EXECUTION COPY
AMES TRUE TEMPER, INC.
ATT HOLDING CO.
$150,000,000
Senior Floating Rate Notes due 2012
PURCHASE AGREEMENT
dated January 11, 2005
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
PURCHASE AGREEMENT
January 11, 2005
BANC OF AMERICA SECURITIES LLC
CREDIT SUISSE FIRST BOSTON LLC
As Initial Purchasers
c/o Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Ladies and Gentlemen:
Introductory. Ames True Temper, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several initial
Purchasers named
in Schedule A (the "Initial Purchasers"), acting severally and not
jointly, the
respective amounts set forth in such Schedule A of $150,000,000
aggregate
principal amount of the Company's Senior Floating Rate Notes due
2012 (the
"Notes"). Banc of America Securities LLC and Credit Suisse First
Boston LLC have
agreed to act as the several Initial Purchasers in connection with
the offering
and sales of the Notes.
The Notes will be issued pursuant to an indenture, dated as of
January
14, 2005 (the "Indenture"), between the Company, the Guarantor (as
defined
below) and The Bank of New York, as trustee (the "Trustee"). Notes
issued in
book-entry form will be issued in the name of Cede & Co., as
nominee of The
Depository Trust Company (the "Depositary") pursuant to a Blanket
Letter of
Representations, dated June 25, 2004, between the Company and the
Depositary
(the "Blanket Letter of Representations") and the riders thereto
(the "Riders,"
and together with the Blanket Letter of Representations, the "DTC
Agreement").
The holders of the Notes will be entitled to the benefits of a
registration rights agreement, dated as of January 14, 2005 (the
"Registration
Rights Agreement"), among the Company, the Guarantor and the
Initial Purchasers,
substantially in the form of Exhibit B hereto, pursuant to which
the Company and
the Guarantor will agree to file, within 90 days of the Closing
Date, a
registration statement with the Commission registering the Exchange
Securities
(as defined below) under the Securities Act of 1933, as amended
(the "Securities
Act", which term, as used herein, includes the rules and
regulations of the
Securities and Exchange Commission (the "Commission") promulgated
thereunder).
Pursuant to the Registration Rights Agreement, each
of the Company and the Guarantor will agree to file with the
Commission, under
the circumstances set forth therein, a registration statement under
the
Securities Act relating to another series of debt securities of the
Company with
terms substantially identical to the Notes (the "Exchange Notes")
to be offered
in exchange for the Notes (the "Exchange Offer") and to the extent
required by
the Registration Rights Agreement, a shelf registration statement
pursuant to
Rule 415 of the Securities Act relating to the resale by certain
holders of the
Notes, and in each case, to use its best efforts to cause such
registration
statements to be declared effective.
The payment of principal of, premium and Liquidated Damages (as
defined
in the Indenture), if any, and interest on the Notes and the
Exchange Notes will
be fully and unconditionally guaranteed on a senior unsecured basis
by ATT
Holding Co., a Delaware corporation, the direct parent corporation
of the
Company and its respective successors and assigns (the
"Guarantor"), pursuant to
the Notation of Guarantee, dated as of January 14, 2005 (the
"Guarantee"). The
Notes and the Guarantee attached thereto are herein collectively
referred to as
the "Securities"; and the Exchange Notes and the Guarantee attached
thereto are
herein collectively referred to as the "Exchange Securities".
The Company understands that the Initial Purchasers propose to make
an
offering of the Securities on the terms and in the manner set forth
herein and
in the Offering Memorandum (as defined below) and agrees that the
Initial
Purchasers may resell, subject to the conditions set forth herein,
all or a
portion of the Securities to purchasers (the "Subsequent
Purchasers") at any
time after the date of this Agreement. The Securities are to be
offered and sold
to or through the Initial Purchasers without being registered with
the
Commission under the Securities Act, in reliance upon exemptions
therefrom. The
terms of the Securities and the Indenture will require that
investors that
acquire Securities expressly agree that Securities may only be
resold or
otherwise transferred, after the date hereof, if such Securities
are registered
for sale under the Securities Act or if an exemption from the
registration
requirements of the Securities Act is available (including the
exemptions
afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation
S")
thereunder).
The Company has prepared and delivered to each Initial Purchaser a
Preliminary Offering Memorandum, dated January 7, 2005 (the
"Preliminary
Offering Memorandum"), and has prepared and will deliver to each
Initial
Purchaser copies of the Offering Memorandum, dated January 11,
2005, describing
the terms of the Securities, each for use by such Initial Purchaser
in
connection with its solicitation of offers to purchase the
Securities. As used
herein, the "Offering Memorandum" shall mean, with respect to any
date or time
referred to in this Agreement, the Company's Offering Memorandum,
dated January
11, 2005, including amendments or supplements thereto and any
exhibits thereto,
in the most recent form that has been prepared and delivered by the
Company to
the Initial Purchasers in connection with their solicitation of
offers to
purchase Securities. Further, any reference to the Preliminary
Offering
Memorandum or the Offering Memorandum shall be deemed to refer to
and include
any Additional Issuer Information (as defined in Section 3)
furnished by the
Company prior to the completion of the distribution of the
Securities.
The Company and the Guarantor hereby confirms their agreement with
the
Initial Purchasers as follows:
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SECTION 1. Representations and Warranties. The Company hereby
represents, warrants and covenants to each Initial Purchaser as
follows:
(a) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in
Section 2 hereof
and with the procedures set forth in Section 7 hereof, it is not
necessary in
connection with the offer, sale and delivery of the Securities to
the Initial
Purchasers and to each Subsequent Purchaser in the manner
contemplated by this
Agreement and the Offering Memorandum to register the Securities
under the
Securities Act or, until such time as the Exchange Securities are
issued
pursuant to an effective registration statement, to qualify the
Indenture under
the Trust Indenture Act of 1939 (the "Trust Indenture Act," which
term, as used
herein, includes the rules and regulations of the Commission
promulgated
thereunder).
(b) No Integration of Offerings or General Solicitation. Neither
the
Company nor the Guarantor has, directly or indirectly, solicited
any offer to
buy or offered to sell, and will not, directly or indirectly,
solicit any offer
to buy or offer to sell, in the United States or to any United
States citizen or
resident, any security which is or would be integrated with the
sale of the
Securities in a manner that would require the Securities to be
registered under
the Securities Act. None of the Company, the Guarantor, their
respective
affiliates, as such term is defined in Rule 501 under the
Securities Act (each,
an "Affiliate"), or any person acting on its or any of their behalf
(other than
the Initial Purchasers, as to whom the Company makes no
representation or
warranty) has engaged or will engage, in connection with the
offering of the
Securities, in any form of general solicitation or general
advertising within
the meaning of Rule 502 under the Securities Act. With respect to
those
Securities sold in reliance upon Regulation S, (i) none of the
Company, the
Guarantor, their respective Affiliates or any person acting on
their behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation or warranty) has engaged or will engage in any
directed selling
efforts within the meaning of Regulation S and (ii) each of the
Company, the
Guarantor and their respective Affiliates and any person acting on
their behalf
(other than the Initial Purchasers, as to whom the Company makes no
representation or warranty) has complied and will comply with the
offering
restrictions set forth in Regulation S.
(c) Eligibility for Resale under Rule 144A. The Securities are
eligible
for resale pursuant to Rule 144A and will not be, at the Closing
Date, of the
same class as securities listed on a national securities exchange
registered
under Section 6 of the Exchange Act of 1934, as amended (the
"Exchange Act,
which term, as used herein, includes the rules and regulations of
the Commission
promulgated thereunder) or quoted in a U.S. automated interdealer
quotation
system.
