Exhibit 1.2
XXXXXXXXXX COMMUNICATIONS COMPANY
$180,000,000
7 3/4% Senior Subordinated Notes due 2012
PURCHASE AGREEMENT
------------------
January 28, 2003
DEUTSCHE BANK SECURITIES INC.
FLEET SECURITIES, INC.
c/o Deutsche Bank Securities Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxxxxx Communications Company, a Delaware corporation (the
"Company"), hereby confirms its agreement with you (the "Initial Purchasers"),
as set forth below.
1. The Securities. Subject to the terms and conditions
--------------
herein contained, the Company proposes to issue and sell to the Initial
Purchasers $180,000,000 aggregate principal amount of its 7 3/4% Senior
Subordinated Notes due 2012, Series C (the "Notes") having the terms set forth
in that certain Indenture, dated as of December 20, 2002 (the "Indenture"),
between the Company and U.S. Bank National Association, as successor-in-interest
to State Street Bank and Trust Company (the "Trustee). The Notes are to be
issued under the Indenture.
The Notes will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
The Company will prepare and deliver to the Initial Purchasers
not later than 9:00 a.m. on February 4, 2003 copies of an offering memorandum to
be dated January 28, 2003 (including documents incorporated by reference
therein, the "Memorandum") setting forth or including a description of the terms
of the Notes, the terms of the offering of the Notes, a description of the
Company and any material developments relating to the Company occurring after
the date of the most recent historical financial statements included therein.
-2-
Any references herein to the Memorandum shall be deemed to refer to and
include any documents incorporated by reference therein as of the date of the
Memorandum, and any reference to any amendment or supplement to the Memorandum
shall be deemed to refer to and include any document filed under the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder (the
"Exchange Act"), after the date of the Memorandum, unless otherwise noted.
The Initial Purchasers and their direct and indirect
transferees of the Notes will be entitled to the benefits of the Registration
Rights Agreement, in form and substance reasonably satisfactory to the Initial
Purchasers (the "Registration Rights Agreement"), pursuant to which the Company
will agree, among other things, to file a registration statement (the
"Registration Statement") with the Securities and Exchange Commission (the
"Commission") registering the Notes or the Exchange Notes (as defined in the
Registration Rights Agreement) under the Act.
On the Closing Date (as defined in Section 3 below), the
Initial Purchasers will transfer the net proceeds of the sale of the Notes as
follows: (a) deposit an amount sufficient to redeem the Company's 8 7/8% Senior
Subordinated Notes due 2008 (the "8 7/8 Notes") in accordance with the
redemption notice issued pursuant to Section 7(l) below (the "Escrowed Funds"),
which funds will be used to purchase or redeem the 8 7/8% Notes, and (b) wire
transfer (same day funds) the remaining net proceeds of the sale of the Notes to
such account or accounts as the Company shall specify prior to the Closing Date.
The Escrowed Funds will be placed into an escrow account (the "Escrow Account")
pursuant to an escrow agreement substantially in the form of the Escrow
Agreement, dated as of December 20, 2002, between the Company and State Street
Bank and Trust Company (the "Escrow Agreement") to be dated as of the Closing
Date by and among the Company and an escrow agent to be determined by the
Company and reasonably acceptable to the Initial Purchasers (the "Escrow
Agent"). Funds in the Escrow Account will be disbursed, until the purchase or
redemption in full of the 8 7/8 Notes, to the Company solely upon certification
by the Company that the funds will be immediately used to (i) fund the purchase
price to be paid by the Company for the 8 7/8 Notes pursuant to a tender offer
and/or (ii) fund the redemption price of the 8 7/8 Notes. Any funds remaining in
the Escrow Account after the purchase or redemption by the Company of all of the
8 7/8 Notes will be disbursed to the Company.
Upon the satisfaction of certain conditions as set forth in
the Escrow Agreement, the Escrowed Funds will be released as set forth in
Section 3.
2. Representations and Warranties. The Company represents
------------------------------
and warrants to and agrees with the Initial Purchasers that:
(a) The Memorandum and any amendment or supplement thereto as
of the date thereof and at all times subsequent thereto up to the
Closing Date will not contain
-3-
any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section 2(a)
do not apply to statements or omissions made in reliance upon and in
conformity with information relating to an Initial Purchaser furnished
to the Company in writing by an Initial Purchaser expressly for use in
the Memorandum or any amendment or supplement thereto. No stop order
preventing the use of the Memorandum or any amendment or supplement
thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration
requirements of the Act, has been issued or, to the knowledge of the
Company, threatened and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are
contemplated by the Commission or any state securities commission.
(b) The Memorandum as delivered from time to time shall
incorporate by reference the most recent Annual Report of the Company
on Form 10-K filed with the Commission and each Quarterly Report of the
Company on Form 10-Q and each Current Report of the Company on Form 8-K
filed with the Commission since the filing of the end of the fiscal
year to which such Form 10-K relates. The documents incorporated or
deemed to be incorporated by reference in the Memorandum at the time
they were or hereafter are filed with the Commission complied and will
comply in all material respects with the requirements of the Exchange
Act and, when read together with the other information in the
Memorandum, at the date of the Memorandum and at the Closing Date, do
not and will not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) To the knowledge of the Company, the accountants who
certified the financial statements and supporting schedules, if any,
included in the Memorandum are independent public accountants within
the meaning of the Act and the rules and regulations promulgated
thereunder.
