BELDEN CDT INC. ( a Delaware corporation) 7% Senior Subordinated Notes due 2017 PURCHASE AGREEMENT
Exhibit 10.1
$350,000,000
XXXXXX CDT INC.
( a Delaware corporation)
( a Delaware corporation)
7% Senior Subordinated Notes due 2017
PURCHASE AGREEMENT
March 13, 2007
Exhibit 10.1
March 13, 2007
March 13, 2007
Wachovia Capital Markets, LLC
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Ladies and Gentlemen:
Xxxxxx CDT Inc., a Delaware corporation (the “Company”), proposes to issue and sell to the
several purchasers named in Schedule I hereto (the “Initial Purchasers”), for whom Wachovia Capital
Markets, LLC is acting as Representative (in such capacity, the “Representative”), $350,000,000
aggregate principal amount of its 7% Senior Subordinated Notes due 2017 (the “Notes”), which will
be unconditionally guaranteed on a senior subordinated basis as to principal, premium, if any, and
interest (the “Guarantees”) by the subsidiaries of the Company named in Schedule II hereto (each
individually, a “Guarantor” and collectively, the “Guarantors”). The Notes will be issued pursuant
to an Indenture (the “Indenture”) dated as of the Closing Date (as defined in Section 2) among the
Company, the Guarantors and U.S. Bank National Association, as Trustee (the “Trustee”). This
Agreement, the Registration Rights Agreement, to be dated the Closing Date, between the Initial
Purchasers, the Company and the Guarantors (the “Registration Rights Agreement”) and the Indenture
are hereinafter collectively referred to as the “Transaction Documents” and the execution and
delivery of the Transaction Documents and the transactions contemplated herein and therein are
hereinafter referred to as the “Transactions”.
The Notes (and the related Guarantees) will be offered and sold through the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the “Securities Act”), to
qualified institutional buyers in compliance with the exemption from registration provided by Rule
144A under the Securities Act, and in offshore transactions in reliance on Regulation S under the
Securities Act (“Regulation S”). The Initial Purchasers have advised the Company that they will
offer and sell the Notes purchased by them hereunder in accordance with Section 3 hereof as soon as
the Representative deems advisable.
In connection with the sale of the Notes, the Company has prepared a preliminary offering
memorandum, dated March 2, 2007 (the “Preliminary Memorandum”), the Offering Memorandum (as defined
below) and a Final Memorandum (as defined below), dated the date hereof. The Final Memorandum, the
Preliminary Memorandum, and the Offering Memorandum are referred to herein as a “Memorandum”. Each
Memorandum sets forth certain information concerning the Company, the Guarantors, the Notes, the
Transaction Documents and the Transactions. The Company hereby confirms that it has authorized the
use of the Preliminary Memorandum and the Offering Memorandum, and any amendment or supplement
thereto, in connection with the offer and sale of the Notes by the Initial Purchasers.
Prior to the time when the sales of the Notes were first made (the “Time of Sale”), the
Company has prepared and delivered to the Initial Purchasers a pricing supplement (the
“Pricing Supplement”) dated March 13, 2007. The Pricing Supplement together with the
Preliminary Memorandum is referred to herein as the “Offering Memorandum.”
Promptly after the Time of Sale and in any event no later than the second Business Day
following the Time of Sale, the Company will prepare and deliver to each Initial Purchaser a Final
Offering Memorandum (the “Final Memorandum”), which will consist of the Preliminary Offering
Memorandum with such changes therein as are required to reflect the information contained in the
Pricing Supplement, and from and after the time such Final Memorandum is delivered to each Initial
Purchaser, all references herein to the Offering Memorandum shall be deemed to be a reference to
both the Offering Memorandum and the Final Memorandum.
1. Representations and Warranties of the Company and the Guarantors. The Company and
the Guarantors jointly and severally represent and warrant to, and agree with, each of the Initial
Purchasers that:
(a) The Preliminary Memorandum does not contain; the Offering Memorandum at the Time of
Sale will not contain; and the Final Memorandum, and any amendment or supplement thereto, as
of its date and as of the Closing Date will not contain any untrue statement of a material
fact or, in each case, omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading; provided,
however, that the representations or warranties set forth in this paragraph shall not apply
to statements in or omissions from any Memorandum made in reliance upon and in conformity
with information furnished in writing to the Company by the Initial Purchasers expressly for
use therein, as specified in Section 11. The statistical and industry data included in each
Memorandum are based on or derived from sources that the Company believes to be reliable and
accurate in all material respects.
(b) The Company has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware. The Company is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction in which the conduct of its business or its ownership or leasing of property
requires such qualification, except where the failure to so qualify or be in good standing
would not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
“Material Adverse Effect” shall mean a material adverse change in or effect on (i) the
business, operations, properties, assets, liabilities, earnings, condition (financial or
otherwise), results of operations or management of the Company and its subsidiaries,
considered as one enterprise, whether or not in the ordinary course of business, or (ii) the
ability of the Company and each Guarantor to perform its obligations under the Notes or the
Transaction Documents.
(c) Each of the Company and each Guarantor has full power (corporate and other) to own
or lease its properties and conduct its business as described in each Memorandum; and each
of the Company and each Guarantor has full power (corporate and other) to enter into the
Transaction Documents and to carry out all the terms and provisions hereof and thereof to be
carried out by it.
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(d) The capitalization of the Company is as set forth in the Offering Memorandum under
the caption “Capitalization”. All of the issued shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and nonassessable; and none of
the outstanding shares of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any security holder of the Company.
(e) Each subsidiary of the Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its business as
described in the Offering Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a Material Adverse Effect; all of the
issued shares of capital stock of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, and are owned directly or through
wholly owned subsidiaries by the Company, free and clear of all liens, encumbrances,
equities or claims, except as otherwise described in the Offering Memorandum.
(f) No subsidiary of the Company is prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s property or assets to the Company or
any other subsidiary of the Company, except as provided by applicable laws or regulations,
by the Indenture or as disclosed in the Offering Memorandum.
(g) [Reserved.]
(h) Ernst & Young LLP, who has certified the historical consolidated financial
statements included in the Offering Memorandum and delivered its report with respect to the
audited historical consolidated financial statements in the Offering Memorandum, is an
independent public accountant with respect to the Company within the meaning of the
Securities Act and the applicable rules and regulations thereunder.
(i) The historical consolidated financial statements (including the notes thereto) of
the Company and its consolidated subsidiaries in the Offering Memorandum fairly present the
financial position, results of operations, cash flows and changes in stockholders’ equity of
the Company and its consolidated subsidiaries as of the dates and for the periods specified
therein; since the date of the latest of such financial statements, there has been no change
nor any development or event involving a prospective change which, individually or in the
aggregate, has had or could reasonably be expected to have a Material Adverse Effect; such
financial statements have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as otherwise
expressly disclosed in the notes thereto) and comply in all material respects as to form
with the applicable accounting requirements of Regulation S-X under the Securities Act
(other than as provided under the heading “Securities and Exchange Commission Review” in the
Offering Memorandum and the Final Memorandum);
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the information set forth under the captions “Offering Memorandum Summary – Summary
Historical Consolidated Financial Information” and “Selected Historical Consolidated
Financial Information” in the Offering Memorandum has been fairly extracted from the
financial statements of the Company and its consolidated subsidiaries, fairly presents the
information included therein and has been compiled on a basis consistent with that of the
audited financial statements included in the Offering Memorandum; and the ratios of earnings
to fixed charges set forth in the Offering Memorandum under the caption “Selected Historical
Consolidated Financial Information” have been calculated in compliance with Item 503(d) of
Regulation S-K under the Securities Act.