(d) The Offering Memorandum. The Offering Memorandum does not, and
at
the Closing Date 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 under which they were made, not
misleading;
provided that this representation, warranty and agreement shall not
apply to
statements in or omissions from the Offering Memorandum made in
reliance upon
and in conformity with information furnished to the Company in
writing by any
Initial Purchaser through Banc of America Securities LLC expressly
for use in
the Offering Memorandum. Each of the Preliminary Offering
Memorandum and the
Offering Memorandum, as of its date, contains all the information
specified in,
and meeting the requirements of, Rule 144A. The
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Company has not distributed and will not distribute, prior to the
later of the
Closing Date and the completion of the Initial Purchasers'
distribution of the
Securities, any offering material in connection with the offering
and sale of
the Securities other than the Preliminary Offering Memorandum or
the Offering
Memorandum.
(e) The Purchase Agreement. This Agreement has been duly
authorized,
executed and delivered by, and is a valid and binding agreement of,
the Company
and the Guarantor, enforceable in accordance with its terms, except
as rights to
indemnification hereunder may be limited by applicable law and
except as the
enforcement hereof may be limited by bankruptcy, insolvency,
reorganization,
moratorium or other similar laws relating to or affecting the
rights and
remedies of creditors or by general equitable principles.
(f) The Registration Rights Agreement. On the Closing Date, the
Registration Rights Agreement will be duly authorized, executed and
delivered
by, and (assuming due authorization, execution and delivery thereof
by the
Initial Purchasers) will be a valid and binding agreement of, the
Company and
the Guarantor, enforceable in accordance with its terms, except as
the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization,
moratorium or other similar laws relating to or affecting the
rights and
remedies of creditors or by general equitable principles and except
as rights to
indemnification under the Registration Rights Agreement may be
limited by
applicable law.
(g) The DTC Agreement. On or before the Closing Date, the Blanket
Letter of Representations will be duly authorized, executed and
delivered by,
and the Riders will be duly authorized and delivered by, and
(assuming the due
authorization, execution (as applicable) and delivery thereof by
the Depositary)
will be a valid and binding agreement of, the Company, enforceable
in accordance
with their terms, except as the enforcement thereof may be limited
by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws
relating to or affecting the rights and remedies of creditors or by
general
equitable principles.
(h) Authorization of the Securities and the Exchange Securities.
The
Notes to be purchased by the Initial Purchasers from the Company
are in the form
contemplated by the Indenture, have been duly authorized for
issuance and sale
pursuant to this Agreement and the Indenture and, at the Closing
Date, will have
been duly executed by the Company and, when authenticated in the
manner provided
for in the Indenture and delivered against payment of the purchase
price
therefor, will constitute valid and binding agreements of the
Company,
enforceable in accordance with their terms and will be entitled to
the benefits
of the Indenture, except as the enforcement thereof may be limited
by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws
relating to or affecting the rights and remedies of creditors or by
general
equitable principles. The Exchange Notes have been duly and validly
authorized
for issuance by the Company, and when issued and authenticated in
accordance
with the terms of the Indenture, the Registration Rights Agreement
and the
Exchange Offer, will constitute valid and binding obligations of
the Company,
enforceable against the Company in accordance with their terms,
except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization,
moratorium, or similar laws relating to or affecting enforcement of
the rights
and remedies of creditors or by general principles of equity. The
Guarantee of
the Notes are and, when issued, the Exchange Notes will be in the
respective
forms contemplated by the Indenture, have been duly authorized for
issuance and
sale pursuant to this Agreement and the Indenture
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and, at the Closing Date with respect to the Guarantee of the Notes
and when
issued, with respect to the Guarantee of the Exchange Notes, will
have been duly
executed by the Guarantor and, when the Notes have been
authenticated in the
manner provided for in the Indenture and delivered against payment
of the
purchase price therefor, will constitute valid and binding
agreements of the
Guarantor, enforceable in accordance with their terms and will be
entitled to
the benefits of the Indenture, except as the enforcement thereof
may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws
relating to or affecting the rights and remedies of creditors or by
general
equitable principles.
(i) Authorization of the Indenture. The Indenture has been duly
authorized by the Company and, at the Closing Date, will have been
duly executed
and delivered by the Company and the Guarantor and will constitute
a valid and
binding agreement of the Company and the Guarantor, enforceable
against the
Company and the Guarantor in accordance with its terms, except as
the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization,
moratorium or other similar laws relating to or affecting the
rights and
remedies of creditors or by general equitable principles.
(j) Description of the Securities and the Indenture. The Notes, the
Exchange Notes, the Guarantee of the Notes and the Guarantee of the
Exchange
Notes and the Indenture will conform in all material respects to
the respective
statements relating thereto contained in the Offering Memorandum.
(k) No Material Adverse Change. Except as otherwise disclosed in
the
Offering Memorandum, subsequent to the respective dates as of which
information
is given in the Offering Memorandum: (i) there has been no material
adverse
change, or any development that could reasonably be expected to
result in a
material adverse change, in the condition, financial or otherwise,
or in the
earnings, business, operations or prospects, whether or not arising
from
transactions in the ordinary course of business, of the Company and
its
subsidiaries, considered as one entity (any such change is called a
"Material
Adverse Change"); (ii) the Company and its subsidiaries, considered
as one
entity, have not incurred any material liability or obligation,
indirect, direct
or contingent, not in the ordinary course of business nor entered
into any
material transaction or agreement not in the ordinary course of
business; and
(iii) there has been no dividend or distribution of any kind
declared, paid or
made by the Company or, except for dividends paid to the Company or
other
subsidiaries, any of its subsidiaries on any class of capital stock
or
repurchase or redemption by the Company or any of its subsidiaries
of any class
of capital stock.
(l) Independent Accountants. Ernst & Young LLP, who have
expressed
their opinion with respect to the financial statements (which term
as used in
this Agreement includes the related notes thereto) and supporting
schedules
included in the Offering Memorandum are independent public or
certified public
accountants within the meaning of Regulation S-X under the
Securities Act and
the Exchange Act.
(m) Preparation of the Financial Statements. The financial
statements,
together with the related schedules and notes, included in the
Offering
Memorandum present fairly, in all material respects, the
consolidated financial
position of the Guarantor, the Company and their subsidiaries as of
and at the
dates indicated and the results of their operations and cash flows
for the
periods
5
specified. Such financial statements have been prepared in
conformity with
generally accepted accounting principles as applied in the United
States applied
on a consistent basis throughout the periods involved, except as
may be
expressly stated in the related notes thereto. The historical and
as adjusted
financial data set forth in the Offering Memorandum under the
captions "Offering
Memorandum Summary - Summary Consolidated Financial Data" and
"Selected
Consolidated Financial Data" are presented on a basis consistent
with that of
the audited financial statements contained in the Offering
Memorandum.
(n) Compliance with Sarbanes-Oxley Act of 2002. The Company and its
officers and directors are in compliance in all material respects
with the
applicable provisions of the Sarbanes-Oxley Act of 2002 and the
rules and
regulations promulgated in connection therewith that, with respect
to the
Company, are effective as of the date hereof.
(o) Incorporation and Good Standing of the Company, the Guarantor
and
their Subsidiaries. Each of the Company, the Guarantor and their
subsidiaries
has been duly incorporated and is validly existing as a corporation
in good
standing under the laws of the jurisdiction of its incorporation
and has
corporate power and authority to own, lease and operate its
properties and to
conduct its business as described in the Offering Memorandum and,
in the case of
the Company and the Guarantor, to enter into and perform its
obligations under
each of this Agreement, the Registration Rights Agreement, the DTC
Agreement,
the Securities, the Exchange Securities and the Indenture, as
applicable. Each
of the Company, the Guarantor and their respective subsidiaries is
duly
qualified as a foreign corporation to transact business and is in
good standing
in each jurisdiction in which such qualification is required,
whether by reason
of the ownership or leasing of property or the conduct of business,
except for
such jurisdictions where the failure to so qualify or to be in good
standing
would not, individually or in the aggregate, result in a Material
Adverse
Change. All of the issued and outstanding capital stock of each
subsidiary has
been duly authorized and validly issued, is fully paid and
nonassessable and is
owned by the Company, directly or through subsidiaries, free and
clear of any
security interest, mortgage, pledge, lien, encumbrance or claim.
