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EXHIBIT 1.1
TOWN SPORTS INTERNATIONAL HOLDINGS, INC.
$213,000,000
11% SENIOR DISCOUNT NOTES DUE 2014
PURCHASE AGREEMENT
January 28, 2004
DEUTSCHE BANK SECURITIES INC.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
Town Sports International Holdings, Inc., a Delaware
corporation (the "Company"), hereby
confirms its agreement with you (the
"Initial Purchaser"), as set forth
below.
1. THE
SECURITIES. Subject to the terms and conditions
herein contained, the Company proposes to
issue and sell to the Initial
Purchaser $213,000,000 aggregate principal
amount at maturity of its 11% Senior
Discount Notes due 2014 (the "Notes"). The
Notes are to be issued under an
indenture (the "Indenture") to be dated as
of February 4, 2004 by and between
the Company and The Bank of New York, as
Trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchaser
without being registered under the
Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions
therefrom.
In connection with the sale of the Notes, the Company has
prepared a preliminary offering memorandum
dated January 23, 2004 (the
"Preliminary Memorandum") and a final
offering memorandum dated January 28, 2004
(the "Final Memorandum"; the Preliminary
Memorandum and the Final Memorandum
each herein being referred to as a
"Memorandum") setting forth or including a
description of the terms of the Notes, the
terms of the offering of the Notes, a
description of the Company and any material
developments relating to the Company
occurring after the date of the most recent
historical financial statements
included therein.
The Initial Purchaser and its direct and indirect transferees
of the Notes will be entitled to the
benefits of the Registration Rights
Agreement, substantially in the form
attached hereto as Exhibit A (the
"Registration Rights Agreement"), pursuant
to which the Company has agreed,
among other things, to file a registration
statement with the Securities and
Exchange Commission (the "Commission")
registering the Notes or the Exchange
Notes (as defined in the Registration
Rights Agreement) under the Act.
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2.
REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to and agrees with
the Initial Purchaser that:
(a) Neither
the Preliminary Memorandum as of the date
thereof nor the Final Memorandum nor any amendment or
supplement
thereto as of the date thereof and at all times subsequent thereto
up
to the Closing Date (as defined in Section 3 below) contained
or
contains any untrue statement of a material fact or omitted or
omits to
state a material fact necessary to make the statements therein, in
the
light of the circumstances under which they were made, not
misleading,
except that the representations and warranties set forth in
this
Section 2(a) do not apply to statements or omissions made in
reliance
upon and in conformity with information relating to the Initial
Purchaser furnished to the Company in writing by the Initial
Purchaser
for use in the Preliminary Memorandum, the Final Memorandum or
any
amendment or supplement thereto.
(b) As of the
Closing Date, the Company will have the
authorized, issued and outstanding capitalization set forth in
the
Final Memorandum; all of the subsidiaries of the Company are listed
in
Schedule 1 attached hereto (each, a "Subsidiary" and collectively,
the
"Subsidiaries"); all of the outstanding shares of capital stock of
the
Company and the Subsidiaries have been, and as of the Closing Date
will
be, duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive
or
similar rights; all of the outstanding shares of capital stock of
the
Company and of each of the Subsidiaries will be free and clear of
all
liens, encumbrances, equities and claims or restrictions on
transferability (other than those imposed by the Act, the
securities or
"Blue Sky" laws of certain jurisdictions and the senior secured
revolving credit facility, dated as of April 16, 2003 and as
amended
from time to time) or voting; except as set forth in the Final
Memorandum, there are no (i) options, warrants or other rights
to
purchase, (ii) agreements or other obligations to issue or (iii)
other
rights to convert any obligation into, or exchange any securities
for,
shares of capital stock of or ownership interests in the Company or
any
of the Subsidiaries outstanding. Except for the Subsidiaries or
as
disclosed in the Final Memorandum, the Company does not own,
directly
or indirectly, any shares of capital stock or any other equity
or
long-term debt securities or have any equity interest in any
firm,
partnership, joint venture or other entity.
