EXHIBIT 1.1
EXECUTION COPY
$577,173,000
CINEMARK, INC.
9 3/4% SENIOR DISCOUNT NOTES DUE 2014
PURCHASE AGREEMENT
March 29, 2004
XXXXXX BROTHERS INC.
XXXXXXX, XXXXX & CO.
DEUTSCHE BANK SECURITIES INC.
CIBC WORLD MARKETS CORP.
BNY CAPITAL MARKETS, INC.
c/x Xxxxxx Brothers Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-and-
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Cinemark, Inc., a Delaware corporation (the "COMPANY"), proposes,
subject to the terms and conditions stated herein, to issue and sell
$577,173,000 aggregate principal amount at maturity of its 9 3/4% Senior
Discount Notes due 2014 (the "SECURITIES") to Xxxxxx Brothers Inc. ("XXXXXX
BROTHERS"), Xxxxxxx, Xxxxx & Co. ("XXXXXXX XXXXX") and the other initial
purchasers named in Schedule 1 hereto (collectively, the "INITIAL PURCHASERS").
The Securities will be issued pursuant to an indenture (the "INDENTURE") to be
dated as of the Closing Date (as defined in Section 2(a)) between the Company
and The Bank of New York Trust Company, N.A., as trustee (the "TRUSTEE").
The Securities are being issued and sold in connection with a
recapitalization transaction pursuant to which: (i) Popcorn Merger Corp., a
Delaware corporation and newly formed subsidiary of Madison Dearborn Partners,
LLC ("MDP"), will merge with and into the Company with the Company continuing as
the surviving corporation in accordance with the Agreement and Plan of Merger,
dated as of March 12, 2004, between Popcorn Merger Corp. and the Company (the
"MERGER AGREEMENT"); (ii) an affiliate of MDP will purchase shares of
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common stock of the Company for approximately $518.3 million in cash, subject to
certain adjustments; (iii) Xxx Xxx Xxxxxxxx, the Xxxxxxxx Special Trust and
certain members of the Company's management will retain a portion of their
current holdings of shares of common stock of the Company; (iv) Cinemark USA,
Inc., a wholly owned indirect subsidiary of the Company, will repurchase its
$105,000,000 aggregate principal amount of 8 1/2% Series B Senior Subordinated
Notes due 2008; (v) Cinemark USA, Inc. will repay all amounts outstanding under
its Credit Agreement, dated as of February 14, 2003, as amended, with Xxxxxx
Commercial Paper Inc., as administrative agent, and a syndicate of lenders and
(vi) Cinemark USA, Inc. will enter into an amended and restated credit facility,
consisting of a $260 million term loan and a $100 million revolving credit
facility, with Xxxxxx Commercial Paper Inc., as administrative agent, Xxxxxxx,
Xxxxx Credit Partners L.P., as syndication agent, Xxxxxx Brothers and Xxxxxxx,
Xxxxx Credit Partners L.P., as joint advisors, joint lead arrangers and joint
book-runners, and a syndicate of banks, financial institutions and other
institutional lenders. For purposes of this Agreement, the term
"RECAPITALIZATION" shall have the meaning set forth in the Offering Memorandum
(as defined in Section 1(a)); and the term "TRANSACTIONS" shall have the meaning
set forth in the Offering Memorandum.
On or prior to the Closing Date, the Company will execute an
escrow agreement, in the form and substance to be agreed between the Company and
the Initial Purchasers, which shall conform in all material respects with the
description thereof included in the Offering Memorandum (the "ESCROW
AGREEMENT"), and will direct the deposit in an escrow account (the "ESCROW
ACCOUNT") with The Bank of New York, as escrow agent (the "ESCROW AGENT"), the
gross proceeds of the offering of the Securities, together with an additional
$4,290,000, such that the escrowed funds (the "ESCROWED FUNDS") are in an amount
sufficient to redeem the Securities in cash at a redemption price equal to
100.0% of the accreted value of the Securities on May 14, 2004, in the event
that the Recapitalization is not consummated on or prior to May 12, 2004 or if
the Merger Agreement is terminated in accordance with its terms prior to such
date. The Escrow Agreement shall provide that the Escrowed Funds shall only be
released and paid out pursuant to the terms of the Escrow Agreement.
This is to confirm the agreement among the Company and the
Initial Purchasers concerning the offer, issue and sale of the Securities.
The Securities will be offered and sold to the Initial Purchasers
without being registered under the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission (the
"COMMISSION") thereunder (collectively, the "SECURITIES ACT"), in reliance upon
an exemption therefrom.
Holders of the Securities (including the Initial Purchasers and
their direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, dated as of the Closing Date (the "REGISTRATION
RIGHTS AGREEMENT"), the form of which is contained in Annex A hereof, pursuant
to which the Company will agree, among other things, to use its reasonable best
efforts to file with the Commission (i) a registration statement under the
Securities Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") covering the
issuance of a series of the Company's debt securities identical in all respects
to the Securities except that such debt securities will not be subject to
transfer restrictions under the Securities Act (the "EXCHANGE SECURITIES") and
the offer to exchange such Exchange Securities for the Securities (the
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"EXCHANGE OFFER") and (ii) under certain circumstances described therein, a
shelf registration statement pursuant to Rule 415 under the Securities Act (the
"SHELF REGISTRATION STATEMENT"; and, together with the Exchange Offer
Registration Statement, the "REGISTRATION STATEMENTS"), and, in each case, to
use its reasonable best efforts to cause the Registration Statements to be
declared effective within the time periods specified therein.
This Agreement, the Indenture, the Registration Rights Agreement
and the Escrow Agreement are referred to herein collectively as the "TRANSACTION
DOCUMENTS".
SECTION 1. Representations, Warranties and Agreements of the Company . The
Company represents and warrants to, and agree with, the Initial Purchasers that:
(a) The Company has prepared a preliminary offering memorandum
dated March 19, 2004 (the "PRELIMINARY OFFERING MEMORANDUM") and will prepare an
offering memorandum dated the date hereof (the "OFFERING MEMORANDUM") setting
forth information concerning the Company, the Securities and the Registration
Rights Agreement, in form and substance satisfactory to you. Copies of the
Preliminary Offering memorandum have been, and copies of the Offering Memorandum
will be, delivered by the Company to you. As used in this Agreement,
"PRELIMINARY OFFERING MEMORANDUM" or "OFFERING MEMORANDUM" means the Preliminary
Offering Memorandum or Offering Memorandum, as the case may be, as amended or
supplemented, unless otherwise noted. Each of the Preliminary Offering
Memorandum and the Offering Memorandum, as of its respective date, did not, and
on the Closing Date the Offering Memorandum will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no
representation or warranty as to information contained in or omitted from the
Preliminary Offering Memorandum or the Offering Memorandum in reliance upon and
in conformity with written information relating to the Initial Purchasers
furnished to the Company by the Initial Purchasers specifically for inclusion
therein.
(b) The Company and each of its subsidiaries (as defined in
Section 14) have been duly organized and are validly existing as corporations or
other business organizations, as applicable, in good standing under the laws of
their respective jurisdictions of incorporation or organization, as applicable,
are duly qualified to do business and are in good standing as foreign
corporations or other business organizations, as applicable, in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure to so
qualify to be in good standing would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole or on the
performance by the Company of its obligations under this Agreement or the
Securities (a "MATERIAL ADVERSE EFFECT"); and none of the subsidiaries of the
Company, other than Cinemark USA, Inc., CNMK Holding, Inc., Cinemark Mexico
(USA), Inc., Cinemark Holdings Mexico S.A. de X.X. de C.V., Cinemark de Mexico
S.A. de C.V., CNMK Investments, Inc., CNMK Delaware Investments II, L.L.C., CNMK
Delaware Investment Properties, L.P., and
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CNMK Texas Properties, Ltd., is a "SIGNIFICANT SUBSIDIARY," as such term is
defined in Rule 405 under the Securities Act.
