person receiving a selling concession, fee or other remuneration
that purchases Notes from it during the Distribution Compliance Period
a confirmation or notice substantially to the following effect:
"The Notes covered hereby have not been registered under the
Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the
account or benefit of, U.S. Persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering or the closing
date, except in either case in accordance with Regulation S
(or Rule 144A if available) under the Securities Act. Terms
used above have the meanings assigned to them in Regulation
S."
(e) All offers and sales of the Notes by the Initial
Purchasers pursuant to Regulation S are and will be "offshore
transactions" within the meaning of Regulation S and are not and will
not be part of a plan or scheme to evade the registration provisions of
the Securities Act.
The terms used in this Section 2 that have meanings assigned to them in
Regulation S are used herein as so defined.
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Such Initial Purchaser understands that the Company and, for purposes
of the opinions to be delivered to you pursuant to Section 7 hereof, counsel to
the Company and counsel to the Initial Purchasers, will rely upon the accuracy
and truth of the foregoing representations and hereby consents to such reliance.
SECTION 3. Purchase of the Notes by the Initial Purchasers. On the
basis of the representations and warranties contained in, and subject to the
terms and conditions of, this Agreement, the Company agrees to sell the Notes to
the several Initial Purchasers and each of the Initial Purchasers, severally and
not jointly, agrees to purchase the principal amount of the Notes set forth
opposite such Initial Purchaser's name in Schedule 1 hereto. Each Initial
Purchaser will purchase such aggregate principal amount of Notes at an aggregate
purchase price equal to 98.509% of the principal amount thereof (the "Purchase
Price").
The Company shall not be obligated to deliver any of the Notes to be
delivered on the Closing Date (as hereinafter defined), except upon payment for
all the Notes to be purchased on the Closing Date as provided herein.
SECTION 4. Delivery of and Payment for the Notes.
(a) Delivery of and payment for the Notes shall be made at the
office of Xxxxxxx & Xxxxx Mayor, Day, Xxxxxxxx & Xxxxxx L.L.P., 000
Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 10:00 A.M., New York City
time, on November 16, 2001 or at such other date or place as shall be
determined by agreement between Credit Suisse First Boston Corporation
and Xxxxxx Brothers Inc., as the representatives of the several Initial
Purchasers (the "Representatives"), and the Company (the "Closing
Date").
(b) On the Closing Date, one or more Notes in global form,
registered in the name of Cede & Co., as nominee of The Depository
Trust Company ("DTC"), having an aggregate principal amount
corresponding to the aggregate principal amount of Notes (collectively,
the "Global Notes"), shall be delivered by the Company to the
Representatives against payment by the Initial Purchasers of the
purchase price thereof by wire transfer of immediately available funds
as the Company may direct by written notice delivered to the
Representatives not later than two business days prior to the Closing
Date. The Global Notes shall be made available to the Initial
Purchasers for inspection not later than 2:00 P.M. New York City time
on the business day prior to the Closing Date.
SECTION 5. Further Agreements of the Company. The Company agrees:
(a) to advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, to confirm such advice in writing,
(i) of the issuance by any state securities commission of any stop
order suspending the qualification or exemption from qualification of
the Notes for offering or sale in any jurisdiction, or the initiation
or threatening of any proceeding for such purpose by the Commission or
any state securities commission or other regulatory authority and (ii)
for a period of 90 days from the issue date of the Notes of the
happening of any event that makes any statement of a material fact made
in the Offering Circular untrue or which requires the making of any
additions
11
to or changes in the Offering Circular in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company shall use its reasonable best efforts to
prevent the issuance of any stop order or order suspending the
qualification or exemption of the Notes under any state securities or
Blue Sky laws and, if at any time any state securities commission shall
issue any stop order suspending the qualification or exemption of the
Notes under any state securities or Blue Sky laws, the Company shall
use its reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(b) to furnish to each Initial Purchaser, as many copies of
the Preliminary Offering Circular and the Offering Circular, and any
amendments or supplements thereto, as any such Initial Purchaser may
reasonably request. The Company consents to the use of the Preliminary
Offering Circular and the Offering Circular, and any amendments and
supplements thereto required pursuant to this Agreement, by the Initial
Purchasers in connection with the Exempt Resales that are in compliance
with this Agreement;
(c) not to amend or supplement the Offering Circular prior to
the Closing Date or during the period referred to in Section 5(d) below
unless the Initial Purchasers shall previously have been advised of,
and shall not have reasonably objected to, such amendment or supplement
within a reasonable time, but in any event not longer than three