(j) Subsequent to the respective dates as of which information is given in the Offering
Memorandum, (i) none of the Company and its subsidiaries have incurred any material
liability or obligation, direct or contingent, or entered into any material transaction in
each case not in the ordinary course of business; (ii) the Company has not purchased any of
its outstanding capital stock, and, except for regular quarterly dividends on the common
stock, par value $0.01 of the Company in amounts per share that are consistent with past
practice, has not declared, paid or otherwise made any dividend or distribution of any kind
on any class of its capital stock; and (iii) there has not been any change in the capital
stock, short-term debt or long-term debt of the Company and its subsidiaries, except as
disclosed in the Offering Memorandum or as would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(k) Each of the Company and each of its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(l) This Agreement has been duly authorized, executed and delivered by the Company and
each Guarantor.
(m) The Indenture and the Registration Rights Agreement have been duly authorized by
the Company and each Guarantor and, on the Closing Date, will have been duly executed and
delivered by the Company and each Guarantor, and will constitute the legal, valid and
binding obligations of the Company and each Guarantor, enforceable against the Company and
each Guarantor in accordance with their respective terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law); and the Indenture and the Registration Rights Agreement
will conform in all material respects to the description thereof in the Offering Memorandum.
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(n) On the Closing Date, the Indenture will conform to the requirements of the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”), and to the rules and
regulations of the Securities and Exchange Commission (“the “Commission”) applicable to an
indenture that is qualified thereunder.
(o) The Notes have been duly authorized and, on the Closing Date, when executed and
authenticated in the manner provided for in the Indenture and delivered to and paid for by
the Initial Purchasers as provided in this Agreement, will constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law), and
will be entitled to the benefits of the Indenture and the Registration Rights Agreement; the
Guarantees have been duly authorized and, on the Closing Date, upon the due issuance and
delivery of the related Notes and the due endorsement of the Guarantees thereon, will have
been duly executed, endorsed and delivered and will constitute valid and legally binding
obligations of each of the Guarantors, and will be entitled to the benefits of the
Indenture; the Exchange Notes (as defined in the Registration Rights Agreement) have been
duly authorized and, when executed and authenticated in the manner provided for in the
Registration Rights Agreement and the Indenture, will constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at law), and
will be entitled to the benefits of the Indenture and the Registration Rights Agreement; and
the Notes and the Exchange Notes will conform in all material respects to the descriptions
thereof in the Offering Memorandum.
(p) The execution, delivery and performance by the Company and each Guarantor of this
Agreement and the other Transaction Documents, the issuance and sale of the Notes and the
compliance by the Company and each Guarantor with all of the provisions of the Notes, the
Indenture, the Registration Rights Agreement and this Agreement and the consummation of the
transactions contemplated hereby and thereby will not: (i) violate or conflict with the
certificate of incorporation or by-laws of the Company or any of its subsidiaries; (ii)
conflict with, result in a breach or violation of, or constitute a default under, any
indenture, mortgage, deed of trust or loan agreement, stockholders’ agreement or any other
agreement or instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or any of their respective properties
are subject, or any statute, rule or regulation or any judgment, order or decree of any
governmental authority or court or any arbitrator applicable to the Company or any of its
subsidiaries, except in the case of this clause (ii) for such conflicts, breaches,
violations or defaults that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; or (iii) (assuming, as to matters of fact, the
accuracy of the representations and warranties of the Initial Purchasers contained herein)
require the consent, approval, authorization, order, registration or filing or qualification with,
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any governmental authority or court, or body or arbitrator having
jurisdiction over the Company or any of its subsidiaries, except (x) such as may be required
by the securities or Blue Sky laws of the various states in connection with the offer or
sale of the Notes and by Federal and state securities laws with respect to the obligations
of the Company and the Guarantors under the Registration Rights Agreement or (y) where the
failure to obtain such consents, approvals, authorizations, orders, registrations, filings
or qualifications would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(q) No legal or governmental proceedings or investigations are pending or, to the
Company’s knowledge, threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its subsidiaries is subject,
other than proceedings accurately described in the Preliminary Memorandum and the Offering
Memorandum and such proceedings or investigations that would not, singly or in the
aggregate, result in a Material Adverse Effect.
(r) There are no relationships, direct or indirect, between or among the Company or any
of its subsidiaries, on the one hand, and the respective directors, officers, stockholders,
customers or suppliers of the Company or any of its subsidiaries, on the other hand, that
would be required by the Securities Act to be disclosed in a prospectus were the Notes being
issued and sold in a public offering registered on Form S-1 under the Securities Act that
are not so disclosed in the Offering Memorandum; and there are no contracts or other
documents that would be required by the Securities Act to be disclosed in a prospectus were
the Notes being issued and sold in a public offering registered on Form S-1 under the
Securities Act that are not so disclosed in the Offering Memorandum.
(s) Each of the Company and each Guarantor is not now nor after giving effect to the
issuance of the Notes and the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby or described in the
Preliminary Memorandum or the Offering Memorandum, will be (in each case on a consolidated
basis) (i) insolvent, (ii) left with unreasonably small capital with which to engage in its
anticipated business or (iii) incurring debts or other obligations beyond its ability to pay
such debts or obligations as they become due.
(t) The Company and its Affiliates (as defined in Rule 501(b) of Regulation D under the
Securities Act (“Regulation D”)) have not distributed and, prior to the later of (i) the
Closing Date and (ii) the completion of the distribution of the Notes, will not distribute
any offering material in connection with the offering and sale of the Notes other than the
Preliminary Memorandum, the Offering Memorandum or any amendment or supplement thereto.
(u) The Company and its subsidiaries have not sustained, since the date of the latest
audited historical consolidated financial statements included in the Offering Memorandum
(exclusive of any amendment or supplement thereto), any loss or interference with its
business or properties from fire, explosion, flood, accident or other calamity, whether or
not covered by insurance, or from any labor dispute or court or governmental
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action, order or decree (whether domestic or foreign) otherwise than as set forth in
the Offering Memorandum (exclusive of any amendment or supplement thereto) or, in each case,
as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(v) The statements set forth in the Offering Memorandum under the caption “Description
of Notes”, insofar as they purport to constitute a summary of the terms of the Notes, and
under the captions “Management”, “Certain Relationships and Related Transactions”,
“Description of Certain Indebtedness”, “Certain United States Federal Income Tax
Considerations”, and “Exchange Offer; Registration Rights”, insofar as they purport to
summarize the provisions of the laws and documents referred to therein, fairly and
accurately summarize the subject matter thereof in all material respects.
(w) The Company and its subsidiaries have good and marketable title in fee simple to
all items of real property and good and marketable title to all personal property owned by
each of them, free and clear of any pledge, lien, encumbrance, security interest or other
defect or claim of any third party, except as (x) set forth in the Offering Memorandum or
(y) to the extent the failure to have such title or the existence of such pledges, liens,
encumbrances, security interests or other defects or claims would not, in the aggregate,
reasonably be expected to have a Material Adverse Effect and would not materially interfere
with the use thereof by the Company and its subsidiaries. Any property leased by the Company
and its subsidiaries is held under valid, subsisting and enforceable leases, and there is no
default under any such lease or any other event that with notice or lapse of time or both
would constitute a default thereunder, except as would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(x) No “prohibited transaction” (as defined in Section 406 of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published
interpretations thereunder (“ERISA”), or Section 4975 of the Internal Revenue Code of 1986,
as amended from time to time (the “Code”)) or “accumulated funding deficiency” (as defined
in Section 302 of ERISA) or any of the events set forth in Section 4043(c) of ERISA (other
than events with respect to which the 30-day notice requirement under Section 4043 of ERISA
has been waived) has occurred, exists or is reasonably expected to occur with respect to any
employee benefit plan (as defined in Section 3(3) of ERISA) which the Company or any of its
subsidiaries maintains, contributes to or has any obligation to contribute to, or with
respect to which the Company or any of its subsidiaries has any liability, direct or
indirect, contingent or otherwise (a “Plan”), except in each case as would not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect; each Plan is
in compliance in all material respects with applicable law, including ERISA and the Code;
none of the Company or any of its subsidiaries has incurred or expects to incur liability
under Title IV of ERISA with respect to the termination of, or withdrawal from, any Plan;
and each Plan that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by action or failure to
act, which could reasonably be expected to cause the loss of such qualification.
