XXXXXXXXX XXXXX CORPORATION
$100,000,000 10-1/4% Senior Secured Notes due 2004
PURCHASE AGREEMENT
June 27, 1997
Xxxxxxxxx & Company, Inc.
First Chicago Capital Markets, Inc.
c/x Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Xxxxxxxxx Xxxxx Corporation, an Illinois corporation (the "ISSUER")
and a wholly-owned subsidiary of Xxxxxx May Holdings, Inc. ("Holdings") hereby
agrees with you as follows:
1. ISSUANCE OF SECURITIES. The Issuer proposes to issue and sell to
Xxxxxxxxx & Company, Inc. and First Chicago Capital Markets, Inc. (each a
"PURCHASER" and together the "PURCHASERS") $100,000,000 aggregate principal
amount of 10-1/4% Senior Secured Notes due 2004, Series A (the "SERIES A
NOTES"). The Series A Notes will be issued pursuant to an indenture (the
"INDENTURE"), to be dated as of July 2, 1997, among the Issuer and The Bank of
New York, as trustee (the "TRUSTEE"). The obligations under the Notes will be
secured by security interests in or pledges of (the "SECURITY INTERESTS")
certain owned property and assets (the "COLLATERAL") of the Issuer and of all of
the capital stock of the Issuer's future subsidiaries, as set forth in the
Offering Circular (defined below). Such Security Interests will be evidenced by
a security and pledge agreement, intellectual property security agreement and
mortgages (collectively, the "SECURITY AGREEMENTS").
The Series A Notes will be offered and sold to the Purchasers pursuant
to an exemption from the registration requirements under the Securities Act of
1933, as amended (the "ACT"). The Issuer has prepared a preliminary offering
circular, dated June 13, 1997 (the "PRELIMINARY OFFERING CIRCULAR"), and a final
offering circular, dated June 27, 1997 (the "OFFERING CIRCULAR"), relating to
the offer and sale of the Series A Notes (the "OFFERING").
Concurrently with the consummation of the Offering, the Issuer will
enter into an amendment of its revolving credit facility with The First National
Bank of Chicago providing for borrowings of up to $20,000,000 (as amended, the
"NEW CREDIT FACILITY").
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Act, the Series A Notes
shall bear the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTIONS ARE EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES NOT TO
OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE
THAT IS TWO YEARS (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE
PROVIDED UNDER RULE 144(K) AS PERMITTING RESALES BY NON-AFFILIATES OF
RESTRICTED SECURITIES WITHOUT RESTRICTION) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF SUCH SECURITY) EXCEPT (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED
IN RULE 144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO FOREIGN PERSONS THAT OCCUR IN OFFSHORE
TRANSACTIONS AND WITHOUT DIRECTED SELLING EFFORTS WITHIN THE MEANINGS
OF SUCH TERMS AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT, (E)
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
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ACT THAT IS PURCHASING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE
ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE.
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions hereof, the Issuer shall issue and sell to the Purchasers
and each Purchaser, severally and not jointly, shall purchase from the Issuer,
the principal amount of Series A Notes set forth opposite the names of the
Purchasers in Schedule I hereto. The purchase price for the Series A Notes
shall be 10-1/4% of the principal amount thereof.
3. TERMS OF OFFERING. The Purchasers have advised the Issuer that
the Purchasers will make offers to sell (the "EXEMPT RESALES") some or all of
the Series A Notes purchased by the Purchasers hereunder on the terms set forth
in the Offering Circular, as amended or supplemented, solely to (i) persons whom
the Purchasers reasonably believe to be "qualified institutional buyers" as
defined in Rule 144A under the Act ("QIBS") and (ii) a limited number of
institutional "accredited investors" as defined in Rule 501(a)(1), (2), (3) or
(7) under the Act ("ACCREDITED INVESTORS") (such persons specified in clauses
(i) and (ii) being referred to herein as the "ELIGIBLE PURCHASERS").
Holders of the Series A Notes (including subsequent transferees) will
have the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be executed on and dated as of the Closing
Date. Pursuant to the Registration Rights Agreement, the Issuer will agree,
among other things, to file with the Securities and Exchange Commission (the
"COMMISSION") (i) a registration statement under the Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to, among other things, the 10-1/4% Senior
Secured Notes due 2004, Series B, of the Issuer (the "SERIES B NOTES" and,
together with the Series A Notes, the "NOTES"), identical in all material
respects to the Series A Notes (except that the Series B Notes shall have been
registered pursuant to such registration statement) to be offered in exchange
for the Series
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A Notes (such offer to exchange being referred to as the "REGISTERED EXCHANGE
OFFER") and/or (ii) under certain circumstances, a shelf registration
statement pursuant to Rule 415 under the Act (the "SHELF REGISTRATION
STATEMENT") relating to the resale by certain holders of the Series A Notes.
On the Closing Date, the Issuer will enter into the Security
Agreements that will provide for the grant of the Security Interests in the
Collateral to the Trustee, as collateral agent, for the benefit of the holders
of the Notes. The Security Interests will secure the payment and performance
when due of all of the obligations of the Issuer, under the Indenture, the
Notes, and the Security Agreements.
This Agreement, the Indenture, the Registration Rights Agreement, the
Security Agreements, the Notes and all other documents or instruments executed
by the Issuer or any of the Subsidiaries in connection with the transactions
contemplated hereby and thereby are referred to herein as the "DOCUMENTS." The
transactions contemplated by the Documents, including without limitation, the
Offering and the use of the proceeds therefrom as described in the Offering
Circular, are collectively referred to herein as the "TRANSACTIONS."
4. DELIVERY AND PAYMENT. Delivery to the Purchasers of and payment
for the Series A Notes shall be made at a Closing (the "CLOSING") to be held at
9:00 a.m., Chicago time, on July 2, 1997 (the "CLOSING DATE") at the offices of
Winston & Xxxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000. The Closing
Date and the location of delivery of and the form of payment for the Series A
Notes may be varied by agreement between the Purchasers and the Issuer.
The Issuer shall deliver to the Purchasers (i) one or more
certificates representing the Series A Notes (the "GLOBAL SECURITIES"), each in
definitive form, registered in the name of Cede & Co., as nominee of The
Depository Trust Company ("DTC"), or such other names as the Purchasers may
request upon at least one business day's notice to the Issuer, in an amount
corresponding to the aggregate principal amount of the Series A Notes sold
pursuant to Exempt Resales to QIBs, and (ii) one or more certificates
representing the Series A Notes (the "INDIVIDUAL SECURITIES") in definitive
form, registered in such names and denominations as the Purchasers may so
request, in an aggregate amount corresponding to the aggregate principal amount
of Series A Notes sold pursuant to Exempt Resales to Accredited Investors, in
each case against payment by the Purchasers of the purchase price therefor by
immediately available Federal funds bank wire transfer to such bank account as
the Issuer shall designate at least two business days prior to the Closing.
The Global Securities and the Individual Securities in definitive form
shall be made available to the Purchasers for inspection at the Chicago offices
of Winston & Xxxxxx (or such other place as shall be acceptable to the
Purchasers) not later than 9:30 a.m. on the business day immediately preceding
the Closing Date.
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5. AGREEMENTS OF THE ISSUER. The Issuer hereby agrees:
(a) To (i) advise the Purchasers promptly after obtaining
knowledge (and, if requested by the Purchasers, confirm such advice in
writing) of (A) the issuance by any state securities commission of any stop
order suspending the qualification or exemption from qualification of any
of the Notes for offering or sale in any jurisdiction, or the initiation of
any proceeding for such purpose by any state securities commission or other
regulatory authority, or (B) the happening of any event that makes any
statement of a material fact made 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 therein, in the light of the circumstances
under which they are made, not misleading, (ii) use its best efforts to
prevent the issuance of any stop order or order suspending the
qualification or exemption from qualification of any of the Notes under any
state securities or Blue Sky laws and (iii) if at any time any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of any of the
Notes under any such laws, use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(b) To (i) furnish the Purchasers, without charge, as many
copies of the Offering Circular, and any amendments or supplements thereto,
as the Purchasers may request and (ii) promptly prepare, upon the
Purchasers' request, any amendment or supplement to the Offering Circular
that the Purchasers may deem to be reasonably necessary in connection with
Exempt Resales (and the Issuer hereby consents to the use of the
Preliminary Offering Circular and the Offering Circular, and any amendments
and supplements thereto, by the Purchasers in connection with Exempt
Resales).
(c) Not to amend or supplement the Offering Circular prior to
the Closing Date unless the Purchasers shall previously have been advised
thereof and shall not have objected thereto within five business days after
being furnished a copy thereof.
(d) So long as the Purchasers shall hold any Notes, (i) if any
event shall occur as a result of which, in the reasonable judgment of the
Issuer or the Purchasers, it becomes necessary or advisable to amend or
supplement the Offering Circular in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it is necessary to amend or supplement the Offering
Circular to comply with Applicable Law (defined below), forthwith to
prepare an appropriate amendment or supplement to the Offering Circular (in
form and substance satisfactory to the Purchasers) so that (A) as so
amended or supplemented the Offering Circular will not include an untrue
statement of material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (B) the Offering Circular
will comply with applicable law and (ii) if it becomes necessary or
advisable to amend or supplement the Offering
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Circular so that the Offering Circular will contain all of the
information specified in, and meet the requirements of, Rule
144(A)(d)(4) of the Act, forthwith to prepare an appropriate amendment
or supplement to the Offering Circular (in form and substance
satisfactory to the Purchasers) so that the Offering Circular, as so
amended or supplemented, will contain the information specified in, and
meet the requirements of, such Rule.
(e) To cooperate with the Purchasers and the Purchasers'
counsel in connection with the qualification of the Notes under the
securities or Blue Sky laws of such jurisdictions as the Purchasers may
request and continue such qualification in effect so long as reasonably
required for Exempt Resales; PROVIDED, that the Issuer shall not be
required in connection therewith to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction where it
is not now so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
(f) Whether or not any of the Transactions are consummated or
this Agreement is terminated, to pay (i) all costs, expenses, fees and
taxes incident to and in connection with: (A) the preparation, printing and
distribution of the Preliminary Offering Circular and the Offering Circular
and all amendments and supplements thereto (including, without limitation,
financial statements and exhibits), and all preliminary and final Blue Sky
memoranda and all other agreements, memoranda, correspondence and other
documents prepared and delivered in connection herewith, (B) the printing,
processing and distribution (including, without limitation, word processing
and duplication costs) and delivery of, and performance under, each of the
Documents, (C) the issuance and delivery of the Notes, including the fees
of the Trustee and the cost of its personnel, (D) the qualification of the
Notes for offer and sale under the securities or Blue Sky laws of the
several states (including, without limitation, the fees and disbursements
of the Purchasers' counsel relating to such registration or qualification),
(E) furnishing such copies of the Preliminary Offering Circular and the
Offering Circular, and all amendments and supplements thereto, as may
reasonably be requested for use by the Purchasers, and (F) the preparation
of the Notes (including, without limitation, printing and engraving
thereof), (ii) all fees and expenses of the counsel and accountants of the
Issuer, (iii) all expenses and listing fees in connection with the
application for quotation of the Notes in the National Association of
Securities Dealers, Inc. ("NASD") Automated Quotation System - PORTAL
("PORTAL"), (iv) all fees and expenses (including fees and expenses of
counsel) of the Issuer in connection with approval of the Notes by DTC for
"book-entry" transfer and (v) all fees charged by rating agencies in
connection with the rating of the Notes.