business days after being furnished a copy of such amendment or
supplement, unless the Company shall reasonably conclude, upon the
advice of their counsel, that any such amendment or supplement must be
made prior to obtaining such consent. The Company shall promptly
prepare, upon any reasonable request by the Representatives, any
amendment or supplement to the Offering Circular that may be necessary
or advisable in connection with Exempt Resales;
(d) if, in connection with any Exempt Resales after the date
of this Agreement and prior to the consummation of the Exchange Offer,
any event shall occur that, in the judgment of the Company or in the
judgment of counsel to the Initial Purchasers (which judgment is
promptly relayed to the Company), makes any statement of a material
fact in the Offering Circular untrue or that requires the making of any
additions to or changes in the Offering Circular in order to make the
statements in the Offering Circular, in the light of the circumstances
under which they were made, not be misleading at the time that the
Offering Circular is delivered to prospective Eligible Purchasers, or
if it is necessary to amend or supplement the Offering Circular to
comply with applicable law, to promptly notify the Initial Purchasers
of such event and prepare an appropriate amendment or supplement to the
Offering Circular so that, at the time that the Offering Circular is
delivered to prospective Eligible Purchasers, (i) the statements in the
Offering Circular as amended or supplemented, in the light of the
circumstances under which they were made, will not be misleading and
(ii) the Offering Circular will comply with applicable law;
(e) except as contemplated in the Registration Rights
Agreement, not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) that would be integrated with the sale of the Notes in
a manner that would require the registration under the Securities Act
of the sale to the Initial Purchasers or the Eligible Purchasers of the
Notes;
12
(f) during any period in which the Company is not subject to
Section 13 or 15(d) of the Exchange Act and the Notes are outstanding
and are "restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, to make available to any registered holder or
beneficial owner of Notes in connection with any sale thereof and any
prospective purchaser of Notes from such registered holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act;
(g) to obtain the approval of DTC for "book-entry" transfer of
the Notes, and to comply with all of its agreements set forth in the
representation letter of the Company to DTC relating to the approval of
the Notes by DTC for "book-entry" transfer;
(h) to apply the net proceeds from the sale of the Notes as
set forth in the Offering Circular under the caption "Use of Proceeds";
(i) for a period of two years, to take such steps as shall be
necessary to ensure that the Company shall not become an "investment
company" within the meaning of such term under the Investment Company
Act and the rules and regulations of the Commission thereunder;
(j) for a period of two years following the Effective Date, to
furnish to the Initial Purchasers copies of the Company's annual report
to shareholders for such year, each report and any definitive proxy
statement of the Company filed with the Commission under the Exchange
Act or mailed to shareholders; provided, however, that the Company
shall not be required to provide the Initial Purchasers with any such
reports or similar forms that have been filed with the Commission by
electronic submission pursuant to XXXXX;
(k) promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Notes for
offering and sale under the securities laws of such jurisdictions as
the Representatives may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete the
distribution of the Notes; provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process or subject itself to
taxation in any jurisdiction; and
(l) to use all commercially reasonable efforts to do and
perform all things required to be done and performed under this
Agreement by it prior to or after the Closing Date and to satisfy all
conditions precedent on its part to the delivery of the Notes.
SECTION 6. Expenses. The Company agrees to pay (i) the costs incident
to the authorization, issuance, sale and delivery of the Notes and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing
and distribution of the Preliminary Offering Circular and the Offering Circular
and any amendments and exhibits thereto; (iii) the fees, disbursements and
expenses of the Company and its counsel and accountants; (iv) all fees and
expenses (including fees and expenses of counsel) of the Company in connection
with approval of the Notes by DTC for "book-entry" transfer; (v) the fees and
expenses of qualifying the Notes
13
under the securities laws of the several jurisdictions as provided in Section
5(a) and of preparing, printing and distributing a Blue Sky Memorandum
(including reasonable related fees and expenses of counsel to the Initial
Purchasers); (vi) any fees charged by securities rating services for rating the
Notes; (vii) the fees and expenses of the Trustee and the Trustee's counsel in
connection with the Indenture and the Notes; and (viii) all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; provided that, except as provided in this Section 6 and in
Section 11, the Initial Purchasers shall pay their own costs and expenses,
including the costs and expenses of their counsel, any transfer taxes on the
Notes which they may sell and the expenses of advertising any offering of the
Notes made by the Initial Purchasers.