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(y) Except as disclosed in each Memorandum, no labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the Company’s knowledge, is imminent or is
threatened which, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect.
(z) No proceedings for the merger, consolidation, liquidation or dissolution of the
Company or any Guarantor or the sale of all or a material part of the assets of the Company
and its subsidiaries; and, other than as disclosed in the Offering Memorandum, no probable
material acquisition by the Company or any Guarantor is pending or contemplated.
(aa) The Company and each of its subsidiaries owns or otherwise possesses adequate
rights to use all material patents, trademarks, service marks, trade names and copyrights,
all applications and registrations for each of the foregoing, and all other material
proprietary rights and confidential information necessary to conduct their respective
businesses as currently conducted; none of the Company or any of its subsidiaries has
received any notice, or is otherwise aware, of any infringement of or conflict with the
rights of any third party with respect to any of the foregoing, which infringement or
conflict, if the subject of an unfavorable decision, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect or materially interfere
with the use by the Company and its subsidiaries thereof.
(bb) The Company and each of its subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks and in such amounts and
with such deductibles as are prudent in the business in which it is engaged; and none of the
Company or any of its subsidiaries has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue their respective
businesses at a cost that would not have a Material Adverse Effect.
(cc) Each of the Company and each of its subsidiaries has complied with all laws,
ordinances, regulations and orders applicable to the Company and its subsidiaries, and their
respective businesses, and none of the Company or any of its subsidiaries has received any
notice to the contrary; and each of the Company and its subsidiaries possesses all
certificates, authorizations, permits, licenses, approvals, orders and franchises
(collectively, “Licenses”) necessary to conduct their respective businesses in the manner
and to the full extent now operated or proposed to be operated as described in the Offering
Memorandum, in each case issued by the appropriate federal, state, local or foreign
governmental or regulatory authorities (collectively, the “Agencies”), except where the
failure to so comply or to possess such Licenses would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Licenses are in
full force and effect and no proceeding has been instituted or, to the Company’s knowledge,
is threatened or contemplated which in any manner affects or calls into question the
validity or effectiveness thereof, except where such invalidity or ineffectiveness thereof
would not, in the aggregate, reasonably be expected to have a Material Adverse Effect. The
Licenses contain no restrictions, except for restrictions applicable to the cable and
connectivity products industry generally, that are materially burdensome to the Company.
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(dd) The operation of the business of the Company and its subsidiaries in the manner
and to the full extent now operated or proposed to be operated as described in the Offering
Memorandum is in accordance with the Licenses, and all orders, rules and regulations of the
Agencies, and no event has occurred which permits (nor has an event occurred which with
notice or lapse of time or both would permit) the revocation or termination of any necessary
Licenses or which might result in any other impairment of the rights of the Company therein
or thereunder, and each of the Company and each of its subsidiaries is in compliance with
all statutes, orders, rules and regulations of the Agencies relating to or affecting its
operations, except where the failure to so comply or the revocation or termination would
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
(ee) There is and has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such, to comply in all material
respects with any provision of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes Oxley Act”), including Section 402
related to loans and Sections 302 and 906 related to certifications.
(ff) (i) Each of the Company and each of its subsidiaries is and has been in
compliance with all applicable laws, statutes, ordinances, rules, regulations, orders,
judgments, decisions, decrees, standards, and requirements relating to: human health and
safety; pollution; management, disposal or release of any chemical substance, product or
waste; and protection, cleanup, remediation or corrective action relating to the environment
or natural resources (“Environmental Law”);
(ii) Each of the Company and each of its subsidiaries has obtained and is in compliance
with the conditions of all permits, authorizations, licenses, approvals and variances
necessary under any Environmental Law for the continued conduct in the manner now conducted
of their respective businesses (“Environmental Permits”);
(iii) There are no past or present conditions or circumstances, including but not
limited to pending changes in any Environmental Law or Environmental Permits, that are
likely to interfere with the conduct of the business of the Company and its subsidiaries in
the manner now conducted or which would interfere with compliance with any Environmental Law
or Environmental Permits; and
(iv) There are no past or present conditions or circumstances at, or arising out of,
their respective businesses, assets and properties of the Company and each of its
subsidiaries or any business, assets or properties formerly leased, operated or owned by the
Company or any of its subsidiaries, including but not limited to on-site or off-site
disposal or release of any chemical substance, product or waste, which may give rise to: (i)
liabilities or obligations for any cleanup, remediation or corrective action under any
Environmental Law; (ii) claims arising under any Environmental Law for personal injury,
property damage, or damage to natural resources; (iii) liabilities or obligations incurred
by the Company or its subsidiaries to comply with any Environmental Law; or (iv) fines or
penalties arising under any Environmental Law;
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except in each case for any noncompliance or conditions or circumstances that, singly or in the
aggregate, would not result in a Material Adverse Effect or as disclosed in the Offering
Memorandum.
(gg) (i) Neither the Company nor any Guarantor is in violation of its certificate of
incorporation or its bylaws, and (ii) no default or breach exists, and no event has occurred
that, with notice or lapse of time or both, would constitute a default in the due
performance and observation of any term, covenant or condition of any indenture, mortgage,
deed of trust, lease, loan agreement, stockholders’ agreement or any other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of their respective properties
are subject, except in the case of clause (ii) would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(hh) Each of the Company and each of its subsidiaries has filed all foreign, federal,
state and local tax returns that are required to be filed or has requested extensions
thereof and has paid all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being contested in good
faith and for which the Company and its subsidiaries retains adequate reserves or as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(ii) Except as disclosed in the Offering Memorandum, there are no contracts, agreements
or understandings between the Company or any of its subsidiaries and any person granting
such person the right to require the Company or any of its subsidiaries to file a
registration statement under the Securities Act or to require the Company to include any
securities held by any person in any registration statement filed by the Company under the
Securities Act.
(jj) Neither the Company nor any Guarantor is, nor after giving effect to the offering
and sale of the Notes and the application of the proceeds thereof as described in the
Offering Memorandum will be, an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act of 1940, as amended
(the “Investment Company Act”).
(kk) Within the preceding six months, none of the Company or any of its Affiliates has,
directly or through any agent, made offers or sales of any security of the Company, or
solicited offers to buy or otherwise negotiated in respect of any securities of the Company
of the same or a similar class as the Notes, other than the Notes offered or sold to the
Initial Purchasers hereunder.
(ll) None of the Company or any of its Affiliates has, directly or through any person
acting on its or their behalf (other than the Initial Purchasers, as to which no statement
is made), offered, solicited offers to buy or sold the Notes by any form of general
solicitation or general advertising (within the meaning of Regulation D) or in any
manner involving a public offering within the meaning of Section 4(2) of the Securities
Act.
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(mm) None of the Company, any of its Affiliates, nor any person acting on its or their
behalf (other than the Initial Purchasers, as to which no statement is made), has engaged in
any directed selling efforts with respect to the Notes, and each of them has complied with
the offering restrictions requirement of Regulation S under the Securities Act (“Regulation
S”). Terms used in this paragraph have the meanings given to them by Regulation S.