(c) As of the Closing Date, the Company will have the authorized
capitalization as set forth in the Offering Memorandum, all of the issued shares
of capital stock of the Company will have been duly authorized and validly
issued and will be fully paid and non-assessable; and, as of the date hereof and
the Closing Date, all of the issued shares of capital stock or membership
interests, as applicable, of each subsidiary of the Company have been duly
authorized and validly issued and are fully paid and non-assessable and, except
as described in the Offering Memorandum and for directors' qualifying shares,
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(d) The Company has all necessary power and authority to execute
and deliver this Agreement and perform its obligations hereunder; this Agreement
has been duly authorized, executed and delivered by the Company and the
transactions contemplated hereby have been duly authorized by the Company;
assuming due authorization, execution and delivery by the Initial Purchasers,
this Agreement constitutes a legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing, and
except with respect to the rights of indemnification and contribution hereunder,
where enforcement hereof may be limited by federal or state securities laws or
the policies underlying such laws; and this Agreement will conform in all
material respects to the description thereof contained in the Offering
Memorandum.
(e) The Company has all necessary power and authority to execute
and deliver the Indenture and perform its obligations thereunder; the Indenture
has been duly authorized by the Company and, upon the effectiveness of the
Exchange Offer Registration Statement and the Shelf Registration Statement (if
applicable), will be qualified under the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "TRUST INDENTURE ACT"); on the Closing Date, the Indenture
will have been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery of the Indenture by the Trustee, the
Indenture will constitute a legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, general equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and fair dealing; and
the Indenture will conform, when executed, in all material respects to the
description thereof contained in the Offering Memorandum.
(f) The Company has all necessary power and authority to execute,
issue and deliver the Securities and perform its obligations thereunder; the
Securities have been duly authorized by the Company, and when the Securities are
delivered to and paid for by the Initial Purchasers pursuant to this Agreement,
assuming due authentication thereof by the Trustee, the Securities will be duly
executed and delivered by the Company and will constitute legally valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable
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against the Company in accordance with their terms, subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at law)
and an implied covenant of good faith and fair dealing; and the Securities will
conform, when issued, in all material respects to the description thereof
contained in the Offering Memorandum.
(g) The Company has all necessary power and authority to engage
in the Exchange Offer and to execute, issue and deliver the Exchange Securities
and perform its obligations thereunder; the Exchange Securities have been duly
authorized by the Company and, if and when duly executed, authenticated and
issued in accordance with the terms of the Indenture and delivered in accordance
with the Exchange Offer, assuming due authentication of the Exchange Securities
by the Trustee, such Exchange Securities will constitute legally valid and
binding obligations of the Company entitled to the benefits of the Indenture,
enforceable against the Company in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, subject to general principles of equity
and to limitations on availability of equitable relief, including specific
performance (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing; and the Exchange Securities
will conform, when issued, in all material respects to the description thereof
contained in the Offering Memorandum.
(h) The Company has all necessary power and authority to execute
and deliver the Registration Rights Agreement and perform its obligations
thereunder; the Registration Rights Agreement and the transactions contemplated
thereby have been duly authorized by the Company and, when duly executed and
delivered by the Company assuming due authorization, execution and delivery by
the Initial Purchasers, the Registration Rights Agreement will constitute a
legally valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally, subject to general principles of equity and to limitations on
availability of equitable relief, including specific performance (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing, and except with respect to the rights of indemnification
and contribution thereunder, where enforcement thereof may be limited by federal
or state securities laws or the policies underlying such laws; and the
Registration Rights Agreement will conform, when executed and delivered, in all
material respects to the description thereof contained in the Offering
Memorandum.
(i) The Company has all necessary power and authority to execute
and deliver the Escrow Agreement and perform its obligations thereunder; the
Escrow Agreement and the transactions contemplated thereby have been duly
authorized by the Company and, when duly executed and delivered by the Company
assuming due authorization, execution and delivery by the Escrow Agent, the
Escrow Agreement will constitute a legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights
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generally, subject to general principles of equity and to limitations on
availability of equitable relief, including specific performance (whether
considered in a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing; and the Escrow Agreement will conform, when executed and
delivered, in all material respects to the description thereof contained in the
Offering Memorandum.
(j) The execution, delivery and performance by the Company of
this Agreement and the other Transaction Documents to which each is a party, the
issuance and sale of the Securities, compliance by the Company with all
provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, lease, pledge or
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 the property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the charter or bylaws
of the Company or the charter or bylaws or any joint venture, partnership,
limited liability company, shareholders' or other agreement or organizational
document of any of the Company's subsidiaries, or (iii) result in any violation
of any statute or any order, rule or regulation of any court or governmental
agency or body (whether domestic or foreign) having jurisdiction over the
Company or any of its subsidiaries or any of their properties or assets except,
in the case of clauses (i) and (iii), such conflicts, breaches or violations
that would not reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body
(whether domestic or foreign) is required for the execution, delivery and
performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Securities and the
consummation of the transactions contemplated hereby and thereby, except (i)
with respect to the transactions contemplated by the Registration Rights
Agreement, as may be required under the Securities Act and the qualification of
the Indenture under the Trust Indenture Act, (ii) as required by applicable
state or foreign securities laws in connection with the purchase and resale of
the Securities by the Initial Purchasers, and (iii) as have been made or
obtained on or prior to the Closing Date.
(k) Except as described in the Offering Memorandum, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such
securities in any securities being registered pursuant to any registration
statement filed by the Company under the Securities Act.
(l) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included in
the Offering Memorandum, any loss or interference with its business from fire,
explosion, flood 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 or contemplated in the Offering
Memorandum except where such losses or interferences would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect;
and, since such date, there has not been any material change in the capital
stock or material increase in the long-term debt of the
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Company or any of its subsidiaries or any adverse change, or any development
involving a prospective adverse change, that would reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect, otherwise
than as set forth or contemplated in the Offering Memorandum.
(m) The consolidated financial statements (including the related
notes) included in the Offering Memorandum present fairly in all material
respects the financial position and results of operations of the Company and its
subsidiaries, at the dates and for the periods indicated, and have been prepared
in conformity with generally accepted accounting principles in the United States
applied on a consistent basis throughout the periods involved; the pro forma
information (including the related notes) included in the Offering Memorandum
has been prepared in accordance with the Commission's rules and guidance with
respect to pro forma financial information, and the assumptions underlying such
pro forma information are, as of the dates of the Preliminary Offering
Memorandum and the Offering Memorandum, reasonable for presenting the
significant effects directly attributable to the Transactions and are set forth
in the Offering Memorandum.
(n) Deloitte & Touche LLP, who have certified certain financial
statements of the Company, whose report appears in the Offering Memorandum and
who have delivered the initial letter referred to in Section 5(f) hereof, are
independent public accountants as required by the Securities Act and the Rules
and Regulations.
(o) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects, except such as are described in the Offering
Memorandum or such as could not, individually or in the aggregate, have a
Material Adverse Effect; and, except as described in the Offering Memorandum,
all assets held under lease by the Company and its subsidiaries are held by them
under valid, subsisting and enforceable leases, except such as are described in
the Offering Memorandum or such as could not, individually or in the aggregate,
have a Material Adverse Effect.