(c) Each of
the Company and the Subsidiaries is duly
incorporated or otherwise organized, validly existing and in
good
standing under the laws of its respective jurisdiction of
organization
and has all requisite corporate or limited liability company power
and
authority to own its properties and conduct its business as now
conducted and as described in the Final Memorandum; each of the
Company
and the Subsidiaries is duly qualified to do business as a
foreign
corporation in good standing in all other jurisdictions where
the
ownership or leasing of its properties or the conduct of its
business
requires such qualification, except where the failure to be so
qualified would not, individually or in the aggregate, have a
material
adverse effect on the general affairs, management, business,
condition
(financial or otherwise), prospects or results of
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operations of the Company and the Subsidiaries, taken as a whole
(any
such event, a "Material Adverse Effect").
(d) The
Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under
the
Notes, the Exchange Notes (as defined in the Registration
Rights
Agreement) and the Private Exchange Notes (as defined in the
Registration Rights
Agreement). The Notes, when issued, will be in the
form contemplated by the Indenture. The Notes, the Exchange Notes
and
the Private Exchange Notes, have each been duly and validly
authorized
by the Company and, when duly executed by the Company and
authenticated
by the Trustee in accordance with the provisions of the Indenture
and
delivered to and paid for by the Initial Purchaser in accordance
with
the terms of this Agreement (or issued in accordance with the
Registration Rights Agreement, in the case of the Exchange Notes
and
the Private Exchange Notes), will constitute valid and legally
binding
obligations of the Company, entitled to the benefits of the
Indenture,
and enforceable against the Company in accordance with their
terms,
except that the enforcement thereof may be subject to (i)
bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
other
similar laws now or hereafter in effect relating to creditors'
rights
generally, and (ii) general principles of equity and the discretion
of
the court before which any proceeding therefor may be brought.
(e) The
Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under
the
Indenture. The Indenture meets the requirements for qualification
under
the Trust Indenture Act of 1939, as amended (the "TIA"). The
Indenture
has been duly and validly authorized by the Company and, when
executed
and delivered by the Company (assuming the due authorization,
execution
and delivery by the Trustee), will constitute a valid and
legally
binding agreement of the Company, enforceable against the Company
in
accordance with its terms, except that the enforcement thereof may
be
subject to (i) bankruptcy, insolvency, reorganization,
fraudulent
conveyance, moratorium or other similar laws now or hereafter in
effect
relating to creditors' rights generally and (ii) general principles
of
equity and the discretion of the court before which any
proceeding
therefor may be brought.
(f) The
Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under
the
Registration Rights Agreement. The Registration Rights Agreement
has
been duly and validly authorized by the Company and, when executed
and
delivered by the Company (assuming the due authorization, execution
and
delivery by the Initial Purchaser), will constitute a valid and
legally
binding agreement of the Company enforceable against the Company
in
accordance with its terms, except that (A) the enforcement thereof
may
be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent
conveyance, moratorium or other similar laws now or hereafter in
effect
relating to creditors' rights generally and (ii) general principles
of
equity and the discretion of the court before which any
proceeding
therefor may be brought and (B) any rights to indemnity or
contribution
thereunder may be limited by federal and state securities laws
and
public policy considerations.
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(g) The
Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under
this
Agreement and to consummate the transactions contemplated hereby.
This
Agreement and the consummation by the Company of the
transactions
contemplated hereby have been duly and validly authorized by
the
Company. This Agreement has been duly executed and delivered by
the
Company.
(h) No
consent, approval, authorization or order of any
court or governmental agency or body, or third party is required
for
the issuance and sale by the Company of the Notes to the
Initial
Purchaser or the consummation by the Company of the other
transactions
contemplated hereby, except such as have been obtained and such as
may
be required under state securities or "Blue Sky" laws in
connection
with the purchase and resale of the Notes by the Initial Purchaser
and
except with respect to the registration of the Exchange Notes and
the
Private
Exchange Notes (if applicable) and the qualification of the
Indenture under the TIA. Neither the Company nor any of the
Subsidiaries is (i) in violation of its certificate of
incorporation or
bylaws (or similar organizational document), (ii) in breach or
violation of any statute, judgment, decree, order, rule or
regulation
applicable to any of them or any of their respective properties
or
assets, except for any such breach or violation which would
not,
individually or in the aggregate, have a Material Adverse Effect,
or
(iii) in breach of or default under (nor has any event occurred
that,
with notice or passage of time or both, would constitute a
default
under) or in violation of any of the terms or provisions of any
indenture, mortgage, deed of trust, loan agreement, note,
lease,
license, franchise agreement, permit, certificate, contract or
other
agreement or instrument to which any of them is a party or to which
any
of them or their respective properties or assets is subject
(collectively, "Contracts"), except for any such breach,
default,
violation or event that would not, individually or in the
aggregate,
have a Material Adverse Effect.