SECTION 7. Conditions of Initial Purchasers' Obligations. The
respective obligations of the Initial Purchasers hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Initial Purchasers shall not have discovered and
disclosed to the Company on or prior to the Closing Date that the
Offering Circular or any amendment or supplement thereto contains an
untrue statement of a fact which, in the opinion of Fulbright &
Xxxxxxxx L.L.P., counsel for the Initial Purchasers, is material or
omits to state a 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.
(b) All of the representations and warranties of the Company
contained in this Agreement shall have been true and correct on the
date hereof and shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date. The
Company shall have performed or complied in all material respects with
all of the agreements contained herein and required to be performed or
complied with by them at or prior to the Closing Date.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the
Operative Documents, the Offering Circular, and all other legal matters
relating to this Agreement and the transactions contemplated hereby
shall be reasonably satisfactory in all material respects to counsel
for the Initial Purchasers, and the Company shall have furnished to
such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Each of the Initial Purchasers shall have received on the
Closing Date an opinion, in form and substance reasonably satisfactory
to the Representatives and counsel for the Initial Purchasers, dated
the Closing Date, of Xxxxxxx & Xxxxx Mayor, Day, Xxxxxxxx & Xxxxxx
L.L.P., counsel for the Company, to the effect that:
(i) This Agreement has been duly authorized, executed
and delivered by the Company;
14
(ii) The Company has all requisite corporate power
and authority to execute and deliver the Registration Rights
Agreement and to incur and perform each of its obligations
provided for therein. The Registration Rights Agreement has
been duly authorized, executed and delivered by the Company
and, assuming due authorization, execution and delivery by the
Initial Purchasers, is a valid and binding agreement of the
Company, enforceable against the Company in accordance with
its terms, except (i) as be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other
similar laws relating to or affecting creditors' rights
generally, and by equitable principles including
reasonableness, materiality, good faith and fair dealing, (ii)
that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court for
which any proceedings therefor may be brought, (iii) that the
provisions relating to liquidated damages are assumed to be
reasonable and not a penalty and (iv) as rights to the
indemnity and contribution thereunder may be limited by
applicable securities laws or the policies underlying such
laws;
(iii) The Company has all requisite corporate power
and authority to execute and deliver the Indenture and to
incur and perform each of its obligations provided for
therein. The Indenture has been duly and validly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, is a
valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except (i)
as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws
relating to or affecting the enforcement of creditors' rights
generally, and by general equitable principles including
reasonableness, materiality, good faith and fair dealing, (ii)
that the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before
which any proceedings therefor may be brought and (iii) that
the validity of the waiver of the Company contained in the
Indenture of the benefit of any stay or extension laws may be
limited under applicable laws;
(iv) The Company has all requisite corporate power
and authority to execute, issue and deliver the Notes and to
incur and perform its obligations provided for therein. The
execution and delivery of the Notes have been duly and validly
authorized by the Company and, assuming that the Notes are
executed by the Company and authenticated by the Trustee in
accordance with the terms of the Indenture, upon delivery to
the Initial Purchasers against payment therefor in accordance
with the terms hereof, the Notes will have been validly
issued, executed and delivered, will be entitled to the
benefits of the Indenture and will constitute valid and
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except (i) as may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or
affecting the enforcement of creditors' rights generally, and
by general equitable principles including reasonableness,
15
materiality, good faith and fair dealing and (ii) that the
remedy of specific performance and injunctive and other forms
of equitable relief may be subject to certain equitable
defenses and to the discretion of the court before which any
proceedings therefor may be brought;
(v) On the Closing Date, the Exchange Notes will have
been duly and validly authorized by the Company and, if and
when duly issued and authenticated in accordance with the
terms of the Indenture and delivered in accordance with the
Exchange Offer provided for in the Registration Rights