(p) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks which the Company
believes are adequate for the conduct of their respective businesses and the
value of their respective properties.
(q) The Company and each of its subsidiaries own, possess or can
acquire on reasonable terms adequate rights to use all material patents, patent
applications, trademarks, service marks, trade names, trademark registrations,
service mark registrations, copyrights and licenses necessary for the conduct of
their respective businesses and have no reason to believe that the conduct of
their respective businesses will conflict with, and have not received any notice
of any claim of conflict with, any such rights of others that, if determined
adversely to the Company or any of its subsidiaries would reasonably be likely
to have, individually or in the aggregate, a Material Adverse Effect.
(r) Except as described in the Offering Memorandum, there are no
legal or governmental proceedings (whether domestic or foreign) pending to which
the Company or any of its subsidiaries is a party or of which any property or
assets of the Company or any of its
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subsidiaries is the subject which, if determined adversely to the Company or any
of its subsidiaries, would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(s) There are no contracts or other documents which would be
required to be described in the Offering Memorandum if the Offering Memorandum
were a prospectus included in a registration statement on Form S-1 that has not
been so described therein.
(t) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which would be required
to be described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 that has not been so
described therein.
(u) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent, which would reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(v) The Company and members of its controlled group within the
meaning of Sections 414 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the "CODE")
are in compliance in all respects with all presently applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"), except where the
failure to be in such compliance would not reasonably be likely to have,
individually or in the aggregate, a Material Adverse Effect; no "REPORTABLE
EVENT" (as defined in ERISA) has occurred and is continuing with respect to any
"PENSION PLAN" (as defined in ERISA) for which the Company and such members
would have any liability; except for matters that would not reasonably be likely
to have, individually or in the aggregate, a Material Adverse Effect; the
Company and such members have not incurred and do not expect to incur liability
under (i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "PENSION PLAN" or (ii) Sections 412 or 4971 of the Code, and each "PENSION
PLAN" for which the Company and such members would have any liability 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 by failure to
act, which would cause the loss of such qualification.
(w) The Company has filed (or obtained extensions to file) all
federal, state, local and foreign income and franchise tax returns required to
be filed by it through the date hereof, except where the failure to so file
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, and has paid all taxes due thereon, other than those
(i) currently payable without penalty or interest or (ii) being contested in
good faith and by appropriate proceedings and for which, in the case of both (i)
and (ii), adequate reserves have been established on the books and records of
the Company in accordance with generally accepted accounting principles in the
United States. No tax deficiency has been determined adversely to the Company or
any of its subsidiaries which has had (nor does the Company have any knowledge
of any tax deficiency which, if determined adversely to the Company or any of
9
its subsidiaries) or would reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect.
(x) Since the date as of which information is given in the
Offering Memorandum through the date hereof, and except as may otherwise be
disclosed in the Offering Memorandum, the Company has not (i) issued or granted
any securities (other than pursuant to the Company's employee benefit plans
described in the Offering Memorandum), (ii) incurred any material liability or
obligation, direct or contingent, other than liabilities and obligations which
were incurred in the ordinary course of business, (iii) entered into any
material transaction not in the ordinary course of business or (iv) declared or
paid any dividend on its capital stock.
(y) The Company (i) makes and keeps accurate books and records
and (ii) maintains internal accounting controls which provide reasonable
assurance that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of its financial statements and to maintain accountability for its assets, (C)
access to its assets is permitted only in accordance with management's
authorization and (D) the recorded accountability for its assets is compared
with existing assets at reasonable intervals.
(z) Neither the Company nor any of its subsidiaries (i) is in
violation of (A), in the case of the Company, its charter or bylaws or (B) in
the case of any of the Company's subsidiaries, its charter or bylaws or any of
its joint venture, partnership, limited liability company, shareholders' or
other agreement or organizational document as the case may be, except in the
case of this clause (B), where such violation would not be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect, (ii) is in
default in any respect, and no event has occurred which, with notice or lapse of
time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease, pledge or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation in any respect of any
law, ordinance, governmental rule, regulation or court decree (whether domestic
or foreign) to which it or its property or assets may be subject or has failed
to obtain any material license, permit, certificate, franchise or other
governmental authorization or permit (whether domestic or foreign) necessary to
the ownership of its property or to the conduct of its business, except in the
case of clauses (ii) and (iii), such defaults, events, violations or failures
that in the aggregate would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect and provided, however, that while
the Company believes that it is in compliance with the provisions of the
Americans with Disabilities Act of 1990, as disclosed in the Offering
Memorandum, it is a party to legal proceedings alleging violations of that act.
(aa) Neither the Company nor any of its subsidiaries, nor to the
best of the Company's knowledge, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or any of its
subsidiaries, has used any corporate or organizational funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect unlawful payment to any foreign
or domestic government official or employee from corporate funds; violated or is
in violation of
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any provision of the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(bb) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the Company or any
of its subsidiaries (or, to the knowledge of the Company, any of its
predecessors in interest) at, upon or from any of the property now or previously
owned or leased by the Company or its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect; there has been no spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto such
property or into the environment surrounding such property of any toxic wastes,
medical wastes, solid wastes, hazardous wastes or hazardous substances due to or
caused by the Company or any of its subsidiaries or with respect to which the
Company or any of its subsidiaries have knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect; and the terms "HAZARDOUS WASTES", "TOXIC WASTES", "HAZARDOUS
SUBSTANCES" and "MEDICAL WASTES" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with respect to
environmental protection.
(cc) The Company is not and, as of the Closing Date after giving
effect to the Transactions, the issuance and sale of the Securities and the
application of the net proceeds therefrom as described in the Offering
Memorandum, will not be, an "INVESTMENT COMPANY" as defined in the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "INVESTMENT COMPANY ACT").
(dd) The industry, statistical and market-related data included
in the Offering Memorandum are derived from sources that the Company reasonably
and in good faith believes to be accurate, reasonable and reliable, and such
data agrees with the sources from which they were derived.
(ee) The Company has not taken, directly or indirectly, any
action designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company in connection with this transaction.
(ff) Assuming the accuracy of the representations and warranties
of the Initial Purchasers contained in Section 6 and their compliance with the
agreements set forth therein, it is not necessary, in connection with the
issuance and sale of the Securities to the Initial Purchasers and the offer,
resale and delivery of the Securities by the Initial Purchasers in the manner
contemplated by this Agreement, the Indenture, the Registration Rights Agreement
and the Offering Memorandum, to register the Securities under the Securities Act
or to qualify the Indenture under the Trust Indenture Act.
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(gg) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Securities are listed on any
national securities exchange registered under Section 6 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "EXCHANGE ACT") or quoted on an
automated inter-dealer quotation system.
(hh) Assuming the accuracy of the representations and warranties
of the Initial Purchasers contained in Section 6 hereto and their compliance
with the agreements set forth therein, none of the Company or any of its
Affiliates (as defined in Rule 501(b) of Regulation D, an "AFFILIATE"), has,
directly or through an agent, engaged in any form of general solicitation or
general advertising in connection with the offering of the Securities (as those
terms are used in Regulation D) under the Securities Act or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act; and the Company has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Securities, except for this
Agreement and the Registration Rights Agreement.