(i) The
execution, delivery and performance by the
Company of this Agreement, the Indenture and the Registration
Rights
Agreement and the consummation by the Company of the
transactions
contemplated hereby and thereby (including, without limitation,
the
issuance and sale of the Notes to the Initial Purchaser) will
not
conflict with or constitute or result in a breach of or a default
under
(or an event
which with notice or passage of time or both would
constitute a default under) or violation of any of (i) the terms
or
provisions of any Contract, except for any such conflict,
breach,
violation, default or event which would not, individually or in
the
aggregate, have a Material Adverse Effect, (ii) the certificate
of
incorporation or bylaws (or similar organizational document) of
the
Company or any of the Subsidiaries or (iii) (assuming compliance
with
all applicable state securities or "Blue Sky" laws and assuming
the
accuracy of the representations and warranties of the Initial
Purchaser
in Section 8 hereof) any statute, judgment, decree, order, rule
or
regulation
applicable to the Company or any of the Subsidiaries or any
of their respective properties or assets, except for any such
conflict,
breach or violation which would not, individually or in the
aggregate,
have a Material Adverse Effect.
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(j) The
audited consolidated financial statements of the
Company included in the Final Memorandum present fairly in all
material
respects the financial position, results of operations and cash
flows
of the Company and the Subsidiaries at the dates and for the
periods to
which they relate and have been prepared in accordance with
generally
accepted accounting principles applied on a consistent basis,
except as
otherwise stated therein. The summary and selected financial
and
statistical data in the Final Memorandum present fairly in all
material
respects the information shown therein and have been prepared
and
compiled on a basis consistent with the audited financial
statements
included therein, except as otherwise stated therein.
PricewaterhouseCoopers, LLP (the "Independent Accountants") is
an
independent public accounting firm within the meaning of the Act
and
the rules and regulations promulgated thereunder.
(k) The pro
forma financial information included in the
Final Memorandum (i) comply as to form in all material respects
with
the applicable requirements of Regulation S-X promulgated under
the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
(ii)
have been prepared in accordance with the Commission's rules
and
guidelines with respect to pro forma financial statements and
(iii)
have been properly computed on the bases described therein; the
assumptions used in the preparation of the pro forma financial
data
included in the Final Memorandum are reasonable and the
adjustments
used therein are appropriate to give effect to the transactions
or
circumstances referred to therein.
(l) Except as
described in the Final Memorandum, there is
not pending or, to the knowledge of the Company, threatened any
action,
suit, proceeding, inquiry or investigation to which the Company or
any
of the Subsidiaries is a party, or to which the property or assets
of
the Company or any of the Subsidiaries are subject, before or
brought
by any court, arbitrator or governmental agency or body that,
if
determined adversely to the Company or any of the Subsidiaries,
would,
individually or in the aggregate, have a Material Adverse Effect
or
which seeks to restrain, enjoin, prevent the consummation of or
otherwise challenge the issuance or sale of the Notes to be
sold
hereunder or the consummation of the other transactions described
in
the Final
Memorandum.
(m) Each of
the Company and the Subsidiaries possesses
all licenses, permits, certificates, consents, orders, approvals
and
other authorizations from, and has made all declarations and
filings
with, all federal, state, local and other governmental authorities,
all
self-regulatory organizations and all courts and other
tribunals,
presently required or necessary to own or lease, as the case may
be,
and to operate its respective properties and to carry on its
respective
businesses as now or proposed to be conducted as set forth in the
Final
Memorandum ("Permits"), except where the failure to obtain such
Permits
would not, individually or in the aggregate, have a Material
Adverse
Effect; each of the Company and the Subsidiaries has fulfilled
and
performed all of its obligations with respect to such Permits and
no
event has occurred that allows, or after notice or lapse of time
would
allow, revocation or termination thereof or results in any
other
material impairment of the rights of the holder of any such
Permit;
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and none of the Company or the Subsidiaries has received any notice
of
any proceeding relating to revocation or modification of any
such
Permit, except as described in the Final Memorandum and except
where
such revocation or modification would not, individually or in
the
aggregate, have a Material Adverse Effect.