The Company
does not own a majority of the equity of, or control, directly or
indirectly,
any corporation, association or other entity other than the
subsidiaries listed
in Schedule B hereto.
(p) Capitalization and Other Capital Stock Matters. At September
25,
2004, on a consolidated basis, after giving pro forma effect to the
issuance and
sale of the Securities pursuant hereto and the application of the
net proceeds
from the sale of the Securities in the manner described under the
caption "Use
of Proceeds" in the Offering Memorandum, the Guarantor would have
an authorized
and outstanding capitalization as set forth in the Offering
Memorandum under the
caption "Capitalization" (other than for subsequent issuances of
capital stock,
if any, pursuant to employee benefit plans described in the
Offering
Memorandum). All of the outstanding shares of the Company's common
stock, $1.00
par value per share (the "Common Stock") and capital stock, have
been duly
authorized and validly issued, are fully paid and nonassessable and
have been
issued in compliance with federal and state securities laws, as of
the date
hereof is owned and upon consummation of the issuance and sale of
the
Securities, will be owned by the Guarantor, directly, except as
described in the
Offering Memorandum, free and clear of any security interest,
mortgage, pledge,
lien, encumbrance or claim. None of the outstanding shares of
capital stock were
issued in violation of any preemptive rights, rights of first
refusal or other
similar rights to subscribe for or purchase securities of the
Company. There
6
are no authorized or outstanding options, warrants, preemptive
rights, rights of
first refusal or other rights to purchase, or equity or debt
securities
convertible into or exchangeable or exercisable for, any capital
stock of the
Company or any of its subsidiaries other than those accurately
described in the
Offering Memorandum. The Guarantor does not own a majority of the
equity of, or
control, directly or indirectly, any corporation, association or
other entity
other than the Company and the subsidiaries listed on Schedule B
hereto.
(q) Non-Contravention of Existing Instruments; No Further
Authorizations or Approvals Required. Neither the Company, the
Guarantor nor any
of their subsidiaries is in violation of its charter or by-laws or
is in default
(or, with the giving of notice or lapse of time, would be in
default)
("Default") under any indenture, mortgage, loan or credit
agreement, note,
contract, franchise, lease or other instrument to which the
Company, the
Guarantor or any of their subsidiaries is a party or by which it or
any of them
may be bound, or to which any of the property or assets of the
Company or any of
its subsidiaries is subject (each, an "Existing Instrument"),
except for such
Defaults as would not, individually or in the aggregate, result in
a Material
Adverse Change. The Company's and the Guarantor's execution,
delivery and
performance, as applicable, of this Agreement, the Registration
Rights
Agreement, the DTC Agreement and the Indenture, and the issuance
and delivery of
the Securities or the Exchange Securities, and consummation of the
transactions
contemplated hereby and thereby and by the Offering Memorandum (i)
have been
duly authorized by all necessary corporate action and will not
result in any
violation of the provisions of the charter or by-laws of the
Company, the
Guaranty or any of their subsidiaries, (ii) upon the effectiveness
of the
Amendment (as defined below), will not conflict with or constitute
a breach of,
or Default or a Debt Repayment Triggering Event (as defined below)
under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any
property or assets of the Company, the Guarantor or any of their
subsidiaries
pursuant to, or require the consent of any other party to, any
Existing
Instrument, except for such conflicts, breaches, Defaults, liens,
charges or
encumbrances as would not, individually or in the aggregate, result
in a
Material Adverse Change and (iii) will not result in any violation
of any law,
administrative regulation or administrative or court decree
applicable to the
Company, the Guarantor or any of their subsidiaries. No consent,
approval,
authorization or other order of, or registration or filing with,
any court or
other governmental or regulatory authority or agency, is required
for the
Company's or the Guarantor's, as applicable, execution, delivery
and performance
of this Agreement, the Registration Rights Agreement, the DTC
Agreement or the
Indenture, or the issuance and delivery of the Securities or the
Exchange
Securities, or consummation of the transactions contemplated hereby
and thereby
and by the Offering Memorandum, except such as have been obtained
or made by the
Company or the Guarantor and are in full force and effect under the
Securities
Act, applicable state securities or blue sky laws and except such
as may be
required by federal and state securities laws with respect to the
Company's and
the Guarantor's respective obligations under the Registration
Rights Agreement.
As used herein, a "Debt Repayment Triggering Event" means any event
or condition
which gives, or with the giving of notice or lapse of time would
give, the
holder of any note, debenture or other evidence of indebtedness (or
any person
acting on such holder's behalf) the right to require the
repurchase, redemption
or repayment of all or a portion of such indebtedness by the
Company or any of
its subsidiaries.
(r) No Material Actions or Proceedings. Except as described in the
Offering Memorandum, there are no legal or governmental actions,
suits or
proceedings pending or, to the
7
best of the Company's knowledge, threatened (i) against or
affecting the
Company, the Guarantor or any of their subsidiaries, (ii) which has
as the
subject thereof any property owned or leased by, the Company, the
Guarantor, or
any of their subsidiaries, where in any such case there is a
reasonable
possibility that such action, suit or proceeding might be
determined adversely
to the Company, the Guarantor or such subsidiary and any such
action, suit or
proceeding, if so determined adversely, would reasonably be
expected to result
in a Material Adverse Change or adversely affect the consummation
of the
transactions contemplated by this Agreement. No material labor
dispute with the
employees of the Company or any of its subsidiaries, or to the
Company's
knowledge, without independent inquiry, with the employees of any
principal
supplier of the Company, exists or, to the best of the Company's
knowledge
without having made any inquiry or independent investigation, is
threatened or
imminent.
(s) Intellectual Property Rights. Except as otherwise described in
the
Offering Memorandum, the Company and its subsidiaries own or
possess sufficient
trademarks, trade names, patent rights, copyrights, licenses,
approvals, trade
secrets and other similar rights (collectively, "Intellectual
Property Rights")
reasonably necessary to conduct their businesses as now conducted;
and the
expected expiration of any of such Intellectual Property Rights
would not result
in a Material Adverse Change. Neither the Company nor any of its
subsidiaries
has received any notice of infringement or conflict with asserted
Intellectual
Property Rights of others, which infringement or conflict, if the
subject of an
unfavorable decision, would result in a Material Adverse Change.
(t) All Necessary Permits, etc. The Company and each subsidiary
possess
such valid and current certificates, authorizations or permits
issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to
conduct their respective businesses, and neither the Company nor
any subsidiary
has received any notice of proceedings relating to the revocation
or
modification of, or non-compliance with, any such certificate,
authorization or
permit which, singly or in the aggregate, if the subject of an
unfavorable
decision, ruling or finding, could reasonably be expected to result
in a
Material Adverse Change.
(u) Title to Properties. Except as otherwise described in the
Offering
Memorandum, the Company and each of its subsidiaries has good and
marketable
title to all the properties and assets reflected as owned in the
financial
statements referred to in Section 1(m) above (or elsewhere in the
Offering
Memorandum), in each case free and clear of any security interests,
mortgages,
liens, encumbrances, equities, claims and other defects, except
such as do not
materially and adversely affect the value of such property and do
not materially
interfere with the use made or proposed to be made of such property
by the
Company or such subsidiary. The real property, improvements,
equipment and
personal property held under lease by the Company or any subsidiary
are held
under valid and enforceable leases, with such exceptions as are not
material and
do not materially interfere with the use made or proposed to be
made of such
real property, improvements, equipment or personal property by the
Company or
such subsidiary.
