EXHIBIT 1
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FLEMING COMPANIES, INC.
(an Oklahoma corporation)
% Senior Notes due 2001
Floating Rate Senior Notes due 2001
PURCHASE AGREEMENT
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DATED: , 1994
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FLEMING COMPANIES, INC.
(AN OKLAHOMA CORPORATION)
% SENIOR NOTES DUE 2001
FLOATING RATE SENIOR NOTES DUE 2001
PURCHASE AGREEMENT
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, 1994
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P. MORGAN SECURITIES INC.
c/oMERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
Fleming Companies, Inc., an Oklahoma corporation (the "Company"), proposes
to issue and sell to you (the "Underwriters") its % Senior Notes due 2001
(the "Fixed Rate Notes") and its Floating Rate Senior Notes due 2001 (the
"Floating Rate Notes"). The Fixed Rate Notes and the Floating Rate Notes
(collectively, the "Notes") are to be sold to each Underwriter, acting severally
and not jointly, in the respective principal amounts as are set forth in
Schedule A. The Fixed Rate Notes and the Floating Rate Notes will be issued
pursuant to indentures to be dated as of , 1994
(collectively, the "Senior Note Indentures"), among the Company, as issuer, the
subsidiary guarantors listed on Exhibit B hereto, as guarantors (the "Subsidiary
Guarantors"), and Texas Commerce Bank, National Association, as trustee (the
"Trustee"). The Notes will be guaranteed, jointly and severally, on an unsecured
senior basis (the "Note Guarantees") as to principal, premium, if any, and
interest by the Subsidiary Guarantors. The Notes and the Senior Note Indentures
are more fully described in the Prospectus referred to below.
The principal amount and certain terms of the Notes, and the purchase price
of the Notes to be paid by the Underwriters, shall be agreed upon by the Company
and the Underwriters, and such agreement shall be set forth in a separate
written instrument substantially in the form of Exhibit A hereto (the "Price
Determination Agreement"). The Price Determination Agreement may take the form
of an exchange of any standard form of written telecommunication between the
Company and the Underwriters and shall specify such applicable information as is
indicated in Exhibit A hereto. The offering of the Notes will be governed by
this Agreement, as supplemented by the Price Determination Agreement. From and
after the date of the execution and delivery of the Price Determination
Agreement, this Agreement shall be deemed to incorporate, and all references
herein to "this Agreement" shall be deemed to include, the Price Determination
Agreement.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 33-55369) covering the registration of the Notes and the Note Guarantees
under the Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus, or prospectuses, and either (A) has prepared and
proposes to file, prior to the effective date of such registration statement, an
amendment to such registration statement, including a final prospectus or (B) if
the Company has elected to rely upon Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations"),
will prepare and file a prospectus, in accordance with the provisions of Rule
430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act Regulations, promptly after
execution and delivery of the Price Determination Agreement. The information, if
any, included in such prospectus that was omitted from the prospectus included
in such registration statement at the time it becomes effective but that is
deemed, pursuant to paragraph (b) of Rule 430A, to be part of such registration
statement at the time it becomes effective is referred to herein as the "Rule
430A Information". Each prospectus used before the time such registration
statement becomes effective, and any prospectus that omits the Rule 430A
Information that is used after such effectiveness and prior to the execution and
delivery of the Price Determination Agreement, is herein called a "preliminary
prospectus".
Such registration statement, including the exhibits thereto and the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, as amended at the time it becomes effective and including, if applicable,
the Rule 430A Information, is herein called the "Registration Statement", and
the prospectus, including the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, included in the Registration
Statement at the time it becomes effective is herein called the "Prospectus",
except that, if the final prospectus first furnished to the Underwriters after
the execution of the Price Determination Agreement for use in connection with
the offering of the Notes differs from the prospectus included in the
Registration Statement at the time it becomes effective (whether or not such
prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to the final prospectus first furnished to the
Underwriters for such use.
The Company understands that the Underwriters propose to make a public
offering of the Notes as soon as the Underwriters deem advisable after the
Registration Statement becomes effective, the Price Determination Agreement has
been executed and delivered and the Senior Note Indentures have been qualified
under the Trust Indenture Act of 1939, as amended (the "1939 Act").
Section 1. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to and agrees with each of the
Underwriters that:
(i) The Company and the Subsidiary Guarantors meet the requirements for
use of Form S-3 under the 1933 Act and when the Registration Statement on
such form shall become effective and at all times subsequent thereto up to
the Closing Time referred to below, (A) the Registration Statement and any
amendments and supplements thereto will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and the
requirements of the 1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 Act Regulations"); (B) neither the
Registration Statement nor any amendment or supplement thereto will contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and (C) neither the Prospectus nor any amendment or
supplement thereto will 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; except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of the
Underwriters expressly for use in the Registration Statement or the
Prospectus.
(ii) The documents incorporated by reference in the Prospectus pursuant
to Item 12 of Form S-3 under the 1933 Act, at the time they were filed with
the Commission, complied in all material respects with the requirements of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), and the
rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together and with the other information in the
Prospectus, at the time the Registration Statement becomes effective and at
all times subsequent thereto up to the Closing Time, will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading.