(ii) Assuming the accuracy of the representations and warranties
of the Initial Purchasers contained in Section 6 hereto and their compliance
with the agreements set forth therein, none of the Company or any of its
Affiliates has, directly or through any agent, sold, offered for sale, solicited
offers to buy or otherwise negotiated in respect of, any "security" (as defined
in the Securities Act) which is or will be integrated with the sale of the
Securities in a manner that would require the registration under the Securities
Act of the Securities.
(jj) None of the Company, its Affiliates nor any person acting on
its or their behalf (other than the Initial Purchasers in connection with this
Agreement) has engaged or will engage in any directed selling efforts (as that
term is defined in Regulation S) with respect to the Securities and each of the
Company and its Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers in connection with this Agreement) has complied and
will comply with the offering restrictions requirement of Regulation S.
(kk) Immediately after the consummation of the Transactions and
the other transactions contemplated by this agreement, (i) the fair value and
present fair saleable value of the assets of the Company and its subsidiaries
taken as a whole on a going concern basis will exceed the sum of their stated
liabilities and identified contingent liabilities taken as a whole; and (ii) the
Company on a consolidated basis is not, nor will be, after giving effect to the
execution, delivery and performance of this Agreement, and the consummation of
the Transactions and the other transactions contemplated hereby and thereby, (a)
left with unreasonably small capital with which to carry on its business as it
is proposed to be conducted, (b) unable to pay its debts (contingent or
otherwise) as they mature or (c) otherwise insolvent.
SECTION 2. Purchase, Sale and Delivery of Securities. (a) On the basis
of the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to each Initial
Purchaser, and each Initial Purchaser agrees, severally and not jointly, to
purchase from the Company, at a purchase price of 62.373% of the principal
amount at maturity of Securities set forth opposite that Initial Purchaser's
name in Schedule I hereto.
12
Delivery of and payment for the Securities shall be made at the
offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 11:00 A.M., New York City time, on March 31, 2004, or such other date
or place as shall be determined by agreement of the Initial Purchasers and the
Company (such date and time of delivery and payment for the Securities being
referred to herein as the "CLOSING DATE"). Delivery of the Securities by the
Company shall be made to the Initial Purchasers against payment of the purchase
price by the Initial Purchasers, subject to the deposit of such funds in the
Escrow Account, together with an additional $4,290,000 provided by the Company,
such that the Escrowed Funds are in an amount sufficient to redeem the
Securities in cash at a redemption price equal to 100.0% of the accreted value
of the Securities on May 14, 2004; and payment for the Securities by the Initial
Purchasers shall be made against delivery to the Initial Purchasers of the
Securities as set forth below and effected by wire transfer of immediately
available funds to the Escrow Account. Unless the Securities are redeemed in
accordance with the provisions of the Indenture and the Escrow Agreement, a
portion of the Escrowed Funds equal to the Initial Purchasers' Commission (as
defined below) will be released to the Initial Purchasers concurrently with the
completion of the Recapitalization and in accordance with the Escrow Agreement.
The Initial Purchasers' Commission with respect to the Securities shall equal
1.5593% of the aggregate principal amount at maturity of the Securities.
(b) The Company will deliver against payment of the purchase
price the Securities initially sold to (a) qualified institutional buyers
("QIBS"), as defined in Rule 144A under the Securities Act ("RULE 144A"), and
(b) persons other than U.S. persons as defined in Regulation S, in the form of
one or more permanent global certificates (the "GLOBAL SECURITIES"), registered
in the name of Cede & Co., as nominee for The Depository Trust Company ("DTC").
Beneficial interests in the Securities initially sold to QIBs will be shown on,
and transfers thereof will be effected only through, records maintained in
book-entry form by DTC and its participants. The Global Securities will be made
available, at the request of any Initial Purchaser, for checking at least 24
hours prior to the Closing Date.
(c) Time shall be of the essence, and delivery at the time and
place specified pursuant to this Agreement is a further condition of the
obligations of each Initial Purchaser hereunder.
SECTION 3. Further Agreements of the Company. The Company agrees:
(a) To prepare the Offering Memorandum in a form approved by
Xxxxxx Brothers and Xxxxxxx Xxxxx.
(b) To advise the Initial Purchasers promptly of any proposal to
amend or supplement the Offering Memorandum and not to effect any such amendment
or supplement without the consent of the Initial Purchasers. If, at any time
prior to completion of the resale of the Securities by the Initial Purchasers,
any event shall occur or condition exist as a result of which it is necessary to
amend or supplement the Offering Memorandum in order that the Offering
Memorandum will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a purchaser,
not misleading, to promptly notify the Initial
13
Purchasers and prepare, subject to the first sentence of this Section 3(b), such
amendment or supplement as may be necessary to correct such untrue statement or
omission.
(c) To furnish promptly to the Initial Purchasers and to Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel to the Initial Purchasers, copies of the
Preliminary Offering Memorandum and the Offering Memorandum (and all amendments
and supplements thereto), as soon as available and in such quantities as the
Initial Purchasers reasonably request for internal use and for distribution to
prospective purchasers; and to furnish to the Initial Purchasers on the date
hereof one copy of the Offering Memorandum signed by duly authorized officers of
the Company, one of which will include the independent auditors' reports therein
manually signed by such independent auditors. The Company will pay the expenses
of printing and distributing to the Initial Purchasers all such documents.
(d) For a period of two years following the Closing Date, to
furnish to the Initial Purchasers, to the extent such information is not freely
available on the Internet, copies of all materials furnished by the Company to
its security holders.
(e) Promptly from time to time to take such action as Xxxxxx
Brothers and Xxxxxxx Xxxxx may reasonably request to qualify the Securities for
the non-public offering and sale under the securities laws of such jurisdictions
as Xxxxxx Brothers and Xxxxxxx Xxxxx may request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of the Securities;
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation, file a general consent to service of process
in any jurisdiction, subject itself to taxation in respect of doing business in
any jurisdiction in which it is otherwise not subject or register the Securities
for public trading other than pursuant to the Registration Rights Agreement.
(f) For a period of 180 days from the date hereof, not to,
directly or indirectly, announce an offering of, or file a registration
statement with, the Commission relating to any debt securities issued or
guaranteed by the Company or any of its subsidiaries (other than the offering
and the Exchange Offer contemplated by this Agreement), or offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction or device which is
designed to, or could be expected to, result in the disposition or purchase by
any person at any time in the future of) any debt securities issued or
guaranteed by the Company or any of its subsidiaries (other than the Securities
and the Exchange Securities), or substantially similar securities or sell or
grant options, warrants or rights with respect to any debt securities issued or
guaranteed by the Company or any of its subsidiaries, in each case without the
prior written consent of Xxxxxx Brothers and Xxxxxxx Xxxxx.
(g) To use its best efforts to assist the Initial Purchasers in
arranging to cause the Securities to be accepted to trade in the PORTAL market
("PORTAL") of the National Association of Securities Dealers, Inc. ("NASD").
(h) To apply the proceeds from the sale of the Securities as set
forth under "Use of Proceeds" in the Offering Memorandum.
14
(i) Not to take, directly or indirectly, any action which is
designed to stabilize or manipulate, or which constitutes or which might
reasonably be expected to cause or result in stabilization or manipulation of,
the price of any security of the Company or any of its subsidiaries in
connection with the offering of the Securities.
(j) To use its best efforts to cause the Securities to be
accepted for clearance and settlement through the facilities of DTC.
(k) To execute and deliver the Indenture and the Registration
Rights Agreement in form and substance reasonably satisfactory to Xxxxxx
Brothers and Xxxxxxx Xxxxx.