(v) Tax Law Compliance. The Company, the Guarantor and their
subsidiaries have each filed all necessary federal, state and
foreign income and
franchise tax returns or have properly requested extensions thereof
and have
paid all taxes required to be paid by any of them and, if due and
payable, any
related or similar assessment, fine or penalty levied against any
of them except
as may be being contested in good faith and by appropriate
proceeding. The
Guarantor
8
has made adequate charges, accruals and reserves in the applicable
financial
statements referred to in Section 1(m) above in respect of all
federal, state
and foreign income and franchise taxes for all periods as to which
the tax
liability of the Company, the Guarantor or any of their
subsidiaries has not
been finally determined.
(w) Company Not an "Investment Company". The Company is not, and
after
receipt of payment for the Securities will not be, an "investment
company"
within the meaning of Investment Company Act of 1940, as amended.
(x) Insurance. Each of the Company and its subsidiaries is insured
by
nationally recognized institutions with policies in such amounts
and with such
deductibles and covering such risks as the Company reasonably
believes are
generally deemed adequate and customary for their businesses
including, but not
limited to, policies covering real and personal property owned or
leased by the
Company and its subsidiaries against theft, damage, destruction,
acts of
vandalism and earthquakes. The Company has no reason to believe
(without any
independent investigation) that it or any subsidiary will not be
able (i) to
renew its existing insurance coverage as and when such policies
expire or (ii)
to obtain comparable coverage from similar institutions as may be
necessary or
appropriate to conduct its business as now conducted and at a cost
that would
not result in a Material Adverse Change. Neither of the Company nor
any
subsidiary has been denied any insurance coverage, which it has
sought or for
which it has applied.
(y) No Price Stabilization or Manipulation. Neither the Company,
the
Guarantor nor any of their affiliates have taken or will take,
directly or
indirectly, any action designed to or that might be reasonably
expected to cause
or result in stabilization or manipulation of the price of any
security of the
Company to facilitate the sale or resale of the Securities.
(z) Solvency. Each of the Company and the Guarantor is, and
immediately
after the Closing Date will be, Solvent. As used herein, the term
"Solvent"
means, with respect to the Company and the Guarantor on a
particular date, that
on such date (i) the fair market value of its assets is greater
than the total
amount of its liabilities (including contingent liabilities), (ii)
the present
fair salable value of its assets is greater than the amount that
will be
required to pay its probable liabilities on its debts as they
become absolute
and matured, (iii) it is able to realize upon its assets and pay
its debts and
other liabilities, including contingent obligations, as they mature
and (iv) it
does not have unreasonably small capital.
(aa) No Unlawful Contributions or Other Payments. Neither the
Company,
the Guarantor nor any of their subsidiaries nor, to the best of the
Company's
knowledge, any employee or agent of the Company, the Guarantor or
any of their
subsidiaries, has made any contribution or other payment to any
official of, or
candidate for, any federal, state or foreign office in violation of
any law or
of the character necessary to be disclosed in the Offering
Memorandum in order
to make the statements therein not misleading in any material
respect.
(bb) Accounting System. The Guarantor maintains a system of
internal
controls over financial reporting that is sufficient to provide
reasonable
assurances that: (i) transactions are executed in accordance with
management's
general or specific authorization; (ii) transactions are recorded
as necessary
to permit preparation of financial statements in conformity with
generally
9
accepted accounting principles as applied in the United States and
to maintain
accountability for assets; (iii) access to assets is permitted only
in
accordance with management's general or specific authorization; and
(iv) the
recorded accountability for assets is compared with existing assets
at
reasonable intervals and appropriate action is taken with respect
to any
differences.
(cc) Compliance with Environmental Laws. Except as otherwise
described
in the Offering Memorandum or as would not, individually or in the
aggregate,
result in a Material Adverse Change: (i) neither the Company nor
any of its
subsidiaries is in violation of any federal, state, local or
foreign law or
regulation relating to pollution or protection of human health or
the
environment (including, without limitation, ambient air, surface
water,
groundwater, land surface or subsurface strata) or wildlife,
including without
limitation, laws and regulations relating to emissions, discharges,
releases or
threatened releases of chemicals, pollutants, contaminants, wastes,
toxic
substances, hazardous substances, petroleum and petroleum products
(collectively, "Materials of Environmental Concern"), or otherwise
relating to
the manufacture, processing, distribution, use, treatment, storage,
disposal,
transport or handling of Materials of Environmental Concern
(collectively,
"Environmental Laws"), which violation includes, but is not limited
to,
noncompliance with any permits or other governmental authorizations
required for
the operation of the business of the Company or its subsidiaries
under
applicable Environmental Laws, or noncompliance with the terms and
conditions
thereof, nor has the Company or any of its subsidiaries received
any written
communication, whether from a governmental authority, citizens
group, employee
or otherwise, that alleges that the Company or any of its
subsidiaries is in
violation of any Environmental Law; (ii) there is, to the knowledge
of the
Company, no claim, action or cause of action filed with a court or
governmental
authority, no investigation with respect to which the Company has
received
written notice, and no written notice by any person or entity
alleging potential
liability for investigatory costs, cleanup costs, governmental
responses costs,
natural resources damages, property damages, personal injuries,
attorneys' fees
or penalties arising out of, based on or resulting from the
presence, or release
into the environment, of any Material of Environmental Concern at
any location
owned, leased or operated by the Company or any of its
subsidiaries, now or in
the past (collectively, "Environmental Claims"), pending or, to the
best of the
Company's knowledge, threatened against the Company or any of its
subsidiaries
or any person or entity whose liability for any Environmental Claim
the Company
or any of its subsidiaries has retained or assumed either
contractually or by
operation of law; and (iii) to the best of the Company's knowledge,
there are no
past or present actions, activities, circumstances, conditions,
events or
incidents, including, without limitation, the release, emission,
discharge,
presence or disposal of any Material of Environmental Concern, that
reasonably
could result in a violation of any Environmental Law or form the
basis of a
potential Environmental Claim against the Company or any of its
subsidiaries or
against any person or entity whose liability for any Environmental
Claim the
Company or any of its subsidiaries has retained or assumed either
contractually
or by operation of law.
(dd) Periodic Review of Costs of Environmental Compliance. In the
ordinary course of its business, the Company conducts a periodic
review of the
effect of Environmental Laws on the business, operations and
properties of the
Company and its subsidiaries, in the course of which it identifies
and evaluates
associated costs and liabilities (including, without limitation,
any capital or
operating expenditures required for clean-up, closure of properties
or
compliance with Environmental Laws or any permit, license or
approval, any
related constraints on operating activities and any potential
liabilities to
third parties). On the basis of such review and the
10
amount of its established reserves, the Company has reasonably
concluded that
such associated costs and liabilities would not, individually or in
the
aggregate, result in a Material Adverse Change.
(ee) ERISA Compliance. The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement
Income
Security Act of 1974, as amended, and the regulations and published
interpretations thereunder (collectively, "ERISA")) established or
maintained by
the Company, its subsidiaries or their "ERISA Affiliates" (as
defined below) are
in compliance in all material respects with ERISA. "ERISA
Affiliate" means, with
respect to the Company or a subsidiary, any member of any group of
organizations
described in Section 414 of the Internal Revenue Code of 1986, as
amended, and
the regulations and published interpretations thereunder (the
"Code") of which
the Company or such subsidiary is a member. No "reportable event"
(as defined
under ERISA) has occurred or is reasonably expected to occur with
respect to any
"employee benefit plan" established or maintained by the Company,
its
subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan"
established or maintained by the Company, its subsidiaries or any
of their ERISA
Affiliates, if such "employee benefit plan" were terminated, would
have any
"amount of unfunded benefit liabilities" (as defined under ERISA).