(iii) Deloitte & Touche LLP and Arthur Andersen LLP, who are reporting
upon the financial statements and schedules included or incorporated by
reference in the Registration Statement, are independent public accountants
as required by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and delivered by
the Company and the Subsidiary Guarantors.
(v) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly the financial
position and the results of operations and cash flows of (1) the Company and
its subsidiaries on a consolidated basis and (2) Haniel Corporation and its
subsidiaries, in each case, as of the dates indicated, for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The financial statement schedules, if any,
included in the Registration
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Statement present fairly the information required to be stated therein. The
selected financial data included or incorporated by reference in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Registration Statement. The pro forma financial statements and other pro
forma financial information included in the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(vi) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Oklahoma with corporate
power and authority under such laws to own, lease and operate its properties
and conduct its business as described in the Prospectus; and the Company is
duly qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property of a
nature, or transacts business of a type, that would make such qualification
necessary, except to the extent that the failure to so qualify or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise.
(vii) Each subsidiary of the Company that (a) is neither inactive nor
inconsequential or (b) is a Subsidiary Guarantor is listed on Exhibit (each
a "Subsidiary"; collectively, the "Subsidiaries"). Each Subsidiary is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation with corporate power and
authority under such laws to own, lease and operate its properties and
conduct its business; and each Subsidiary is duly qualified to transact
business as a foreign corporation and is in good standing in each other
jurisdiction in which it owns or leases property of a nature, or transacts
business of a type, that would make such qualification necessary, except to
the extent that the failure to so qualify or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
considered as one enterprise. All of the outstanding shares of capital stock
of each Subsidiary have been duly authorized and validly issued and are
fully paid and non-assessable and, except for any pledges of such stock
pursuant to (A) the Credit Agreement, dated July 19, 1994, with Morgan
Guaranty Trust Company, as Managing Agent and twelve other domestic and
foreign banks listed therein (as the same may have been amended to date),
(B) the Indenture, dated March 15, 1986, between the Company and Morgan
Guaranty Trust Company of New York, as Trustee, covering $100 million
aggregate principal amount of the Company's 9 1/2% Debentures due 2016 and
(C) the Indenture, dated December 1, 1989, between the Company and Morgan
Guaranty Trust Company of New York, as Trustee, covering $275 million
aggregate principal amount of the Company's Medium-Term Notes, such shares
of capital stock are owned by the Company, directly or through one or more
Subsidiaries, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
(viii) The Company had at the date indicated a duly authorized, issued and
outstanding capitalization as set forth in the Prospectus under the caption
"Capitalization".
(ix) The Senior Note Indentures have been duly authorized by the
Company, will be substantially in the form heretofore delivered to you and,
when duly executed and delivered by the Company, the Subsidiary Guarantors
and the Trustee, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Senior Note
Indentures conform to the description thereof in the Prospectus.
(x) The Notes have been duly authorized by the Company. When executed,
authenticated, issued and delivered in the manner provided for in the Senior
Note Indentures and sold and paid for as
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provided in this Agreement, the Notes will constitute valid and binding
obligations of the Company entitled to the benefits of the respective Senior
Note Indentures and enforceable against the Company in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement
of creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law); and the Notes conform to
the description thereof in the Prospectus.
(xi) The Note Guarantees have been duly authorized by each of the
respective Subsidiary Guarantors and, when the Notes are issued and
delivered in the manner provided in the Indenture and sold and paid for as
provided in this Agreement, the Note Guarantees will constitute valid and
legally binding obligations of the respective Subsidiary Guarantors
enforceable against the Subsidiary Guarantors in accordance with the terms
set forth in the Senior Note Indentures, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws relating to or affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a proceeding
in equity or at law); and the Note Guarantees will conform in all material
respects to the descriptions thereof in the Prospectus.
(xii) All of the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder; and none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive rights of any stockholder of the Company.
(xiii) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business affairs
or business prospects of the Company and its subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any subsidiary, other than in
the ordinary course of business, that is material to the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock, other than regular quarterly dividends declared or paid on
its Common Stock, par value $2.50 per share.
(xiv) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise. The execution and delivery of this Agreement and the Senior Note
Indentures by the Company, the issuance and delivery of the Notes, the
issuance of the Note Guarantees, the consummation by the Company and the
Subsidiary Guarantors of the transactions contemplated in this Agreement and
in the Registration Statement, compliance by the Company with the terms of
this Agreement and the Senior Note Indentures and compliance by the
Subsidiary Guarantors with the terms of the Note Guarantees, have been duly
authorized by all necessary corporate action on the part of the Company or
the applicable Subsidiary Guarantors, as the case may be, and do not and
will not result in any violation of the charter or by-laws of the Company or
any Subsidiary, and do not and will not conflict with, or result in a breach
of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any Subsidiary under (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any Subsidiary is a party or
by which it may be bound or to which any of its properties may be subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one
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enterprise) or (B) any existing applicable law, rule, regulation, judgment,
order or decree of any government, governmental instrumentality or court,
domestic or foreign, having jurisdiction over the Company or any Subsidiary
or any of their respective properties.
(xv) No authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than under
the 1933 Act, the 1939 Act and the securities or blue sky laws of the
various states), is required for the valid authorization, issuance, sale and
delivery of the Notes, the valid issuance by the Subsidiary Guarantors of
the Note Guarantees, or the execution, delivery or performance of the Senior
Note Indentures by the Company and the Subsidiary Guarantors.