(g) To use the proceeds from the sale of the Series A Notes in
the manner described in the Offering Circular under the caption "USE OF
PROCEEDS."
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(h) To the extent it may lawfully do so, not to insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension, usury or other law, wherever enacted, now or at
any time hereafter in force, that would prohibit or forgive the payment of
all or any portion of the principal of or interest on the Notes, or that
may affect the covenants or the performance of the Indenture (and, to the
extent it may lawfully do so, the Issuer hereby expressly waives all
benefit or advantage of any such law, and covenants that it shall not, by
resort to any such law, hinder, delay or impede the execution of any power
granted to the Trustee in the Indenture or the Security Agreements but
shall suffer and permit the execution of every such power as though no such
law had been enacted).
(i) To do and perform all things required to be done and
performed under the Documents prior to and after the Closing Date.
(j) Not to, and to ensure that no affiliate (as defined in Rule
501(b) of the Act) of any of them will, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any "security" (as
defined in the Act) that would be integrated with the sale of the Series A
Notes in a manner that would require the registration under the Act of the
sale to the Purchasers or to the Eligible Purchasers of the Series A Notes.
(k) For so long as any of the Notes remain outstanding, during
any period in which any of them is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to
make available, upon request, to any owner of the Notes in connection with
any sale thereof and any prospective Eligible Purchaser of such Notes from
such owner, the information required by Rule 144A(d)(4) under the Act.
(l) To comply with the representation letter of the Issuer to
DTC relating to the approval of the Notes by DTC for "book-entry" transfer.
(m) To use its best efforts to effect the inclusion of the
Notes in PORTAL.
(n) For so long as the Notes are outstanding, and whether or
not required to do so by the rules and regulations of the Commission, to
furnish to the Trustee and deliver or cause to be delivered to the holders
of the Notes and the Purchasers (i) all quarterly and annual financial
information that would be required to be contained in a filing with the
Commission on Forms 10-Q and 10-K if the Issuer were required to file such
Forms, including for each a "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and, with respect to the
annual information only, a report thereon by the Issuer's independent
certified public accountants and (ii) all reports that would be required
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to be filed with the Commission on Form 8-K if the Issuer were required to
file such reports.
(o) Except in connection with the Registered Exchange Offer or
the filing of the Shelf Registration Statement, not to, and not to
authorize or permit any person acting on its behalf to, (i) distribute any
offering material in connection with the offering and sale of the Notes
other than the Preliminary Offering Circular and the Offering Circular and
any amendments and supplements to the Offering Circular prepared in
compliance with Section 5(c) hereof or (ii) solicit any offer to buy or
offer to sell the Notes by means of any form of general solicitation or
general advertising (including, without limitation, as such terms are used
in Regulation D under the Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Act.
(p) Not to, directly or indirectly, without the prior consent
of the Purchasers, offer, sell, grant any option to purchase or otherwise
dispose (or announce any offer, sale, grant of any option to purchase or
other disposition) of any securities of any of them for a period of 90 days
after the date of the Offering Circular, except as contemplated by the
Registration Rights Agreement.
(q) For so long as the Purchasers shall hold any Notes, to
notify the Purchasers promptly in writing if the Issuer or any of its
Affiliates becomes a party in interest or a disqualified person with
respect to any employee benefit plan. The terms "ERISA," "Affiliates,"
"party in interest," "disqualified person" and "employee benefit plan"
shall have the meanings as set forth in Section 6(y) hereof.
6. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
represents and warrants to the Purchasers that:
(a) The Preliminary Offering Circular as of its date did not,
and the Offering Circular as of its date does not and as of the Closing
Date will not, and each supplement or amendment thereto as of its date will
not, contain any untrue statement of a material fact or omit to state any
material fact (except, in the case of the Preliminary Offering Circular,
for pricing terms and other financial terms intentionally left blank)
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. No injunction or
order has been issued that either (i) asserts that any of the Transactions
is subject to the registration requirements of the Act or (ii) would
prevent or suspend the issuance or sale of the Notes or the use of the
Preliminary Offering Circular, the Offering Circular, or any amendment or
supplement thereto, in any jurisdiction. Each of the Preliminary Offering
Circular and the Offering Circular, as of their respective dates contained,
and the Offering Circular as amended or supplemented as of the Closing Date
will contain,
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all the information specified in, and meet the requirements of, Rule
144A(d)(4) under the Act. Except as adequately disclosed in the
Offering Circular, there are no related party transactions that would be
required to be disclosed in the Offering Circular if the Offering
Circular were a prospectus included in a registration statement on Form
S-1 filed under the Act.
(b) There are no securities of the Issuer registered under the
Exchange Act or listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a United States automated inter-
dealer quotation system.
(c) The Issuer and each Subsidiary (as defined below) (i) has
been duly organized, is validly existing and is in good standing under the
laws of its jurisdiction of organization, (ii) has all requisite power and
authority to carry on its business and to own, lease and operate its
properties and assets as described in the Offering Circular and (iii) is
duly qualified or licensed to do business and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in which
the nature of such businesses or the ownership or leasing of such
properties requires such qualification, except where the failure to be so
qualified could not reasonably be expected to, singly or in the aggregate,
have a material adverse effect on (A) the properties, business, prospects,
operations, earnings, assets, liabilities or condition (financial or
otherwise) of the Issuer, taken as a whole, (B) the ability of the Issuer
to perform its obligations under any of the Documents or (C) the perfection
or priority of any Security Interest in any portion of the Collateral (a
"MATERIAL ADVERSE EFFECT").
(d) Immediately following the Closing, (i) the only direct or
indirect subsidiaries of the Issuer (collectively, the "SUBSIDIARIES") will
be the corporations identified on Schedule 6(d) hereto, all of which are
Inactive Subsidiaries (as defined in the Indenture), and (ii) the Issuer
directly or indirectly owns 100% of the outstanding shares of capital stock
of each Subsidiary, free and clear of Liens (as defined in the Indenture),
and all of such shares of capital stock are duly authorized and validly
issued, fully paid and nonassessable and not issued in violation of, or
subject to, any preemptive or similar rights. There are no outstanding (x)
securities convertible into or exchangeable for any capital stock of the
Issuer or any of the Subsidiaries, (y) options, warrants or other rights to
purchase or subscribe to capital stock of the Issuer or any of the
Subsidiaries or securities convertible into or exchangeable for capital
stock of the Issuer or any of the Subsidiaries or (z) contracts,
commitments, agreements, understandings, arrangements, calls or claims of
any kind relating to the issuance of any capital stock of the Issuer or any
of the Subsidiaries, any such convertible or exchangeable securities or any
such options, warrants or rights. Immediately following the Closing, the
Issuer will not directly or indirectly own any capital stock or other
equity interest in any person other than the Subsidiaries.
9
(e) The total authorized capital stock of the Issuer consists
of 25,000 shares of common stock, par value $.01, 19,200 of which are
issued and outstanding. All of the outstanding shares of capital stock of
the Issuer have been duly authorized and validly issued, are owned
beneficially and of record by Holdings free and clear of Liens, are fully
paid and nonassessable, and were not issued in violation of, and are not
subject to, any preemptive or similar rights. The table under the caption
"CAPITALIZATION" in the Offering Circular (including the footnotes thereto)
sets forth, as of its date, (i) the capitalization of the Issuer and (ii)
the pro forma capitalization of the Issuer after giving effect to the
Transactions. Except as set forth in such table, neither the Issuer nor
any of the Subsidiaries will have any liabilities, absolute, accrued,
contingent or otherwise other than (x) liabilities that are reflected in
the Financial Statements (defined below), or (y) liabilities incurred
subsequent to the date thereof in the ordinary course of business,
consistent with past practice, that could not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(f) Except for this Agreement and the Registration Rights
Agreement, neither the Issuer nor any of the Subsidiaries has entered into
any agreement (i) to register its securities under the Act or (ii) to
purchase or offer to purchase any securities of the Issuer, any of the
Subsidiaries or any of their respective affiliates.
(g) The Issuer has all requisite power and authority to enter
into, deliver and perform its obligations under the Documents and to
consummate the Transactions. Each of the Documents has been duly and
validly authorized by the Issuer, and this Agreement is, and when executed
and delivered on the Closing Date each other Document will be, a legal,
valid and binding obligation of the Issuer, enforceable against the Issuer
in accordance with its terms, except as the enforceability thereof may be
(i) subject to applicable bankruptcy, insolvency, fraudulent conveyance,
moratorium, reorganization or similar laws now or hereafter in effect
relating to or affecting the enforcement of creditors rights and remedies
generally and (ii) limited by general principles of equity (whether
considered in a proceeding at law or in equity). When executed and
delivered, each Document will conform in all material respects to the
description thereof in the Offering Circular. On the Closing Date, the
Indenture will conform to the requirements of the Trust Indenture Act of
1939, as amended (the "TIA"), applicable to an indenture that is required
to be qualified under the TIA.
(h) The Series A Notes have been duly and validly authorized by
the Issuer for issuance and sale to the Purchasers pursuant to this
Agreement and, when executed and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the Purchasers in
accordance with the terms hereof, will be legal, valid and binding
obligations of the Issuer, enforceable against the Issuer in accordance
with their terms, except as the enforceability thereof may be (i) subject
to applicable bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or similar laws now or hereafter in effect relating to
10
or affecting the enforcement of creditors rights and remedies generally and
(ii) limited by general principles of equity (whether considered in a
proceeding at law or in equity). The Series B Notes have been duly and
validly authorized by the Issuer and, when executed, authenticated and
delivered in accordance with the terms of the Indenture and the
Registration Rights Agreement, will be legal, valid and binding obligations
of the Issuer, enforceable against the Issuer in accordance with their
terms, except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, fraudulent conveyance, moratorium,
reorganization or similar laws now or hereafter in effect relating to or
affecting the enforcement of creditors rights and remedies generally and
(ii) limited by general principles of equity (whether considered in a
proceeding at law or in equity).
(i) Neither the Issuer nor any of the Subsidiaries is (i) in
violation of its charter or bylaws (collectively, "CHARTER DOCUMENTS"),
(ii) other than violations that could not, singly or in the aggregate,
reasonably be expected to result in a Material Adverse Effect, in violation
of any Federal, state, local or foreign statute, law (including, without
limitation, common law) or ordinance, or any judgment, decree, rule,
regulation or order (collectively, "APPLICABLE LAW") of any government,
governmental or regulatory agency or body, court or arbitrator, domestic or
foreign (each, a "GOVERNMENTAL AUTHORITY") or (iii) other than breaches or
defaults that could not, singly or in the aggregate, reasonably be expected
to result in a Material Adverse Effect, in breach of or default under (with
the passage of time or otherwise) any bond, debenture, note or other
evidence of indebtedness, indenture, mortgage, deed of trust, lease or any
other agreement or instrument to which any such person is a party or by
which any of them or their respective property is bound (collectively,
"APPLICABLE AGREEMENTS"). There exists no condition that, with the passage
of time or otherwise, would constitute a violation of such Charter
Documents or Applicable Laws or a breach of or default under any Applicable
Agreement or result in the imposition of any penalty or the acceleration of
any indebtedness, other than breaches, violations, penalties, defaults or
conditions which could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.