Agreement, will constitute valid and binding obligations of
the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their
terms, except (i) as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other
similar laws relating to or affecting the enforcement of
creditors' rights generally, and by general equitable
principles including reasonableness, materiality, good faith
and fair dealing and (ii) that the remedy of specific
performance and injunctive and other forms of equitable relief
may be subject to certain equitable defenses and to the
discretion of the court before which any proceedings therefor
may be brought;
(vi) The statements contained in the Offering
Circular under the captions "Description of The Notes",
relating to the Notes to the extent it purports to summarize
the provisions of the Indenture, the Notes, the Registration
Rights Agreement and other documents, instruments or
agreements specifically referred to therein fairly summarize
such provisions in all material respects; provided, however,
that such counsel need not express any opinion with respect to
the statements set forth under the heading "Book Entry
System";
(vii) Neither the issuance and sale of the Notes, the
execution, delivery or performance of the Indenture, the
Registration Rights Agreement or this Agreement by the
Company, nor the consummation by the Company of the
transactions contemplated thereby, will constitute a breach
of, or a default under, (i) the certificate of incorporation
or by-laws of the Company or (ii) (except with respect to
state securities or blue sky laws, as to which such counsel
need not express an opinion, and except with respect to the
federal securities laws other than as stated in paragraph
(xii) below) any laws of the United States or the States of
New York or Texas or the General Corporation Law of the State
of Delaware known to such counsel to be applicable to the
Company;
(viii) No consent, approval or authorization is
required by the laws of the United States or the States of New
York or Texas or the General Corporation Law of the State of
Delaware for the valid issuance and sale of the Notes to the
Initial Purchasers under this Agreement, except as may be
required by state securities laws (with respect to which such
counsel need not express an opinion) and except as to the
federal securities laws, the only opinion with respect to
which is addressed in the opinion set forth in paragraph (xi)
below;
16
(ix) The Company is not an "investment company"
within the meaning of the 1940 Investment Company Act;
(x) The description of the United States federal
income tax consequences appearing under the heading "Material
United States Federal Income Tax Considerations" in the
Offering Circular accurately describes the material United
States federal income tax consequences to holders of the Notes
acquiring them from the Initial Purchasers under existing law,
subject to the qualifications and assumptions stated therein;
and
(xi) Based upon the representations, warranties and
agreements of the Company in Sections 1(h), 1(t), 1(v) and
5(e) of this Agreement and of the Initial Purchasers in
Section 2 of this Agreement, it is not necessary in connection
with the offer, sale and delivery of the Notes by the Company
to the Initial Purchasers under this Agreement or in
connection with the initial resale of such Notes by the
Initial Purchasers in accordance with Section 2 of this
Agreement to register the Notes under the Securities Act or to
qualify the Indenture under the Trust Indenture Act, it being
understood that no opinion is expressed as to any subsequent
resale of any Note.
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 Texas, the State of New York and the General
Corporation Law of the State of Delaware and that such counsel is not admitted
in the State of Delaware. In addition, such counsel may state that its opinion
is subject to customary exceptions and qualifications.
Such counsel also shall have furnished to the Representatives a written
statement, addressed to the Initial Purchasers and dated the Closing Date, in
form and substance reasonably satisfactory to the Representatives, to the effect
that such counsel has participated in conferences and other discussions with
representatives of the Initial Purchasers, officers and other representatives of
the Company and representatives of the independent certified public accountants
of the Company during which the contents of the Offering Circular and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Offering Circular and has made no independent check
or verification thereof (except to the extent set forth in paragraphs (vi) and
(x)), on the basis of the foregoing (relying as to materiality with respect to
factual matters upon officers and other representatives of the Company), no
facts have come to such counsel's attention that lead them to believe that the
Offering Circular as of the date thereof or on the Closing Date, contained an
untrue statement of a material fact or omitted 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 (except as to financial
statements and financial data included in the Offering Circular, as to which
such counsel need not comment).