(xvi) Except as disclosed in the Prospectus, there is no action, suit or
proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary that is
required to be disclosed in the Prospectus or that could result in any
material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, or that could materially and adversely affect
the properties or assets of the Company and its subsidiaries, considered as
one enterprise, or that is reasonably likely to adversely affect the
consummation of this Agreement or the transactions contemplated herein; the
aggregate of all pending legal or governmental proceedings that are not
described in the Prospectus to which the Company or any Subsidiary is a
party or which affect any of their respective properties, including ordinary
routine litigation incidental to the business of the Company or any
Subsidiary, would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(xvii) There are no contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(xviii) The Company and the Subsidiaries each has good and marketable
title to all properties and assets described in the Prospectus as owned by
it, free and clear of all liens, charges, encumbrances or restrictions,
except such as (A) are described in the Prospectus or (B) are neither
material in amount nor materially significant in relation to the business of
the Company and its subsidiaries, considered as one enterprise; all of the
leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or
any Subsidiary holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any Subsidiary has any notice
of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such
corporation to the continued possession of the leased or subleased premises
under any such lease or sublease.
(xix) The Company and the Subsidiaries each owns, possesses or has
obtained all governmental licenses, permits, certificates, consents, orders,
approvals and other authorizations necessary to own or lease, as the case
may be, and to operate its properties and to carry on its business as
presently conducted except where the lack of possession of such licenses,
permits, certificates, consents, orders, approvals or authorizations would
not have a material adverse affect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, and neither the Company
nor any Subsidiary has received any notice of proceedings relating to
revocation or modification of any such licenses, permits, certificates,
consents, orders, approvals or authorizations.
(xx) The Company and the Subsidiaries each owns or possesses, or can
acquire on reasonable terms, adequate patents, patent licenses, trademarks,
service marks and trade names necessary to carry on its business as
presently conducted, and neither the Company nor any Subsidiary has received
any notice of infringement of or conflict with asserted rights of others
with respect to any patents, patent licenses, trademarks, service marks or
trade names that in the aggregate, if the subject of an unfavorable
5
decision, ruling or finding, could materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise.
(xxi) To the best knowledge of the Company, no labor problem exists with
its employees or with employees of the Subsidiaries or is imminent that
could adversely affect the Company and its subsidiaries, considered as one
enterprise, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or the Subsidiaries' principal
suppliers, contractors or customers that could be expected to materially
adversely affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise.
(xxii) The Company has not taken and will not 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
Securities.
(xxiii) Except as disclosed in the Registration Statement and except as
would not individually or in the aggregate have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise, (A) the Company and the Subsidiaries are each in compliance with
all applicable Environmental Laws, (B) the Company and the Subsidiaries have
all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or threatened Environmental Claims against the Company
or any of the Subsidiaries, and (D) there are no circumstances with respect
to any property or operations of the Company or the Subsidiaries that could
reasonably be anticipated to form the basis of an Environmental Claim
against the Company or the Subsidiaries.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating to the
environment, health, safety or any chemical, material or substance, exposure
to which is prohibited, limited or regulated by any governmental authority.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating in any
way to any Environmental Law.
(b) Any certificate signed by any officer of the Company or any Subsidiary
and delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or such Subsidiary, as the case may
be, to each Underwriter as to the matters covered thereby.
Section 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained, and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price to be agreed upon by the
Underwriters and the Company in accordance with Section 2(b) or 2(c), and set
forth in the Price Determination Agreement, the principal amount of Notes set
forth opposite the name of such Underwriter in Schedule A. If the Company elects
to rely on Rule 430A, Schedule A may be attached to the Price Determination
Agreement.
(b) If the Company has elected not to rely upon Rule 430A, the initial
public offering price of the Notes, the purchase price of the Notes to be paid
by the Underwriters and certain other principal terms of the Notes shall be
agreed upon and set forth in the Price Determination Agreement, dated the date
hereof, and an amendment to the Registration Statement containing such
information will be filed before the Registration Statement becomes effective.
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(c) If the Company has elected to rely upon Rule 430A, the initial public
offering price of the Notes, the purchase price of the Notes to be paid by the
Underwriters and certain other principal terms of the Notes shall be agreed upon
and set forth in the Price Determination Agreement. In the event that the Price
Determination Agreement has not been executed by the close of business on the
fourth business day following the date on which the Registration Statement
becomes effective, this Agreement shall terminate forthwith, without liability
of any party to any other party except that Sections 6, 7 and 8 shall remain in
effect.
(d) Payment of the purchase price for, and delivery of, the Notes (the
"Closing") shall be made at the offices of Shearman & Sterling, 599 Lexington
Avenue, New York, New York 10022, or at such other place as shall be agreed upon
by the Company and you, at 10:00 A.M. either (i) on the fifth full business day
after the effective date of the Registration Statement or (ii) if the Company
has elected to rely upon Rule 430A, the fifth full business day after execution
of the Price Determination Agreement (unless, in either case, postponed pursuant
to Section 10), or at such other time not more than ten full business days
thereafter as you and the Company shall determine (such date and time of the
Closing being herein called the "Closing Time"). Payment shall be made to the
Company by certified or official bank check or checks in New York Clearing House
or similar next day funds payable to the order of the Company, against delivery
of the Notes to you for the respective accounts of the several Underwriters.