(j) The Security Agreements have been duly and validly
authorized, executed and delivered by the Issuer and constitute a valid and
legally binding agreement of the Issuer, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar
laws, now or hereafter in effect, relating to or affecting creditors'
rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought at law or in equity).
(k) Neither the execution, delivery or performance of the
Documents nor the consummation of the Transactions shall conflict with,
violate, constitute a breach of or a default (with the passage of time or
otherwise) under, require the consent of any person
11
under, result in the imposition of a Lien on any assets of the Issuer or
any of the Subsidiaries (except pursuant to the Documents), or result in
an acceleration of indebtedness pursuant to (i) the Charter Documents of
the Issuer or any of the Subsidiaries, (ii) any Applicable Agreement,
other than (A) such breaches, violations or defaults that could not,
singly or in the aggregate, reasonably be expected to result in a
Material Adverse Effect, and (B) violations under the Old Credit
Facility and the Securities Purchase Agreement (as defined in the
Offering Circular), consents for which will be obtained on or prior to
the Closing Date or (iii) any Applicable Law. After giving effect to
the Transactions, no Default or Event of Default (as defined in the
Indenture) will exist.
(l) No permit, authorization, approval, consent, license or
order of, or filing, registration or qualification with, any Governmental
Authority (collectively, "PERMITS") is required in connection with, or as a
condition to, the execution, delivery or performance of any of the
Documents or the consummation of any of the Transactions, other than such
Permits (i) as have been made or obtained on or prior to the Closing Date,
(ii) as are not required to be made or obtained on or prior to the Closing
Date that will be made or obtained when required and (iii) the failure of
which to make or obtain could not, singly or in the aggregate, result in a
Material Adverse Effect.
(m) Except as adequately disclosed in the Offering Circular,
there is no action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition),
domestic or foreign (collectively, "PROCEEDINGS"), pending or threatened,
that either (i) seeks to restrain, enjoin, prevent the consummation of, or
otherwise challenge any of the Documents or any of the Transactions, or
(ii) could, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect. Neither the Issuer nor any of the Subsidiaries is
subject to any judgment, order, decree, rule or regulation of any
Governmental Authority that could, singly or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(n) The Issuer and each of the Subsidiaries has such Permits as
are necessary to own, lease and operate the properties and to conduct the
businesses described in the Offering Circular other than those the failure
of which to have could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect. All such Permits are in
full force and effect. No event has occurred which allows, or after notice
or lapse of time would allow the imposition of, any material penalty,
revocation or termination by the issuer thereof or which results in any
material impairment of the rights of the holder of any such Permits.
Neither the Issuer nor any of the Subsidiaries has reason to believe, after
due inquiry, that any issuer is considering limiting in any material
respect, suspending or revoking any such Permit.
12
(o) Immediately following the Closing, the Issuer and the
Subsidiaries (i) will have good and marketable title, free and clear of all
Liens (except for Permitted Liens (as defined below)), to all property and
assets described in the Offering Circular as being owned by them and (ii)
will enjoy peaceful and undisturbed possession under all leases to which
any of them is a party as lessee. "PERMITTED LIENS" means, collectively,
(i) Permitted Liens as defined in the Indenture, (ii) Liens on assets
securing Indebtedness outstanding under the New Credit Facility and the
Notes and (iii) Purchase Money Liens as defined in the Indenture. All
Applicable Agreements are in full force and effect and are legal, valid and
binding obligations of the Issuer, and no default has occurred or is
continuing thereunder, other than such defaults that could not, singly or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
The Issuer and the Subsidiaries maintain insurance (including self-
insurance consistent with prior practice) covering their properties,
operations, personnel and businesses against such losses and risks as they
reasonably deem adequate in accordance with customary industry practice.
Any such insurance is outstanding and duly in force.
(p) Upon execution and delivery thereof, the Security
Agreements will create, in favor of the Trustee, for the benefit of the
holders of the Notes, a valid grant of a security interest in the
Collateral and the proceeds thereof and, upon the filings or the recording
required by the Security Agreements, the Trustee will have a first priority
perfected security interest in the Collateral.
(q) All tax returns required to be filed by the Issuer in any
jurisdiction (including foreign jurisdictions) have been filed and, when
filed, all such returns were accurate in all material respects, and all
taxes, assessments, fees and other charges (including, without limitation,
withholding taxes, penalties and interest) due or claimed to be due from
such entities have been paid, other than those being contested in good
faith by appropriate proceedings, or those that are currently payable
without penalty or interest and, in each case, for which an adequate
reserve or accrual has been established on the books and records of the
Issuer in accordance with generally accepted accounting principles of the
United States, consistently applied ("GAAP"). There are no actual or
proposed additional tax assessments for any fiscal period against the
Issuer or any of the Subsidiaries that could, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of each of the Issuer and the
Subsidiaries in respect of any income and tax liability for any years not
finally determined are adequate to meet any assessments or re-assessments
for additional income tax for any years not finally determined.
(r) The Issuer and the Subsidiaries own, or are licensed under,
and have the right to use, all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "INTEL-
13
LECTUAL PROPERTY") currently used in, or necessary for the conduct of,
their businesses as set forth in the Offering Circular. No written
claims and, to the knowledge of the Issuer after due inquiry, no other
claims have been asserted by any person challenging the use of any such
Intellectual Property by the Issuer or any of the Subsidiaries
questioning the validity or effectiveness of any license or agreement
related thereto, there is no valid basis for any such claim (other than
any claims that could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect), and the use of such
Intellectual Property by the Issuer will not infringe on the
Intellectual Property rights of any other person.
(s) The Issuer maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) material
transactions are executed in accordance with management's general or
specific authorization, (ii) material transactions are recorded as
necessary to permit preparation of financial statements in conformity with
GAAP, and to maintain asset accountability, (iii) access to assets is
permitted only in accordance with management's general or specific
authorization and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any material differences.
(t) Each of (i) the audited financial statements of the Issuer
and related notes contained in the Offering Circular (the "AUDITED
FINANCIAL STATEMENTS") and (ii) the unaudited historical consolidated
financial statements of the Issuer and related notes contained in the
Offering Circular (the "INTERIM FINANCIAL STATEMENTS" and, together with
the Audited Financial Statements, the "FINANCIAL STATEMENTS") present
fairly the consolidated financial position, results of operations and cash
flows of the Issuer, as of the respective dates and for the respective
periods to which they apply, and have been prepared in accordance with GAAP
and the requirements of Regulation S-X that would be applicable if the
Offering Circular were a prospectus included in a registration statement on
Form S-1 filed under the Act. The summary historical financial data
included in the Offering Circular have been prepared on a basis consistent
with that of the Financial Statements and present fairly the consolidated
financial position and results of operations of the Issuer and the
Subsidiaries as of the respective dates and for the respective periods
indicated. All other financial and statistical data included in the
Offering Circular are fairly and accurately presented in all material
respects. Ernst & Young LLP are independent public accountants with
respect to the Issuer.
(u) Subsequent to the respective dates as of which information
is given in the Offering Circular, except as adequately disclosed in the
Offering Circular, (i) neither the Issuer nor any of the Subsidiaries has
incurred any liabilities, direct or contingent, that are material, singly
or in the aggregate, to any of them, or has entered into any material
transactions not in the ordinary course of business, (ii) there has not
been any decrease in the capital stock or any increase in long-term
indebtedness or any material increase in short-term indebt-
14
edness of any of them, or any payment of or declaration to pay any
dividends or any other distribution with respect to any of them and
(iii) there has not been any material adverse change in the properties,
business, prospects, operations, earnings, assets, liabilities or
condition (financial or otherwise) of the Issuer and the Subsidiaries
taken as a whole (each of clauses (i), (ii) and (iii), a "MATERIAL
ADVERSE CHANGE"). To the knowledge of the Issuer after due inquiry,
there is no event that is reasonably likely to occur, which if it were
to occur, could, singly or in the aggregate, have a Material Adverse
Effect, except such events that have been adequately disclosed in the
Offering Circular.
(v) Immediately following the Closing, after giving effect to
the Transactions, (i) the present fair salable value of the assets of the
Issuer will exceed the amount that will be required to be paid on or in
respect of the then existing debts and other liabilities (including
contingent liabilities) as they become absolute and matured and (ii) the
Issuer will not have unreasonably small capital to carry out its businesses
as conducted or as proposed to be conducted. Neither the Issuer nor any of
its Subsidiaries intends to, or believes that it will, incur debts beyond
its ability to pay such debts as they mature.
(w) Except as contemplated by this Agreement, neither the
Issuer nor any of its Affiliates has (i) taken, directly or indirectly, any
action designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of any of them to facilitate the
sale or resale of any of the Notes or (ii) except as disclosed in the
Offering Circular, (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, any of the Notes or (B) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of any of them.
(x) No registration under the Act, and no qualification of the
Indenture under the TIA is required for the sale of the Series A Notes to
the Purchasers as contemplated hereby or for the Exempt Resales, assuming
(i) that the Eligible Purchasers who buy the Series A Notes in the Exempt
Resales are QIBs or Accredited Investors, (ii) the accuracy of the
Purchasers' representations contained herein regarding the absence of
general solicitation in connection with the sale of the Series A Notes to
the Purchasers and the Exempt Resales and (iii) the accuracy of the
representations made by each Accredited Investor who purchases the Series A
Notes pursuant to an Exempt Resale as set forth in the letters of
representation in the form of Annex A to the Offering Circular. No form of
general solicitation or general advertising was used by the Issuer or any
of its Affiliates or any of their representatives in connection with the
offer and sale of any of the Series A Notes or in connection with Exempt
Resales. No securities of the same class as any of the Notes have been
offered, issued or sold by the Issuer or any of its Affiliates within the
six-month period immediately prior to the date hereof.
15
(y) Neither the Issuer nor any of its "Affiliates" is a "party
in interest" or a "disqualified person" with respect to any employee
benefit plans except for those set forth on Annex B of the Offering
Circular. No condition exists or event or transaction has occurred in
connection with any employee benefit plan that could result in the Issuer
or any such "Affiliate" incurring any liability, fine or penalty that
could, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect. With respect to any employee pension benefit plan
that is subject to Title IV of ERISA, (i) the fair market value of the
assets of such employee pension benefit plan equals or exceeds the present
value of the liabilities of such pension plan (as determined in accordance
with the actuarial methods and assumptions set forth in the latest
actuarial report for such employee pension benefit plan), except where the
failure to so equal or exceed would not, singly or in the aggregate, have a
Material Adverse Effect and (ii) there exists no accumulated funding
deficiency which could, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The terms "employee benefit plan,"
"employee pension benefit plan," and "party in interest" shall have the
meanings assigned to such terms in Section 3 of the Employee Retirement
Income Act of 1974, as amended, or the rules and regulations promulgated
thereunder ("ERISA"), the term "Affiliate" shall have the meaning assigned
to such term in Section 407(d)(7) of ERISA, and the term "disqualified
person" shall have the meaning assigned to such term in section 4975 of the
Internal Revenue Code of 1986, as amended, or the rules, regulations and
published interpretations promulgated thereunder (the "CODE").