Neither the
Company, its subsidiaries nor any of their ERISA Affiliates has
incurred or
reasonably expects to incur any liability under (i) Title IV of
ERISA with
respect to termination of, or withdrawal from, any "employee
benefit plan" or
(ii) Sections 412, 4971, 4975 or 4980B of the Code. Each "employee
benefit plan"
established or maintained by the Company, its subsidiaries or any
of their ERISA
Affiliates that is intended to be qualified under Section 401 of
the Code is so
qualified and nothing has occurred, whether by action or failure to
act, which
would cause the loss of such qualification.
(ff) Regulation S. The Company, the Guarantor and their affiliates
and
all of their respective persons acting on their behalf (other than
the Initial
Purchasers, as to whom the Company makes no representation) have
complied with
and will comply with the offering restrictions requirements of
Regulation S in
connection with the offering of the Securities outside the United
States and, in
connection therewith, the Offering Memorandum will contain the
disclosure
required by Rule 902 under the Securities Act. The Securities sold
in reliance
on Regulation S will be represented upon issuance by a temporary
global security
that may not be exchanged for definitive securities until the
expiration of the
40-day restricted period referred to in Rule 903 of the Securities
Act and only
upon certification of beneficial ownership of such Securities by
non-U.S.
persons or U.S. persons who purchased such Securities in
transactions that were
exempt from the registration requirements of the Securities Act.
Any certificate signed by an officer of the Company or the
Guarantor
and delivered to the Initial Purchasers or to counsel for the
Initial Purchasers
shall be deemed to be a representation and warranty by the Company
or the
Guarantor to each Initial Purchaser as to the matters set forth
therein.
SECTION 2. Purchase, Sale and Delivery of the Securities.
(a) The Securities. The Company agrees to issue and sell to the
several
Initial Purchasers, severally and not jointly, all of the
Securities upon the
terms herein set forth. On the basis of the representations,
warranties and
agreements herein contained, and upon the terms but
11
subject to the conditions herein set forth, the Initial Purchasers
agree,
severally and not jointly, to purchase from the Company the
aggregate principal
amount of Securities set forth opposite their names on Schedule A,
at a purchase
price of 97.00% of the principal amount thereof payable on the
Closing Date.
(b) The Closing Date. Delivery of certificates for the Securities
in
definitive form to be purchased by the Initial Purchasers and
payment therefor
shall be made at the offices of Shearman & Sterling LLP, 599
Lexington Avenue,
New York, New York 10022 (or such other place as may be agreed to
by the Company
and the Initial Purchasers) at 9:00 a.m. New York City time, on
January 14,
2005, or such other time and date as the Initial Purchasers shall
designate by
notice to the Company (the time and date of such closing are called
the "Closing
Date"). The Company hereby acknowledges that circumstances under
which the
Initial Purchasers may provide notice to postpone the Closing Date
as originally
scheduled include, but are in no way limited to, any determination
by the
Company or the Initial Purchasers to recirculate to investors
copies of an
amended or supplemented Offering Memorandum or a delay as
contemplated by the
provisions of Section 16.
(c) Delivery of the Securities. The Company shall deliver, or cause
to
be delivered, to Banc of America Securities LLC for the accounts of
the several
Initial Purchasers certificates for the Securities at the Closing
Date against
the irrevocable release of a wire transfer of immediately available
funds for
the amount of the purchase price therefor. The certificates for the
Securities
shall be in such denominations and registered in the name of Cede
& Co., as
nominee of the Depository, pursuant to the DTC Agreement, and shall
be made
available for inspection on the business day preceding the Closing
Date at a
location in New York City, as the Initial Purchasers may designate.
Time shall
be of the essence, and delivery at the time and place specified in
this
Agreement is a further condition to the obligations of the Initial
Purchasers.
(d) Delivery of Offering Memorandum to the Initial Purchasers. Not
later than 12:00 p.m. on the second business day following the date
of this
Agreement, the Company shall deliver or cause to be delivered
copies of the
Offering Memorandum in such quantities and at such places as the
Initial
Purchasers shall reasonably request.
(e) Initial Purchasers as Qualified Institutional Buyers. Each
Initial
Purchaser severally and not jointly represents and warrants to, and
agrees with,
the Company that (i) it is a "qualified institutional buyer" within
the meaning
of Rule 144A (a "Qualified Institutional Buyer") and an "accredited
investor"
within the meaning of Rule 501 under the Securities Act (an
"Accredited
Investor") and (ii) it has complied with and will comply with the
procedures
applicable to it set forth in Section 7 hereof.
SECTION 3. Additional Covenants. The Company further covenants and
agrees with each Initial Purchaser as follows:
(a) Initial Purchasers' Review of Proposed Amendments and
Supplements.
Prior to amending or supplementing the Offering Memorandum
(including any
amendment or supplement through incorporation by reference of any
report filed
under the Exchange Act), the Company shall furnish to the Initial
Purchasers for
review a copy of each such proposed
12
amendment or supplement, and the Company shall not use any such
proposed
amendment or supplement to which the Initial Purchasers reasonably
object.
(b) Amendments and Supplements to the Offering Memorandum and Other
Securities Act Matters. If, prior to the completion of the
placement of the
Securities by the Initial Purchasers with the Subsequent
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 to make the statements
therein, in
the light of the circumstances when the Offering Memorandum is
delivered to a
purchaser, not misleading in any material respect, or if in the
reasonable
opinion of the Initial Purchasers or counsel for the Initial
Purchasers it is
otherwise necessary to amend or supplement the Offering Memorandum
to comply
with law, the Company agrees to promptly prepare (subject to
Section 3 hereof)
and furnish at its own expense to the Initial Purchasers,
amendments or
supplements to the Offering Memorandum so that the statements in
the Offering
Memorandum as so amended or supplemented will not, in the light of
the
circumstances when the Offering Memorandum is delivered to a
purchaser, be
misleading in any material respect or so that the Offering
Memorandum, as
amended or supplemented, will comply with law.
The Company hereby expressly acknowledges that the indemnification
and
contribution provisions of Sections 8 and 9 hereof are specifically
applicable
and relate to each offering memorandum, amendment or supplement
referred to in
this Section 3.
(c) Copies of the Offering Memorandum. The Company agrees to
furnish
the Initial Purchasers, without charge, as many copies of the
Offering
Memorandum and any amendments and supplements thereto as they shall
have
reasonably requested.
(d) Blue Sky Compliance. The Company and the Guarantor shall
cooperate
with the Initial Purchasers and counsel for the Initial Purchasers
to qualify or
register the Securities for sale under (or obtain exemptions from
the
application of) the Blue Sky or state securities laws of those
jurisdictions
designated by the Initial Purchasers, shall comply with such laws
and shall
continue such qualifications, registrations and exemptions in
effect so long as
required for the distribution of the Securities. The Company and
the Guarantor
shall not be required to qualify as a foreign corporation or to
take any action
that would subject it to general service of process in any such
jurisdiction
where it is not presently qualified or where it would be subject to
taxation as
a foreign corporation. The Company will advise the Initial
Purchasers promptly
of the suspension of the qualification or registration of (or any
such exemption
relating to) the Securities for offering, sale or trading in any
jurisdiction or
any initiation or threat of any proceeding for any such purpose,
and in the
event of the issuance of any order suspending such qualification,
registration
or exemption, the Company shall use its reasonable best efforts to
obtain the
withdrawal thereof at the earliest possible moment.