(e) The Notes shall be in such denominations ($1,000 or an integral multiple
thereof) and registered in such names as you may request in writing at least two
full business days before the Closing Time. The Notes, which may be in temporary
form, will be made available in New York City for examination and packaging by
you not later than 10:00 A.M. on the business day prior to the Closing Time.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants with
each Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and, if the Company elects to rely upon Rule 430A
and subject to Section 3(b) hereof, will comply with the requirements of Rule
430A and will notify you immediately, and confirm the notice in writing, (i)
when the Registration Statement, or any post-effective amendment to the
Registration Statement, shall have become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission to
amend the Registration Statement or amend or supplement the Prospectus or for
additional information and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending such
use and, if any such order is issued, to obtain the lifting thereof at the
earliest possible moment.
(b) The Company will not at any time file or make any amendment to the
Registration Statement, or any amendment or supplement (i) if the Company has
not elected to rely upon Rule 430A, to the Prospectus (including amendments of
the documents incorporated by reference into the Prospectus) or (ii) if the
Company has elected to rely upon Rule 430A, to either the prospectus included in
the Registration Statement at the time it becomes effective or to the Prospectus
(including amendments of the documents incorporated by reference into the
prospectus or Prospectus), of which you shall not have previously been advised
and furnished a copy, or to which you or counsel for the Underwriters shall
object.
(c) The Company has furnished or will furnish to you as many signed copies
of the Registration Statement (as originally filed) and of all amendments
thereto, whether filed before or after the Registration Statement becomes
effective, copies of all exhibits and documents filed therewith, including
documents incorporated by reference into the Prospectus pursuant to Item 12 of
Form S-3 under the 1933 Act, and signed copies of all consents and certificates
of experts, as you may reasonably request and has furnished or
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will furnish to you, for each other Underwriter, one conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(including documents incorporated by reference into the Prospectus but without
exhibits).
(d) The Company will deliver to each Underwriter, without charge, from time
to time until the effective date of the Registration Statement (or, if the
Company has elected to rely upon Rule 430A, until the date of the Price
Determination Agreement), as many copies of each preliminary prospectus as such
Underwriter may reasonably request, and the Company hereby consents to the use
of such copies for purposes permitted by the 1933 Act. The Company will deliver
to each Underwriter, without charge, as soon as the Registration Statement shall
have become effective (or, if the Company has elected to rely upon Rule 430A, as
soon as practicable on or after the date of the Price Determination Agreement)
and thereafter from time to time as requested during the period when the
Prospectus is required to be delivered under the 1933 Act, such number of copies
of the Prospectus (as supplemented or amended) as such Underwriter may
reasonably request.
(e) The Company will comply with the 1933 Act and the 1933 Act Regulations,
the 1934 Act and the 1934 Act Regulations and the 1939 Act and the 1939 Act
Regulations so as to permit the completion of the distribution of the Notes as
contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Notes any event shall occur or condition exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or counsel for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus 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 not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of either such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, immediate notice shall
be given, and confirmed in writing, to the Underwriter to cease the solicitation
of offers to purchase the Notes, and the Company will promptly prepare and file
with the Commission, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such untrue statement or omission or
to make the Registration Statement or the Prospectus comply with such
requirements.
(f) The Company and each Subsidiary Guarantor will use its best efforts in
cooperation with the Underwriters to qualify the Notes for offering and sale
under the applicable securities laws of such states and other jurisdictions as
you may designate and to maintain such qualifications in effect for a period of
not less than one year from the effective date of the Registration Statement;
PROVIDED, HOWEVER, that neither the Company nor any Subsidiary Guarantor shall
be obligated to file any general consent to service of process or to qualify as
a foreign corporation or as a dealer in securities in any jurisdiction in which
it is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company will file such statements and reports as may be required by the laws of
each jurisdiction in which the Notes have been qualified as above provided. The
Company will also supply you with such information as is necessary for the
determination of the legality of the Notes for investment under the laws of such
jurisdictions as you may request. The Company will promptly advise the
Underwriters of the receipt by the Company or any Subsidiary Guarantor of any
notification with respect to suspension of the qualification of the Notes for
sale in any such state or jurisdiction or the initiation or threatening of any
proceeding for such purposes.
(g) The Company will make generally available to its Note holders as soon as
practicable, but not later than 90 days after the close of the period covered
thereby, an earnings statement of the Company and the Subsidiary Guarantors (in
form complying with the provisions of Rule 158 of the 1933 Act Regulations),
covering a period of 12 months from the effective date of the Registration
Statement and covering a period of 12 months from the effective date of any
post-effective amendment to the Registration Statement but not later than the
first day of the Company's fiscal quarter next following such respective
effective dates.
(h) The Company will use the net proceeds received by it from the sale of
the Notes in the manner specified in the Prospectus under the caption "Use of
Proceeds".
8
(i) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act
subsequent to the time the Registration Statement becomes effective.