(z) None of the Transactions will violate or result in a
violation of Section 7 of the Exchange Act (including, without limitation,
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). Neither the Issuer nor any of the Subsidiaries is subject
to regulation, or shall become subject to regulation upon the consummation
of the Transactions, under the Investment Company Act of 1940, as amended,
and the rules and regulations and interpretations promulgated thereunder,
the Public Utility Holding Company Act of 1935, as amended.
(aa) Neither the Issuer nor any of the Subsidiaries has dealt
with any broker, finder, commission agent or other person (other than the
Purchasers) in connection with the Transactions and neither the Issuer nor
any of the Subsidiaries is under any obligation to pay any broker's fee or
commission in connection with such transactions (other than commissions and
fees to the Purchasers as set forth in the Offering Circular).
(bb) Neither the Issuer nor any Subsidiary is engaged in any
unfair labor practice that could, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice complaint or other proceeding pending
16
or, to the Issuer's knowledge after due inquiry, threatened against the
Issuer before the National Labor Relations Board or any state or local
labor relations board or any industrial tribunal, and no grievance or
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending, to the Issuer's knowledge after due inquiry, or
threatened, (ii) no strike, general labor dispute, slowdown or stoppage
pending or threatened against any the Issuer and (iii) no union
representation question existing with respect to the employees of the
Issuer, and, to the Issuer's knowledge after due inquiry, no union
organizing activities are taking place, that in each of clauses (i),
(ii) and (iii) above, singly or in the aggregate, could reasonably be
expected to have a Material Adverse Effect.
(ac) Except as adequately disclosed in the Offering Circular or
as otherwise could not, singly or in the aggregate, reasonably be expected
to have a Material Adverse Effect:
(1) each of the Issuer and the Subsidiaries (i) has
obtained all Permits that are required with respect to the operation
of its business, property and assets under the Environmental Laws (as
defined below) and are in compliance with all terms and conditions of
such required Permits and (ii) is in compliance with all Environmental
Laws (including, without limitation, compliance with standards,
schedules and timetables therein);
(2) no real property or facility owned, used, operated,
leased, managed or controlled by the Issuer or any of the
Subsidiaries, or any predecessor in interest, is listed or proposed
for listing on the National Priorities List or the Comprehensive
Environmental Response, Compensation, and Liability Information
System, both promulgated under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
("CERCLA"), or on any other state or local list established pursuant
to any Environmental Law, and neither the Issuer nor any of the
Subsidiaries has received any notification of potential or actual
liability or request for information under CERCLA or any comparable
state or local law;
(3) no underground storage tank or other underground
storage receptacle, or related piping, is located on a facility or
property currently owned, operated, leased, managed or controlled by
the Issuer or any of the Subsidiaries in violation of any
Environmental Law;
(4) there have been no releases (i.e., any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping, on-
site or, to the knowledge of the Issuer and the Subsidiaries after due
inquiry, off-site) of Hazardous Materials (as defined below) by the
Issuer, any of the Subsidiaries or, to the Issuer's knowledge, any
predecessor in interest or any person or entity whose liability for
any release of Hazardous Materials, the Issuer or any of the
17
Subsidiaries has retained or assumed either contractually or by
operation of law at, on, under, from or into any facility or real
property owned, operated, leased, managed or controlled by any such
person;
(5) neither the Issuer, the Subsidiaries nor, to the
Issuer's knowledge, any person or entity whose liability the Issuer
has retained or assumed either contractually or by operation of law
has any liability, absolute or contingent, under any Environmental
Law, and there is no civil, criminal or administrative action, suit,
demand, hearing, notice of violation or deficiency, investigation,
proceeding, notice or demand letter pending or threatened against any
of them under any Environmental Law;
(6) to the Issuer's knowledge, there are no events,
activities, practices, incidents or actions or conditions,
circumstances or plans that may interfere with or prevent compliance
by the Issuer or any of the Subsidiaries with any Environmental Law,
or that may give rise to any liability under any Environmental Laws;
and
(7) the Issuer and each of the Subsidiaries have reasonably
concluded that the costs and liabilities associated with compliance
with Environmental Laws could not reasonably be expected, singly or in
the aggregate, to have a Material Adverse Effect on the Issuer and
each of the Subsidiaries, taken as a whole.
"ENVIRONMENTAL LAWS" means all Applicable Laws, now or
hereafter in effect, relating to pollution or protection of human
health or the environment, including, without limitation, laws
relating to (1) emissions, discharges, releases or threatened releases
of pollutants, contaminants, chemicals, or industrial, toxic or
hazardous constituents, substances or wastes, including, without
limitation, asbestos or asbestos-containing materials, polychlorinated
biphenyls, petroleum or any constituents relating to or arising out of
any oil production activities, including crude oil or any fraction
thereof, or any petroleum product or other wastes, chemicals or
substances regulated by any Environmental Law (collectively referred
to as "HAZARDOUS MATERIALS"), into the environment (including, without
limitation, ambient air, surface water, ground water, land surface or
subsurface strata), (2) the manufacture, processing, distribution,
use, generation, treatment, storage, disposal, transport or handling
of Hazardous Materials and (3) underground storage tanks, and related
piping, and emissions, discharges, releases or threatened releases
therefrom.
7. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS. Each of the
Purchasers represents and warrants with respect to itself only that:
(a) It is a QIB.
18
(b) It (i) is not acquiring the Series A Notes with a view to
any distribution thereof that would violate the Act or the securities laws
of any state of the United States or any other applicable jurisdiction and
(ii) will be soliciting offers for the Series A Notes only from, and will
be reoffering and reselling the Series A Notes only to (A) persons in the
United States whom it reasonably believes to be QIBs in reliance on the
exemption from the registration requirements of the Act provided by Rule
144A, and (B) a limited number of Accredited Investors that execute and
deliver to the Issuer and the Purchaser a letter containing certain
representations and agreements in the form attached as Annex A to the
Offering Circular.
(c) No form of general solicitation or general advertising in
violation of the Securities Act has been or will be used by such Purchaser
or any of its representatives in connection with the offer and sale of any
of the Series A Notes.
(d) In connection with the Exempt Resales, it will solicit
offers to buy the Series A Notes only from, and will offer and sell the
Series A Notes only to, Eligible Purchasers who, in purchasing such Series
A Notes, will be deemed to have represented and agreed (i) if such Eligible
Purchasers are QIBs, that they are purchasing the Series A Notes for their
own accounts or accounts with respect to which they exercise sole
investment discretion and that they or such accounts are QIBs, (ii) that
such Series A Notes will not have been registered under the Act and may be
resold, pledged or otherwise transferred only (A) inside the United States
to a person who the seller reasonably believes is a QIB in a transaction
meeting the requirements of Rule 144A, in a transaction meeting the
requirements of Rule 144 or in accordance with another exemption from the
registration requirements of the Act, (B) to the Issuer, (C) pursuant to an
effective registration statement and (D) outside the United States to
foreign persons in offshore transactions and without directed selling
efforts within the meanings of such terms as defined in Regulation S under
the Act and, in each case, in accordance with any applicable securities
laws of any state of the United States or any other applicable
jurisdiction, and (iii) that the holder will, and each subsequent holder is
required to, notify any purchaser from it of the security evidenced thereby
of the resale restrictions set forth in (ii) above.
(e) It has all requisite power and authority to enter into,
deliver and perform its obligations under this Agreement and the
Registration Rights Agreement and each of this Agreement and the
Registration Rights Agreement has been duly and validly authorized by it.
19
8. INDEMNIFICATION.
(a) The Issuer shall, without limitation as to time, indemnify
and hold harmless the Purchasers and each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act) the Purchasers (any of such persons being hereinafter
referred to as a "controlling person"), and the respective officers,
directors, partners, employees, representatives and agents of the
Purchasers and any such controlling person, to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities, costs
(including, without limitation, costs of preparation and reasonable
attorneys' fees) and expenses (including, without limitation, costs and
expenses incurred in connection with investigating, preparing, pursuing or
defending against any of the foregoing) (collectively, "LOSSES"), as
incurred, directly or indirectly caused by, related to, based upon, arising
out of or in connection with (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Circular
or the Offering Circular (or any amendment or supplement thereto), or any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or (ii) any
act, omission, transaction or event contemplated by the Documents; PROVIDED
that the Issuer shall not be liable to any indemnified party for any Losses
that arise solely with respect to untrue statements or omissions, or
alleged untrue statements or omissions made in the Preliminary Offering
Circular or Offering Circular in reliance upon and in conformity with
written information furnished to the Issuer by the Purchasers expressly for
use in the Preliminary Offering Circular or Offering Circular. The Issuer
shall notify the Purchasers promptly of the institution, threat or
assertion of any Proceeding of which the Issuer or any Subsidiary is aware
in connection with the matters addressed by this Agreement which involves
the Issuer, any of the Subsidiaries or any of the indemnified parties.
(b) Each Purchaser severally agrees to indemnify and hold
harmless the Issuer, and each person, if any, who controls the Issuer
within the meaning of Section 15 of the Act or Section 20(c) of the
Exchange Act and the respective officers, directors, partners, employees,
representatives and agents of the Issuer and any such controlling person,
to the fullest extent possible, from and against any and all Losses
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Preliminary Offering
Circular or Offering Circular in reliance upon and in conformity with
written information furnished to the Issuer by such Purchasers expressly
for use in the Preliminary Offering Circular or Offering Circular. For all
purposes of this Agreement, the only such written information shall be
deemed to be the last paragraph on the cover page of the Offering Circular
and the third full paragraph of the section "Plan of Distribution" in the
Offering Circular.
20
(c) If any Proceeding shall be brought or asserted against any
person entitled to indemnification hereunder, such indemnified party shall
give prompt written notice to the indemnifying party; PROVIDED that the
failure to so notify the indemnifying party shall not relieve the
indemnifying party from any obligation or liability except to the extent
(but only to the extent) that it shall be finally determined by a court of
competent jurisdiction (which determination is not subject to appeal) that
the indemnifying party has been prejudiced materially by such failure.
The indemnifying party shall have the right, exercisable by
giving written notice to an indemnified party within 20 business days after
the receipt of written notice from such indemnified party of such
Proceeding, to assume, at its expense, the defense of any such Proceeding;
PROVIDED, HOWEVER, that an indemnified party shall have the right to employ
separate counsel in any such Proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless: (1) the indemnifying party agrees to pay
such fees and expenses; or (2) the indemnifying party fails promptly to
assume the defense of such Proceeding or fails to employ counsel reasonably
satisfactory to such indemnified party; or (3) the named parties to any
such Proceeding (including any impleaded parties) include both such
indemnified party and the indemnifying party, or any of their respective
affiliates or controlling persons, and such indemnified party shall have
been advised by counsel that there may be one or more material defenses
available to such indemnified party that are in addition to, or in conflict
with, those available to the indemnifying party or such affiliate or
controlling person (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
have the right to assume the defense thereof and the reasonable fees and
expenses of counsel shall be at the expense of the indemnifying party; it
being understood, however, that the indemnifying party shall not, in
connection with any one such Proceeding or separate but substantially
similar or related Proceedings in the same jurisdiction, arising out of the
same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for each such indemnified party).