(d) The financial statements and the related schedules and
notes thereto included in the Memorandum present fairly the financial
position of the Company and its consolidated subsidiaries
(collectively, the "Subsidiaries"), at the dates indicated and the
statement of operations, stockholders' equity (or accumulated deficit)
and cash flows of the Company and its Subsidiaries, for the periods
specified; except as otherwise stated in the Memorandum, said financial
statements have been prepared in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout
the periods involved. The supporting schedules, if any, included in the
Memorandum present fairly the information stated therein. The selected
xxxxx-
-4-
cial data and the summary financial information included in the
Memorandum present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included therein. The pro forma financial information and
the related notes thereto included in the Memorandum present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described
therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(e) Since the respective date as of which information is given
in the Memorandum, except as otherwise stated therein, (i) there has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company and its Subsidiaries, all considered as one enterprise
(a "Material Adverse Change"), whether or not arising in the ordinary
course of business, (ii) there have been no transactions entered into
by the Company or any of its Subsidiaries, other than those in the
ordinary course of business, that are material with respect to the
Company and its subsidiaries, considered as one enterprise, and
(iii) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its outstanding capital
stock.
(f) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Memorandum and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a material adverse
effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Company and its
Subsidiaries, all considered as one enterprise (a "Material Adverse
Effect").
(g) Each Subsidiary that is a corporation has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Memorandum and is duly
qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not
have a Material Adverse Effect; except as otherwise disclosed in the
Memo-
-5-
randum, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and is owned by the Company, directly or through
Subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except for pledges of stock
of the Company; WSET, Incorporated; the Xxxxxxxxxx Television
Productions, Inc.; Allfinco, Inc.; TV Alabama, Inc. (800 Shares of
Class A Common Stock and 19,000 Shares of Class B Common Stock); ACC
Licensee, Inc., and Harrisburg Television, Inc. (800 Shares of Class A
Common Stock and 19,000 Shares of Class B Common Stock) pursuant to
that certain Amended and Restated Pledge Agreement (the "Pledge
Agreement") dated as of March 27, 2001, as amended by Supplement No. 1
dated December 13, 2002, among the Company, Xxxxxxxxxx Group, Inc. and
Fleet National Bank, as agent.
(h) Each Subsidiary that is a limited liability company has
been duly formed and is validly existing as a limited liability company
in good standing under the laws of the jurisdiction of its formation,
has limited liability company power and authority to own, lease and
operate its properties and to conduct its business as described in the
Memorandum and is duly qualified as a foreign limited liability company
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not have a Material Adverse
Effect; except as otherwise disclosed in the Memorandum, all of the
issued and outstanding limited liability company membership interests
of each such Subsidiary have been duly authorized and validly issued
and are owned by the Company, directly or through Subsidiaries, free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity, except for pledges of membership
interests of KTUL LLC, KATV LLC and WCIV LLC pursuant to the Pledge
Agreement.
(i) The authorized, issued and outstanding capital stock of
the Company will be as set forth in the Memorandum under the caption
"Ownership of Capital Stock"; and the shares of the Company's issued
and outstanding common stock, par value $.05 per share (the "Common
Stock"), have been duly authorized and validly issued and are fully
paid and non-assessable.
(j) Neither the Company nor any of its Subsidiaries is in
violation of its charter or by-laws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any
of its Subsidiaries is a party or by which it or any of them may be
bound, or to which any of the property or assets of the Company or any
of its Subsidiaries is subject (collectively, "Agreements and
Instruments"); and the execution, delivery and performance of
-6-
this Agreement, the Registration Rights Agreement, Indenture, Notes,
Escrow Agreement and any other agreement or instrument entered into or
issued or to be entered into or issued by the Company in connection
with the transactions contemplated hereby, thereby or in the
Memorandum, and the consummation of the transactions contemplated
herein, therein and in the Memorandum, the entering into of any
Agreement or the issuance of any Instrument in connection therewith and
the use of the proceeds from the sale of the Notes as described in the
Memorandum under the caption "Use of Proceeds"; and compliance by the
Company with its obligations hereunder and thereunder, have been duly
authorized by all necessary corporate action and do not and will not
conflict with or constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant
to any Agreements and Instruments, administrative regulation or
administrative or court decree.
(k) Except as will be disclosed in the Memorandum, no labor
dispute with the employees of the company or any of its Subsidiaries
exists or, to the knowledge of the Company, is imminent that could
reasonably be expected to result in any Material Adverse Change.