(j) For a period of five years after the Closing Time, the Company will
furnish to you copies of all annual reports, quarterly reports and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms as may be designated by the Commission, and such other documents,
reports and information as shall be furnished by the Company to its stockholders
or Note holders generally.
(k) If the Company has elected to rely upon Rule 430A, it will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus.
(l) The Company and the Subsidiary Guarantors each has complied and will
comply with all the provisions of Florida H.B. 1771, codified as Section 517.075
of the Florida statutes, and all regulations promulgated thereunder relating to
issuers doing business in Cuba.
Section 4. PAYMENT OF EXPENSES. The Company will pay and bear all costs
and expenses incident to the performance of its obligations under this
Agreement, including (a) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits), as
originally filed and as amended, the preliminary prospectuses and the Prospectus
and any amendments or supplements thereto, and the cost of furnishing copies
thereto to the Underwriters, (b) the preparation, printing and distribution of
this Agreement (including the Price Determination Agreement), the Senior Note
Indentures, the Notes, the Blue Sky Survey and the Legal Investment Survey, (c)
the delivery of the Notes to the Underwriters, (d) the fees and disbursements of
the Company's counsel and accountants, (e) the qualification of the Notes under
the applicable securities laws in accordance with Section 3(f) and any filing
for review of the offering with the National Association of Notes Dealers, Inc.
("NASD"), including filing fees and fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the Blue Sky Survey
and the Legal Investment Survey, (f) any fees charged by rating agencies for
rating the Notes, (g) the fees and expenses of the Trustee, including the fees
and disbursements of counsel for the Trustee, in connection with the Senior Note
Indentures and the Notes, (h) any advertising and other out-of-pocket expenses
of the Underwriters incurred with the approval of the Company, and (i) the fees
and expenses of Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill
Lynch"), acting as a qualified independent underwriter pursuant to Article III,
Section 44(c)(8) of the Rules of Fair Practice of the NASD.
If this Agreement is terminated by you in accordance with the provisions of
Section 5 or 9(a)(i), the Company shall reimburse the Underwriters for all their
out-of-pocket expenses, including the fees and disbursements of counsel for the
Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. In addition to the
execution and delivery of the Price Determination Agreement, the obligations of
the Underwriters to purchase and pay for the Notices that they have respectively
agreed to purchase hereunder are subject to the accuracy of the representations
and warranties of the Company contained herein (including those contained in the
Price Determination Agreement) or in certificates of any officer of the Company
or any Subsidiary delivered pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder, and to the following
further conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first business
day following the date hereof, or at such later time or on such later date
as you may agree to in writing with the approval of a majority in interest
of the several Underwriters; and at the Closing Time no stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have
been instituted or shall be pending or, to your knowledge or the knowledge
of the Company, shall be contemplated by the Commission, and any request on
the part of the Commission for additional information shall have been
complied with to the satisfaction of counsel for the Underwriters. If the
Company has elected to rely upon Rule 430A, a
9
prospectus containing the Rule 430A Information shall have been filed with
the Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A).
(b) At the Closing Time, you shall have received a signed opinion of
McAfee & Taft A Professional Corporation, counsel for the Company, dated as
of the Closing Time, together with signed or reproduced copies of such
opinion for each of the other Underwriters, in form and substance
satisfactory to counsel for the Underwriters, to the effect that:
(i) The Company is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Oklahoma with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business as described in the Prospectus;
(ii) The Company is duly qualified to transact business as a foreign
corporation and is in good standing in each other jurisdiction in which
it owns or leases property of a nature, or transacts business of a type,
that would make such qualification necessary, except to the extent that
the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered
as one enterprise;
(iii) Each Significant Subsidiary is a corporation duly incorporated,
and each Subsidiary is a corporation validly existing and in good
standing, under the laws of the jurisdiction of its incorporation with
corporate power and authority under such laws to own, lease and operate
its properties and conduct its business;
(iv) Each Subsidiary is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered
as one enterprise;
(v) All of the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, and no holder thereof is or will be subject to personal
liability by reason of being such a holder; and none of the outstanding
shares of capital stock of the Company was issued in violation of the
preemptive rights of any stockholder of the Company;
(vi) All of the outstanding shares of capital stock of each
Significant Subsidiary have been duly authorized and validly issued and
are fully paid and non-assessable; except for any pledges of capital
stock pursuant to (A) the Credit Agreement, dated July 19, 1994, with
Morgan Guaranty Trust Company, as Managing Agent and twelve other
domestic and foreign banks listed therein (as the same may have been
amended to date), (B) the Indenture, dated March 15, 1986, between the
Company and Morgan Guaranty Trust Company of New York, as Trustee,
covering $100 million aggregate principal amount of the Company's 9 1/2%
Debentures due 2016 and (C) the Indenture, dated December 1, 1989,
between the Company and Morgan Guaranty Trust Company of New York, as
Trustee, covering $275 million aggregate principal amount of the
Company's Medium-Term Notes, all of such shares of capital stock are
owned by the Company, directly or through one or more Subsidiaries, free
and clear of any pledge, lien, security interest, charge, claim, equity
or encumbrance or any kind; no holder thereof is subject to personal
liability by reason of being such a holder and none of such shares was
issued in violation of the preemptive rights of any stockholder of the
Subsidiaries;
(vii) The Senior Note Indentures have been duly authorized, executed
and delivered by the Company and the Subsidiary Guarantors and, assuming