The indemnifying party shall not consent to entry of any judgment
in or enter into any settlement of any pending or threatened Proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any indemnified party is a party thereto) unless such
judgment or settlement includes, as an unconditional term thereof, the
giving by the claimant or plaintiff to each indemnified party of a release,
in form and substance satisfactory to the indemnified party, from all
Losses that may arise from such Proceeding or the subject matter thereof
(whether or not any indemnified party is a party thereto).
21
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section
8 would otherwise apply by its terms (other than by reason of exceptions
provided in this Section 8), then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Losses (i) in such
proportion as is appropriate to reflect the relative benefits received by
the Issuer, on the one hand, and the Purchasers, on the other hand, from
the offering of the Series A 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 Issuer, on the one
hand, and the Purchasers, on the other hand, in connection with the
actions, statements or omissions that resulted in such Losses, as well as
any other relevant equitable considerations. The relative benefits
received by the Issuer, on the one hand, and the Purchasers, on the other
hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Issuer, and the total discounts and commissions received by the Purchasers,
bear to the total price of the Series A Notes in Exempt Resales in each
case as set forth in the table on the cover page of the Offering Circular.
The relative fault of the Issuer, on the one hand, and the Purchasers, on
the other hand, shall be determined by reference to, among other things,
whether any 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 Issuer, on the one hand, or the Purchasers, on
the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by an indemnified party as a result
of any Losses shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any Proceeding, to the
extent such party would have been indemnified for such fees or expenses if
the indemnification provided for in this Section 8 was available to such
party.
Each party hereto agrees that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by PRO RATA
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(d), the
Purchasers shall not be required to contribute, in the aggregate, any
amount in excess of the amount by which the total discounts and commissions
received by them with respect to the Series A Notes exceeds the amount of
any damages that the Purchasers have otherwise been required to pay by
reason of such 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 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
22
(e) The indemnity and contribution agreements contained in this
Section 8 are in addition to any liability that the Issuer and Purchasers
may otherwise have to the indemnified parties.
9. CONDITIONS.
(a) The obligation of the Purchasers to purchase the Series A
Notes under this Agreement is subject to the satisfaction or waiver of each
of the following conditions:
(i) All the representations and warranties of the
Issuer in this Agreement shall be true and correct in all material
respects (other than representations and warranties with a materiality
qualifier, which shall be true and correct as written) at and as of
the Closing Date after giving effect to the Transactions with the same
force and effect as if made on and as of such date. On or prior to
the Closing Date, the Issuer shall have performed or complied in all
material respects with all of the agreements and satisfied in all
material respects all conditions on its part to be performed, complied
with or satisfied pursuant to this Agreement.
(ii) The Offering Circular shall have been printed
and copies made available to the Purchasers not later than 12:00 noon,
New York City time, on the first business day following the date of
this Agreement or at such later date and time as the Purchasers may
approve.
(iii) No injunction, restraining order or order of
any nature by a Governmental Authority shall have been issued as of
the Closing Date that would prevent or interfere with the consummation
of any of the Transactions; and no stop order suspending the
qualification or exemption from qualification of any of the Series A
Notes in any jurisdiction shall have been issued and no Proceeding for
that purpose shall have been commenced or be pending or contemplated.
(iv) No action shall have been taken and no
Applicable Law shall have been enacted, adopted or issued that would,
as of the Closing Date, prevent the consummation of any of the
Transactions. No Proceeding shall be pending or threatened other than
Proceedings that (A) if adversely determined could not, singly or in
the aggregate, adversely affect the issuance or marketability of the
Series A Notes and (B) could not reasonably be expected to have a
Material Adverse Effect.
23
(v) Since the date as of which information is given
in the Offering Circular, there shall not have been any Material
Adverse Change.
(vi) The Notes shall have (A) been designated PORTAL
securities in accordance with the rules and regulations adopted by the
NASD relating to trading in the PORTAL market, and (B) received a
rating of B and B2 from Standard & Poor's Corporation and Xxxxx'x
Investors Services, Inc., respectively.
(vii) The Purchasers shall have received on the
Closing Date (A) certificates dated the Closing Date, signed by (1)
the President and (2) the principal financial or accounting officer of
the Issuer, on behalf of the Issuer, (x) confirming the matters set
forth in paragraphs (i) through (v) of this Section 9(a) and (y)
certifying as to such other matters as the Purchasers may reasonably
request, (B) a certificate, dated the Closing Date, signed by the
Secretary of the Issuer, certifying such matters as the Purchasers may
reasonably request and (C) a certificate of solvency, dated the
Closing Date, signed by the principal financial or accounting officer
of the Issuer substantially in the form previously approved by the
Purchasers.
(viii) The Purchasers shall have received:
(1) an opinion of Xxxxxxx & Xxxxxx, counsel to the Issuer
("Winston & Xxxxxx"), dated the Closing Date, in the form of Exhibit A
hereto; and
(2) an opinion, dated the Closing Date, of Xxxxxxx, Arps,
Slate, Xxxxxxx & Xxxx (Illinois), in form and substance reasonably
satisfactory to the Purchasers covering such matters as are
customarily covered in such opinions.
(ix) The Purchasers shall have received from Ernst &
Young LLP (A) a customary comfort letter, dated the date of the
Offering Circular, in form and substance reasonably satisfactory to
the Purchasers, with respect to the financial statements and certain
financial information contained in the Offering Circular, and (B) a
customary comfort letter, dated the Closing Date, in form and
substance reasonably satisfactory to the Purchasers, to the effect
that they reaffirm the statements made in the letter furnished
pursuant to clause (A), except that the specified date referred to
shall be a date not more than five days prior to the Closing Date.
(x) The Documents shall have been executed and
delivered by all parties thereto and the Purchasers shall have
received a fully executed original of each Document.
24
(xi) The Purchasers shall have received copies of
duly executed payoff letters, UCC-3 termination statements, mortgage
releases and other collateral releases and terminations, each in form
and substance satisfactory to the Purchasers, evidencing (1) the
repayment of the outstanding indebtedness of the Issuer under the Old
Credit Facility (as defined in the Offering Circular) and (2) the
release of all Liens created under the Old Credit Facility on each
item constituting Collateral under the Indenture, and each such
release shall be in full force and effect.
(xii) The Purchasers shall have received copies of
commitments to issue ALTA title insurance policies on the real
property collateral in form and substance satisfactory to the
Purchasers.
(xiii) The Trustee shall have received executed
copies of each UCC-1 financing statement signed by the Issuer, naming
the Trustee as secured party and filed in such jurisdictions as the
Purchasers may reasonably require.
(xiv) The Issuer shall have entered into the New
Credit Facility and an amendment to the Securities Purchase Agreement
on or prior to the Closing.
(xv) Counsel to the Purchasers shall have been
furnished with such documents as they may reasonably require for the
purpose of enabling them to review or pass upon the matters referred
to in this Section 9 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(b) The obligation of the Issuer to sell the Series A Notes
under this Agreement is subject to the satisfaction or waiver of each of
the following conditions:
(i) The Purchasers shall have delivered payment to
the Issuer for the Series A Notes pursuant to Sections 2 and 4 of this
Agreement.
(ii) All of the representations and warranties of the
Purchasers in this Agreement shall be true and correct in all material
respects at and as of the Closing Date, with the same force and effect
as if made on and as of such date.
(iii) No injunction, restraining order or order of
any nature by a Governmental Authority shall have been issued as of
the Closing Date that would prevent or interfere with the issuance and
sale of the Series A Notes; and no stop
25
order suspending the qualification or exemption from qualification of
any of the Series A Notes in any jurisdiction shall have been issued and
no Proceeding for that purpose shall have been commenced or be pending
or contemplated as of the Closing Date.
10. TERMINATION. The Purchasers may terminate this Agreement at any
time prior to the Closing Date by written notice to the Issuer if any of the
following has occurred:
(a) since the date as of which information is given in the
Offering Circular, any material adverse effect or development involving a
prospective adverse effect on the properties, business, prospects,
operations, earnings, assets, liabilities or condition (financial or
otherwise), of the Issuer or any Subsidiary, whether or not arising in the
ordinary course of business, which would, in the Purchasers' judgment, (i)
make it impracticable or inadvisable to proceed with the offering or
delivery of the Series A Notes on the terms and in the manner contemplated
in the Offering Circular or (ii) materially impair the investment quality
of any of the Notes;
(b) any outbreak or escalation of hostilities or other national
or international calamity or crisis or material adverse change in economic
conditions in or the financial markets of the United States or elsewhere,
if the effect of such outbreak, escalation, calamity, crisis or material
adverse change in the economic conditions in or in the financial markets of
the United States or elsewhere would make it, in the Purchasers' judgment,
impracticable or inadvisable to market or proceed with the offering or
delivery of the Series A Notes on the terms and in the manner contemplated
in the Offering Circular or to enforce contracts for the sale of any of the
Series A Notes;
(c) the suspension or limitation of trading generally in
securities on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market or any setting of limitations on prices for
securities on any such exchange or Nasdaq National Market;
(d) the enactment, publication, decree or other promulgation
after the date hereof of any Applicable Law that in the Purchasers' opinion
materially and adversely affects, or could materially and adversely affect,
the properties, business, prospects, operations, earnings, assets,
liabilities or condition (financial or otherwise) of the Issuer;
(e) any securities of the Issuer shall have been downgraded or
placed on any "watch list" for possible downgrading by any "nationally
recognized statistical rating organization", as such term is defined for
purposes of Rule 431(g)(2) under the Act; or
26
(f) the declaration of a banking moratorium by any Governmental
Authority; or the taking of any Governmental Authority after the date
hereof in respect of its monetary or fiscal affairs that in the Purchasers'
opinion could have a material adverse effect on the financial markets in
the United States.
The indemnities and contribution and expense reimbursement provisions
and other agreements, representations and warranties of the Issuer set forth in
or made pursuant to this Agreement shall remain operative and in full force and
effect, and will survive, regardless of (i) any investigation, or statement as
to the results thereof, made by or on behalf of the Purchasers, (ii) acceptance
of the Notes, and payment for them hereunder, and (iii) any termination of this
Agreement. Without limiting the foregoing, notwithstanding any termination of
this Agreement, the Issuer shall be liable (i) for all expenses that they have
agreed to pay pursuant to Section 5(f) hereof, and (ii) pursuant to Section 8
hereof.
If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by the Purchasers
as provided in Section 10(b) through (d) and (f) hereof or (ii) Section 11
hereof), or if the sale of the Notes provided for herein is not consummated
because of the failure or refusal on the part of the Issuer to comply with the
terms or to fulfill any of the conditions of this Agreement, the Issuer agrees
to reimburse the Purchasers for all out-of-pocket expenses (including the fees
and disbursements of counsel) incurred by the Purchasers. Notwithstanding any
termination of this Agreement, the Issuer shall be liable (i) for all expenses
that they have agreed to pay pursuant to Section 5(f) hereof and (iii) pursuant
to Section 8 hereof.