(l) Except as will be set forth in the Memorandum, (i) there
is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending or, to the knowledge
of the Company, threatened, against or affecting the Company or any of
its Subsidiaries that is required to be disclosed in the Memorandum
(other than as disclosed therein), or could reasonably be expected to
result in any Material Adverse Change, or that could reasonably be
expected to materially and adversely affect the properties or assets
thereof or the consummation of the transactions contemplated by this
Agreement, the Registration Rights Agreement, Indenture, Notes, Escrow
Agreement or the Memorandum and (ii) all pending legal or governmental
proceedings to which the Company or any of its Subsidiaries is a party
or of which any of their respective property or assets is the subject
that will not be described in the Memorandum, including ordinary
routine litigation incidental to the business, could not reasonably be
expected to have a Material Adverse Effect.
(m) (i) The Company and its Subsidiaries own or possess, or
can acquire on reasonable terms, the patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, "Intellectual Property") currently employed by them in
connection with the business now operated by them, except where the
failure to so own, possess or acquire such Intellectual Property could
not reasonably be expected to have a Material Adverse Effect; and
(ii) neither the Company nor any of its Subsidiaries has re-
-7-
ceived any written notice or has knowledge of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property, or of any facts which would render any
Intellectual Property invalid or inadequate to protect the interest of
the Company or any of its Subsidiaries therein, and which infringement
or conflict (if the subject of any unfavorable decision, ruling or
finding) or invalidity or inadequacy, singly or in the aggregate,
could reasonably be expected to result in any Material Adverse Change.
(n) Neither the Company nor any of its Subsidiaries has
(i) taken, directly or indirectly, any action designed to, or that
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 or (ii) (A) sold, bid for, purchased or
paid any person any compensation for soliciting purchases of, the Notes
in a manner that would require registration of the Notes under the Act
or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company in a
manner that would require registration of the Notes under the Act.
(o) No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the
sale of the Notes hereunder or the consummation by the Company of any
of the other transactions contemplated hereby, except such as have been
obtained under the Communications Act of 1934, as amended (the "FCA"),
or as may be required under state securities laws or as will be
disclosed in the Memorandum. No qualification of the Indenture under
the Trust Indenture Act of 1939, as amended (the "TIA"), is required in
connection with the sale of the Notes hereunder.
(p) Except as will be disclosed in the Memorandum, (i) the
Company and its Subsidiaries possess such certificates, authorizations
or permits (collectively, "Permits") issued by the appropriate state,
federal or foreign regulatory agencies or bodies materially necessary
to conduct the business now operated by them and proposed to be
operated by them as will be described in the Memorandum; and
(ii) neither the Company nor any of its Subsidiaries has received any
written notice of proceedings relating to the revocation or
modification of any such Permit which, singly or in the aggregate, if
the subject of any unfavorable decision, ruling or finding, would have
a Material Adverse Effect.
(q) The Company and its Subsidiaries have good title to all
properties owned by them that are material to the Company and its
Subsidiaries considered as one enterprise, in each case free and clear
of all liens, encumbrances and defects except (i) as do not materially
interfere with the use made and proposed to be made of such properties,
(ii) as will be described in the Memorandum (including the notes to the
financial statements contained therein), (iii) as are described in
clauses (i) and (ii) of subpara-
-8-
graph (g) above or (iv) as could not reasonably be expected to have a
Material Adverse Effect.
(r) This Agreement has been duly authorized, executed and
delivered by the Company.
(s) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting creditors' rights generally or by general equitable
principles.
(t) The Registration Rights Agreement has been duly authorized
by the Company and, at the Closing Date will have been duly executed
and delivered by the Company, and will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditor's rights generally or by general
equitable principles and, as to rights of indemnification, by
principles of public policy.
(u) The Notes have been duly authorized and, at the Closing
Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered
against payments of the purchase price therefor specified in this
Agreement, will constitute 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 other similar laws relating
to or affecting creditors' rights generally or by general equitable
principles, and will be in the form contemplated by, and entitled to
the benefits of, the Indenture.
(v) The Escrow Agreement has been duly authorized by the
Company and, at the Closing Date, will have been duly executed and
delivered by the Company and will constitute a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting creditors' rights generally or by general
equitable principles.
(w) Each of this Agreement, the Registration Rights Agreement,
the Indenture, the Notes and the Escrow Agreement will conform in all
material respects to the respective statements relating thereto to be
contained in the Memorandum.
-9-
(x) Except as will be disclosed in the Memorandum, there are
no business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission and
each business relationship or related party transaction described
therein is in all material respects a fair and accurate description of
the relationships and transactions so described.
(y) The Company is not, and upon the issuance and sale of the
Notes as herein contemplated and the application of the net proceeds
therefrom as will be described in the Memorandum will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(z) None of the Company or any agent thereof acting on behalf
of the Company has taken, and none of them will take, any action that
might cause this Agreement or the issuance or sale of the Notes to
violate Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System.