(nn) None of the Company or any of its Affiliates has taken, directly or indirectly,
any action designed to cause or result in, or which has constituted or which might
reasonably be expected to cause or result in, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Notes; nor has the
Company or any of its Affiliates paid or agreed to pay to any person any compensation for
soliciting another to purchase any securities of the Company (except as contemplated by this
Agreement).
(oo) The Notes satisfy the eligibility requirements of Rule 144A(d)(3) under the
Securities Act.
(pp) Assuming the accuracy of the representations and warranties of the Initial
Purchasers in Section 3 hereof and compliance by the Initial Purchasers with the procedures
set forth in Section 3 hereof, it is not necessary in connection with the offer, sale and
delivery of the Notes to the Initial Purchasers in the manner contemplated by this Agreement
and disclosed in each Memorandum to register the Notes or the related Guarantees under the
Securities Act or to qualify the Indenture under the Trust Indenture Act.
(qq) None of the Transactions (including, without limitation, the use of proceeds from
the sale of the Notes) will violate or result in a violation of Section 7 of the Exchange
Act or any regulation promulgated thereunder, including, without limitation, Regulations T,
U and X of the Board of Governors of the Federal Reserve System.
(rr) There are, and during the last 12 months there have been, no material disputes
between the Company and any of its ten largest suppliers (as measured by dollar volume of
goods purchased by the Company) (“Material Suppliers”) or ten largest customers (as measured
by dollar volume of goods sold by the Company) (“Material Customers”). The Company’s
relations with its Material Suppliers and Material Customers are, in the Company’s
reasonable belief, good; and the Company has received no notice, and is not otherwise aware,
of any anticipated material dispute with any of its Material Suppliers and Material
Customers, or that (i) any Material Supplier intends to cease or materially reduce its
supply to the Company or (ii) any Material Customer intends to cease or materially reduce
its purchases from the Company.
(ss) Except as disclosed in the Offering Memorandum, there are no agreements,
arrangements or understandings that will require the payment of any commissions, fees or
other remuneration to any investment banker, broker, finder, consultant or intermediary in connection with the transactions contemplated by this Agreement.
-11-
(tt) The Company does not intend to treat any of the transactions contemplated by the
Transaction Documents as being a “reportable transaction” (within the meaning of Treasury
Regulation Section 1.6011-4). In the event the Company determines to take any action
inconsistent with such intention, it will promptly notify the Representative thereof. If
the Company so notifies the Representative, the Company acknowledges that one or more of the
Initial Purchasers may treat their purchase and resale of Notes as part of a transaction
that is subject to Treasury Regulation Section 301.6112-1, and such Initial Purchaser or
Initial Purchasers, as applicable, will maintain the lists and other records required by
such Treasury Regulation.
(uu) The Company has been advised by the NASD’s PORTAL Market that the Notes have been
designated PORTAL-eligible securities in accordance with the rules and regulations of the
NASD.
(vv) There are no stamp or other issuance or transfer taxes or duties or other similar
fees or charges required to be paid in connection with the execution and delivery of this
Agreement or the issuance or sale by the Company of the Notes.
(ww) None of the Company, its subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee or Affiliate of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that would result in a violation
by such Persons of Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without limitation, making use of the mails
or any means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA; and the
Company, its subsidiaries and, to the knowledge of the Company, its Affiliates have
conducted their businesses in compliance with the FCPA and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.
(xx) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the U.S. PATRIOT Act, the rules and regulations
thereunder, and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(yy) None of the Company, any of its subsidiaries or, to the knowledge of the Company,
any director, officer, agent, employee or Affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of For-
-12-
eign Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the offering of the Notes, or lend,
contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
Each certificate signed by any officer of the Company or the Guarantors and delivered to the
Initial Purchasers or their counsel shall be deemed to be a representation and warranty by the
Company or the Guarantors, as the case may be, to the Initial Purchasers as to the matters covered
thereby.
2. Purchase, Sale and Delivery of the Notes. On the basis of the representations,
warranties, agreements and covenants herein contained and subject to the terms and conditions
herein set forth, the Company agrees to issue and sell $350,000,000 aggregate principal amount of
Notes, and each of the Initial Purchasers, severally and not jointly, agrees to purchase from the
Company the principal amount of Notes set forth opposite the name of such Initial Purchaser in
Schedule I hereto at the purchase price set forth on Schedule III hereto (the “Purchase Price”).
One or more certificates in definitive form or global form, as instructed by the Representative for
the Notes that the Initial Purchasers have severally agreed to purchase hereunder, and in such
denomination or denominations and registered in such name or names as the Representative requests
upon notice to the Company not later than one full business day prior to the Closing Date (as
defined below), shall be delivered by or on behalf of the Company to the Representative for the
respective accounts of the Initial Purchasers, with any transfer taxes payable in connection with
the transfer of the Notes to the Initial Purchasers duly paid, against payment by or on behalf of
the Initial Purchasers of the Purchase Price therefor by wire transfer in Federal or other funds
immediately available to the account of the Company. Such delivery of and payment for the Notes
shall be made at the offices of Xxxxxxxx & Xxxxx LLP (“Counsel for the Issuer”), 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M., New York City time, on March 16, 2007, or at such
other place, time or date as the Representative and the Company may agree upon, such time and date
of delivery against payment being herein referred to as the “Closing Date”. The Company will make
such certificate or certificates for the Notes available for examination by the Initial Purchasers
at the New York, New York offices of Counsel for the Issuer not later than 10:00 A.M., New York
City time on the business day prior to the Closing Date.
3. Offering of the Notes and the Initial Purchasers’ Representations and Warranties.
Each of the Initial Purchasers, severally and not jointly, represents and warrants to and agrees
with the Company and the Guarantors that:
(a) It is a qualified institutional buyer as defined in Rule 144A under the Securities
Act (a “QIB”).
(b) It will solicit offers for such Notes only from, and will offer such Notes only to,
persons that it reasonably believes to be (A) in the case of offers inside the
United States, QIBs (B) in the case of offers outside the United States, to persons
other than U.S. persons (“foreign purchasers”, which term shall include dealers or other
professional fiduciaries in the United States acting on a discretionary basis for foreign bene-
-13-
ficial owners (other than an estate or trust)) in reliance upon Regulation S under the
Securities Act that, in each case, in purchasing such Notes are deemed to have represented
and agreed as provided in the Offering Memorandum under the caption “Notice to Investors”.
(c) It will not offer or sell the Notes using any form of general solicitation or
general advertising (within the meaning of Regulation D) or in any manner involving a public
offering within the meaning of Section 4(2) under the Securities Act.
(d) With respect to offers and sales outside the United States:
(i) at or prior to the confirmation of any sale of any Notes sold in reliance
on Regulation S, it will have sent to each distributor, dealer or other person
receiving a selling concession, fee or other remuneration that purchases Notes from
it during the distribution compliance period (as defined in Regulation S) a
confirmation or notice substantially to the following effect:
“The Notes covered hereby have not been registered under the U.S. Securities Act of 1933, as
amended (the “Securities Act”), and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons, (i) as part of their distribution at any time; or (ii)
otherwise until 40 days after the later of the commencement of the offering of the Notes and March
16, 2007, except in either case in accordance with Regulation S or Rule 144A under the Securities
Act. Terms used above have the meanings given to them by Regulation S.”; and
(ii) such Initial Purchaser has offered the Notes and will offer and sell the
Notes (A) as part of its distribution at any time and (B) otherwise until 40 days
after the later of the commencement of the offering and the Closing Date, only in
accordance with Rule 903 of Regulation S or as otherwise permitted in Section 3(b);
accordingly, such Initial Purchaser has not engaged nor will engage in any directed
selling efforts (within the meaning of Regulation S) with respect to the Notes, and
such Initial Purchaser has complied and will comply with the offering restrictions
requirements of Regulation S.
Terms used in this Section 3(d) have the meanings given to them by Regulation S.