(n) Since the
date of the most recent financial
statements appearing in the Final Memorandum, and except as
described
therein, (i) none of the Company or the Subsidiaries has incurred
any
liabilities or obligations, direct or contingent, or entered into
or
agreed to enter into any transactions or contracts (written or
oral)
not in the ordinary course of business, which liabilities,
obligations,
transactions or contracts would, individually or in the aggregate,
be
material to the general affairs, management, business,
condition
(financial or otherwise), prospects or results of operations of
the
Company and its Subsidiaries, taken as a whole, (ii) none of
the
Company or the Subsidiaries has purchased any of its
outstanding
capital stock, nor declared, paid or otherwise made any dividend
or
distribution of any kind on its capital stock (other than with
respect
to any of such Subsidiaries, the purchase of, or dividend or
distribution on, capital stock owned by the Company) and (iii)
there
shall not have been any change in the capital stock or
long-term
indebtedness of the Company or the Subsidiaries.
(o) Each of
the Company and the Subsidiaries has filed
all necessary federal, state and foreign income and franchise
tax
returns, except where the failure to so file such returns would
not,
individually or in the aggregate, have a Material Adverse Effect,
and
has paid all taxes shown as due thereon; and other than tax
deficiencies which the Company or any Subsidiary is contesting in
good
faith and for which the Company or such Subsidiary has provided
adequate reserves, there is no tax deficiency that has been
asserted
against the Company or any of the Subsidiaries that would have,
individually or
in the aggregate, a Material Adverse Effect.
(p) The
statistical and market-related data included in
the Final Memorandum are based on or derived from sources which
the
Company and the Subsidiaries believe to be reliable and
accurate.
(q) None of
the Company, the Subsidiaries or any agent
acting on their behalf has taken or will take any action that
might
cause this Agreement or the sale of the Notes to violate Regulation
T,
U or X of the Board of Governors of the Federal Reserve System, in
each
case as in effect, or as the same may hereafter be in effect, on
the
Closing Date.
(r) Each of
the Company and the Subsidiaries has good and
marketable title to all real property and good title to all
personal
property described in the Final Memorandum as being owned by it
and
good and marketable title to a leasehold estate in the real and
personal property described in the Final Memorandum as being leased
by
it free and clear of all liens, charges, encumbrances or
restrictions,
except as described in the Final Memorandum or to the extent
the
failure to have such title or the existence of such liens,
charges,
encumbrances or restrictions would not, individually
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or in the aggregate, have a Material Adverse Effect. All
leases,
contracts and agreements to which the Company or any of the
Subsidiaries is a party or by which any of them is bound are valid
and
enforceable against the Company or such Subsidiary, and are valid
and
enforceable against the other party or parties thereto and are in
full
force and effect with only such exceptions as would not,
individually
or in the aggregate, have a Material Adverse Effect. The Company
and
the Subsidiaries own or possess adequate licenses or other rights
to
use all patents, trademarks, service marks, trade names, copyrights
and
know-how necessary to conduct the businesses now or proposed to
be
operated by them as described in the Final Memorandum, and none of
the
Company or the Subsidiaries has received any notice of infringement
of
or conflict with (or knows of any such infringement of or
conflict
with) asserted rights of others with respect to any patents,
trademarks, service marks, trade names, copyrights or know-how
that, if
such assertion of infringement or conflict were sustained, would
have a
Material Adverse Effect.
(s) There are
no legal or governmental proceedings
involving or affecting the Company or any Subsidiary or any of
their
respective properties or assets that would be required to be
described
in a prospectus pursuant to the Act that are not described in the
Final
Memorandum, nor are there any material contracts or other
documents
that would be required to be described in a prospectus pursuant to
the
Act that are not described in the Final Memorandum.