(e) Use of Proceeds. The Company shall apply the net proceeds from
the
sale of the Securities sold by it in the manner described under the
caption "Use
of Proceeds" in the Offering Memorandum.
(f) The Depositary. The Company will cooperate with the Initial
Purchasers and use its reasonable best efforts to permit the
Securities to be
eligible for clearance and settlement through the facilities of the
Depositary.
13
(g) Additional Issuer Information. If at any time the Company is
not
subject to Section 13 or 15 of the Exchange Act, for the benefit of
holders and
beneficial owners from time to time of Securities, the Company
shall furnish, at
its expense, upon request, to holders and beneficial owners of
Securities and
prospective purchasers of Securities information ("Additional
Issuer
Information") satisfying the requirements of subsection (d)(4) of
Rule 144A. At
any time when the Company is subject to the reporting requirements
of Section 13
or 15 of the Exchange Act, the Company covenants that it will file
the reports
required to be filed by it under the Securities Act and Sections
13(a) and 15(d)
of the Exchange Act and the rules and regulations adopted by the
Commission
thereunder.
(h) Future Agreement Not to Offer or Sell Additional Securities.
The
Company, during the period of 90 days following the date of the
Offering
Memorandum, will not, without the prior written consent of Banc of
America
Securities LLC (which consent may be withheld at the sole
discretion of Banc of
America Securities LLC), directly or indirectly, sell, offer,
contract or grant
any option to sell, pledge, transfer or establish an open "put
equivalent
position" within the meaning of Rule 16a-1(h) under the Exchange
Act, or
otherwise dispose of or transfer, or announce the offering of, or
file any
registration statement under the Securities Act in respect of, any
debt
securities of the Company that are similar to the Securities or
securities
exchangeable for or convertible into debt securities of the Company
similar to
the Securities (other than as contemplated by this Agreement and
the
Registration Agreement to register the Exchange Securities).
(i) Future Reports to the Initial Purchasers. For so long as any
Securities or Exchange Securities remain outstanding, the Company
will furnish
to Banc of America Securities LLC within the time periods specified
in the
Commission's rules and regulations (together with any extensions
granted by the
Commission): (i) all quarterly and annual financial information
that would be
required to be contained in a filing with the Commission on Forms
10-Q and 10-K
if the Company were required to file such Forms, including a
"Management's
Discussion and Analysis of Financial Condition and Results of
Operations" and,
with respect to the annual information only, a report on the annual
financial
statements by the Company's certified independent accountants, and
(ii) all
current reports that would be required to be filed with the
Commission on Form
8-K if the Company were required to file such reports; provided,
however, that
if the Commission will accept the filings of these reports by the
Company or as
provided in the last sentence of this Section 3(i), the Company
need not furnish
such reports. In addition, the Company will furnish to Banc of
America
Securities LLC, as soon as available, copies of any report or
communication of
the Company mailed generally to holders of its publicly traded
capital stock or
debt securities, including the holders of the Securities.
Notwithstanding any of
the foregoing, so long as the Guarantor is a guarantor of the
Notes, the
reports, information and other documents required to be filed and
provided as
described above will be those of the Guarantor, rather than those
of the
Company, so long as such filings would satisfy the Commission's
requirements.
(j) No Integration. The Company agrees that it will not and will
cause
its Affiliates not to make any offer or sale of securities of the
Company of any
class if, as a result of the doctrine of "integration" referred to
in Rule 502
under the Securities Act, such offer or sale would render invalid
(for the
purpose of (i) the sale of the Securities by the Company to the
Initial
Purchasers, (ii) the resale of the Securities by the Initial
Purchasers to
Subsequent Purchasers or (iii) the
14
resale of the Securities by such Subsequent Purchasers to others)
the exemption
from the registration requirements of the Securities Act provided
by Section 4
thereof or by Rule 144A or by Regulation S thereunder or otherwise.
(k) Legended Securities. Each certificate for a Note will bear the
legend (or a substantially equivalent legend) contained in
"Transfer
Restrictions" in the Offering Memorandum for the time period and
upon the other
terms stated in the Offering Memorandum.
(l) PORTAL. The Company will use its best efforts to cause such
Notes
to be eligible for the PORTAL market (the "PORTAL market") of the
National
Association of Securities Dealers, Inc. (the "NASD").
(m) Rating of Securities. The Company shall take all reasonable
action
necessary to enable Standard & Poor's Rating Services, a
division of McGraw
Hill, Inc. ("S&P"), and Moody's Investor Services, Inc.
("Moody's") to provide
their respective credit ratings to the Securities at or prior to
the time of
their initial issuance.
(n) Administration of Accountant Engagement. In connection with any
engagement of an accountant, the Company and the Guarantor shall
comply with
Exchange Act Rule 2-01(c)(7).
Banc of America Securities LLC, on behalf of the several Initial
Purchasers, may, in its sole discretion, waive in writing the
performance by the
Company of any one or more of the foregoing covenants or extend the
time for
their performance.
SECTION 4. Payment of Expenses. The Company agrees to pay all
costs,
fees and expenses incurred in connection with the performance of
its and the
Guarantor's respective obligations hereunder and in connection with
the
transactions contemplated hereby, including without limitation, (i)
all expenses
incident to the issuance and delivery of the Securities (including
all printing
and engraving costs), (ii) all necessary issue, transfer and other
stamp taxes
in connection with the issuance and sale of the Securities to the
Initial
Purchasers, (iii) all fees and expenses of the Company's and the
Guarantor's
counsel, independent public or certified public accountants and
other advisors
(other than the Initial Purchasers), (iv) all costs and expenses
incurred in
connection with the preparation (other than the costs and expenses
of counsel to
the Initial Purchasers), printing, filing, shipping and
distribution of each
Preliminary Offering Memorandum and the Offering Memorandum
(including financial
statements and exhibits), and all amendments and supplements
thereto, this
Agreement, the Registration Rights Agreement, the Indenture, the
DTC Agreement,
the Notes and the Guarantees, (v) all filing fees, attorneys' fees
and expenses
incurred by the Company or the Initial Purchasers in connection
with qualifying
or registering (or obtaining exemptions from the qualification or
registration
of) all or any part of the Securities for offer and sale under the
Blue Sky laws
and, if requested by the Initial Purchasers, preparing and printing
a "Blue Sky
Survey" or memorandum, and any supplements thereto, advising the
Initial
Purchasers of such qualifications, registrations and exemptions,
(vi) the fees
and expenses of the Trustee, including the fees and disbursements
of counsel for
the Trustee in connection with the Indenture, the Securities and
the Exchange
Securities, (vii) any fees payable in connection with the rating of
the
Securities or the Exchange Securities with the ratings agencies and
the listing
of the Securities with the PORTAL market, (viii) any filing fees
incident to,
and any reasonable fees and disbursements of counsel to the
15
Initial Purchasers in connection with the review by the NASD, if
any, of the
terms of the sale of the Securities or the Exchange Securities,
(ix) all fees
and expenses (including reasonable fees and expenses of counsel) of
the Company
and the Guarantor in connection with approval of the Securities by
DTC for
"book-entry" transfer, and the performance by the Company and the
Guarantor of
their respective other obligations under this Agreement. Except as
provided in
this Section 4, Section 6, Section 8 and Section 9 hereof, the
Initial
Purchasers shall pay their own expenses, including the fees and
disbursements of
their counsel.
SECTION 5. Conditions of the Obligations of the Initial Purchasers.