(e) The Vice President - Law of the Company shall have
furnished to the Representatives its written opinion, as counsel to the
Company, addressed to the Initial
17
Purchasers and dated the Closing Date, in form and substance reasonably
satisfactory to the Representatives, to the effect that:
(i) The Company is a corporation duly incorporated
and validly existing in good standing under the laws of the
State of Delaware with full corporate power and authority to
own or lease its properties and to conduct its businesses as
described in the Offering Circular;
(ii) Each of the subsidiaries organized within any
jurisdiction in the United States and designated as a
"significant subsidiary" on Schedule 2 hereto (each a
"Significant Subsidiary", and collectively, the "Significant
Subsidiaries"), if a corporation, is a corporation duly
incorporated and validly existing in good standing under the
laws of the jurisdiction of its incorporation, with due
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Offering Circular, and if a limited partnership, is validly
existing and in good standing (where applicable) under the
laws of the jurisdiction of its organization, with due power
and authority to own, lease and operate its properties and
conduct its business as described in the Offering Circular;
and all of the outstanding shares of capital stock of each of
the corporate Significant Subsidiaries and all of the
partnership interests of the limited partnership Significant
Subsidiaries have been duly authorized and validly issued, are
fully paid (to the extent required in such subsidiary's
limited partnership agreement) and non-assessable except as
such non-assessability may be affected by Section 17-607 of
the Delaware Revised Uniform Limited Partnership Act, and are
held of record, directly or indirectly, by the Company;
(iii) Neither the issuance and sale of the Notes, the
execution, delivery and performance of the Indenture, the
Registration Rights Agreement or this Agreement by the
Company, nor the consummation by the Company of the
transactions contemplated thereby, will constitute a breach
of, or a default under, (a) the certificate of incorporation
or by-laws of the Company or any corporate Significant
Subsidiary or of the limited partnership agreement of any
limited partnership Significant Subsidiary or (b) (except such
as may have been waived) any agreement, indenture or other
instrument relating to the borrowing of money known to such
counsel to which the Company or any of the Significant
Subsidiaries is a party or by which any of them is bound, or
any other agreement known to such counsel to be material to
the Company and its subsidiaries taken as a whole or any court
or governmental decree known to such counsel to be applicable
to the Company, except for purposes of clause (b) any breach
or default that would not have a Material Adverse Effect; and
(iv) After due inquiry, except as described in the
Offering Circular, including information incorporated therein
by reference, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of the properties of the Company or any of its subsidiaries is
subject other than proceedings which such counsel believes are
not likely to have a Material Adverse Effect on the
18
Company or on the power of the Company to perform its
obligations under this Agreement, the Registration Rights
Agreement, the Indenture or the Notes or to consummate the
transactions contemplated by the Offering Circular.
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 Texas and the General Corporation Law of the State of
Delaware and that such counsel is not admitted in the State of Delaware.
Such counsel also shall have furnished to the Representatives a written
statement, addressed to the Initial Purchasers and dated the Closing Date, in
form and substance reasonably satisfactory to the Representatives, to the effect
that such counsel has participated in conferences and other discussions with
representatives of the Initial Purchasers, officers and other representatives of
the Company and representatives of the independent certified public accountants
of the Company during which the contents of the Offering Circular and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Offering Circular and has made no independent check
or verification thereof, on the basis of the foregoing, no facts have come to
such counsel's attention that lead them to believe that the Offering Circular as
of the date thereof or on the Closing Date, contained an untrue statement of a
material fact or omitted 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 (except as to financial statements and financial data
included in the Offering Circular, as to which such counsel need not comment).
(f) The Representatives shall have received from Fulbright &
Xxxxxxxx L.L.P., counsel for the Initial Purchasers, such opinion or
opinions, dated such Closing Date, with respect to the issuance and
sale of the Notes, the Offering Circular and other related matters as
the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they reasonably request for
the purpose of enabling them to pass upon such matters.
(g) On the Closing Date, the Company and the Trustee shall
have entered into the Third Supplemental Indenture and the
Representatives shall have received counterparts, conformed as
executed, thereof.
(h) On the Closing Date, the Company and the Initial
Purchasers shall have entered into the Registration Rights Agreement
and the Initial Purchasers shall have received counterparts, conformed
as executed, thereof.
(i) The Representatives shall have received from each of
Xxxxxx Xxxxxxxx LLP and Ernst & Young LLP a letter, in form and
substance satisfactory to the Initial Purchasers, addressed to the
Initial Purchasers and dated the date hereof (i) confirming that they
are certified independent public accountants with respect to the
Company within the meaning of the Securities Act including applicable
rules and regulations thereunder adopted by the Commission and (ii)
stating, as of the date hereof (or with respect to matters involving
changes or developments since the respective dates as of which
19
specified financial information is given in the Offering Circular, as
of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial
information and other matters, including the pro forma financial
statements incorporated by reference in the Offering Circular,
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(j) With respect to the letters of Xxxxxx Xxxxxxxx LLP and
Ernst & Young LLP referred to in the preceding paragraph and delivered
to the Initial Purchasers concurrently with the execution of this
Agreement (the "initial letters"), the Company shall have furnished to
the Initial Purchasers a letter (the "bring-down letters") of each such
accountants, addressed to the Initial Purchasers and dated such Closing
Date (i) stating, 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 Circular, as of a date not more than five 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,
including the pro forma financial statements incorporated by reference
in the Offering Circular, covered by the initial letter and (ii)
confirming in all material respects the conclusions and findings set
forth in the initial letters.