11. DEFAULT BY PURCHASERS. If either of the Purchasers shall fail or
refuse to purchase the Series A Notes that they have agreed to purchase
hereunder on the Closing Date and arrangements satisfactory to the Issuer for
the purchase of such Series A Notes are not made within 48 hours after such
default, this Agreement shall terminate without liability on the part of the
Issuer and the non-defaulting Purchaser. Nothing herein shall relieve a
defaulting Purchaser from liability for its default.
12. MISCELLANEOUS.
(a) Notices given pursuant to any provision of this Agreement
shall be addressed as follows: (i) if to the Issuer, 0000 X. Xxxxxxx
Xxxxxxxxx, Xxxxxxx, XX 00000, Attention: President, with a copy to Winston
& Xxxxxx, 00 Xxxx Xxxxxx Xxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx X.
Xxxxx and (ii) if to the Purchasers, to Xxxxxxxxx & Company, Inc. c/x
Xxxxxxxxx & Company, Inc., 00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx, with a copy to
Xxxxxxx, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000, Attention: Xxxx
27
X. Xxxxxx (PROVIDED that any notice pursuant to Section 9 hereof will be
mailed, delivered, telegraphed or telecopied and confirmed to the party
to be notified and its counsel), or in any case to such other address as
the person to be notified may have requested in writing.
(b) This Agreement has been and is made solely for the benefit
of and shall be binding upon the Issuer, the Purchasers and, to the extent
provided in Section 8 hereof, the controlling persons officers, directors,
partners, employees, representatives and agents referred to in Section 8
and their respective heirs, executors, administrators, successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser
of any of the Series A Notes from the Purchasers merely because of such
purchase. Notwithstanding the foregoing, it is expressly understood and
agreed that each purchaser who purchases Series A Notes from the Purchasers
is intended to be a beneficiary of the Issuer's covenants contained in the
Registration Rights Agreement to the same extent as if the Notes were sold
and those covenants were made directly to such purchaser by the Issuer, and
each such purchaser shall have the right to take action against the Issuer
to enforce, and obtain damages for any breach of, those covenants.
(c) THIS AGREEMENT SHALL BE CONSTRUED, INTERPRETED AND THE
RIGHTS OF THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE ISSUER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE ISSUER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE ISSUER IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF
ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE ISSUER AT THE ADDRESS SET FORTH HEREIN, SUCH SERVICE TO
28
BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE PURCHASERS TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE ISSUER IN ANY OTHER JURISDICTION.
(d) This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
(e) The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as
that contemplated by such term, provision, covenant or restriction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
(g) This Agreement may be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may be
given, provided that the same are in writing and signed by each of the
signatories hereto.
[signature page follows]
29
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer and the Purchasers.
Very truly yours,
XXXXXXXXX XXXXX CORPORATION
By: /s/ Xxx X. Xxxxxxxx
------------------------
Name: Xxx X. Xxxxxxxx
Title: President and Chief Operating
Officer
Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Executive Vice President
FIRST CHICAGO CAPITAL MARKETS, INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: Managing Director
SCHEDULE I
PRINCIPAL AMOUNT OF SERIES A NOTES PURCHASED
PURCHASERS PRINCIPAL AMOUNT OF SERIES A NOTES PURCHASED
---------- --------------------------------------------
Xxxxxxxxx & Company, Inc. $80,000,000
First Chicago Capital Markets, Inc. $20,000,000
SCHEDULE 6(d)
SUBSIDIARIES OF THE ISSUER
PERCENTAGE
SUBSIDIARIES OWNERSHIP JURISDICTION OF
ORGANIZATION BY ISSUER
1. Xxx. Xxxxxxx Home Made Candies, Inc. 100% Illinois
2. Xxxxxx May Candy Company, Inc. 100% Delaware
3. Grandmother's Candy Shops, Inc. 100% Illinois
4. Xxxxxxxxx Home Made Candies, Inc. 100% Illinois
5. Xxxxxxxxx Box Corporation 100% Illinois
EXHIBIT A
July 2, 1997
Xxxxxxxxx & Company, Inc.
First Chicago Capital Markets, Inc.
c/x Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Re: Sale of $100,000,000 Aggregate Principal Amount of 10 1/4%
Senior Secured Notes due 2004 by Xxxxxxxxx Xxxxx Corporation
-------------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Xxxxxxxxx Xxxxx Corporation,
an Illinois corporation (the "COMPANY" or the "ISSUER"), in connection with
the issuance and sale of $100,000,000 aggregate principal amount of its 10 1/4%
Senior Secured Notes due 2004 (the "NOTES"), issued and sold pursuant to
an Indenture dated as of July 2, 1997 (as amended, the "INDENTURE") between
the Company and The Bank of New York, as trustee (the "TRUSTEE"). The Notes
are issued subject to that certain Purchase Agreement dated June 27, 1997
(the "PURCHASE AGREEMENT") between the Company and Xxxxxxxxx & Company, Inc.
and First Chicago Capital Markets, Inc. (collectively, the "INITIAL
PURCHASERS"). All capitalized terms used but not otherwise defined herein
shall have the meanings set forth in the Purchase Agreement. This opinion is
being furnished to you at our client's request pursuant to Section
9(a)(viii)(1) of the Purchase Agreement.
In rendering the opinions set forth herein, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of:
1. the Offering Circular dated June 27, 1997 relating to the Notes
(the "OFFERING CIRCULAR");
2. the Purchase Agreement;
3. the Registration Rights Agreement (the "REGISTRATION RIGHTS
AGREEMENT") dated as of July 2, 1997 among the Company and the Initial
Purchasers;
4. the Indenture;
July 2, 1997
Page 2
5. the form of Notes and a specimen of the certificates representing
the Notes;
6. the Amended and Restated Articles of Incorporation of the
Company, as in effect on the date hereof;
7. the Amended and Restated By-Laws of the Company, as in effect on
the date hereof;
8. certain resolutions adopted by the Board of Directors of the
Company relating to the authorization, issuance and sale of the Notes and
the transactions referred to herein;
9. the Pledge and Security Agreement (the "PLEDGE AND SECURITY
AGREEMENT") dated as of July 2, 1997 between the Company and the Trustee;
10. the Intellectual Property Security Agreement (the "INTELLECTUAL
PROPERTY SECURITY AGREEMENT") dated as of July 2, 1997 between the Company
and the Trustee;
11. the Mortgage, Security Agreement, Assignment of Leases and Rents,
Fixture Filing and Financing Statement dated as of July 2, 1997 between the
Company and the Trustee with respect to real property located in Illinois
(the "ILLINOIS MORTGAGE"); and
12. the financing statements on Form UCC-1 (the "ILLINOIS FINANCING
STATEMENTS") under the Uniform Commercial Code of Illinois (the "ILLINOIS
CODE") executed by the Company and delivered to the Trustee for filing in
the Illinois filing offices described in SCHEDULE I hereto (the "ILLINOIS
FILING OFFICES"), and copies of which are attached as part of SCHEDULE I
hereto.
The documents described clauses 10 through 12 above are hereinafter
collectively referred to as the "SECURITY DOCUMENTS". The Security Documents,
the Purchase Agreement, the Registration Rights Agreement and the Indenture are
hereinafter collectively referred to as the "TRANSACTION DOCUMENTS". In
addition, we have examined (a) such other agreements, instruments and documents,
and such questions of law, and (b) originals or copies, certified to our
satisfaction, of such certificates of public officials and officers and
representatives of the Company and we have made such inquiries of officers and
representatives of the Company, in each case as we have deemed relevant,
appropriate or necessary as the basis for the opinions set forth herein. As to
any facts material to the opinions and beliefs expressed herein that were not
independently established or verified, we have relied upon oral or written
statements and representations of officers and other representatives of the
Company and others.
In rendering the opinions expressed below, we have, with your consent,
assumed the legal capacity of all natural persons, that the signatures of
persons signing all documents in connection with which this opinion is rendered
are genuine, all documents submitted to us as originals or
July 2, 1997
Page 3
duplicate originals are authentic and all documents submitted to us as
copies, whether certified or not, conform to authentic original documents.
Additionally, we have, with your consent, assumed and relied upon, the
following:
(a) the accuracy and completeness of all certificates and other
statements, documents, records, financial statements and papers reviewed by
us, and the accuracy and completeness of all representations, warranties,
schedules and exhibits contained in the Transaction Documents, with respect
to the factual matters set forth therein;
(b) all parties to the documents reviewed by us (other than the
Company) are duly organized, validly existing and in good standing under
the laws of all jurisdictions where they are conducting their businesses or
otherwise required to be so qualified, and have full power and authority to
execute, deliver and perform their respective obligations under such
documents and all such documents have been duly authorized, executed and
delivered by such parties;
(c) neither the Trustee, any Initial Purchaser nor any of their
representatives have any knowledge (actual or constructive) of any adverse
claim, lien, security interest, encumbrance, interest or other condition of
title affecting any of the Collateral, except for Xxxxx described in the
Transaction Documents;
(d) all items of Collateral for which possession must be taken by a
secured party in order to perfect its security interest under Section 9-304
of the Illinois Code or Section 9-304 of the New York Uniform Commercial
Code (the "NEW YORK CODE") are in the possession or constructive possession
of the Trustee and not in the possession of the Company or any of its
affiliates or agents or any other person acting on behalf of the Company;
(e) the Company has acquired good and sufficient title to each
existing item of Collateral for which the creation and perfection of a
security interest are not governed by Article 9 of the New York Code or
Article 9 of the Illinois Code existing on the date hereof, and have
"rights" in and to Collateral for which the creation and perfection of a
security interest are governed by Article 9 of the New York Code or Article
9 of the Illinois Code consistent with and sufficient for purposes of the
Transaction Documents, and the same will be true of each item of Collateral
arising after the date hereof;
(f) each Transaction Document constitutes the valid and binding
obligation of each party thereto (other than the Company) enforceable
against such party in accordance with its terms; and
(g) value (as defined in Section 1-201(44) of the New York Code) has
been given by the Initial Purchasers to the Company for the security
interests and other rights in and assignments of Collateral described in or
contemplated by the Transaction Documents.
July 2, 1997
Page 4
Whenever our opinion with respect to the existence or absence of facts
is indicated to be based on our knowledge or awareness, we are referring to the
actual present knowledge of the Winston & Xxxxxx attorneys who have represented
the Company. Except as expressly set forth herein, we have not undertaken any
independent investigation, examination or inquiry to determine the existence or
absence of any facts (and have not caused the review of any court file or
indices) and no inference as to our knowledge concerning any facts should be
drawn from the fact that such representation has been undertaken by us.
Based upon the foregoing and subject to the assumptions,
qualifications and other matters stated herein, we are of the opinion that:
1. The Issuer has been duly organized, is validly existing as a
corporation in good standing under the laws of the State of Illinois, and, based
on good standing certificates from the jurisdictions that have been certified by
an appropriate officer of the Issuer as the only jurisdictions where the Issuer
owns or leases property or conducts business, such certificate attached as
Schedule II hereto, is duly qualified to do business and in good standing in
each such jurisdiction and has the corporate power and authority to own its
properties and to transact the business in which it is engaged.