(aa) Except as will be described in the Memorandum and except
for such violations as would not, singly or in the aggregate, have a
Material Adverse Effect, (i) neither the Company nor any of its
Subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of
common law and any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "Environmental
Laws"), (ii) the Company and its Subsidiaries have all Permits required
under any applicable Environmental Laws and are each in compliance with
their requirements, (iii) there are no pending or, to the Company's
knowledge, threatened, administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance
or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its Subsidiaries and
(iv) there are no events or circumstances that could reasonably be
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental body
or agency, against or affecting the Company or any of its Subsidiaries
relating to any Hazardous Materials or the violation of any
Environmental Laws.
-10-
(bb) Subject to compliance by the Initial Purchasers with the
representations and warranties and procedures in Section 8 hereof, it
is not necessary in connection with the offer, sale and delivery of the
Notes to the Initial Purchasers and to each purchaser described in
Section 8(a)(ii) in the manner contemplated by this Agreement and the
Memorandum to register the Notes under the Act or to qualify the
Indenture under the TIA. No form of general solicitation or general
advertising was used by the Company, its affiliates, as such term is
defined in Rule 501(b) under the Act ("Affiliates"), or any person
acting on its or any of their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) in
connection with the offer and sale of the Notes, including, but not
limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. No securities of the
same class as the Notes have been issued and sold by the Company
within the six-month period immediately prior to the date hereof,
other than the $275 million aggregate principal amount of 7 3/4%
Senior Subordinated Notes due 2012, Series A, issued and sold on
December 20, 2002.
(cc) With respect to those Notes sold in reliance on
Regulation S under the Act ("Regulation S"), (i) none of the Company,
its Affiliates or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company makes no representation)
has engaged or will engage in any directed selling efforts within the
meaning of Regulation S and (ii) each of the Company and its Affiliates
and any person acting on its or their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation) has
complied and will comply with the offering restrictions requirement of
Regulation S.
(dd) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the meaning
of Rule 144A) as securities of the Company that are listed on a
national securities exchange registered under Section 6 of the Exchange
Act or that are quoted in a United States automated inter-dealer
quotation system.
(ee) The execution and delivery of this Agreement, the
Registration Rights Agreement, Notes and Escrow Agreement and the
sale of the Notes to be purchased by the purchasers described in
Section 8(a)(ii) will not involve any prohibited transaction within
the meaning of Section 406 of ERISA or Section 4975 of the Code. The
representation made by the Company in the preceding sentence is made
in reliance upon and subject to the accuracy of, and compliance with,
the representations and covenants made or deemed made by the
purchasers described in Section 8(a)(ii) as will be set forth in the
Memorandum under the Section titled "Notice to Investors."
-11-
(ff) The Memorandum, as of its date, will contain all
the information specified in, and meeting the requirements of,
Rule 144A(d)(4) under the Act.
(gg) The Company and its Subsidiaries have filed all federal,
state, local and foreign tax returns that are required to be filed or
have duly requested extensions thereof and have paid all taxes required
to be paid by any of them and any related assessments, fines or
penalties, except for any such tax, assessment, fine or penalty that is
being contested in good faith and by appropriate proceedings and except
where the failure to file or pay could not reasonably be expected to
have a Material Adverse Effect; and adequate charges, accruals and
reserves have been provided for in the financial statements referred to
in Section 2(d) above in respect of all federal, state, local and
foreign taxes for all periods as to which the tax liability of the
Company or any of its subsidiaries has not been finally determined or
remains open to examination by applicable taxing authorities.
(hh) The Company and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with
management's general or specific authorization, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets, (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.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered to the Initial Purchasers or to counsel for the Initial
Purchasers shall be deemed a joint and several representation and warranty by
the Company and each of the Subsidiaries to the Initial Purchasers as to the
matters covered thereby.
3. 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 to the Initial Purchasers, and each Initial Purchaser severally,
and not jointly, agrees to purchase, the respective principal amount of Notes
set forth opposite its name on Schedule I hereto at 96.305% of their principal
amount (the "Purchase Price"). On the Closing Date, in exchange for the Notes,
the Initial Purchasers shall, and the Company hereby instructs the Initial
Purchasers to, transfer the net proceeds of the sale of the Notes as follows:
(a) deposit with the Escrow Agent in the Escrow Account an amount sufficient to
redeem the 8 7/8% Notes in accordance with the redemption notice issued pursuant
to Section 7(l) below and (b) wire transfer (same day funds) the remaining net
proceeds of the sale of the Notes to such account or accounts as the Company
shall specify prior to the Closing Date. Pursuant to the terms of the Escrow
Agreement, upon
-12-
satisfaction of the conditions giving rise to the release of funds to the
Company under the Escrow Agreement, the Escrow Agent shall forthwith distribute
to the Company such amounts as are specified in the Escrow Agreement. One or
more certificates in definitive form for the Notes that the Initial Purchasers
have severally agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Initial Purchasers
requests, upon notice to the Company at least 36 hours prior to the Closing
Date, shall be delivered by or on behalf of the Company to the Initial
Purchasers, against payment by or on behalf of the Initial Purchasers of the
purchase price therefor as set forth above. Such delivery of and payment for the
Notes shall be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx at 10:00 A.M., New York time, on February 6, 2003, or at such
other place, time or date as the Initial Purchasers 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 checking and packaging by the Initial Purchasers at the
offices of Deutsche Bank Securities Inc. in New York, New York, or at such other
place as Deutsche Bank Securities Inc. may designate, at least 24 hours prior to
the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers
----------------------------------
propose to make an offering of the Notes at the price and upon the terms to be
set forth in the Memorandum as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Company. The Company covenants and
------------------------
agrees with the Initial Purchasers that:
(a) The Company will prepare and print the Memorandum as soon
as practicable after the execution and delivery of this Agreement (but
in any event no later than 9:00 a.m. on February 4, 2003) in a form and
substance reasonably approved by the Initial Purchasers. The Company
will not amend or supplement the Memorandum or any amendment or
supplement thereto, unless the Initial Purchasers shall previously have
been advised and furnished a copy thereof for a reasonable period of
time prior to the proposed amendment or supplement and as to which the
Initial Purchasers shall have given their consent (such consent not to
be unreasonably withheld or delayed). The Company will promptly, upon
the reasonable request of the Initial Purchasers or counsel for the
Initial Purchasers, make any amendments or supplements to the
Memorandum that may be necessary or advisable in connection with the
resale of the Notes by the Initial Purchasers.