4. Covenants of the Company. The Company covenants and agrees with the Initial
Purchasers that:
(a) The Company will prepare the Offering Memorandum in the form approved by the
Representative and will not amend or supplement the Offering Memorandum or the Final
Memorandum without first furnishing to the Representative a copy of such proposed amendment
or supplement and will not use or file any amendment or supplement to which the
Representative may object.
(b) The Company will furnish to the Initial Purchasers and to Counsel for the Initial
Purchasers concurrently with the Time of Sale and during the period referred to in paragraph
(c) below, without charge, as many copies of the Offering Memorandum and any amendments and
supplements thereto as they reasonably may request.
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(c) At any time prior to the completion of the distribution of the Notes by the Initial
Purchasers, if any event occurs or condition exists as a result of which the Offering
Memorandum, as then amended or supplemented, would include any untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, or if it should be
necessary to amend or supplement the Offering Memorandum, to comply with applicable law, the
Company will promptly (i) notify the Initial Purchasers of the same; (ii) subject to the
requirements of paragraph (a) of this Section 4, prepare and provide to the Initial
Purchasers, at its own expense, an amendment or supplement to the Offering Memorandum, so
that the statements in the Offering Memorandum as so amended or supplemented will not, in
the light of the circumstances when the Offering Memorandum, is delivered to a purchaser, be
misleading or so that the Offering Memorandum, as amended or supplemented, will comply with
applicable law; and (iii) supply any supplemented or amended Offering Memorandum, to the
Initial Purchasers and Counsel for the Initial Purchasers, without charge, in such
quantities as may be reasonably requested.
(d) The Company will (i) qualify the Notes and the Guarantees for sale by the Initial
Purchasers under the laws of such jurisdictions as the Representative may reasonably
designate and (ii) maintain such qualifications for so long as required for the sale of the
Notes by the Initial Purchasers; provided, however, that the Company shall not be required
to qualify as a foreign corporation or to take any action that would subject it to general
service of process or subject itself to taxation in any jurisdiction where it is not
presently qualified or so subject. The Company will promptly advise the Initial Purchasers
of the receipt by the Company of any notification with respect to the suspension of the
qualification of the Notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(e) At any time prior to the completion of the distribution of the Notes by the Initial
Purchasers, (x) the Company will deliver to the Initial Purchasers such additional
information concerning the business and financial condition of the Company as the Initial
Purchasers may from time to time reasonably request and (y) whenever it or any of its
subsidiaries publishes or makes available to the public (by filing with any regulatory
authority or securities exchange or by publishing a press release or otherwise) any
information that would reasonably be expected to be material in the context of the issuance
of the Notes under this Agreement, shall promptly notify the Initial Purchasers as to the
nature of such information or event. At any time prior to the first anniversary of the
Closing Date, the Company will notify the Initial Purchasers of (i) any decrease in the
rating of the Notes or any other debt securities of the Company by any nationally recognized
statistical rating organization (as defined in Rule 436(g)(2) under the Securities Act) or
(ii) any notice or public announcement given of any intended or potential decrease in any
such rating or that any such securities rating agency has under surveillance or review, with
possible negative implications, its rating of the Notes, as soon as
reasonably practicable after the Company becomes aware of any such decrease, notice or public
announcement.
(f) The Company will not, will not permit any of its subsidiaries to, and will use
commercially reasonable effort not to permit its Affiliates to, resell any of the Notes
-15-
that have been acquired by any of them, other than pursuant to an effective registration
statement under the Securities Act or in accordance with Rule 144 under the Securities Act.
(g) Except as contemplated in the Registration Rights Agreement, none of the Company or
any of its Affiliates, nor any person acting on its or their behalf (other than the Initial
Purchasers or any of their respective Affiliates, as to which no statement is made) will,
directly or indirectly, make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of the Notes under the
Securities Act.
(h) None of the Company or any of its Affiliates, nor any person acting on its or their
behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which
no statement is made), will solicit any offer to buy or offer to sell the Notes by means of
any form of general solicitation or general advertising (within the meaning of Regulation D)
or in any manner involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(i) None of the Company or any of its Affiliates, nor any person acting on its or their
behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which
no statement is made), will engage in any directed selling efforts (within the meaning of
Regulation S) with respect to the Notes, and each of them will comply with the offering
restrictions requirements of Regulation S.
(j) None of the Company or any of its Affiliates, nor any person acting on its or their
behalf (other than the Initial Purchasers or any of their respective Affiliates, as to which
no statement is made), will sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any securities of the same or a similar class as the Notes, other
than the Notes offered or sold to the Initial Purchasers hereunder in a manner which would
require the registration under the Securities Act of the Notes.
(k) So long as any of the Notes are “restricted securities” within the meaning of Rule
144(a)(3) under the Securities Act, at any time that the Company is not then subject to
Section 13 or 15(d) of the Exchange Act, the Company will provide at its expense to each
holder of the Notes and to each prospective purchaser (as designated by such holder) of the
Notes, upon the request of such holder or prospective purchaser, any information required to
be provided by Rule 144A(d)(4) under the Securities Act. (This covenant is intended to be
for the benefit of the holders, and the prospective purchasers designated by such holders
from time to time, of the Notes.)
(l) The Company will apply the net proceeds from the sale of the Notes as set forth
under “Use of Proceeds” in the Offering Memorandum.
(m) Until completion of the distribution, neither the Company nor any of its Affiliates
will take, directly or indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to cause or result in, stabi-
-16-
lization or manipulation of the price of any security of the Company to facilitate the sale or resale of
the Notes.
(n) For so long as any Notes are outstanding, the Company and its subsidiaries will
conduct its operations in a manner that will not subject the Company or any subsidiary to
registration as an investment company under the Investment Company Act.
(o) Each Note will bear a legend substantially to the following effect until such
legend shall no longer be necessary or advisable because the Notes are no longer subject to
the restrictions on transfer described therein:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER, OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, THE SECURITIES ACT, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER JURISDICTION AND IN ACCORDANCE WITH THE TRANSFER RESTRICTIONS CONTAINED IN
THE INDENTURE UNDER WHICH THIS NOTE WAS ISSUED.
(p) The Company will not, directly or indirectly, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to purchase debt
securities of the Company substantially similar to the Notes (other than the Notes offered
pursuant to this Agreement) for a period of 90 days after the date hereof, without the prior
written consent of Wachovia Capital Markets, LLC.
(q) The Company will, promptly after it has notified the Representative of any
intention by the Company to treat the Transactions as being a “reportable transaction”
(within the meaning of Treasury Regulation Section 1.6011-4), deliver a duly completed copy
of IRS Form 8886 or any successor form to the Representative.
(r) Each of the Company and each Guarantor acknowledges and agrees that the Initial
Purchasers are acting solely in the capacity of an arm’s length contractual counterparty to
the Company and each Guarantor with respect to the offering of the Notes and the Guarantees
contemplated hereby (including in connection with determining the terms of the offering) and
not as a financial advisor or a fiduciary to, or an agent of, the Company, any Guarantor or
any other person. Additionally, no Initial Purchaser is advising the Company, any Guarantor
or any other person as to any legal, tax, investment, accounting or regulatory matters in
any jurisdiction. Each of the Company and each Guarantor shall consult with its own
advisors concerning such matters and shall be responsible for making its own independent
investigation and appraisal of the transactions contemplated hereby, and the Initial
Purchasers shall have no responsibility or liability to the Company or any Guarantor with respect thereto. Any review by the Initial Purchasers of
the Company, any Guarantor, the transactions contemplated hereby or other matters relat-
-17-
ing to such transactions will be performed solely for the benefit of the Initial Purchasers and
shall not be on behalf of the Company or any Guarantor.