(k) The Representatives shall have received (a) a certificate
from the Company, dated the Closing Date, signed by its chief executive
officer, President or a Vice President and its chief financial officer
that:
(i) the representations, warranties and agreements of
the Company in Section 1 are true and correct as of such
Closing Date; the Company has complied with all its agreements
contained herein; and the conditions set forth in Sections
7(l) and 7(m) have been fulfilled; and
(ii) they have carefully examined the Preliminary
Offering Circular and the Offering Circular and, in their
opinion (A) the Preliminary Offering Circular and Offering
Circular, as of their respective dates, did not, and the
Offering Circular, as of the Closing Date, does not include
any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
(B) since the date of the Offering Circular, no event has
occurred which should have been set forth in a supplement or
amendment to the Offering Circular.
(l) There shall not have occurred any change, or any
development which could reasonably be expected to result in a
prospective change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company or its subsidiaries,
taken as a whole, from that set forth in the Offering Circular
(exclusive of any amendment or supplements thereto subsequent to the
date of this Agreement) that is, in the sole judgment of the
Representatives, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering or the delivery of the Notes
20
being delivered on the Closing Date on the terms and in the manner
contemplated in the Offering Circular.
(m) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Company's Notes 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) such organization shall not have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities.
(n) 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 or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended 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, (ii) a banking moratorium shall have been declared
by federal or state authorities, (iii) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other national or
international calamity or emergency if, in the sole judgment of the
Representatives, the effect of any such attack, outbreak, escalation,
act, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with the offering or delivery of the Notes being
delivered on the Closing Date on the terms and in the manner
contemplated in the Offering Circular, (iv) any major disruption of
settlements of securities or clearance services in the United States or
(v) there shall have occurred such 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) as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to proceed with the
offering or delivery of the Notes being delivered on the Closing Date
on the terms and in the manner contemplated in the Offering Circular.
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
to counsel for the Initial Purchasers.
SECTION 8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Initial
Purchaser, its officers and employees and each person, if any, who
controls any Initial Purchaser within the meaning of the Securities
Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to purchases
and sales of the Notes), to which that Initial Purchaser, officer,
employee or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any
Preliminary Offering Circular,
21
the Offering Circular or in any amendment or supplement thereto or (B)
in any Blue Sky application or other document prepared or executed by
the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the
Notes under the securities laws of any state or other jurisdiction (any
such application, document or information being hereinafter called a
"Blue Sky Application"), (ii) the omission or alleged omission to state
in any Preliminary Offering Circular, the Offering Circular or in any
amendment or supplement thereto, or in any Blue Sky Application, any
material fact required to be stated therein or necessary to make the
statements therein not misleading or (iii) any act or failure to act or
any alleged act or failure to act by any Initial Purchaser in
connection with, or relating in any manner to, the Notes or the
offering contemplated hereby, and which is included as part of or
referred to in any loss, claim, damage, liability or action arising out
of or based upon matters covered by clause (i) or (ii) above (provided
that the Company shall not be liable under this clause (iii) to the
extent that it is determined in a final judgment by a court of
competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Initial Purchaser through its
gross negligence or willful misconduct), and shall reimburse each
Initial Purchaser and each such officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably
incurred by that Initial Purchaser, officer, employee or controlling
person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that 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 untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Offering Circular, the Offering Circular or in
any such amendment or supplement, or in any Blue Sky Application in
reliance upon and in conformity with written information concerning
such Initial Purchaser furnished to the Company through the
Representatives by or on behalf of any Initial Purchaser specifically
for inclusion therein which information consists solely of the
information specified in Section 8(e); provided, further, that with
respect to any such untrue statement or omission made in the
Preliminary Offering Circular, the indemnity agreement contained in
this Section 8(a) shall not inure to the benefit of the Initial
Purchasers from whom the person asserting any such losses, claims,
damages or liabilities purchased such Notes if, to the extent that such
sale was an initial sale by the Initial Purchasers within the United
States, any such loss, claim, damage or liability of the Initial
Purchasers is a result of the fact that both (A) a copy of the Offering
Circular was not sent or given to such person at or prior to written
confirmation of the sale of such Notes to such person and (B) the
untrue statement or omission in the Preliminary Offering Circular was
corrected in the Offering Circular, unless such failure to deliver the
Offering Circular was a result of noncompliance by the Company with
Section 5(b) or 5(c) hereof. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Initial Purchaser or to any officer, employee or controlling person of
that Initial Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its officers and employees,
directors, and each person, if any,
22
who controls the Company within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or
any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained (A)
in any Preliminary Offering Circular, the Offering Circular or in any
amendment or supplement thereto or (B) in any Blue Sky Application or
(ii) the omission or alleged omission to state in any Preliminary
Offering Circular, the Offering Circular or in any amendment or