(l) For so long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act, to
provide to any holder of the Securities or to any prospective purchaser of the
Securities designated by any holder, upon request of such holder or prospective
purchaser, information required to be provided by Rule 144A(d)(4) of the
Securities Act if, at the time of such request, the Company is not subject to
the reporting requirements under Section 13 or 15(d) of the Exchange Act.
(m) To ensure that each of the Securities will bear, to the
extent applicable, the legend contained in the Offering Memorandum under the
caption "Notice to Investors" for the time period and upon the other terms
stated therein, except after the Securities are resold pursuant to a
registration statement effective under the Securities Act.
(n) Except following the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
not to, and will cause its Affiliates not to, solicit any offer to buy or offer
to sell the Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act.
(o) Not to, and will cause its Affiliates not to, sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Securities Act) in a transaction that could be
integrated with the sale of the Securities in a manner that would require the
registration of the Securities under the Securities Act.
(p) None of the Company, the Affiliates of the Company nor any
person acting on its or their behalf (other than the Initial Purchasers in
connection with this Agreement) will engage in any directed selling efforts (as
that term is defined in Regulation S) with respect to the Securities, and each
of the Company, the Affiliates of the Company and each person acting on its or
their behalf (other than the Initial Purchasers in connection with this
Agreement) will comply with the offering restrictions of Regulation S.
SECTION 4. Expenses. (a) The Company agrees to pay: (a) the costs and
expenses incident to the authorization, issuance, sale and delivery of the
Securities and any stamp, duty, transfer or similar taxes payable in that
connection; (b) the costs incident to the preparation, printing and distribution
of the Preliminary Offering Memorandum, the Offering Memorandum and any
amendment or supplement to the Offering Memorandum, all as provided in this
Agreement; (c) the costs of producing and distributing the Transaction
Documents; (d) all
15
expenses and fees in connection with the application for inclusion of the
Securities in the PORTAL market; (e) the reasonable fees and expenses of
qualifying the Securities under the securities laws of the several jurisdictions
as provided in Section 3(e) and of preparing, printing and distributing a Blue
Sky Memorandum (including related fees and expenses of counsel to the Initial
Purchasers for preparation of a Blue Sky Memorandum) and the fees and expenses
relating to any NASD filings; (f) the costs and expenses of the Company relating
to investor presentations on any "ROAD SHOW" undertaken in connection with the
marketing of the offering of the Securities, 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 with the prior approval of the Company, travel and lodging
expenses of the representatives and officers of the Company and any such
consultants; (g) all fees and expenses incurred in connection with any rating of
the Securities; (h) the fees and expenses (including fees and disbursements of
counsel, if applicable) of the Company, Deloitte & Touche LLP, the Trustee and
the costs and charges of any registrar, transfer agent or paying agent under the
Indenture; (i) the fees and expenses of the Escrow Agent; and (j) all other
costs and expenses incident to the performance of the obligations of the Company
under this Agreement; provided that, except as provided in this Section 4 and in
Section 10, the Initial Purchasers shall pay their own costs and expenses,
including the costs and expenses of their counsel relating to the preparation of
the Offering Memorandum and the offering of the Securities.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
respective obligations of the Initial Purchasers hereunder are subject to the
accuracy, when made and on the Closing Date, of the representations and
warranties of the Company contained herein, to the performance by the Company of
its obligations hereunder, and to each of the following additional terms and
conditions:
(a) No Initial Purchaser shall have discovered and disclosed to
the Company prior to or on the Closing Date that the Offering Memorandum or any
amendment or supplement thereto, in the opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx
LLP, counsel to the Initial Purchasers, contains an untrue statement of a fact
which is material or omits to state any fact which is material and necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(b) All corporate proceedings and other legal matters incident to
the authorization, form and validity of the Offering Memorandum, the Transaction
Documents, the Securities and all other legal matters relating to this
Agreement, the issuance and sale of the Securities and the other transactions
contemplated hereby shall be reasonably satisfactory in all material respects to
counsel for the Initial Purchasers.
(c) Xxxx, Xxxx, Xxxxxxx, Xxxxx & Xxxx, LLP shall have furnished
to the Initial Purchasers their written opinion, as counsel to the Company,
addressed to the Initial Purchasers and dated the Closing Date, in the form of
Exhibit A hereto.
(d) Xxxxxxx Xxxxxxxx shall have furnished to the Initial
Purchasers his written opinion, as General Counsel to the Company, addressed to
the Initial Purchasers and dated the Closing Date, in form and substance
reasonably satisfactory to the Initial Purchasers, to the effect that:
16
(i) The Company and each of its subsidiaries have
been duly organized and are validly existing as corporations or
other business organizations, as applicable, in good standing
under the laws of their respective jurisdictions of incorporation
or organization, as applicable, are duly qualified to do business
and are in good standing as foreign corporations or other
business organizations, as applicable, in each jurisdiction in
which their respective ownership or lease of property or the
conduct of their respective businesses requires such
qualification, except where failure to be so qualified would not
reasonably be expected to have, individually or in the aggregate,
a Material Adverse Effect, and have all power and authority
necessary to own or hold their respective properties and conduct
the businesses in which they are engaged, except where such would
not reasonably be expected to have a Material Adverse Effect.
(ii) To the best of such counsel's knowledge and
other than as set forth in the Offering Memorandum, there are no
legal or governmental proceedings (whether domestic or foreign)
pending to which the Company or any of its subsidiaries is a
party or of which any property or assets of the Company or any of
its subsidiaries is the subject which, if determined adversely to
the Company or any of its subsidiaries, would reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(iii) To the best of such counsel's knowledge,
there are no contracts or other documents which would be required
to be described in the Offering Memorandum if the Offering
Memorandum were a prospectus included in a registration statement
on Form S-1 that has not been so described therein.
(iv) The issue and sale of the Securities being
delivered on the Closing Date by the Company pursuant to this
Agreement, and the execution, delivery and compliance by the
Company with all of the provisions of this Agreement and the
other Transaction Documents and the consummation of the
transactions contemplated hereby and thereby will not (i)
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, lease, pledge
or other agreement or instrument known to such counsel to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries
is subject, (ii) result in any violation of the provisions of the
charter or bylaws of the Company or the charter or bylaws or any
joint venture, partnership, limited liability company,
shareholders' or other agreement or organizational document of
any of the Company's subsidiaries, or (iii) result in any
violation of any statute or any order, rule or regulation known
to such counsel of any court or governmental agency or body
(whether domestic or foreign) having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets except in the case of clauses (i) and (iii), such
conflicts, breaches or violations that would not reasonably be
expected to have, individually
17
or in the aggregate, a Material Adverse Effect; and no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body (whether
domestic or foreign) is required for the execution, delivery and
performance of this Agreement or any of the other Transaction
Documents by the Company or the consummation of the transactions
contemplated hereby and thereby, except for (A) with respect to
the transaction contemplated by the Registration Rights Agreement
as may be required under the Securities Act and the qualification
of the Indenture under the Trust Indenture Act, (B) such as may
be required under any foreign securities laws or state securities
or Blue Sky laws in connection with the purchase and distribution
of the Securities by the Initial Purchasers, as to which such
counsel expresses no opinion, and (C) such as have been made or
obtained on or prior to the Closing Date.
(v) Except as described in the Offering
Memorandum, to the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company 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 with respect to any securities of the Company
or any of its subsidiaries owned or to be owned by such person or
to require the Company or any of its subsidiaries to include such
securities in any securities being registered pursuant to any
registration statement filed by the Company or any of its
subsidiaries under the Securities Act.