due authorization, execution and delivery by the Trustee, constitute
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers),
10
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is subject
to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(viii) The Notes have been duly authorized by the Company and, assuming
that the Notes have been duly authenticated by the Trustee in the manner
described in its certificate delivered to you today (which fact such
counsel need not determine by an inspection of the Notes), the Notes have
been duly executed, issued and delivered by the Company and constitute
valid and binding obligations of the Company entitled to the benefits of
the Senior Note Indentures and enforceable against the Company in
accordance with their terms, except as enforcement thereof may be limited
by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law);
(ix) The Note Guarantees have been duly authorized by each of the
respective Subsidiary Guarantors and, when the Notes are issued and
delivered in the manner provided in the Senior Note Indentures and sold
and paid for as provided in this Agreement, the Note Guarantees will
constitute valid and legally binding obligations of the respective
Subsidiary Guarantors enforceable against the Subsidiary Guarantors in
accordance with the terms set forth in the Senior Note Indentures, except
as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws relating to or
affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law); and the Note Guarantees will conform in all material
respects to the descriptions thereof in the Prospectus;
(x) The Senior Note Indentures have been qualified under the 1939
Act;
(xi) The Notes, the Note Guarantees and the Senior Note Indentures
conform in all material respects as to legal matters to the descriptions
thereof in the Prospectus;
(xii) This Agreement (including the Price Determination Agreement) has
been duly authorized, executed and delivered by the Company;
(xiii) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act, the 1939 Act and the securities or blue
sky laws of the various states), is required for the valid authorization,
issuance, sale and delivery of the Notes;
(xiv) Such counsel does not know of any statutes or regulations, or
any pending or threatened legal or governmental proceedings, required to
be described in the Prospectus that are not described as required, nor of
any contracts or documents of a character required to be described or
referred to in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described,
referred to or filed as required;
(xv) The descriptions in the Prospectus of the statutes, regulations,
legal or governmental proceedings, contracts and other documents therein
described are accurate in all material respects as to legal matters and
fairly summarize the information required to be shown;
(xvi) To the knowledge of such counsel, no default exists in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any contract, indenture, loan agreement, note,
lease or other agreement or instrument that is described or referred to
in the Registration Statement or the Prospectus or filed as an exhibit to
the Registration Statement;
(xvii) The execution and delivery of this Agreement and the Senior Note
Indentures by the Company, the issuance and delivery of the Notes, the
consummation by the Company of the transactions contemplated in this
Agreement and in the Registration Statement and compliance by
11
the Company and the Subsidiary Guarantors with the terms of this
Agreement and the Senior Note Indentures do not and will not result in
any violation of the charter or by-laws of the Company or any Subsidiary,
and do not and will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary under (A) any
contract, indenture, mortgage, loan agreement, note, lease or any other
agreement or instrument known to such counsel, to which the Company or
any Subsidiary is a party or by which it may be bound or to which any of
its properties may be subject (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise), (B) any existing applicable
law, rule or regulation (other than the securities or blue sky laws of
the various states, as to which such counsel need express no opinion), or
(C) any judgment, order or decree of any government, governmental
instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any Subsidiary or any of their respective properties;
(xviii) The Registration Statement is effective under the 1933 Act and,
to the best of the knowledge of such counsel, the Registration Statement
is still effective, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are contemplated under the
1933 Act;
(xix) The Registration Statement (including the Rule 430A Information,
if applicable) and the Prospectus, excluding the documents incorporated
by reference therein, and each amendment or supplement thereto (except
for the financial statements and other financial or statistical data
included therein or omitted therefrom, as to which such counsel need
express no opinion), as of their respective effective or issue dates,
appear on their face to have been appropriately responsive in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations and the Senior Note Indentures and the Statement of
Eligibility of the Trustee on Form T-1 filed with the Commission as part
of the Registration Statement appear on their face to have been
appropriately responsive in all material respects to the requirements of
the 1939 Act and the 1939 Act Regulations; and
(xx) The documents incorporated by reference in the Prospectus (except
for the financial statements and other financial or statistical data
included therein or omitted therefrom, as to which such counsel need
express no opinion, and except to the extent that any statement therein
is modified or superseded in the Prospectus), as of the dates they were
filed with the Commission, appear on their face to have been
appropriately responsive in all material respects to the requirements of
the 1934 Act and the 1934 Act Regulations.
Such opinion shall be to such further effect with respect to other legal matters
relating to this Agreement and the sale of the Notes pursuant to this Agreement
as counsel for the Underwriters may reasonably request. In giving such opinion,
such counsel may rely as to all matters governed by New York law upon the
opinion of Shearman & Sterling referred to in Section 5(c) and as to all matters
governed by the laws of jurisdictions other than the States of Oklahoma and New
York and the federal law of the United States and the General Corporation Law of
the State of Delaware, upon opinions of other counsel, who shall be counsel
reasonably satisfactory to counsel for the Underwriters, in which case the
opinion shall state that they believe you and they are entitled to so rely. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the Company and the Subsidiaries and certificates of public officials;
provided that such certificates have been delivered to the Underwriters.