supplement thereto, or in any Blue Sky Application, any material fact
required to be stated therein or necessary to make the statements
therein 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 written
information concerning such Initial Purchaser furnished to the Company
through the Representatives by or on behalf of that Initial Purchaser
specifically for inclusion therein, which information consists solely
of the information specified in Section 8(e), and shall reimburse the
Company and any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such
loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which
any Initial Purchaser may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 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 under this Section 8, 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 8 except to the extent it has been materially prejudiced
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 8. 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 8 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, any indemnified party shall have the
right to employ separate counsel in any such action and to participate
in the defense thereof but the fees and expenses of such counsel shall
be at the expense of the indemnified party unless (i) the employment of
such counsel has been specifically authorized by the indemnifying party
in writing, or (ii) such indemnified party shall have been advised by
such counsel that there may be one or more legal defenses available to
it
23
which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or
(iii) the indemnifying party has failed to assume the defense of such
action and employ counsel reasonably satisfactory to the indemnified
party, in which case, if such indemnified party notifies the
indemnifying party in writing that it elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall
not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to one local counsel) at any time for all such
indemnified parties, which firm shall be designated in writing by (x)
the Representatives, if the indemnified parties under this Section 8
consist of the Initial Purchasers or any of their respective officers,
employees or controlling persons or (y) by the Company, if the
indemnified parties under this Section 8 consist of any of the Company
or any of its directors, officers, employees or controlling persons. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding
in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
suit or proceeding or (ii) 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 the consent of the
indemnifying party 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.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless
an indemnified party under Section 8(a) or 8(b) in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred
to therein, 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 Notes 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 which 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 Notes purchased under this
Agreement (before deducting expenses) received by the
24
Company, on the one hand, and the total purchase discounts and
commissions received by the Initial Purchasers with respect to the
Notes purchased under this Agreement, on the other hand, bear to the
total gross proceeds from the offering of the Notes under this
Agreement, in each case as set forth in this Agreement. The relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or
the Initial Purchasers, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Initial Purchasers
agree that it would not be just and equitable if contributions pursuant
to this Section 8 were to be determined by pro rata allocation (even if
the Initial Purchasers were treated as one entity for such purpose) or
by any other method of allocation which 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 8 shall be deemed to include, for purposes of this Section
8(d), 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
8(d), no Initial Purchaser shall be required to contribute any amount
in excess of the amount by which the total price at which the Notes
purchased by it were resold to Eligible Purchasers exceeds the amount
of any damages which such Initial Purchaser has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute as provided in this Section 8(d)
are several in proportion to their respective purchase obligations and
not joint.
(e) The Initial Purchasers severally confirm and the Company
acknowledges that the fourth sentence in the sixth paragraph, the tenth
paragraph, the eleventh paragraph and the twelfth paragraph under the
caption "Plan of Distribution" in the Offering Circular constitute the
only information concerning the Initial Purchasers furnished in writing
to the Company by or on behalf of the Initial Purchasers specifically
for inclusion in the Offering Circular.
SECTION 9. Defaulting Initial Purchasers.
If, on the Closing Date, any Initial Purchaser defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Initial Purchasers shall be obligated to purchase the Notes which
the defaulting Initial Purchaser agreed but failed to purchase on the Closing
Date in the respective proportions which the amount of the Notes set opposite
the name of each remaining non-defaulting Initial Purchaser in Schedule 1 hereto
bears to the total amount of Notes set opposite the names of all the remaining
non-defaulting Initial Purchasers in Schedule 1 hereto; provided, however, that
the remaining non-defaulting Initial Purchasers shall not be obligated to
purchase any of the Notes on the Closing Date if the total amount of the Notes
which the defaulting Initial Purchaser or Initial Purchasers agreed but failed
25
to purchase on such date exceeds 10% of the total amount of Notes to be
purchased on the Closing Date, and any remaining non-defaulting Initial
Purchaser shall not be obligated to purchase more than 110% of the amount of
Notes which it agreed to purchase on the Closing Date pursuant to the terms of
Section 3. If the foregoing maximums are exceeded, the remaining non-defaulting
Initial Purchasers, or those other Initial Purchasers satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase, in such proportion as may be agreed upon among them, all of the
Notes to be purchased on the Closing Date. If the remaining Initial Purchasers
or other Initial Purchasers satisfactory to the Representatives do not elect to
purchase the Notes which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase on the Closing Date, this Agreement shall
terminate without liability on the part of any non-defaulting Initial
Purchaser(s) or the Company, except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Section 6. As used in
this Agreement, the term "Initial Purchaser" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases the Notes which a
defaulting Initial Purchaser agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial Purchaser
of any liability it may have to the Company for damages caused by its default.