(vi) The statements in the Offering Memorandum
under the caption "Description of Certain Debt Instruments--Other
Subsidiary Debt" insofar as they purport to constitute summaries
of the terms of contracts and other documents, fairly present, in
all material respects, the information purported to be included
therein.
Such opinion shall also be to the effect that (x) such counsel
has acted as counsel to the Company in connection with the preparation of the
Offering Memorandum and (y) based on the foregoing, no facts have come to the
attention of such counsel which leads him to believe that the Offering
Memorandum (except for the financial statements and financial schedules and
other financial and statistical data included therein, as to which such counsel
need express no belief), as of its date or as of the Closing Date, contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstance
under which they were made, not misleading, and such counsel may make such
assumptions, qualification, exceptions and limitations as are standard in such
opinions or otherwise reasonably acceptable to counsel for the Initial
Purchasers.
(e) The Initial Purchasers shall have received from Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, such opinion or
opinions, dated the Closing Date, with respect to the issuance and sale of the
Securities, the Offering Memorandum and other related matters as the Initial
Purchasers may reasonably require, and the Company shall have furnished to such
counsel such documents and information as they may reasonably request to enable
them to pass upon such matters.
18
(f) At the time of execution of this Agreement, the Initial
Purchasers shall have received from Deloitte & Touche LLP a letter, in form and
substance satisfactory to the Initial Purchasers, addressed to the Initial
Purchasers and dated the date hereof (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and (ii)
stating, as of the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Offering Memorandum, as of a date not more than five
days prior to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered by
accountants' "COMFORT LETTERS" to underwriters in connection with registered
public offerings.
(g) With respect to the letter of Deloitte & Touche LLP referred
to in the preceding paragraph and delivered to the Initial Purchasers
concurrently with the execution of this Agreement (the "INITIAL LETTERS"), the
Company shall have furnished to the Initial Purchasers a letter (the "BRING-DOWN
LETTER") of such accountants, addressed to the Initial Purchasers and dated the
Closing Date (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission, (ii) stating, as of the date of the bring-down
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Offering Memorandum, as of a date not more than five days prior to the date of
the bring-down letter), the conclusions and findings of such firm with respect
to the financial information and other matters covered by the initial letter and
(iii) confirming in all material respects the conclusions and findings set forth
in the initial letter.
(h) The Company shall have furnished to the Initial Purchasers a
certificate, dated such Closing Date, of its Chairman of the Board, President or
Chief Financial Officer stating that:
(i) The representations, warranties and agreements
of the Company in Section 1 are true and correct as of the
Closing Date (except to the extent any such representation and
warranty expressly relates to an earlier date, in which case such
representations and warranties were true and correct as of such
earlier date); the Company has complied with all its agreements
contained herein; and the conditions set forth in Sections 5(a),
5(k) and 5(l) have been fulfilled; and
(ii) They have carefully examined the Offering
Memorandum and, in their opinion (A) as of the Closing Date, the
Offering Memorandum did not include any untrue statement of a
material fact and did not omit to state a material fact necessary
to make the statements, in light of the circumstances in which
they were made, not misleading, and (B) since the date hereof no
event has occurred which should have been set forth in a
supplement or amendment to the Offering Memorandum.
(i) The Indenture (in form and substance reasonably satisfactory
to the Initial Purchasers) shall have been duly executed and delivered by the
Company and the Trustee, and
19
the Securities shall have been duly executed and delivered by the Company and
duly authenticated by the Trustee.
(j) The Company and the Initial Purchasers shall have executed
and delivered the Registration Rights Agreement, and the Registration Rights
Agreement shall be in full force and effect.
(k) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Offering Memorandum (A) any loss or interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Memorandum or (B)
since such date there shall not have been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the consolidated
financial position, stockholders' equity, results of operations, business or
prospects of the Company and its subsidiaries taken as a whole, otherwise than
as set forth or contemplated in the Offering Memorandum, the effect of which, in
any such case described in clause (A) or (B), is, in the judgment of the Initial
Purchasers, so material and adverse as to make it impracticable or inadvisable
to proceed with the offering or the delivery of the Securities being delivered
on the Closing Date on the terms and in the manner contemplated in the Offering
Memorandum.
(l) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the Company's debt
securities by any "NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION," as
that term is defined by the Commission for purposes of Rule 436(g)(2) of the
Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(m) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or in
the over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or the
settlement of such trading generally shall have been materially disrupted or
minimum prices shall have been established on any such exchange or such market
by the Commission, by such exchange or by any other regulatory body or
governmental authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United States shall
have become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions, including without limitation as a result of terrorist
activities after the date hereof, (or the effect of international conditions on
the financial markets in the United States shall be such) as to make it, in the
judgment of Xxxxxx Brothers and Xxxxxxx Xxxxx, impracticable or inadvisable to
proceed with the offering or delivery of the Securities being delivered on the
Closing Date on the terms and in the manner contemplated in the Offering
Memorandum.
20
(n) The NASD shall have accepted the Securities for trading on
PORTAL; provided that the failure of the Securities to be so listed shall not be
due to any action taken or failure to act by the Initial Purchasers.
(o) The Initial Purchasers shall have received counterparts of
the Escrow Agreement which shall have been executed and delivered by a duly
authorized officer of each of the Company and the Escrow Agent and the Company
shall have deposited $4,290,000 in the Escrow Account (in addition to the gross
proceeds from the offering of the Securities deposited in the Escrow Account
pursuant to Section 2 of this Agreement) in accordance with the provisions of
the Escrow Agreement.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers. Xxxxxx Brothers and Xxxxxxx Xxxxx may in
their sole discretion waive on behalf of the Initial Purchasers compliance with
any conditions to the obligations of the Initial Purchasers hereunder.
SECTION 6. Representation, Warranties and Agreements of Initial
Purchasers.
(a) Each Initial Purchaser represents and warrants to, severally
and not jointly, and agrees with the Company that it (i) is a QIB, (ii) is
purchasing the Securities pursuant to a private sale exempt from registration
under the Securities Act without the intent to distribute the Securities in
violation of the Securities Act, (iii) will not solicit offers for, or offer or
sell, the Securities by means of any form of general solicitation or general
advertising or in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act and (iv) will solicit offers for the
Securities only from, and will offer, sell or deliver the Securities, as part of
its initial offering, only to (A) persons whom it reasonably believe to be 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 it 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 in
transactions under Rule 144A , and (B) in the case of offers outside the United
States, to persons other than U.S. persons (as defined in Regulation S) in
accordance with Rule 903 of Regulation S.
(b) Each Initial Purchaser agrees that in connection with the
transactions described in subsection 6(a)(iii)(B) it has offered and sold the
Securities, and will offer and sell the Securities, (i) as part of its
distribution at any time and (ii) otherwise until one year after the later of
the commencement of the offering and the Closing Date (the "RESTRICTED PERIOD"),
only in accordance with Rule 903 of Regulation S. Accordingly, each Initial
Purchaser represents and agrees that, severally and not jointly, with respect to
the transactions described in subsection 6(a)(iii)(B), neither it, nor any of
its Affiliates, nor any person acting on their behalf has engaged or will engage
in any directed selling efforts with respect to the Securities, and that it has
complied and will comply with the offering restrictions of Regulation S. It
agrees that, at or prior to the confirmation of sale of the Securities pursuant
to subsection 6(a)(iii)(B), it shall have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that purchases
Securities from the Initial Purchasers during the Restricted Period, a
confirmation or notice to substantially the following effect:
21
"The Securities covered hereby have not been registered under the
Securities Act and may not be offered or sold within the United
States or to, or for the account or benefit of U.S. Persons (i)
as part of their distribution at any time or (ii) otherwise until
one year after the later of the commencement of the offering and
the time of delivery of the Securities, except in either case in
accordance with Regulation S or Rule 144A under the Securities
Act. The terms used above have the meaning given to them by
Regulation S."