2. The Issuer is authorized by its Amended and Restated Articles of
Incorporation to issue 25,000 shares of common stock, $.01 par value ("Common
Stock"). Based solely on our review of the Issuer's corporate minute books and
stock transfer records, 19,200 shares of Common Stock are outstanding. Each
share of capital stock of the Issuer that is issued and outstanding is duly
authorized and validly issued, fully paid and nonassessable and, to our
knowledge, is not subject to preemptive or similar rights.
3. The Issuer has all requisite corporate power and authority to
issue, sell, deliver and perform its obligations under the Notes to be issued by
it and to enter into, deliver and perform its obligations under the Purchase
Agreement and each of the other Transaction Documents to which it is a party and
to consummate the transactions contemplated to be consummated by it thereby.
4. The Notes have been duly authorized by all necessary corporate
action on the part of the Issuer and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of the Purchase Agreement,
the Notes will be valid and binding obligations of the Issuer and will be
entitled to the benefits of the Indenture and enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, reorganization, moratorium, liquidation,
conservatorship and similar laws now or hereafter in effect relating to or
affecting rights and remedies of creditors, and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or equity)
and to the discretion of the court before which any proceeding therefor may be
brought.
July 2, 1997
Page 5
5. Each of the Purchase Agreement, the Indenture and the
Registration Rights Agreement has been duly authorized, executed and delivered
by the Issuer and each is a valid and binding agreement of the Issuer,
enforceable against the Issuer in accordance with its respective terms, subject
to (a) applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium, liquidation, conservatorship and similar laws now or
hereafter in effect relating to or affecting rights and remedies of creditors,
(b) general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or equity), (c) limitations on the enforceability of
indemnification provisions imposed by law or public policy and (d) the
discretion of the court before which any proceeding therefor may be brought.
6. Insofar as the statements under the caption "Description of
Notes" in the Offering Circular purport to summarize the terms of the Indenture
or the Registration Rights Agreement, such statements present a fair summary in
all material respects.
7. No registration under the Act of the Series A Notes is required
for the sale of the Series A Notes to the Initial Purchasers as contemplated by
the Purchase Agreement or for Exempt Resales (assuming (i) that the Eligible
Purchasers who buy the Series A Notes in the Exempt Resales are QIBs or
Accredited Investors, (ii) the accuracy of, and compliance with, the
representations of the Initial Purchasers contained in the Purchase Agreement,
and (iii) the accuracy of the representations made by each Accredited Investor
who purchases the Series A Notes pursuant to an Exempt Resale as set forth in
the letters of representation executed by such Accredited Investors in the form
of Annex A to the Offering Circular).
8. The Indenture is not required to be qualified under TIA prior to
the first to occur of (i) the Registered Exchange Offer and (ii) the
effectiveness of the Shelf Registration Statement.
9. The Issuer is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
10. The Pledge and Security Agreement has been duly authorized,
executed and delivered by the Issuer and is a valid and binding agreement of the
Issuer enforceable against the Issuer in accordance with its terms, subject to
(a) applicable bankruptcy, insolvency, fraudulent conveyance or transfer,
reorganization, moratorium, liquidation, conservatorship and similar laws now or
hereafter in effect relating to or affecting rights and remedies of creditors,
(b) general principles of equity (regardless of whether enforcement is sought in
a proceeding at law or equity), (c) limitations on the enforceability of
indemnification provisions imposed by law or public policy and (d) the
discretion of the court before which any proceeding therefor may be brought.
11. The provisions of the Pledge and Security Agreement are
sufficient to create in the Trustee's favor a security interest in all right,
title and interest of the Issuer in those items and
July 2, 1997
Page 6
types of collateral described in the Pledge and Security Agreement in which a
security interest can be created under Article 9 of the New York Code (the
"CODE COLLATERAL").
12. The description of the Code Collateral set forth in the Illinois
Financing Statements is sufficient to perfect a security interest in the items
and types of collateral in which a security interest may be perfected by a
filing of a financing statement under Article 9 of the Illinois Code.
13. The Illinois Financing Statements are in proper form for filing;
assuming the Illinois Financing Statements are filed in the Illinois Filing
Offices and have not been subsequently released, terminated or modified, the
Trustee's security interests in the Code Collateral will be perfected to the
extent a security interest may be perfected under Article 9 of the Illinois Code
by the filing of a financing statement in the Illinois Filing Offices.
14. The Intellectual Property Security Agreement has been duly
authorized, executed and delivered by the Issuer and is a valid and binding
agreement of the Issuer enforceable against the Issuer in accordance with its
terms, subject to (a) applicable bankruptcy, insolvency, fraudulent conveyance
or transfer, reorganization, moratorium, liquidation, conservatorship and
similar laws now or hereafter in effect relating to or affecting rights and
remedies of creditors, (b) general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or equity), (c) limitations on the
enforceability of indemnification provisions imposed by law or public policy and
(d) the discretion of the court before which any proceeding therefor may be
brought.
15. Upon the issuance of the Notes under the Indenture, the
Intellectual Property Security Agreement creates in favor of the Assignee (as
defined in the Intellectual Property Security Agreement) for the benefit of the
Holders of the Notes as security for the Obligations (as defined in the
Indenture) a valid security interest in the Issuer's right, title and interest
in the Collateral described therein. Upon creation of such security interest
and (i) due filing of the Illinois Financing Statements with the Filing Offices
and (ii) the filing of an executed copy of the Intellectual Property Security
Agreement for recording in the United States Patent and Trademark Office, within
three months of the execution thereof, and in the United States Copyright
Office, within one month of the execution thereof, the Assignee will have, for
the benefit of the Holders of Notes, a perfected security interest in that
portion of the Collateral constituting United States registered trademarks and
service marks and trademark and service mark applications and registered
copyrights and copyright applications.
16. The Illinois Mortgage, including with respect to fixtures, is a
valid and binding obligation of the Issuer and enforceable against the Issuer in
accordance with its terms, subject to (a) applicable bankruptcy, insolvency,
fraudulent conveyance or transfer, reorganization, moratorium, liquidation,
conservatorship and similar laws now or hereafter in effect relating to or
affecting rights and remedies of creditors, (b) general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity), (c) limitations on enforceability of indemnification provisions imposed
by law or public policy and (d) the discretion of the court before which any
July 2, 1997
Page 7
proceeding therefor may be brought, provided, however, that 735 ILCS 5/15-1602
(1992) grants a mortgagor the right, which in certain circumstances is
exercisable not more than once in any five year period, to cure the default of
indebtedness secured by real estate within certain time periods specified in
such statute.
17. The Illinois Mortgage is in proper form for recording in the
mortgage and conveyance records of the Cook County Recorders Office and upon
recordation of the Illinois Mortgage, such Illinois Mortgage will constitute
constructive notice of the lien of the Illinois Mortgage to third parties.
18. To our knowledge and based upon representations made to us in a
certificate from an appropriate officer of the Issuer attached as Schedule II
hereto, there is no Proceeding before or by any Governmental Authority now
pending or threatened either (i) that seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge any of the Transaction Documents or any
of the transactions contemplated thereby or (ii) that could reasonably be
expected to, singly or in the aggregate, have a Material Adverse Effect.
19. Neither the execution or delivery by the Issuer of any of the
Transaction Documents nor the performance by the Issuer of any of its obligation
under the Transaction Documents will conflict with, violate, constitute a breach
of or a default (with the passage of time or otherwise) under, or result in the
imposition of a Lien on any properties of the Issuer or an acceleration of
indebtedness pursuant to, (i) the Charter Documents of the Issuer or (ii) any
Applicable Agreement identified to us as a material agreement in a certificate
of an appropriate officer of the Issuer attached as Schedule II hereto.
In addition, we have participated in conferences with directors,
officers and other representatives of the Issuer, representatives of the
independent public accountants for the Issuer, your representatives and your
counsel, at which conferences the content of the Offering Circular and related
matters were discussed and, although we are not passing upon, and assume no
responsibility for the accuracy, completeness or fairness of, the statements
contained in the Offering Circular, and have not made any independent check or
verification thereof, during the course of such participation no facts have come
to our attention that have led us to believe that, as of its date, the Offering
Circular contained an untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not misleading or that,
as of the date hereof, the Offering Circular contains an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that we express no opinion or belief with respect to the
financial statements (including the notes thereto), schedules and other
financial and statistical data included therein or omitted therefrom.