(b) The Company will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale
under the securities or "Blue Sky" laws of such jurisdictions as the
Initial Purchasers may designate and will continue such qualifications
in effect for as long as may be necessary to complete the resale of
-13-
the Notes; provided, however, that in connection therewith, the Company
shall not be required to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction or subject
itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchasers of the Notes, any event occurs
or information becomes known as a result of which the Memorandum as
then amended or supplemented would include any untrue statement of a
material fact, or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if for any other reason it is necessary
at any time to amend or supplement the Memorandum to comply with
applicable law, the Company will promptly notify the Initial Purchasers
thereof and will prepare, at the expense of the Company, an amendment
or supplement to the Memorandum that corrects such statement or
omission or effects such compliance.
(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of
the Memorandum or any amendment or supplement thereto as the Initial
Purchasers may reasonably request.
(e) The Company will apply the net proceeds from the sale of
the Notes as set forth under "Use of Proceeds" in the Memorandum.
(f) For so long as any of the Notes remain outstanding, the
Company will furnish to the Initial Purchasers copies of all reports
and other communications (financial or otherwise) furnished by the
Company to the Trustee or to the holders of the Notes and, as soon as
available, copies of any reports or financial statements furnished to
or filed by the Company with the Commission or any national securities
exchange on which any class of securities of the Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the
Initial Purchasers, as soon as they have been prepared, a copy of any
unaudited interim financial statements of the Company for any period
subsequent to the period covered by the most recent financial
statements appearing in the Memorandum.
(h) None of the Company or any of its Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any "security" (as defined in the Act) that could be
integrated with the sale of the Notes in a manner which would require
the registration under the Act of the Notes.
(i) The Company will not, and will not permit any of the
Subsidiaries to, engage in any form of general solicitation or general
advertising (as those terms are used
-14-
in Regulation D under the Act) in connection with the offering of the
Notes or in any manner involving a public offering within the meaning
of Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding, the
Company will make available at its expense, upon request, to any holder
of such Notes and any prospective purchasers thereof the information
specified in Rule 144A(d)(4) under the Act, unless the Company is then
subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its best efforts to (i) permit the
Notes to be designated as PORTAL-eligible securities in accordance with
the rules and regulations adopted by the NASD relating to trading in
the NASD's Portal Market (the "Portal Market") and (ii) permit the
Notes to be eligible for clearance and settlement through The
Depository Trust Company.
(l) In connection with Notes offered and sold in an offshore
transaction (as defined in Regulation S) the Company will not register
any transfer of such Notes not made in accordance with the provisions
of Regulation S and will not, except in accordance with the provisions
of Regulation S, if applicable, issue any such Notes in the form of
definitive securities.
6. Expenses. The Company agrees to pay all costs and expenses
--------
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated herein are consummated or this Agreement is
terminated pursuant to Section 11 hereof, including all costs and expenses
incident to (i) the printing, word processing or other production of documents
with respect to the transactions contemplated hereby, including any costs of
printing the Memorandum and any amendment or supplement thereto, and any "Blue
Sky" memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchasers of copies of the foregoing documents, (iii) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (iv) preparation (including printing), issuance and
delivery to the Initial Purchasers of the Notes, (v) the qualification of the
Notes under state securities and "Blue Sky" laws, including filing fees and fees
and disbursements of counsel for the Initial Purchasers relating thereto,
(vi) expenses in connection with the "roadshow" and any other meetings with
prospective investors in the Notes, (vii) fees and expenses of the Trustee
including fees and expenses of counsel, (viii) all expenses and listing fees
incurred in connection with the application for quotation of the Notes on the
PORTAL Market and (ix) any fees charged by investment rating agencies for the
rating of the Notes. 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 7 hereof is not satisfied, because this Agreement is
terminated 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 solely by reason of a default by
the Initial Purchasers of their obligations hereunder after all conditions
hereunder have been satisfied in accordance here-
-15-
with), the Company agrees to promptly reimburse the Initial Purchasers upon
demand for all out-of-pocket expenses (including reasonable fees, disbursements
and charges of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial Purchasers) that
shall have been incurred by the Initial Purchasers in connection with the
proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The
---------------------------------------------------
obligation of the Initial Purchasers to purchase and pay for the Notes shall, in
its sole discretion, be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) The Memorandum shall be in form and substance reasonably
satisfactory to the Initial Purchasers. The Company shall have complied
with Section 5(a) hereof.