(c) Each of the Initial Purchasers represents and agrees that:
(1) other than in connection with the offering of
the Securities, it has not offered or sold and, during the period
ending six months after Closing Date, it will not offer or sell
any Securities to persons in the United Kingdom except to persons
whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for
the purposes of their business, or otherwise, in circumstances
which have not resulted in and will not result in an offer to the
public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995 (as amended):
(2) it has complied and will comply with all
applicable provisions of the Financial Services Act of 1986 (the
"ACT") (and, after they come into force, all applicable
provisions of the Financial Services and Markets Act 2000, the
"FSMA") with respect to anything done by it in relation to the
Securities in, from and otherwise involving the United Kingdom;
and
(3) it has only issued or passed on and will only
issue or pass on in the United Kingdom before the repeal of
Section 57 of the Act, any document received by it in connection
with the issue, offer, and sale of the Securities to a person who
is of a kind described in Article 11(3) of the Act (Investment
Advertisements) (Exemption) Order of 1996 (as amended) or is a
person to whom such document may otherwise lawfully be issued or
passed on. After the repeal of Section 57 of the Act it will only
communicate or cause to be communicated an invitation or
inducement to engage in investment activity (within the meaning
of Section 21 of the FSMA) in connection with the issue or sale
of such Securities in circumstances in which Section 21(1) of the
FSMA does not apply to the Company.
(d) Each Initial Purchaser, severally and not jointly,
represents, warrants and agrees with respect to offers and sales of Securities
outside the United States that it understands that no action has been or will be
taken in any jurisdiction by the Company that would permit a public offering of
the Securities, or possession or distribution of either the Preliminary Offering
Memorandum or the Offering Memorandum or any other offering or publicity
material relating to the Securities, in any country or jurisdiction where action
for that purpose is required; and such Initial Purchaser will comply with all
applicable laws and regulations in each jurisdiction in which it acquires,
offers, sells or delivers Securities or has in its possession or distributes
either
22
the Preliminary Offering Memorandum or the Offering Memorandum or any such other
material, in all cases at its own expense.
SECTION 7. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Initial
Purchaser, its officers and employees and each person, if any, who controls any
Initial Purchaser within the meaning of the Securities Act, from and against any
loss, claim, damage or liability, joint or several, or any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Securities), to which that Initial
Purchaser, officer, employee or controlling person may become subject insofar as
such loss, claim, damage, liability or action arises out of, or is based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in any (A) Preliminary Offering Memorandum (excluding any amendment or
supplement thereto), or the Offering Memorandum or in any amendment or
supplement thereto, or (B) in any materials or information provided to investors
by, or with the approval of, the Company in connection with the marketing of the
offering of the Securities ("MARKETING MATERIALS"), including any road show or
investor presentations made to investors by the Company (whether in person or
electronically), (ii) the omission or alleged omission to state in any
Preliminary Offering Memorandum (excluding any amendment or supplement thereto)
or the Offering Memorandum, or in any amendment or supplement thereto, or in any
Marketing Materials, any material fact necessary to make the statements therein
not misleading, or (iii) any act or failure to act or any alleged act or failure
to act by any Initial Purchaser in connection with, or relating in any manner
to, the Securities or the offering contemplated hereby, and that is included as
part of or referred to in any loss, claim, damage, liability or action arising
out of or based upon matters covered by clause (i) or (ii) above (provided that
the Company shall not be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent jurisdiction that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Initial Purchaser
through its gross negligence or willful misconduct), and shall reimburse each
Initial Purchaser and each such officer, employee or controlling person promptly
upon demand for any legal or other expenses reasonably incurred by that Initial
Purchaser, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action (i) arises out of, or is based
upon, any untrue statement or alleged untrue statement or omission or alleged
omission made in any Preliminary Offering Memorandum (excluding any amendment or
supplement thereto) or the Offering Memorandum, or in any such amendment or
supplement, in reliance upon and in conformity with written information
concerning such Initial Purchaser furnished to the Company through Xxxxxx
Brothers and Xxxxxxx Xxxxx by or on behalf of any Initial Purchaser specifically
for inclusion therein which information consists solely of the information
specified in Section 7(e) or (ii) results solely from an untrue statement of
material fact contained in, or the omission of a material fact from, such
Preliminary Offering Memorandum (excluding any amendment or supplement thereto),
which untrue statement or omission was completely corrected in the Offering
Memorandum (as then amended or supplemented); provided further, however, that
the Company shall sustain the burden of proving that the Initial Purchasers sold
the Securities to the person alleging such loss, claim, damage, liability or
action without sending or giving, at or prior to the written
23
confirmation of such sale, a copy of the Offering Memorandum (as then amended or
supplemented) if the Company had previously furnished sufficient quantities of
copies thereof to the Initial Purchasers within a reasonable amount of time
prior to such sale or such confirmation, and the Initial Purchasers failed to
deliver the corrected Offering Memorandum, if required by law to have so
delivered it and if delivered would have cured the defect giving rise to such
loss, claim, damage, liability or action. The foregoing indemnity agreement is
in addition to any liability that the Company may otherwise have to any Initial
Purchaser or to any officer, employee or controlling person of that Initial
Purchaser.
(b) Each Initial Purchaser, severally and not jointly, shall
indemnify and hold harmless the Company, its officers, employees, directors, and
each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Offering Memorandum
(excluding any amendment or supplement thereto) or the Offering Memorandum or in
any amendment or supplement thereto, or (ii) the omission or alleged omission to
state in any Preliminary Offering Memorandum (excluding any amendment or
supplement thereto) or the Offering Memorandum, or in any amendment or
supplement thereto, any material fact necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Initial
Purchaser furnished to the Company through Xxxxxx Brothers and Xxxxxxx Xxxxx by
or on behalf of that Initial Purchaser specifically for inclusion therein, and
shall reimburse the Company and any such director, officer or controlling person
for any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Initial Purchaser may otherwise have to the
Company or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 7 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 7.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by
24
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that the Initial
Purchasers shall have the right to employ counsel to represent jointly the
Initial Purchasers and their respective officers, employees and controlling
persons who may be subject to liability arising out of any claim in respect of
which indemnity may be sought by the Initial Purchasers against the Company
under this Section 7 if, in the reasonable judgment of such Initial Purchaser
and their counsel, it is advisable for such Initial Purchaser and such officers,
employees and controlling persons to be jointly represented by separate counsel,
and in that event the fees and expenses of not more than one separate firm (in
addition to any local counsel) shall be paid by the Company. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding,
or (ii) be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled with the consent of the indemnifying party or if there be a final
non-appealable judgment of the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 7 shall
for any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(b) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company on the one hand and the Initial Purchasers on the other
from the offering of the Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Initial
Purchasers on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Initial Purchasers on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Securities purchased under this
Agreement (before deducting expenses) received by the Company, on the one hand,
and the total discounts and commissions received by the Initial Purchasers with
respect to the Securities purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Securities under this
Agreement. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Initial Purchasers, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company agrees with the Initial Purchasers that it
would not be just and equitable if contributions pursuant to this Section 7 were
to be determined by pro rata allocation (even if
25
the Initial Purchasers were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 7(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7(d), no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities resold by it in the initial
placement of such Securities were offered to investors exceeds the amount of any
damages which such Initial Purchaser has otherwise paid or become liable to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Initial
Purchasers' obligations to contribute as provided in this Section 7(d) are
several in proportion to their respective obligations and not joint.