The
obligations of the several Initial Purchasers to purchase and pay
for the
Securities as provided herein on the Closing Date shall be subject
to the
accuracy of the representations and warranties on the part of the
Company set
forth in Section 1 hereof as of the date hereof and as of the
Closing Date as
though then made and to the timely performance by the Company of
its covenants
and other obligations hereunder, and to each of the following
additional
conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Initial
Purchasers shall have received from Ernst & Young LLP,
independent public or
certified public accountants for the Guarantor, a letter dated the
date hereof
addressed to the Initial Purchasers, in form and substance
satisfactory to the
Initial Purchasers, containing statements and information of the
type ordinarily
included in accountants' "comfort letters" to Initial Purchasers,
delivered
according to Statement of Auditing Standards Nos. 100, 72 and 76
(or any
successor bulletins), with respect to the audited and unaudited
financial
statements and certain financial information contained in the
Offering
Memorandum.
(b) No Material Adverse Change or Ratings Agency Change. For the
period
from and after the date of this Agreement and prior to the Closing
Date:
(i) in the judgment of the Initial Purchasers there shall not
have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading
or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any
securities
of the Company or any of its subsidiaries by any "nationally
recognized
statistical rating organization" as such term is defined for
purposes
of Rule 436 under the Securities Act.
(c) Opinion of Counsel for the Company and the Guarantor. On the
Closing Date, the Initial Purchasers shall have received the
favorable opinion
of Schulte Roth & Zabel LLP, counsel for the Company and the
Guarantor, dated as
of such Closing Date, the form of which is attached as Exhibit A.
(d) Opinion of Counsel for the Initial Purchasers. On the Closing
Date,
the Initial Purchasers shall have received the favorable opinion of
Shearman &
Sterling LLP, counsel for the Initial Purchasers, dated as of such
Closing Date,
with respect to such matters as may be reasonably requested by the
Initial
Purchasers.
16
(e) Officers' Certificate. On the Closing Date, the Initial
Purchasers
shall have received a written certificate executed by the Chairman
of the Board,
Chief Executive Officer or President of the Company and the Chief
Financial
Officer or Chief Accounting Officer of the Company, dated as of the
Closing
Date, to the effect set forth in subsection (b)(ii) of this Section
5, and
further to the effect that:
(i) for the period from and after the date of this Agreement
and prior to the Closing Date, to their knowledge, after due
inquiry,
there has not occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of the
Company set forth in Section 1 of this Agreement are true and
correct
with the same force and effect as though expressly made on and as
of
the Closing Date; and
(iii) the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or
satisfied
at or prior to the Closing Date.
(f) Bring-down Comfort Letter. On the Closing Date, the Initial
Purchasers shall have received from Ernst & Young LLP,
independent public or
certified public accountants for the Guarantor, a letter dated such
date, in
form and substance satisfactory to the Initial Purchasers, to the
effect that
they reaffirm the statements made in the letter furnished by them
pursuant to
subsection (a) of this Section 5, except that the specified date
referred to
therein for the carrying out of procedures shall be no more than
three business
days prior to the Closing Date.
(g) DTC Eligibility and PORTAL Listing. At the Closing Date, the
Notes
shall have been designated for trading on the PORTAL market and
shall be
eligible for trading through the Depositary.
(h) Registration Rights Agreement. The Company and the Guarantor
shall
have entered into the Registration Rights Agreement and the Initial
Purchasers
shall have received executed counterparts thereof.
(i) Amendment of the Senior Secured Credit Facilities. On or before
the
Closing Date, an amendment (the "Amendment") of the Company's
Senior Secured
Credit Facilities, as described in the Offering Memorandum, shall
be effective
and in full force and effect.
(j) Additional Documents. On or before the Closing Date, the
Initial
Purchasers and counsel for the Initial Purchasers shall have
received such
information, documents and opinions as they may reasonably require
for the
purposes of enabling them to pass upon the issuance and sale of the
Securities
as contemplated herein, or in order to evidence the accuracy of any
of the
representations and warranties, or the satisfaction of any of the
conditions or
agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when
and
as required to be satisfied, this Agreement may be terminated by
the Initial
Purchasers by notice to the Company at any time on or prior to the
Closing Date,
which termination shall be without liability on the part of any
party to any
other party, except that Section 4, Section 6, Section 8 and
Section 9 shall at
all times be effective and shall survive such termination.
17
SECTION 6. Reimbursement of Initial Purchasers' Expenses. If this
Agreement is terminated by the Initial Purchasers pursuant to
Section 5 (other
than solely as a result of a termination contemplated by Section
16), or if the
sale to the Initial Purchasers of the Securities on the Closing
Date is not
consummated because of any refusal, inability or failure on the
part of the
Company or the Guarantor to perform any agreement herein or to
comply with any
provision hereof, the Company and the Guarantor jointly and
severally agree to
reimburse the Initial Purchasers (or such Initial Purchasers as
have terminated
this Agreement with respect to themselves), severally, upon demand
for all
documented out-of-pocket expenses that shall have been reasonably
incurred by
the Initial Purchasers in connection with the proposed purchase and
the offering
and sale of the Securities, including but not limited to fees and
disbursements
of counsel, printing expenses, travel expenses, postage, facsimile
and telephone
charges.
SECTION 7. Offer, Sale and Resale Procedures. Each of the Initial
Purchasers, on the one hand, and the Company and the Guarantor, on
the other
hand, hereby establish and agree to observe the following
procedures in
connection with the offer and sale of the Securities:
(A) Offers and sales of the Securities will be made only by the
Initial
Purchasers or Affiliates thereof qualified to do so in the
jurisdictions in
which such offers or sales are made. Each such offer or sale shall
only be made
to persons whom the offeror or seller reasonably believes to be
qualified
institutional buyers (as defined in Rule 144A under the Securities
Act), or
non-U.S. persons outside the United States to whom the offeror or
seller
reasonably believes offers and sales of the Securities may be made
in reliance
upon Regulation S under the Securities Act, upon the terms and
conditions set
forth in Annex I hereto, which Annex I is hereby expressly made a
part hereof.
(B) The Securities will be offered by approaching prospective
Subsequent Purchasers on an individual basis. No general
solicitation or general
advertising (within the meaning of Rule 502 under the Securities
Act) will be
used in the United States in connection with the offering of the
Securities.
(C) Upon original issuance by the Company, and until such time as
the
same is no longer required under the applicable requirements of the
Securities
Act, the Securities (and all securities issued in exchange therefor
or in
substitution thereof, other than the Exchange Securities) shall
bear a legend
substantially in the form set forth in the Offering Memorandum
under the caption
"Notice to Investors".
Following the sale of the Securities by the Initial Purchasers to
Subsequent Purchasers pursuant to the terms hereof, the Initial
Purchasers shall
not be liable or responsible to the Company for any losses, damages
or
liabilities suffered or incurred by the Company, including any
losses, damages
or liabilities under the Securities Act, arising from or relating
to any resale
or transfer of any Security by any Subsequent Purchaser.
SECTION 8. Indemnification.