(b) On the Closing Date, the Initial Purchasers shall have
received the opinion, dated as of the Closing Date and addressed to the
Initial Purchasers, of Fulbright & Xxxxxxxx L.L.P., counsel for the
Company, in the form attached hereto as Exhibit A, and otherwise in
form and substance reasonably satisfactory to counsel for the Initial
Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have
received the opinion, dated as of the Closing Date and addressed to the
Initial Purchasers, of Xxxxxx X. Xxxxx, Esq., Senior Vice President,
Legal and Strategic Affairs, of the Company, in the form attached
hereto as Exhibit B, and otherwise in form and substance reasonably
satisfactory to counsel for the Initial Purchasers.
(d) On the Closing Date, the Initial Purchasers shall have
received the opinion, in form and substance satisfactory to the Initial
Purchasers, dated as of the Closing Date and addressed to the Initial
Purchasers, of Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Initial
Purchasers, with respect to certain legal matters relating to this
Agreement and such other related matters as the Initial Purchasers may
reasonably require. In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx
shall have received and may rely upon such certificates and other
documents and information as it may reasonably request to pass upon
such matters.
(e) The Initial Purchasers shall have received from
PricewaterhouseCoopers LLP a comfort letter or letters dated the
Closing Date, in form and substance satisfactory to counsel for the
Initial Purchasers.
(f) The representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the
date hereof and on and as of the Closing Date as if made on and as of
the Closing Date; the statements of the Company's officers made
pursuant to any certificate delivered in accordance with the provisions
hereof shall be true and correct in all material respects on and as of
the date
-16-
made and on and as of the Closing Date; the Company shall have
performed in all material respects all covenants and agreements and
satisfied in all material respects all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date; and,
except as described in the Memorandum (exclusive of any amendment or
supplement thereto after the date hereof), subsequent to the date of
the most recent financial statements in such Memorandum, there shall
have been no event or development, and no information shall have
become known, that, individually or in the aggregate, has or would be
reasonably likely to have a Material Adverse Effect.
(g) The sale of the Notes hereunder shall not be enjoined
(temporarily or permanently) on the Closing Date.
(h) Subsequent to the date of the most recent financial
statements in the Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), none of the Company or any of the
Subsidiaries shall have sustained any loss or interference with respect
to its business or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any
strike, labor dispute, slow down or work stoppage or from any legal or
governmental proceeding, order or decree, which loss or interference,
individually or in the aggregate, has or would be reasonably likely to
have a Material Adverse Effect.
(i) The Initial Purchasers shall have received a certificate
of the Company, dated the Closing Date, signed on behalf of the Company
by its Chairman of the Board, President or any Senior Vice President
and the Chief Financial Officer, to the effect that:
(i) The representations and warranties of the
Company contained in this Agreement are true and correct in
all material respects on and as of the date hereof and on and
as of the Closing Date, and the Company has performed all
covenants and agreements and satisfied in all material
respects all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date;
(ii) At the Closing Date, since the date hereof or
since the date of the most recent financial statements in the
Memorandum (exclusive of any amendment or supplement thereto
after the date hereof), no event or development has occurred,
and no information has become known, that, individually or in
the aggregate, has or would be reasonably likely to have a
Material Adverse Effect; and
(iii) The sale of the Notes hereunder has not been
enjoined (temporarily or permanently).
-17-
(j) On the Closing Date, the Initial Purchasers shall have
received the Registration Rights Agreement executed by the Company and
such agreement shall be in full force and effect at all times from and
after the Closing Date.
(k) On the Closing Date, the Initial Purchasers shall have
received the Escrow Agreement executed by the Company and such
agreement shall be in full force and effect at all times from and after
the Closing Date.
(l) On the Closing Date, the Company shall have irrevocably
called for redemption of all of its 8 7/8% Senior Subordinated Notes
due 2008 and shall provide evidence thereof reasonably satisfactory to
the Initial Purchasers.
On or before the Closing Date, the Initial Purchasers and
counsel for the Initial Purchasers shall have received such further documents,
opinions, certificates, letters and schedules or instruments relating to the
business, corporate, legal and financial affairs of the Company and the
Subsidiaries as they shall have theretofore reasonably requested from the
Company.