5. Expenses. (a) Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement is terminated, the Company and the Guarantors will pay or cause to be
paid all expenses incident to the performance of its obligations under this Agreement, including:
(i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in
connection with the issuance and sale of the Notes and all other fees or expenses in connection
with the preparation of each Memorandum and all amendments and supplements thereto, including all
printing costs associated therewith, and the delivering of copies thereof to the Initial
Purchasers, in the quantities herein above specified, (ii) all costs and expenses related to the
transfer and delivery of the Notes to the Initial Purchasers, including any transfer or other taxes
payable thereon, (iii) the cost of producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the Notes under state securities laws and all expenses in
connection with the qualification of the Notes for offer and sale under state securities laws as
provided in Section 4(d) hereof, including filing fees and the reasonable fees and disbursements of
Counsel for the Initial Purchasers in connection with such qualification and in connection with the
Blue Sky or legal investment memorandum, (iv) any fees charged by rating agencies for the rating of
the Notes, (v) the fees and expenses, if any, incurred in connection with the admission of the
Notes for trading in PORTAL or any appropriate market system, (vi) the costs and charges of the
Trustee and any transfer agent, registrar or depositary, (vii) the cost of the preparation,
issuance and delivery of the Notes, (viii) all costs and expenses relating to investor
presentations, including any “road show” presentations undertaken in connection with the marketing
of the offering of the Notes, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show (other than the travel and lodging expenses of the Initial
Purchasers, which shall be borne by the Initial Purchasers), and (ix) all other costs and expenses
incident to the performance of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except as provided in Section 5(b)
of this Agreement and Section 5 of the engagement letter dated January 31, 2007, between Wachovia
Capital Markets, LLC and the Company (which shall remain in full force and effect notwithstanding
the execution of this Agreement), the Initial Purchasers will pay all of their costs and expenses,
including fees and disbursements of their counsel, transfer taxes payable on resale of any of the
Notes by them and any advertising expenses connected with any offers they may make.
(b) If the sale of the Notes provided for herein is not consummated because any condition to
the obligations of the Initial Purchasers set forth in Section 6 hereof is not satisfied, because
this Agreement is terminated pursuant to Section 9 hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all conditions on its
part to be performed or satisfied hereunder other than by reason of a default by any of the Initial
Purchasers, the Company will reimburse the Initial Purchasers upon demand for all reasonable and
documented out-of-pocket expenses (including reasonable counsel fees and disbursements) that shall have been incurred by them in connection with the proposed purchase and
sale of the Notes; provided, however, that the obligations of the Company under
this Section 5(b)
-18-
shall be in addition to, and not in place of, the provisions for expense
reimbursement set forth in the Engagement Letter.
6. Conditions to the Initial Purchasers’ Obligations. The obligations of the several
Initial Purchasers to purchase and pay for the Notes shall be subject to the accuracy of the
representations and warranties of the Company in Section 1 hereof, in each case as of the date
hereof and as of the Closing Date, as if made on and as of the Closing Date, to the accuracy of the
statements of the Company’s officers made pursuant to the provisions hereof, to the performance by
the Company of its covenants and agreements hereunder and to the following additional conditions:
(a) The Initial Purchasers shall have received (i) an opinion, dated the Closing Date,
of Xxxxxxxx & Xxxxx, LLP, counsel for the Company, (ii) an opinion, dated the Closing Date,
of Xxxxxx Xxxxxxxx Xxxxx, Washington counsel for the Company and (iii) an opinion, dated the
Closing Date, of Xxxxx X. Xxxxxxxxxx, internal counsel for the Company, in each case in form
and substance reasonably satisfactory to the Initial Purchasers.
(b) The Initial Purchasers shall have received an opinion, dated the Closing Date, of
Xxxxxx Gordon& Xxxxxxx LLP, Counsel for the Initial Purchasers, with respect to
the issuance and sale of the Notes and such other related matters as the Initial Purchasers
may reasonably require, and the Company shall have furnished to such counsel such documents
as it may reasonably request for the purpose of enabling it to pass upon such matters.
(c) The Initial Purchasers shall have received on each of the date hereof and the
Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in
form and substance reasonably satisfactory to the Initial Purchasers and Counsel for the
Initial Purchasers, from Ernst & Young LLP, independent public accountants, containing
statements and information of the type ordinarily included in accountants’ “comfort letters”
to underwriters with respect to the historical consolidated financial statements and certain
financial information contained in the Offering Memorandum; provided that the letter shall
use a “cut-off date” within three days of the date of such letter and that their procedures
shall extend to financial information in the Final Memorandum not contained in the
Preliminary Memorandum. References to the Offering Memorandum in this paragraph (c) with
respect to either letter referred to above shall include any amendment or supplement thereto
at the date of such letter.
(d) (i) None of the Company nor any of its subsidiaries, shall have sustained, since
the date of the latest audited historical consolidated financial statements included in the
Offering Memorandum (exclusive of any amendment or supplement thereto), any loss or
interference with their respective businesses or properties from fire, explosion, flood,
accident or other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree (whether domestic or foreign) otherwise
than as set forth in the Offering Memorandum (exclusive of any amendment or supplement
thereto); and (ii) since the respective dates as of which information is given
in each Memorandum, there shall not have been any change in the capital stock or
long-term debt of the Company and its subsidiaries, considered as one enterprise, or any
-19-
change in or effect on or any development having a prospective change in or effect on the
business, operations, properties, assets, liabilities, earnings, condition (financial or
otherwise), results of operations or management of the Company and its subsidiaries,
considered as one enterprise, whether or not in the ordinary course of business, otherwise
than as set forth in each such Memorandum (exclusive of any amendment or supplement
thereto), the effect of which, in any such case described in clause (i) or (ii), is, in the
sole judgment of the Representative, so material and adverse as to make it impracticable or
inadvisable to market the Notes on the terms and in the manner described in the Offering
Memorandum (exclusive of any amendment or supplement thereto).
(e) None of the information set forth in the sections of the Offering Memorandum
entitled “Use of Proceeds” and “Offering Memorandum Summary—Recent Developments” shall have
changed, if the effect of any such change, individually or in the aggregate, in the sole
judgment of the Representative makes it impracticable or inadvisable to proceed with the
offering or the delivery of the Notes on the terms and in the manner described in the
Offering Memorandum, exclusive of any amendment or supplement thereto.
(f) The Initial Purchasers shall have received certificates dated the Closing Date and
in form and substance reasonably satisfactory to the Initial Purchasers, of (i) the Chief
Executive Officer and the Chief Financial Officer of the Company and (ii) each Guarantor:
as to the accuracy of the representations and warranties of the Company and the Guarantors
in this Agreement at and as of the Closing Date; that the Company and or the applicable
Guarantor(s), as the case may be, have performed all covenants and agreements and satisfied
all conditions on its or their part to be performed or satisfied at or prior to the Closing
Date; and as to the matters set forth in Sections 6(d) (in the case of the certificate from
the Company’s officers only) and 6(e).
(g) The Notes shall have received initial ratings by Standard & Poor’s and Xxxxx’x,
and, subsequent to the date hereof, there shall not have been any decrease in the rating of
the Notes or any of the Company’s other debt securities by any “nationally recognized
statistical rating agency”, as that term is defined by the Commission for purposes of Rule
436(g)(2) under the Securities Act, and no such organization shall have publicly announced
that it has under surveillance or review its ratings of the Notes or any of the Company’s
other debt securities or any notice or public announcement given of any intended or
potential decrease in any such rating or that any such securities rating agency has under
surveillance or review, with possible negative implications, its rating of the Notes.
(h) The Notes shall have been designated for trading on PORTAL.
(i) The Notes shall be eligible for clearance and settlement through the Depository
Trust Company.