(t) Except as
would not, individually or in the
aggregate, have a Material Adverse Effect, (A) each of the Company
and
the Subsidiaries is in compliance with and not subject to
liability
under applicable Environmental Laws (as defined below), (B) each of
the
Company and the Subsidiaries has made all filings and provided
all
notices required under any applicable Environmental Law, and has
and is
in compliance with all Permits required under any applicable
Environmental Laws and each of them is in full force and effect,
(C)
there is no civil, criminal or administrative action, suit,
demand,
claim, hearing, notice of violation, investigation, proceeding,
notice
or demand letter or request for information pending or, to the
knowledge of the Company or any of the Subsidiaries, threatened
against
the Company or any of the Subsidiaries under any Environmental Law,
(D)
no lien, charge, encumbrance or restriction has been recorded under
any
Environmental Law with
respect to any assets, facility or property
owned, operated, leased or controlled by the Company or any of
the
Subsidiaries, (E) none of the Company or the Subsidiaries has
received
notice that it has been identified as a potentially responsible
party
under the Comprehensive Environmental Response, Compensation
and
Liability Act of 1980, as amended ("CERCLA") or any comparable
state
law, (F) no property or facility of the Company or any of the
Subsidiaries is (i) listed or proposed for listing on the
National
Priorities List under CERCLA or is (ii) listed in the
Comprehensive
Environmental Response, Compensation, Liability Information System
List
promulgated pursuant
to CERCLA, or on any comparable list maintained by
any state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations, codes, orders,
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decrees, judgments or injunctions issued, promulgated, approved
or
entered thereunder, relating to pollution or protection of public
or
employee health and safety or the environment, including,
without
limitation, laws relating to (i) emissions, discharges, releases
or
threatened releases of hazardous materials into the environment
(including, without limitation, ambient air, surface water,
ground
water, land surface or subsurface strata), (ii) the
manufacture,
processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and
(iii)
underground and above ground storage tanks and related piping,
and
emissions, discharges, releases or threatened releases
therefrom.
(u) There is
no strike, labor dispute, slowdown or work
stoppage
with the employees of the Company or any of the Subsidiaries
that is pending or, to the knowledge of the Company or any of
the
Subsidiaries, threatened.
(v) Each of
the Company and the Subsidiaries carries
insurance in such amounts and covering such risks as is adequate
for
the conduct of its business and the value of its properties.
(w) None of
the Company or the Subsidiaries has any
liability for any prohibited transaction or funding deficiency or
any
complete or partial withdrawal liability with respect to any
pension,
profit sharing or other plan which is subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), to
which
the Company or any of the Subsidiaries makes or ever has made a
contribution and in which any employee of the Company or of any
Subsidiary is or has ever been a participant. With respect to
such
plans, the
Company and each Subsidiary is in compliance in all material
respects with all applicable provisions of ERISA.
(x) Each of
the Company and the Subsidiaries (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 reported
accountability for its assets is compared with existing assets
at
reasonable intervals.
(y) None of
the Company or the Subsidiaries will be an
"investment company" or "promoter" or "principal underwriter" for
an
"investment company," as such terms are defined in the
Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder.
(z) The Notes,
the Indenture and the Registration Rights
Agreement will conform in all material respects to the
descriptions
thereof in the Final Memorandum.
(aa)
No holder of securities of the Company or any
Subsidiary will be entitled to have such securities registered
under
the registration statements required to be
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filed by the Company pursuant to the Registration Rights
Agreement
other than as expressly permitted thereby.
(bb)
None of the Company or the Subsidiaries (each on a
consolidated basis) is, nor will any of the Company or the
Subsidiaries
(each on a consolidated basis) be, after giving effect to the
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, (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.
(cc)
None of the Company, the Subsidiaries or any of their
respective Affiliates (as defined in Rule 501(b) of Regulation D
under
the Act) has directly, or through any agent, (i) sold, offered
for
sale, solicited offers to buy or otherwise negotiated in respect
of,
any "security" (as defined in the Act) which is or could be
integrated
with the sale of the Notes in a manner that would require the
registration under the Act of the Notes or (ii) engaged in any form
of
general solicitation or general advertising (as those terms are
used in
Regulation D under the Act) in connection with the offering of
the
Notes or in any manner involving a public offering within the
meaning
of Section 4(2) of the Act. Assuming the accuracy of the
representations and warranties of the Initial Purchaser in Section
8
hereof, it is not necessary in connection with the offer, sale
and
delivery of the Notes to the Initial Purchaser in the manner
contemplated by this Agreement to register any of the Notes under
the
Act or to qualify the Indenture under the TIA.