All such documents, opinions, certificates, letters, schedules
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchasers and counsel for the Initial Purchasers. The
Company shall furnish to the Initial Purchasers such conformed copies of such
documents, opinions, certificates, letters, schedules and instruments in such
quantities as the Initial Purchasers shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. (a) Each
--------------------------------------------
Initial Purchaser agrees with the Company that (i) it has not and will not
solicit offers for, or offer or sell, the Notes by any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act; and (ii) it has and will solicit offers for the
Notes only from, and will offer the Notes only to (A) in the case of offers
inside the United States, persons whom such Initial Purchaser reasonably
believes to be qualified institutional buyers as defined in Rule 144A under the
Securities Act ("QIBs") or, if any such person is buying for one or more
institutional accounts for which such person is acting as fiduciary or agent,
only when such person has represented to such Initial Purchaser that each such
account is a QIB, to whom notice has been given that such sale or delivery is
being made in reliance on Rule 144A, and, in each case, in transactions under
Rule 144A and (B) in the case of offers outside the United States, to persons
other than U.S. persons ("non-U.S. purchasers," which term shall include dealers
or other professional fiduciaries in the United States acting on a discretionary
basis for non-U.S. beneficial owners (other than an estate or trust)); provided,
however, that, in the case of this clause (B), in purchasing such Notes such
persons are deemed to have represented and agreed as provided under the caption
"Notice to Investors" contained in the Memorandum.
-18-
(b) Each Initial Purchaser severally represents and warrants
(as to itself only) with respect to offers and sales outside the United States
that (i) it has and will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Notes or has in its
possession or distributes the Memorandum or any such other material, in all
cases at its own expense; (ii) the Notes have not been and will not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons except in accordance with Regulation S or pursuant to an exemption from
the registration requirements of the Act; and (iii) it 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 and,
accordingly, neither it nor any persons acting on its behalf have engaged or
will engage in any directed selling efforts (within the meaning of Regulation S)
with respect to the Notes, and any such persons have complied and will comply
with the offering restrictions requirement of Regulation S.
Terms used in this Section 8 and not defined in this Agreement
have the meanings given to them in Regulation S.
9. Indemnification and Contribution. (a) The Company agrees
----------------------------------
to indemnify and hold harmless the Initial Purchasers and each person, if any,
who controls the Initial Purchasers within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Initial Purchasers or such controlling person may
become subject under the Act, the Exchange Act or otherwise, insofar as any 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 made
by the Company in Section 2 hereof;
(ii) any untrue statement or alleged untrue statement of any
material fact contained in the Memorandum or any amendment or
supplement thereto; or
(iii) the omission or alleged omission to state, in the
Memorandum or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements
therein not misleading,
and will reimburse, as incurred, the Initial Purchasers and each such
controlling person for any legal or other expenses incurred by the Initial
Purchasers 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; provided, however, the Company
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 al-
-19-
leged omission made in the Memorandum or any amendment or supplement thereto in
reliance upon and in conformity with written information concerning the Initial
Purchasers furnished to the Company by the Initial Purchasers through Deutsche
Bank Securities Inc. specifically for use therein. The indemnity provided for in
this Section 9 will be in addition to any liability that the Company may
otherwise have to the indemnified parties. The Company shall not be liable under
this Section 9 for any settlement of any claim or action effected without its
prior written consent, which shall not be unreasonably withheld.
(b) The Initial Purchasers severally and not jointly agree to
indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, 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 Memorandum or any amendment or
supplement thereto, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in the Memorandum or any amendment
or supplement thereto, or necessary to make the statements therein 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 concerning the
Initial Purchasers, furnished to the Company by the Initial Purchasers through
Deutsche Bank Securities Inc. specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 9 will be in addition to any liability that the
Initial Purchasers may otherwise have to the indemnified parties. The Initial
Purchasers shall not be liable under this Section 9 for any settlement of any
claim or action effected without its consent, which shall not be unreasonably
withheld. The Company shall not, without the prior written consent of the
Initial Purchasers, effect any settlement or compromise of any pending or
threatened proceeding in respect of which the Initial Purchasers are or could
have been a party, or indemnity could have been sought hereunder by the Initial
Purchasers, unless such settlement (A) includes an unconditional written release
of the Initial Purchasers, in form and substance reasonably satisfactory to the
Initial Purchasers, from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to an admission of
fault, culpability or failure to act by or on behalf of the Initial Purchasers.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to in-
-20-
demnification under this Section 9, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party of the commencement thereof in writing;
but the omission to so notify the indemnifying party (i) will not relieve it
from any liability under paragraph (a) or (b) above unless and to the extent
such failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the indemnifying
party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, 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 the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 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) the 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 expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchasers in the case
of paragraph (a) of this Section 9 or the Company in the case of paragraph (b)
of this Section 9, representing the indemnified parties under such paragraph (a)
or paragraph (b), as the case may be, who are parties to such action or actions)
or (ii) the indemnifying party has authorized in writing the employment of
counsel for the indemnified party at the expense of the indemnifying party. All
fees and expenses reimbursed pursuant to this paragraph (c) shall be reimbursed
as they are incurred. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs and
expenses of any settlement of such action effected by such indemnified party
without the prior
-21-
written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 9, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative benefits received by the Company on
the one hand and the Initial Purchasers on the other shall be deemed to be in
the same proportion as the total proceeds from the offering (before deducting
expenses) received by the Company bear to the total discounts and commissions
received by such Initial Purchasers. 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 on the one hand,
or such Initial Purchasers on the other, the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the Initial
Purchasers agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the first sentence of this paragraph (d).