(j) On or before the Closing Date, the Initial Purchasers and Counsel for the Initial
Purchasers shall have received such further certificates, documents or other information as
they may have reasonably requested from the Company.
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7. Indemnification and Contribution. (a) The Company and each Guarantor, jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser, its affiliates, directors
and officers and each person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any Initial Purchaser against any losses, claims,
damages or liabilities, joint or several, to which such Initial Purchaser or such other person may
become subject, insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Preliminary Memorandum, the Offering Memorandum or any amendment or
supplement thereto; or (ii) the omission or alleged omission to state in the Preliminary
Memorandum, the Offering Memorandum or any amendment or supplement thereto a material fact
necessary to make the statements therein, in the light of the circumstances in which they were
made, not misleading, and will reimburse, as incurred, each Initial Purchaser and each such other
person for any legal or other expenses reasonably incurred by such Initial Purchaser or such other
person in connection with investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action; provided,
however, that the Company and the Guarantors will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in any Preliminary
Memorandum, the Offering Memorandum or any amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such Initial Purchaser through the
Representative specifically for use therein as set forth in Section 11 hereof.
(b) Each Initial Purchaser, severally and not jointly, will indemnify and hold harmless the
Company and the Guarantors and their respective affiliates, directors, officers, and each person,
if any, who controls any of the Company or the Guarantors within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities
to which the Company, the Guarantors, any such affiliates, directors or officers or such
controlling person may become subject, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in the Preliminary Memorandum or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state in the Preliminary
Memorandum, or the Offering Memorandum or any amendment or supplement thereto a material fact
necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by the Initial Purchasers through
the Representative specifically for use therein as set forth in Section 11 hereof and, subject to
the limitation set forth immediately preceding this clause, will reimburse as incurred, any legal
or other expenses reasonably incurred by the Company or the Guarantors or any such affiliates,
directors or officers or such controlling person in connection with investigating, defending
against or appearing as a third-party witness in connection with, any such loss, claim, damage,
liability or action in respect thereof.
(c) Promptly after receipt by any person to whom indemnity may be available under this Section
7 (the “indemnified party”) of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against any person from whom indemnity may be
sought under this Section 7 (the “indemnifying party”), notify such in-
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demnifying party in writing of the commencement thereof; but the failure so to notify such indemnifying party will not relieve
such indemnifying party from (i) any liability which it may have under this Section 7 to the extent
it is not materially prejudiced (through the forfeiture of substantive rights or defenses) as a
proximate result of the failure or (ii) any other liability which it may have to such indemnified
party. In case any such action is brought against any indemnified party, and such indemnified
party notifies the relevant indemnifying party of the commencement thereof, such indemnifying party
will be entitled to participate therein and, to the extent that it may wish, to assume the defense
thereof, jointly with any other indemnifying party similarly notified, with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the named
parties in any such action (including impleaded parties) include both the indemnified party and the
indemnifying party and the indemnified party shall have concluded, based on advice of outside
counsel, that there may be one or more legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the indemnifying party or that
representation of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, the indemnifying party shall not have the right to
direct the defense of such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate counsel to defend such action
on behalf of such indemnified party or parties. After notice from an indemnifying party to an
indemnified party of its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, such indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) such indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being understood, however,
that in connection with such action the indemnifying party shall not be liable for the reasonable
expenses of more than one separate counsel (in addition to one local counsel in any jurisdiction)
for any indemnified person in any one action or separate but substantially similar actions in the
same jurisdiction arising out of the same general allegations or circumstances) or (ii) such
indemnifying party does not promptly retain counsel reasonably satisfactory to such indemnified
party or (iii) such indemnifying party has authorized the employment of counsel for such
indemnified party at the expense of the indemnifying party. After such notice from an indemnifying
party to an indemnified party, such indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party without the written
consent of such indemnifying party. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by (i), (ii) or (iii) of the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (x) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (y) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. An indemnifying party will not, without the
prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the indemnified party or any other
person that may be entitled to indemnification hereunder is a party to such claim, action, suit or
proceeding) unless such settlement, compromise or consent includes an unconditional release of the
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indemnified party and such other persons from all liability arising out of such claim, action, suit
or proceeding and does not contain any statement as to or finding of fault, culpability or failure
to act by or on behalf of any indemnified party.
(d) (i) In circumstances in which the indemnity agreement provided for in the preceding
paragraphs of this Section 7 is unavailable or insufficient, for any reason, to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities (including, without
limitation, any legal or other expenses incurred in connection with defending or investigating any
action or claim) (or actions in respect thereof) (“Losses”), the Company and the Guarantors, on the
one hand, and the Initial Purchasers, on the other, in order to provide for just and equitable
contribution, agree to contribute to the amount paid or payable by such indemnified party as a
result of such Losses to which the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other, may be subject, in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other, from the offering of the Notes or (ii) if the allocation provided by the
foregoing clause (i) is unavailable for any reason, not only such relative benefits but also the
relative fault of the Company and the Guarantors, on the one hand, and the Initial Purchasers, on
the other, in connection with the statements or omissions or alleged statements or omissions that
resulted in such Losses. The relative benefits received by the Company and the Guarantors, on the
one hand, and the Initial Purchasers, on the other, shall be deemed to be in the same proportion as
the total proceeds from the offering (before deducting expenses, but, for the avoidance of doubt,
net of the Initial Purchasers’ discounts) received by the Company bear to the total discounts and
commissions received by the Initial Purchasers from the Company in connection with the purchase of
the Notes hereunder as set forth in the Final Memorandum. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Guarantors or the Initial Purchasers, the parties’ intent,
relative knowledge, access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the circumstances. The Company,
the Guarantors and the Initial Purchasers agree that it would not be just and equitable if
contribution were determined by pro rata allocation or by any other method of allocation (even if
the Initial Purchasers were treated as one entity for such purpose) that does not take into account
the equitable considerations referred to above. Notwithstanding any other provision of this
paragraph (d), no Initial Purchaser shall be obligated to make contributions hereunder that in the
aggregate exceed the total underwriting discounts and commissions received by such Initial
Purchaser from the Company in connection with the purchase of the Notes hereunder, and no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers’ respective obligations to contribute hereunder are
several in proportion to their respective obligations to purchase Notes as set forth on Schedule I
hereto and not joint. For purposes of this paragraph (d), each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and each other person listed in Section 7(a) hereof shall have the same rights to contribution as such Initial Purchaser, and each affiliate, director or officer of the Company or
any Guarantor and each person, if any, who controls the Company within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act, shall have the same rights to contribution as
the Company and the Guarantors.
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(e) The obligations of the Company and the Guarantors under this Section 7 shall be in
addition to any obligations or liabilities which the Company and the Guarantors may otherwise have
and the obligations of the respective Initial Purchasers under this Section 7 shall be in addition
to any obligations or liabilities which the Initial Purchasers may otherwise have.