(dd)
No securities of the Company or any Subsidiary are of
the same class (within the meaning of Rule 144A under the Act) as
the
Notes and listed on a national securities exchange registered
under
Section 6 of the Exchange Act, or quoted in a U.S. automated
inter-dealer quotation system.
(ee)
None of the Company or the Subsidiaries has taken,
nor will any of them 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 the Notes.
(ff)
None of the Company, the Subsidiaries, any of their
respective Affiliates or any person acting on its or their
behalf
(other than the Initial Purchaser) has engaged in any directed
selling
efforts (as that term is defined in Regulation S under the Act
("Regulation S")) with respect to the Notes; the Company, the
Subsidiaries and their respective Affiliates and any person acting
on
its or their behalf (other than the Initial Purchaser) have
complied
with the offering restrictions requirement of Regulation S.
Any certificate signed by any officer of the Company or any
Subsidiary and delivered to the Initial
Purchaser or to counsel for the Initial
Purchaser shall be deemed a joint and
several representation and warranty by the
Company and each of the Subsidiaries to the
Initial Purchaser as to the matters
covered thereby.
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3.
PURCHASE, SALE AND DELIVERY OF THE NOTES. On the
basis of the representations, warranties,
agreements and covenants herein
contained and subject to the terms and
conditions herein set forth, the Company
agrees to issue and sell to the Initial
Purchaser, and the Initial Purchaser
agrees to purchase all of the Notes from
the Company at 57.13% of their
principal amount at maturity. One or more
certificates in definitive form for
the Notes that the Initial Purchaser has
agreed to purchase hereunder, and in
such denomination or denominations and
registered in such name or names as the
Initial Purchaser requests upon notice to
the Company at least 36 hours prior to
the Closing Date, shall be delivered by or
on behalf of the Company to the
Initial Purchaser, against payment by or on
behalf of the Initial Purchaser of
the purchase price therefor by wire
transfer (same day funds), net of the
overnight cost of such funds, to such
account or accounts as the Company shall
specify prior to the Closing Date, or by
such means as the parties hereto shall
agree prior to the Closing Date. Such
delivery of and payment for the Notes
shall be made at the offices of Cahill
Gordon & Reindel LLP, 80 Pine Street, New
York, New York at 10:00 A.M., New York
time, on February 4, 2004, or at such
other place, time or date as the Initial
Purchaser, on the one hand, and the
Company, on the other hand, may agree upon,
such time and date of delivery
against payment being herein referred to as
the "Closing Date." The Company will
make such certificate or certificates for
the Notes available for checking and
packaging by the Initial Purchaser at its
offices in New York, New York, or at
such other place as the Initial Purchaser
may designate, at least 24 hours prior
to the Closing Date.
4.
OFFERING BY THE INITIAL PURCHASER. The Initial
Purchaser proposes to make an offering of
the Notes at the price and upon the
terms set forth in the Final Memorandum, as
soon as practicable after this
Agreement is entered into and as in the
judgment of the Initial Purchaser is
advisable.
5.
COVENANTS OF THE COMPANY. The Company covenants and
agrees with the Initial Purchaser that:
(a) The
Company will not amend or supplement the Final
Memorandum or any amendment or supplement thereto of which the
Initial
Purchaser shall not previously have been advised and furnished a
copy
for a
reasonable period of time prior to the proposed amendment or
supplement and as to which the Initial Purchaser shall not have
given
its consent. The Company will promptly, upon the reasonable request
of
the Initial Purchaser or counsel for the Initial Purchaser, make
any
amendments or supplements to the Preliminary Memorandum or the
Final
Memorandum that may be necessary or advisable in connection with
the
resale of the Notes by the Initial Purchaser.
(b) The
Company will cooperate with the Initial Purchaser
in arranging for the qualification of the Notes for offering and
sale
under the securities or "Blue Sky" laws of which jurisdict