In giving their opinion required by this Section 5(b), McAfee and Taft A
Professional Corporation shall additionally slate that such counsel have
participated in the preparation of the Registration Statement and Prospectus and
are familiar with or have participated in the preparation of the documents
incorporated by reference in the Prospectus and no facts have come to the
attention of such counsel to lead them to believe
12
(A) that the Registration Statement (including the Rule 430A Information, if
applicable) or any amendment thereto (except for the financial statements and
other financial or statistical data included therein or omitted therefrom and
the Statement of Eligibility of the Trustee on Form T-1, as to which such
counsel has not been requested to comment), at the time the Registration
Statement or any such amendment became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (B) that
the Prospectus or any amendment or supplement thereto (except for the financial
statements and other financial or statistical data included therein or omitted
therefrom, as to which such counsel has not been requested to comment), at the
time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits 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.
(c) At the Closing Time, you shall have received the favorable opinion
of Shearman & Sterling, counsel for the Underwriters, dated as of the
Closing Time, together with signed or reproduced copies of such opinion for
each of the other Underwriters, to the effect that the opinion delivered
pursuant to Section 5(b) appears on its face to be appropriately responsive
to the requirements of this Agreement except, specifying the same, to the
extent waived by you, and with respect to the incorporation and legal
existence of the Company, the Notes, the Note Guarantees, this Agreement,
the Senior Note Indentures, the Registration Statement, the Prospectus, the
documents incorporated by reference and such other related matters as you
may require. In giving such opinion such counsel may rely as to the
incorporation and legal existence of the Company and all other matters
governed by Oklahoma law upon the opinion of McAfee & Taft A Professional
Corporation referred to in Section 5(b) and as to all matters governed by
the laws of jurisdictions other than the States of Oklahoma and New York and
the federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to you. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates
of officers of the Company and the Subsidiaries and certificates of public
officials; provided that such certificates have been delivered to the
Underwriters.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and the
1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the 1939 Act Regulations, the Company shall have complied in all
material respects with Rule 430A (if it shall have elected to rely thereon)
and neither the Registration Statement nor the Prospectus, as they may then
be amended or supplemented, shall contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) there shall
not have been, since the respective dates as of which information is given
in the Registration Statement, any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its subsidiaries, considered as one enterprise, whether
or not arising in the ordinary course of business, (iii) no action, suit or
proceeding shall be pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary that would be required to be set forth
in the Prospectus other than as set forth therein and no proceedings shall
be pending or, to the knowledge of the Company, threatened against the
Company or any Subsidiary before or by any government, governmental
instrumentality or court, domestic or foreign, that is reasonably likely to
result in any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, other than as set forth
in the Prospectus, (iv) the Company shall have complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or
prior to the Closing Time and required by this Agreement and (v) the other
representations and warranties of the Company set forth in Section 1(a)
shall be accurate as though expressly made at and as of the Closing Time. At
the Closing Time, you shall have received a certificate of the President or
a senior or executive Vice President, and the Treasurer or Controller, of
the Company, dated as of the Closing Time, to such effect.
13
(e) At the time that this Agreement is executed by the Company, you
shall have received from Deloitte & Touche llp, a letter, dated such date,
in form and substance satisfactory to you, confirming that they are
independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations,
and stating in effect that:
(i) in their opinion, the financial statements audited by them and
the related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1934 Act and the respective published rules and
regulations thereunder;
(ii) on the basis of procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a reading of
the unaudited interim consolidated financial statements of the Company
and its subsidiaries for the 12 weeks ended July 9, 1994 and July 10,
1993, the 16 weeks ended April 16, 1994, and April 17, 1993, and the 28
weeks ended July 9, 1994 and July 10, 1993, included or incorporated by
reference in the Registration Statement and the Prospectus (collectively,
the "10-Q Financials"), inspection of the minute books of the Company and
its subsidiaries since the end of the most recent fiscal year with
respect to which an audit report has been issued, inquiries of certain
officials of the Company and the Subsidiaries responsible for financial
and accounting matters, a limited review in accordance with standards
established by the American Institute of Certified Public Accountants and
such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the 10-Q Financials do not comply as to form in all material
respects with the accounting requirements of the 1934 Act and the
1934 Act Regulations applicable to unaudited financial statements
included in Form 10-Q or are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus;
(B) any material modifications should be made to the 10-Q
Financials for them to be in conformity with generally accepted
accounting principles;
(C) at a specified date not more than five days prior to the date
of this Agreement, there was any change in the consolidated capital
stock, any increase in the consolidated long-term debt of the Company
and its subsidiaries or any decrease in the consolidated net current
assets or stockholders' equity of the Company and its subsidiaries in
each case as compared with amounts shown in the latest unaudited
consolidated condensed balance sheet of the Company and its
subsidiaries incorporated by reference in the Registration Statement,
except in each case for changes, increases or decreases that the
Registration Statement discloses have occurred or may occur; or
(D) for the period from July 9, 1994 to a specified date not more
than five days prior to the date of this Agreement, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated net sales or in the total or per share amounts
of income before extraordinary items or of net income, except in each
case for changes, increase or decreases that the Registration