Our opinions are subject to the following further qualifications:
July 2, 1997
Page 8
(a) we express no opinion as to the creation and perfection of security
interests in any Collateral not governed solely by Article 9 of the New York
Code or, as applicable, the Illinois Code, any Collateral consisting of goods
that are or may become fixtures on any premises, nor do we express any opinion
with respect to the creation, perfection or enforceability of security interests
in property in which it is illegal or violative of governmental rules or
regulations to grant a security interest, or "general intangibles" (as defined
in the Illinois Code or New York Code) which terminate or become terminable
(pursuant to the terms of an agreement) if a security interest is granted
therein, or any security interest in any "accounts," "chattel paper,"
"documents," "instruments" or "general intangibles" (as defined in the Illinois
Code or New York Code) with respect to which the account debtor or obligor is
the United States of America, any state, county, city, municipality or other
governmental body, or any department, agency or instrumentality thereof, unless
the same has been assigned to any Holder pursuant to and in accordance with the
Assignment of Claims Act of 1940, as amended, or any similar law or regulation
relating to the assignment or pledge thereof;
(b) we express no opinion as to the perfection of a security interest in
any Collateral consisting of "proceeds" (as such term is defined in the Illinois
Code or New York Code) to the extent such perfection is limited as set forth in
Section 9-306 of each of the Illinois Code and the New York Code and under
certain circumstances described in Sections 9-307 and 9-308 of each of the
Illinois Code and the New York Code, purchasers of Collateral may take the same
free of a perfected security interest;
(c) we have not made nor undertaken to make any investigation of the state
of title to the Collateral or the location thereof and we express no opinion
with respect to the existence or title of the Collateral, the location thereof
or to the priority of the liens, security interests or pledges granted or
purported to be granted by the Transaction Documents;
(d) any purported assignment of any agreement or any governmental
approval, license or permit may be subject to restrictions upon assignment or
transfer which, although not necessarily applicable to assignments intended as
security, may be required to be satisfied before the Trustee, on behalf of the
Holders, will be treated as an assignee (other than a collateral assignee)
thereof, except to the extent that consents to or approvals of such assignment
have been obtained from the appropriate governmental body or third party;
(e) the rights of debtors, guarantors and other secured parties to
receive certain notices under Sections 9-504 and 9-505 of each of the Illinois
Code and the New York Code may not be waived prior to default and the failure to
comply with such notice requirements may bar or limit the recovery of any
deficiency remaining after the retention or sale of repossessed collateral and
further, we express no opinion as to the right of the Trustee to enforce any of
its rights without notice to the Company and to the extent applicable without
judicial hearing or without bond, nor do we express any opinion as to whether
the periods of notice set forth in the Transaction Documents are enforceable;
July 2, 1997
Page 9
(f) notwithstanding certain language of the Transaction Documents,
the Trustee and the Holders may be limited to recovering only reasonable
expenses with respect to the retaking, holding, preparing for sale or lease,
selling, leasing and the like of Collateral;
(g) the duties to exercise reasonable care in the custody and preservation
of Collateral in a secured party's possession and to deal with and to dispose of
Collateral in a commercially reasonable manner as required by the Illinois Code,
the New York Code or other applicable law may not be disclaimed by agreement,
modified, waived or released prior to a default;
(h) provisions in the Transaction Documents deemed to impose the payment
of interest on interest may be unenforceable, void or voidable under applicable
law;
(i) any rights of the Trustee to foreclose its liens or enforce its
remedies against the Collateral must be enforced pursuant to the provisions of
the Illinois Code and the New York Code and other applicable federal, state or
local laws;
(j) requirements in the Transaction Documents specifying that
provisions thereof may only be waived in writing may not be valid, binding or
enforceable to the extent that an oral agreement or an implied agreement by
trade practice or course of conduct has been created modifying any provision of
such documents;
(k) we express no opinion with respect to the validity, binding effect or
enforceability of any provision of the Transaction Documents which purports to
authorize the Trustee to sign or file financing statements or other documents
without the signature of the Company (except to the extent a secured party may
execute and file financing statements without the signature of the debtor under
Section 9-402(2) of each of the Illinois Code and the New York Code);
(l) we express no opinion with respect to the validity, binding effect or
enforceability of any purported waiver, release or disclaimer under any of the
Transaction Documents relating to (i) statutory or equitable rights and defenses
of the Company which are not subject to waiver, release or disclaimer, or (ii)
rights or claims of, or duties owing to, the Company with respect to the
Collateral (including, without limitation, any waiver, release or disclaimer of
any provision of the Illinois Code or the New York Code) to the extent limited
by Sections 1-102(3), 9-207 and 9-501(3) of the Illinois Code or the New York
Code or other provisions of applicable law, or to the extent such rights, claims
and duties otherwise exist as a matter of law except to the extent the Company
has effectively so waived, released or disclaimed such rights, claims or duties
in accordance with Section 9-501 of the Illinois Code or the New York Code or
other applicable law;
(m) we express no opinion as to the Trustee's ability to use "self-help"
remedies to repossess the Collateral if a breach of the peace were to occur;
July 2, 1997
Page 10
(n) certain other rights, remedies and waivers contained in the
Transaction Documents may be rendered ineffective, or limited by, applicable
laws, rules, regulations, constitutional requirements or judicial decisions
governing such provisions, but such laws, rules, regulations, constitutional
limitations and judicial decisions do not, in our opinion, make the Transaction
Documents inadequate for the practical realization of the benefits and/or
security provided by such Transaction Documents, although they may result in a
delay thereof (and we express no opinion with respect to the economic
consequences of any such delay);
(o) we express no opinion with respect to the applicability or effect of
federal or state antitrust or tax laws, or state securities or "blue sky" laws,
with respect to the transactions contemplated by the Transaction Documents;
(p) we express no opinion with respect to the validity, binding effect or
enforceability of any provision of the Transaction Documents purporting to
establish evidentiary standards or waiving jury trial or service of process or
purporting to eliminate any obligation to xxxxxxxx assets;
(q) we express no opinion with respect to any provisions of the
Transaction Documents purporting to appoint the Trustee as attorney-in-fact or
agent for the Company; and
(r) the opinions set forth herein are based on the assumption that
all necessary recordings, filings and transfers of instruments necessary to
release any security interests, liens or other encumbrances in favor of The
First National Bank of Chicago, for the benefit of the lenders under the Old
Credit Facility (as defined in the Offering Circular) in the Collateral have
been made.
The opinions expressed herein are based upon and are limited to the
laws of the State of Illinois, the State of New York and the laws of the United
States of America and we express no opinion with respect to the laws of any
other state or jurisdiction.
Our opinions set forth in this letter are based upon the facts in
existence and laws in effect on the date hereof and we expressly disclaim any
obligation to update our opinions herein, regardless of whether changes in such
facts or laws come to our attention after the delivery hereof.
This opinion is rendered to you in connection with the closing of the
referenced offering occurring today. This opinion is solely for your benefit
and is not to be used, circulated, quoted or otherwise referred to for any other
purpose without our express prior written permission.
Respectfully submitted,
WINSTON & XXXXXX
July 2, 1997
Page 11
SCHEDULE I
ILLINOIS FILING OFFICES
Debtor Name Location of Filing Office
--------------------------- ---------------------------
Xxxxxxxxx Xxxxx Corporation Illinois Secretary of State
Cook County, Illinois
SCHEDULE II
CERTIFICATE OF OFFICER
The undersigned, as Vice President - Finance and Accounting and
Secretary of Xxxxxxxxx Xxxxx Corporation (the "COMPANY"), hereby certifies that:
(i) the Company is incorporated under the laws of Illinois and that
the only jurisdictions where the Company owns or leases property
or conducts business are the States of Minnesota, New York,
Indiana, Michigan, Florida, Wisconsin, Massachusetts,
Pennsylvania, Missouri, Iowa, Virginia, Ohio, North Dakota, New
Hampshire, Maryland, Rhode Island, New Jersey, South Dakota and
Maine and the District of Columbia;
(ii) there is no action, claim, suit or proceeding (including, without
limitation, an investigation or partial proceeding, such as a
deposition), domestic or foreign, before or by any government,
governmental or regulatory agency or body, court or arbitrator,
domestic or foreign, now pending or threatened either (a) that
seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge any of the Indenture, the Registration Rights
Agreement or the Security Documents (as defined in the Indenture)
or any of the transactions contemplated by the Purchase Agreement
(as hereafter defined) or (b) that could reasonably be expected
to, singly or in the aggregate, have a Material Adverse Effect;
and
(iii) attached hereto as ANNEX A is a true and complete list of
all Applicable Agreements that are material to the conduct
of the business of the Company.
Unless otherwise defined herein, each capitalized term used herein
shall have the meaning ascribed to such term in the Purchase Agreement dated
June 27, 1997 between the Company and the Purchasers listed therein (the
"PURCHASE AGREEMENT").
IN WITNESS WHEREOF, I have hereunto set my hand this 2nd day of July,
1997.
XXXXXXXXX XXXXX CORPORATION,
an Illinois corporation
By: _______________________________
Xxxxx Xxxxxx
Vice President - Finance and
Accounting and Secretary
ANNEX A
TO
SCHEDULE II
1. Purchase Agreement
2. Registration Rights Agreement
3. Indenture
4. Notes
5. Pledge and Security Agreement
6. Intellectual Property Security Agreement
7. Mortgage, Security Agreement, Assignment of Leases and Rents, Fixture
Filing and Financing Statement dated as of July 2, 1997 between the
Company and the Trustee for the property located at 0000 X. Xxxxxxx,
0000 X. Xxxxxxx, 0000 X. Xxxxxxx, and 1128-0000 X. Xxx Xxxxx, Xxxxxxx,
Xxxxxxxx
0. Open-End Mortgage, Security Agreement, Assignment of Leases and Rents,
Fixture Filing and Financing Statement dated as of July 2, 1997
between the Company and the Trustee for the property located at 0000
Xxxxxxxxxx Xx., Xxxxxxxx, Xxxxxxxxxxxx
0. Securities Purchase Agreement dated as of October 30, 1991 among the
Company, Parent and the Purchasers signatory thereto (as amended by
the First Amendment thereto dated as of September 18, 1992; the Second
Amendment thereto dated as of August 12, 1994; and the Third Amendment
thereto dated as of July 2, 1997)
10. Tax Sharing and Management Consulting Agreement dated as of July 2, 1997
between the Company and Parent
11. Management Consulting Agreement dated as of July 2, 1997 between Parent and
TJC Management Corp.
12. Shareholders Agreement dated as of October 30, 1991 among the Company,
Parent and the Shareholders named therein
13. The following Stock Appreciation Right Agreements:
a. Stock Appreciation Rights Agreement, dated as of October 31, 1991, by
and between Xxxxxx May Holdings, Inc. and Xxxxxx X. Xxxxxx.
b. Stock Appreciation Rights Agreement, dated as of October 31, 1991, by
and between Xxxxxx May Holdings, Inc. and Xxxxx X. Xxxxx.
c. Stock Appreciation Rights Agreement, dated as of October 31, 1991, by
and between Xxxxxx May Holdings, Inc. and Xxxxxxx X. Xxxxxx.
d. Stock Appreciation Rights Agreement, dated as of October 31, 1991, by
and between Xxxxxx May Holdings, Inc. and Xxxxxxx X. Xxxxxx, Xx.
x. Stock Appreciation Rights Agreement, dated as of October 31, 1991, by
and between Xxxxxx May Holdings, Inc. and Xxxx X. Xxxxxx.
f. Stock Appreciation Rights Agreement, dated as of October 31, 1991, by
and between Xxxxxx May Holdings, Inc. and Xxxxx X. Xxxxx.
g. Stock Appreciation Rights Agreement, dated as of December 13, 1993 by
and between Xxxxxx May Holdings, Inc. and Xxx X. Xxxxxxxx.
h. Stock Appreciation Rights Agreement, dated as of August 1, 1996 by and
between Xxxxxx May Holdings, Inc. and Xxxxx X. Xxxxxx.
i. Stock Appreciation Rights Agreement, dated as of April 1, 1996 by and
between Xxxxxx May Holdings, Inc. and Xxxxxx Xxxxxxxxxx.
j. Stock Appreciation Rights Agreement, dated as of April 1, 1996 by and
between Xxxxxx May Holdings, Inc. and Xxx X. Xxxxxxxx.
k. Stock Appreciation Rights Agreement, dated as of August 1, 1996 by and
between Xxxxxx May Holdings, Inc. and Xxxxx Xxxxx.
l. Stock Appreciation Rights Agreement, dated as of January 27, 1997 by
and between Xxxxxx May Holdings, Inc. and Xxxx Xxxxxxx.
14. Indemnification Agreements dated as of July 2, 1997 between the Company and
each of its directors and officers
15. The following Union Contracts:
a. General Services Employees Union General Service May 1,1994 -
(AFL-CIO Local #73) April 30, 1997
(proposed
contract extension
to June 30, 2000)
b. Miscellaneous Warehousemen Miscellaneous July 1, 1996 -
(IBT Local #781) Warehousemen June 30, 1999
c. International Brotherhood of Teamsters Cartage April 1, 1994 -
(AFL - CIO Local #705) (Road Carriers) March 31, 1998
d. Highway Truck Drivers & Helpers Highway Truck July 1, 1996 -
(AFL - CIO Local #107) Drivers & Helpers June 30, 1999
addendum
April 1, 1994 -
March 31, 1997
e. United Brotherhood of Carpenters Carpenters June 1, 1995 -
and Joiners of America & Joiners (All May 31, 1998
(AFL - CIO Local #13) subdivisions of
trade)
f. Woodworkers Assoc. of Chicago Woodworkers Assoc. June 1, 1995 -
May 31, 2000
g. Joint Area Cartage Agreement Cartage April 1, 1994 -
Cartage/Road Carriers Road Carriers March 31, 1998
(AFL - CIO Local #107)
h. International Union of Operating Engineers January 1, 1997-
Engineers December 31, 1999
(Local #399)