Notwithstanding any other provision of this paragraph (d), the Initial
Purchasers shall not be obligated to make contributions hereunder that in the
aggregate exceed the total discounts, commissions and other compensation
received by the Initial Purchasers under this Agreement, less the aggregate
amount of any damages that the Initial Purchasers have otherwise been required
to pay by reason of the untrue or alleged untrue statements or the omissions or
alleged omissions to state a material fact, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (d), each person, if any, who
controls the Initial Purchasers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Initial Purchasers, and each director of the Company, each officer of the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of
-22-
the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company.
10. Survival Clause. The respective representations,
---------------
warranties, agreements, covenants, indemnities and other statements of the
Company, its officers and the Initial Purchasers set forth in this Agreement or
made by or on behalf of them pursuant to this Agreement shall remain in full
force and effect, regardless of (i) any investigation made by or on behalf of
the Company, any of its officers or directors, the Initial Purchasers or any
controlling person referred to in Section 9 hereof and (ii) delivery of and
payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6, 9, 10 and 15 hereof shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement.
11. Termination. (a) This Agreement may be terminated in the
-----------
sole discretion of the Initial Purchasers by notice to the Company given prior
to the Closing Date in the event that the Company shall have failed, refused or
been unable to perform all obligations and satisfy 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) any of the Company or the Subsidiaries shall have
sustained any loss or interference with respect to its businesses or
properties from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any strike, labor dispute,
slow down or work stoppage or any legal or governmental proceeding,
which loss or interference, in the sole judgment of the Initial
Purchasers, has had or has a Material Adverse Effect, or there shall
have been, in the sole judgment of the Initial Purchasers, any event or
development that, individually or in the aggregate, has or could be
reasonably likely to have a Material Adverse Effect (including without
limitation a change in control of the Company or the Subsidiaries),
except in each case as described in the Memorandum (exclusive of any
amendment or supplement thereto);
(ii) trading in securities of the Company or in securities
generally on the New York Stock Exchange, American Stock Exchange or
the NASDAQ National Market shall have been suspended or materially
limited or minimum or maximum prices shall have been established on
any such exchange or market;
(iii) a banking moratorium shall have been declared by New
York or United States authorities or a material disruption in
commercial banking or securities settlement or clearance services in
the United States;
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, or
(B) an outbreak or escalation of any other insurrection or armed
conflict involving the United States or any other national
-23-
or international calamity or emergency, or (C) any material change in
the financial markets of the United States which, in the case of (A),
(B) or (C) above and in the sole judgment of the Initial Purchasers,
makes it impracticable or inadvisable to proceed with the offering or
the delivery of the Notes as contemplated by the Memorandum; or
(v) any securities of the Company shall have been downgraded
or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this
Section 11 shall be without liability of any party to any other party except as
provided in Section 10 hereof.
12. Information Supplied by the Initial Purchasers. The
----------------------------------------------
statements set forth in the last paragraph on the front cover page and in the
third and fourth sentences of the third paragraph under the heading "Private
Placement" in the 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 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in
-------
writing and, if sent to the Initial Purchasers, shall be mailed or delivered to
(i) Deutsche Bank Securities Inc., 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Corporate Finance Department; if sent to the Company, shall be
mailed or delivered to the Company at 000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000-0000, Attention: Xxxxxxx Xxxxxx; with a copy to
Fulbright & Xxxxxxxx L.L.P., 000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxx 000,
Xxxxxxxxxx, X.X. 00000-2604, Attention: Xxxxxxx Xxxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and one
business day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of
----------
and be binding upon the Initial Purchasers, the Company 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 such persons and for the benefit of no other person except that
(i) the indemnities of the Company contained in Section 9 of this Agreement
shall also be for the benefit of any person or persons who control the Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and (ii) the indemnities of the Initial Purchasers contained in
Section 9 of this Agreement shall also be for the benefit of the directors of
the Company, its officers and
-24-
any person or persons who control the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act. No purchaser of Notes from the
Initial Purchasers will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
--------------
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
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.
-25-
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 a binding agreement between the
Company and the Initial Purchasers.
Very truly yours,
XXXXXXXXXX COMMUNICATIONS COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
FLEET SECURITIES INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name: Xxxx Xxxxxxxx
Title: Director
SCHEDULE I
----------
Principal
Amount of
Initial Purchaser Notes
----------------- ------------
Deutsche Bank Securities Inc. ................................... $135,000,000
Fleet Securities Inc. ........................................... $ 45,000,000
------------
Total ................................................. $180,000,000
Exhibit A
---------
[Form of Opinion of Fulbright & Xxxxxxxx L.L.P.]
Exhibit B
---------
[Form of Opinion of Xxxxxx X. Xxxxx, Esq.]