(a) Indemnification of the Initial Purchasers. The Company agrees
to
indemnify and hold harmless each Initial Purchaser, its directors,
officers and
employees, and each person, if any, who controls any Initial
Purchaser within
the meaning of the Securities Act and the
18
Exchange Act against any loss, claim, damage, liability or expense,
as incurred,
to which such Initial Purchaser or such controlling person may
become subject,
under the Securities Act, the Exchange Act or other federal or
state statutory
law or regulation, or at common law or otherwise (including in
settlement of any
litigation, if such settlement is effected with the written consent
of the
Company), insofar as such loss, claim, damage, liability or expense
(or actions
in respect thereof as contemplated below) arises out of or is
based: (i) upon
any untrue statement or alleged untrue statement of a material fact
contained in
the Preliminary Offering Memorandum or the Offering Memorandum (or
any amendment
or supplement thereto), or the omission or alleged omission
therefrom of a
material fact necessary in order to make the statements therein, in
the light of
the circumstances under which they were made, not misleading; or
(ii) in whole
or in part upon any inaccuracy in the representations and
warranties of the
Company contained herein; or (iii) in whole or in part upon any
failure of the
Company or the Guarantor to perform its obligations hereunder or
under law; or
(iv) upon 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 offering
contemplated hereby, and which is included as part of or referred
to in any
loss, claim, damage, liability or action arising out of or based
upon any matter
covered by clause (i) above, provided that the Company shall not be
liable under
clauses (i) through (iv) to the extent that a court of competent
jurisdiction
shall have determined by a final judgment 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 to reimburse each Initial
Purchaser and
each such controlling person for any and all expenses (including
the fees and
disbursements of counsel chosen by Banc of America Securities LLC)
as such
expenses are reasonably incurred by such Initial Purchaser or such
controlling
person in connection with investigating, defending, settling,
compromising or
paying any such loss, claim, damage, liability, expense or action;
provided,
however, that the foregoing indemnity agreement shall not apply to
any loss,
claim, damage, liability or expense to the extent, but only to the
extent,
arising out of or based upon any untrue statement or alleged untrue
statement or
omission or alleged omission made in reliance upon and in
conformity with
written information furnished to the Company by the Initial
Purchasers expressly
for use in any Preliminary Offering Memorandum or the Offering
Memorandum (or
any amendment or supplement thereto). The indemnity agreement set
forth in this
Section 8 shall be in addition to any liabilities that the Company
may otherwise
have.
(b) Indemnification of the Company, its Directors and Officers.
Each
Initial Purchaser agrees, severally and not jointly, to indemnify
and hold
harmless the Company and each of its directors, officers, employees
and each
person, if any, who controls the Company within the meaning of the
Securities
Act or the Exchange Act, against any loss, claim, damage, liability
or expense,
as incurred, to which the Company or any such director, officer,
employee or
controlling person may become subject, under the Securities Act,
the Exchange
Act, or other federal or state statutory law or regulation, or at
common law or
otherwise (including in settlement of any litigation, if such
settlement is
effected with the written consent of such Initial Purchaser),
insofar as such
loss, claim, damage, liability or expense (or actions in respect
thereof as
contemplated below) arises out of or is based upon any untrue or
alleged untrue
statement of a material fact contained in any Preliminary Offering
Memorandum or
the Offering Memorandum (or any amendment or supplement thereto),
or arises out
of or is based upon the omission or alleged omission to state
therein a material
fact required to be stated therein or necessary to make the
statements therein
not misleading, in each case to the extent, but only to the extent,
that such
19
untrue statement or alleged untrue statement or omission or alleged
omission was
made in any Preliminary Offering Memorandum or the Offering
Memorandum (or any
amendment or supplement thereto), in reliance upon and in
conformity with
written information furnished to the Company by the Initial
Purchasers expressly
for use therein; and to reimburse the Company or any such director,
officer,
employee or controlling person for any legal and other expenses
reasonably
incurred by the Company or any such director, officer, employee or
controlling
person in connection with investigating, defending, settling,
compromising or
paying any such loss, claim, damage, liability, expense or action.
The Company
hereby acknowledges that the only information that the Initial
Purchasers have
furnished to the Company expressly for use in any Preliminary
Offering
Memorandum or the Offering Memorandum (or any amendment or
supplement thereto)
are the statements set forth in paragraph 9 under the caption "Plan
of
Distribution" therein; and the Initial Purchasers confirm that such
statements
are correct. The indemnity agreement set forth in this Section 8
shall be in
addition to any liabilities that each Initial Purchaser may
otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly
after
receipt by an indemnified party under this Section 8 of notice of
the
commencement of any action, such indemnified party will, if a claim
in respect
thereof is to be made against an indemnifying party under this
Section 8, notify
the indemnifying party in writing of the commencement thereof, but
the omission
so to notify the indemnifying party will not relieve it from any
liability which
it may have to any indemnified party for contribution or otherwise
than under
the indemnity agreement contained in this Section 8 or to the
extent it is not
prejudiced as a proximate result of such failure. In case any such
action is
brought against any indemnified party and such indemnified party
seeks or
intends to seek indemnity from an indemnifying party, the
indemnifying party
will be entitled to participate in and, to the extent that it shall
elect,
jointly with all other indemnifying parties similarly notified, by
written
notice delivered to the indemnified party promptly after receiving
the aforesaid
notice from such indemnified party, to assume the defense thereof
with counsel
reasonably satisfactory to such indemnified party; provided,
however, if the
defendants in any such action include both the indemnified party
and the
indemnifying party and the indemnified party shall have reasonably
concluded
that a conflict may arise between the positions of the indemnifying
party and
the indemnified party in conducting the defense of any such action
or that there
may be legal defenses available to it and/or other indemnified
parties which are
different from or additional to those available to the indemnifying
party, the
indemnified party or parties shall have the right to select
separate counsel to
assume such legal defenses and to otherwise participate in the
defense of such
action on behalf of such indemnified party or parties. Upon receipt
of notice
from the indemnifying party to such indemnified party of such
indemnifying
party's election so to assume the defense of such action and
approval by the
indemnified party of counsel, the indemnifying party will not be
liable to such
indemnified party under this Section 8 for any legal or other
expenses
subsequently incurred by such indemnified party in connection with
the defense
thereof unless (i) the indemnified party shall have employed
separate counsel in
accordance with the proviso to the next preceding sentence (it
being understood,
however, that the indemnifying party shall not be liable for the
expenses of
more than one separate counsel (together with one firm of local
counsel in an
applicable jurisdiction), approved by the indemnifying party (Banc
of America
Securities LLC in the case of Section 8 and Section 9),
representing the
indemnified parties who are parties to such action) or (ii) the
indemnifying
party shall not have employed counsel satisfactory to the
indemnified party to
represent the indemnified party within a reasonable time
20
after notice of commencement of the action, in each of which cases
the
reasonable fees and expenses of counsel shall be at the expense of
the
indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 shall
not
be liable for any settlement of any proceeding effected without its
written
consent, but if settled with such consent or if there be a final
judgment for
the plaintiff, the indemnifying party agrees to indemnify the
indemnified party
against any loss, claim, damage, liability or expense by reason of
such
settlement or judgment. Notwithstanding the foregoing sentence, if
at any time
an indemnified party shall have requested an indemnifying party to
reimburse the
indemnified party for fees and expenses of counsel as contemplated
by Section 8
hereof, the indemnifying party agrees that it shall be liable for
any settlement
of any proceeding effected without its written consent if (i) such
settlement is
entered into more than 30 days after receipt by such indemnifying
party of the
aforesaid request and (ii) such indemnifying party shall not have
reimbursed the
indemnified party in accordance with such request prior to the date
of such
settlement, unless the amount of such fees and expenses is the
subject of a good
faith dispute. No indemnifying party shall, without the prior
written consent of
the indemnified party, effect any settlement, compromise or consent
to the entry
of judgment in any pending or threatened action, suit or proceeding
in respect
of which any indemnified party is or could have been a party and
indemnity was
or could have been sought hereunder by such indemnified party,
unless such
settlement, compromise or consent includes an unconditional release
of such
indemnified party from all liability on claims that are the subject
matter of
such action, suit or proceeding.
SECTION 9. Contribution. If the indemnification provided for in
Section
8 is for any reason held to be unavailable to or otherwise
insufficient to hold
harmless an indemnified party in respect of any losses, claims,
damages,
liabilities or expenses referred to therein, then (i) each
indemnifying party
shall contribute to the aggregate amount paid or payable by such
indemnified
party, as incurred, as a result of any losses, claims, damages,
liabilities or
expenses referred to therein in such proportion as is appropriate
to reflect the
relat