8. Survival. The respective representations, warranties, agreements, covenants,
indemnities and other statements of the Company, the Guarantors, their respective officers, and the
several Initial Purchasers set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement shall remain in full force and effect, regardless of (i)
any investigation made by or on behalf of the Company, the Guarantors, their respective officers or
directors or any controlling person referred to in Section 7 hereof or any Initial Purchaser and
(ii) delivery of and payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 5, 7, 8, 12, 13, 14 and 15 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
9. Termination. (a) The Representative may terminate this Agreement with respect to
the Notes by notice to the Company at any time on or prior to the Closing Date in the event that
the Company shall have failed, refused or been unable to perform in any material respect all
obligations and satisfy in any material respect all conditions on its part to be performed or
satisfied hereunder at or prior thereto or if, at or prior to the Closing Date (i) trading in
securities generally on the New York Stock Exchange, the NASDAQ National Market or in the
over-the-counter market, or trading in any securities of the Company on any exchange or in the
over-the-counter market, shall have been suspended or minimum or maximum prices shall have been
established on any such exchange or market; (ii) there has been a material disruption in
commercial banking or securities settlement, payment or clearance services in the United States;
(iii) a banking moratorium shall have been declared by New York, North Carolina or United States
authorities or (iv) there shall have been (A) an outbreak or escalation of hostilities between the
United States and any foreign power, (B) an outbreak or escalation of any other insurrection or
armed conflict involving the United States, (C) the occurrence of any other calamity or crisis
involving the United States or (D) any change in general economic, political or financial
conditions which has an effect on the U.S. financial markets or the international financial markets
that, in the case of any event described in this clause (iv), in the sole judgment of the
Representative, makes it impracticable or inadvisable to proceed with the offer, sale and delivery
of the Notes as disclosed in the Preliminary Memorandum or the Offering Memorandum, exclusive of
any amendment or supplement thereto.
(b) Termination of this Agreement pursuant to this Section 9 shall be without liability of any
party to any other party except as provided in Sections 5 and 7 hereof.
10. Defaulting Initial Purchasers. If, on the Closing Date, any Initial Purchaser
defaults in the performance of its obligations under this Agreement, the non-defaulting Initial
Purchasers shall be obligated to purchase the Notes that such defaulting Initial Purchaser
or Initial Purchasers agreed but failed to purchase on the Closing Date (the “Remaining
Notes”) in the respective proportions that the principal amount of the Notes set opposite the name
of each non-defaulting Initial Purchaser in Schedule I hereto bears to the total number of the
Notes set opposite the names of all the non-defaulting Initial Purchasers in Schedule I hereto;
provided, however, that the non-defaulting Initial Purchasers shall not be
obligated to purchase any of the
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Notes on the Closing Date if the total amount of Notes which the
defaulting Initial Purchaser or Initial Purchasers agreed but failed to purchase on such date
exceeds 10% of the total amount of Notes to be purchased on the Closing Date, and no non-defaulting
Initial Purchaser shall be obligated to purchase more than 110% of the amount of Notes that it
agreed to purchase on the Closing Date pursuant to this Agreement. If the foregoing maximums are
exceeded, the non-defaulting Initial Purchasers, or those other purchasers satisfactory to the
Initial Purchasers who so agree, shall have the right, but not the obligation, to purchase, in such
proportion as may be agreed upon among them, all the Remaining Notes. If the non-defaulting
Initial Purchasers or other Initial Purchasers satisfactory to the Initial Purchasers do not elect
to purchase the Remaining Notes, this Agreement shall terminate without liability on the part of
any non-defaulting Initial Purchaser or the Company, except that the Company will continue to be
liable for the payment of expenses to the extent set forth herein.
Nothing contained in this Agreement shall relieve a defaulting Initial Purchaser of any
liability it may have to the Company for damages caused by its default. If other purchasers are
obligated or agree to purchase the Notes of a defaulting or withdrawing Initial Purchaser, the
Company or the Representative may postpone the Closing Date for up to five full business days in
order to effect any changes in the Transaction Documents or in any other document or arrangement
that, in the opinion of counsel for the Company or Counsel for the Initial Purchasers, may be
necessary.
11. Information Supplied by Initial Purchasers. The statements set forth in (i) the
penultimate sentence in the third paragraph, (ii) the third sentence of the sixth paragraph, (iii)
the seventh paragraph and (iv) the eighth paragraph under the heading “Plan of Distribution” in the
Preliminary Memorandum and the Offering Memorandum, to the extent such statements relate to the
Initial Purchasers, constitute the only information furnished by the Initial Purchasers to the
Company for the purposes of Sections 1(a) and 7 hereof.
12. Notices. All communications hereunder shall be in writing and, if sent to any of
the Initial Purchasers, shall be delivered or sent by mail, telex or facsimile transmission and
confirmed in writing to Wachovia Capital Markets, LLC, One Wachovia Center, 000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Xxx Xxxxxx, with a copy to Xxxxxx Xxxxxx
& Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxx and if sent to
the Company or any Guarantor, shall be delivered or sent by mail, telex or facsimile transmission
and confirmed in writing to the Company at Xxxxxx CDT Inc, 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xx.
Xxxxx, Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxxx, with a copy to Xxxxxxxx & Xxxxx LLP, 000
Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Xxxxxx X. Xxxxx.
13. Successors. This Agreement shall inure to the benefit of and shall be binding
upon the several Initial Purchasers, the Company and the Guarantors and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement
and all conditions and provisions hereof being intended to be and being for the sole and exclusive
benefit of the several Initial Purchasers, the Company and the Guarantors and their respective
successors and legal representatives, and for the benefit of no other person, except that (i)
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the indemnities of the Company contained in Section 7 of this Agreement shall also be for the benefit
of any person or persons who control any Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and (ii) the indemnities of the Initial Purchasers
contained in Section 7 of this Agreement shall also be for the benefit of the affiliates, directors
and officers of the Company and the Guarantors, and any person or persons who control the Company
or the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act. No purchaser of Notes from any Initial Purchaser shall be deemed a successor to such
Initial Purchaser because of such purchase.
14. Applicable Law. This Agreement shall be governed by the laws of the State of New
York.
15. Consent to Jurisdiction and Service of Process; Waiver of Jury Trial. (a) All
judicial proceedings arising out of or relating to this Agreement may be brought in any state or
federal court of competent jurisdiction in the State of New York, which jurisdiction is exclusive,
and the Company and the Guarantors hereby consent to the jurisdiction of such courts.
(b) Each party agrees that any service of process or other legal summons in connection with
any Proceeding may be served on it by mailing a copy thereof by registered mail, or a form of mail
substantially equivalent thereto, postage prepaid, addressed to the served party at its address as
provided for in Section 12 hereof. Nothing in this Section shall affect the right of the parties
to serve process in any other manner permitted by law.
(c) Each of the Company and the Guarantors hereby waives all right to trial by jury in any
proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement. Each of the Company and the Guarantors agrees that a final judgment in any such
proceeding brought in any such court shall be conclusive and binding upon it and may be enforced in
any other courts in the jurisdiction of which it is or may be subject, by suit upon such judgment.
16. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same
instrument.
[The remainder of this page is intentionally left blank.]
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If the foregoing correctly sets forth our understanding, please indicate your acceptance
thereof in the space provided below for that purpose, whereupon this letter shall constitute an
agreement binding the Company, the Guarantors and the Initial Purchasers.
| Very truly yours, | ||||
| XXXXXX CDT INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Treasurer | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxxxx | ||||
| Title: Vice President, Secretary and General Counsel | ||||
| BELDEN WIRE & CABLE COMPANY | ||||
| XXXXXX CDT NETWORKING, INC. | ||||
| NORDX/CDT CORP. | ||||
| THERMAX/CDT, INC. | ||||
| BELDEN HOLDINGS, INC. | ||||
| BELDEN TECHNOLOGIES, INC. | ||||
| XXXXXX INC. | ||||
| CDT INTERNATIONAL HOLDINGS INC. | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: Xxxxxxx X. Xxxxxxx | ||||
| Title: Treasurer | ||||
| By: | /s/ Xxxxx X. Xxxxxxxxxx | |||
| Name: Xxxxx X. Xxxxxxxxxx | ||||
| Title: Secretary | ||||
Accepted as of the date hereof.
WACHOVIA CAPITAL MARKETS, LLC
For itself and on behalf of the several
Initial Purchasers listed on Schedule I
Initial Purchasers listed on Schedule I
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By:
|
/s/ Xxxxx XxXxxxx | |||
| Name: Xxxxx XxXxxxx | ||||
| Title: Managing Director |
-28-