(e) The Initial Purchasers severally confirm and the Company
acknowledge that the statements in paragraphs numbers six and seven on the cover
page of the Offering Memorandum and paragraphs numbers seven, eight and ten
under the "Plan of Distribution" in the Offering Memorandum are correct and
constitute the only information concerning such Initial Purchasers furnished in
writing to the Company by or on behalf of the Initial Purchasers specifically
for inclusion in the Offering Memorandum.
SECTION 8. Defaulting Initial Purchasers. If, on the Closing Date, any
Initial Purchaser defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Initial Purchasers shall be obligated to
purchase the Securities which the defaulting Initial Purchaser agreed but failed
to purchase on the Closing Date in the respective proportions which the
principal amount of Securities set opposite the name of each remaining
non-defaulting Initial Purchaser in Schedule 1 hereto bears to the aggregate
principal amount of the Securities set opposite the names of all the remaining
non-defaulting Initial Purchasers in Schedule 1 hereto; provided, however, that
the remaining non-defaulting Initial Purchasers shall not be obligated to
purchase any of the Securities on the Closing Date if the aggregate principal
amount of the Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase on such date exceeds 9.09% of the
aggregate principal amount at maturity of the Securities to be purchased on the
Closing Date, and any remaining non-defaulting Initial Purchaser shall not be
obligated to purchase more than 110% of the aggregate principal amount at
maturity of the Securities which it agreed to purchase on the Closing Date
pursuant to the terms of Section 2. If the foregoing maximums are exceeded, the
remaining non-defaulting Initial Purchasers, or those other purchasers
satisfactory to the Initial Purchasers who so agree, shall have the right, but
shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, the aggregate principal amount of Securities to be purchased on the
Closing Date. If the remaining Initial Purchasers or other purchasers
satisfactory to the Initial Purchasers do not elect to purchase the shares which
the defaulting Initial Purchaser or Initial Purchasers agreed but failed to
purchase on the Closing Date, this Agreement shall terminate without liability
on the part of any non-defaulting Initial Purchaser or the Company, except that
the Company will continue to be liable for the payment of expenses to the extent
set forth in Sections 4 and 10. As used in this Agreement, the term "INITIAL
PURCHASER" includes, for all
26
purposes of this Agreement unless the context requires otherwise, any party not
listed in Schedule 1 hereto who, pursuant to this Section 8, purchases
Securities which a defaulting Initial Purchaser agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company for damages caused by its
default. If other purchasers are obligated or agree to purchase the Securities
of a defaulting or withdrawing Initial Purchaser, either Xxxxxx Brothers,
Xxxxxxx Xxxxx or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of counsel for
the Company or counsel for the Initial Purchasers may be necessary in the
Offering Memorandum or in any other document or arrangement.
SECTION 9. Termination. The obligations of the Initial Purchasers
hereunder may be terminated by the Initial Purchasers by notice given to and
received by the Company prior to delivery of and payment for the Securities if,
prior to that time, any of the events described in Sections 5(k), 5(l) or 5(m),
shall have occurred or if the Initial Purchasers shall decline to purchase the
Securities for any reason permitted under this Agreement.
SECTION 10. Reimbursement of Initial Purchasers' Expense. If (a) the
Company shall fail to tender the Securities for delivery to the Initial
Purchasers by reason of any failure, refusal or inability on the part of the
Company to perform any agreement on its part to be performed, or because any
other condition of the Initial Purchasers' obligations hereunder required to be
fulfilled by the Company (including, without limitation, with respect to the
transactions) is not fulfilled or (b) the Initial Purchasers decline to purchase
the Securities for any reason permitted under this Agreement (including the
termination of this Agreement pursuant to Section 9), the Company agrees to
reimburse the Initial Purchasers for all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) incurred by the Initial Purchasers
in connection with this Agreement and the proposed purchase of the Securities,
and upon demand the Company agrees to pay the full amount thereof to the Initial
Purchasers. If this Agreement is terminated pursuant to Section 9 by reason of
the default of one or more Initial Purchasers, the Company shall not be
obligated to reimburse any defaulting Initial Purchaser on account of any
expenses.
SECTION 11. Notices, Etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Initial Purchasers, shall be delivered or sent by
mail, telex or facsimile transmission to (i) Xxxxxx Brothers Inc., 0000 Xxxxxx
xx xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate
Registration Department (Fax: 000-000-0000), with a copy, in the case of any
notice pursuant to Section 9(c), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000 and (ii) Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Registration Department (Fax: 000-000-0000), and a copy to Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: X. Xxxxx Xxxxxxx, Esq. (Fax: 000-000-0000; Telephone: (212)
000-0000);
27
(b) if to the Company shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Offering Memorandum, Attention: Xxxxxxx Xxxxxxxx (Fax: 000-000-0000), with a
copy to Xxxx, Xxxx, Xxxxxxx, Xxxxx & Xxxx, L.L.P., Attention: Xxxxx X. Xxxxxx,
P.C., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000;
provided, however, that any notice to an Initial Purchaser pursuant to Section
7(c) shall be delivered or sent by mail, telex or facsimile transmission to each
Initial Purchaser, which address will be supplied to any other party hereto by
Xxxxxx Brothers Inc. upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Initial Purchasers by Xxxxxx Brothers Inc.
SECTION 12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Initial Purchasers, the
Company and their respective successors. This Agreement and the terms and
provisions hereof are for the sole benefit of only those persons, except that
(A) the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of the
officers and employees of the Initial Purchasers and the person or persons, if
any, who control any Initial Purchaser within the meaning of Section 15 of the
Securities Act and (B) the indemnity agreement of the Initial Purchasers
contained in Section 7(b) of this Agreement shall be deemed to be for the
benefit of directors of the Company, officers of the Company and any person
controlling the Company within the meaning of Section 15 of the Securities Act.
Nothing in this Agreement is intended or shall be construed to give any person,
other than the persons referred to in this Section 12, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
contained herein.
SECTION 13. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Initial Purchasers contained in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Securities and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any person controlling any of them.
SECTION 14. Definition of the Terms "BUSINESS DAY" and "SUBSIDIARY".
For purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 of the Rules
and Regulations.
SECTION 15. Governing Law(a) . This Agreement shall be governed by and
construed in accordance with the laws of New York.
SECTION 16. Counterparts. This Agreement may be executed in one or
more counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
28
SECTION 17. Headings. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement among the
Company and the Initial Purchasers, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
CINEMARK, INC.
By: /s/ Xxxxxx Xxxxxx
------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President, Treasurer
And Chief Financial Officer
Accepted:
XXXXXX BROTHERS INC.
XXXXXXX, XXXXX & Co.
DEUTSCHE BANK SECURITIES INC.
CIBC WORLD MARKETS CORP.
BNY CAPITAL MARKETS, INC.
BY XXXXXX BROTHERS INC.
By: /s/ Xxxxxxx Xxxxxxx
-------------------
Authorized Representative
By Xxxxxxx, xxxxx & Co.
By: /s/ Xxxxxxx, Xxxxx & Co.
-----------------------
Authorized Representative