If other Initial Purchasers are obligated or agree to purchase the Notes of a
defaulting or withdrawing Initial Purchaser, either the Representatives 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 Circular or
in any other document or arrangement.
SECTION 10. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Representatives by notice given to and
received by the Company prior to delivery of and payment for the Notes if, prior
to that time, any of the events described in Sections 7(l), 7(m) and 7(n) shall
have occurred or if the Initial Purchasers shall decline to purchase the Notes
for any reason permitted under this Agreement.
SECTION 11. Reimbursement of Initial Purchasers' Expenses. If the
Company shall fail to tender the Notes for delivery to the Initial Purchasers by
reason of any failure, refusal or inability on the part of the Company to
perform any agreement on its part to be performed, or because any other
condition of the Initial Purchasers' obligations hereunder required to be
fulfilled by the Company is not fulfilled, the Company will reimburse the
Initial Purchasers for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) incurred by the Initial Purchasers in connection with
this Agreement and the proposed purchase of the Notes, and upon demand the
Company shall pay the full amount thereof to the Representatives. If this
Agreement is terminated pursuant to Section 9 by reason of the default of one or
more Initial Purchasers, the Company shall not be obligated to reimburse any
Initial Purchaser on account of those expenses.
SECTION 12. Notices, Etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
26
(a) if to the Initial Purchasers, shall be delivered or sent
by mail, telex or facsimile transmission to the care of Credit Suisse
First Boston Corporation, Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Investment Banking Department - Transactions
Advisory Group and to Xxxxxx Brothers Inc., 000 Xxxxxx Xxxxxx, Xxxxxx
Xxxx, Xxx Xxxxxx 00000, Attention: Fixed Income Syndicate (Fax:
201/000-0000), with a copy to the Office of the General Counsel;
(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 Circular, Attention: Xxxx X. Xxxxxx, Esq. (Fax:
713/000-0000);
provided, however, that any notice to an Initial Purchaser pursuant to Section
8(c) shall be delivered or sent by mail, telex or facsimile transmission to such
Initial Purchaser at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Initial Purchasers by the Representatives.
SECTION 13. 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. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
officers, employees and person or persons, if any, who control any Initial
Purchaser within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Initial Purchasers contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of directors of the Company and
any person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Initial Purchasers contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Notes and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
SECTION 15. Definition of the Terms "Business Day" and "Subsidiary."
For purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the rules
and regulations of the Commission under the Securities Act.
SECTION 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York, without giving effect to any
provisions relating to conflicts of laws.
27
SECTION 17. Counterparts. This Agreement may be executed in two or more
counterparts and, if executed in two or more counterparts, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 18. 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.
[SIGNATURES ON FOLLOWING PAGE]
28
If the foregoing correctly sets for the agreement among the Company and
the Initial Purchasers, please indicate your acceptance in the space provided
for that purpose below.
Very truly yours,
XXXXXXXXXXX INTERNATIONAL, INC.
By: /s/ XXXX X. XXXXXXXXX
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President -- Finance
& Accounting
Accepted on behalf of the Initial Purchasers:
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ XXXXXXX X. XXXXXXXX
---------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Director
XXXXXX BROTHERS INC.
By: /s/ XXXXXX XXXXXXXX
---------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
29
SCHEDULE 1
Initial Purchasers Principal Amount of Notes
------------------ -------------------------
Credit Suisse First Boston Corporation $131,250,000
Xxxxxx Brothers Inc. 131,250,000
Deutsche Banc Alex. Xxxxx Inc. 35,000,000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated 35,000,000
Banc One Capital Markets, Inc. 17,500,000
------------
Total $350,000,000
============