Statement decides have or may occur;
(iii) on the basis of a comparison of information included under the
heading "Selected Financial Information" in the Prospectus with the
requirements of Item 301 of Regulation S-K and inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters whether this information conforms in all material
respects with the disclosure requirements of Item 301 of Regulation S-K,
nothing came to their attention that caused them to believe that this
information does not conform in all material respects with the disclosure
requirements of Item 301 of Regulation S-K, except for the exclusion of
per share information for income (loss) from continuing operations and
each dividends declared;
14
(iv) they are unable to and do not express any opinion on the Pro
Forma Statements of Operations (unaudited) for the Fiscal Year Ended
1993, the Pro Forma Statements of Operations (unaudited) for the Interim
Period Ended 1994 or the Unaudited Pro Forma Consolidated Balance Sheet
As of the Second Quarter End, 1994 (the "Pro Forma Statements") included
in the Registration Statement or on the pro forma adjustments applied to
the historical amounts included in the Pro Forma Statements; however, for
purposes of such letter they have:
(A) read the Pro Forma Statements;
(B) made inquiries of certain officials of the Company who have
responsibility for financial and accounting matters about the basis
for their determination of the pro forma adjustments and whether the
Pro Forma Statements above comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of
Regulation S-X;
(C) proved the arithmetic accuracy of the application of the pro
forma adjustments to the historical amounts in the Pro Forma
Statements; and
(D) conducted a limited review in accordance with standards
established by the American Institute of Certified Public
Accountants;
and on the basis of such procedures, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that the Pro Forma Statements
included in the Registration Statements do comply in form in all material
respects with the applicable requirements of Rule 11-02 of Regulation S-X
and that the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of that statement; and
(v) in addition to the procedures referred to in clause (ii) above,
they have performed other specified procedures, not constituting an
audit, with respect to certain amounts, percentages, numerical data and
financial information appearing in the Registration Statement, which have
previously been specified by you and which shall be specified in such
letter, and have compared certain of such items with, and have found such
items to be in agreement with, the accounting and financial records of
the Company.
(f) At the Closing Time, you shall have received from Deloitte & Touche
LLP a letter, in form and substance satisfactory to you and dated as of the
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to Section 5(e), except that the specified date
referred to shall be a date not more than five days prior to the Closing
Time.
(g) At the time that this Agreement is executed by the Company, you
shall have received from Arthur Andersen LLP a letter, dated such date, in
form and substance satisfactory to you, confirming that they are independent
public accountants with respect to Haniel Corporation and its sole direct
subsidiary, Scrivner, Inc., and Scrivner, Inc.'s subsidiaries (collectively
referred to as "Haniel") within the meaning of the 1933 Act and the
applicable published 1933 Act regulations, and stating in effect that:
(i) in their opinion, the financial statements audited by them and
any related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1933 Act and the 1934 Act and the respective published rules and
regulations thereunder; and
(ii) on the basis of procedures (but not an examination in accordance
with generally accepted auditing standards) consisting of a reading of
the Consolidated Balance Sheet as of June 30, 1994 (unaudited), the
Consolidated Statements of Income for the Six Months Ended June 30, 1993
(unaudited) and the Six Months Ended June 30, 1994 (unaudited), and the
Consolidated Statements of Cash Flows for the Six Months Ended June 30,
1993 (unaudited) and the Six Months Ended June 30, 1994 (unaudited)
included in the Registration Statement and the Prospectus
15
(collectively, the "Unaudited Interim Financials"), inspection of the
minute books of the Company and its subsidiaries since the end of the
most recent fiscal year with respect to which an audit report has been
issued, inquiries of certain officials of the Company and its
subsidiaries responsible for financial and accounting matters, a limited
review in accordance with standards established by the American Institute
of Certified Public Accountants and such other inquiries and procedures
as may be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) the Unaudited Interim Financials are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated by reference in the Registration
Statement and the Prospectus; or
(B) any material modifications should be made to the Unaudited
Interim Financials for them to be in conformity with generally
accepted accounting principles.
(h) At the Closing Time, you shall have received from Arthur Andersen
LLP a letter, in form and substance satisfactory to you and dated as of the
Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to Section 5(g), except that the specified date
referred to shall be a date not more than five days prior to the Closing
Time.
(i) Subsequent to the execution and delivery of this Agreement and prior
to the Closing Time, there shall not have been any downgrading, nor any
notice given of any intended or potential downgrading or of a possible
change that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities, including the Notes, by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the 1933 Act.
(j) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
request for the purpose of enabling them to pass upon the issuance and sale
of the Notes as contemplated in this Agreement and the matters referred to
in Section 5(c) and in order to evidence the accuracy and completeness of
any of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment of
any of the conditions herein contained; and all proceedings taken by the
Company at or prior to the Closing Time in connection with the
authorization, issuance and sale of the Notes as contemplated in this
Agreement shall be satisfactory in form and substance to you and to counsel
for the Underwriters.
If any of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company at any time at or prior to the
Closing Time, and such termination shall be without liability of any party to
any other party, except as provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 6. INDEMNIFICATION. (a) The Company and the Subsidiary Guarantors
each agrees to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, if
applicable, and all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or
arising out of an untrue statement or alleged untrue statement of a material
fact included in any preliminary prospectus or the Prospectus (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; PROVIDED, HOWEVER, that the foregoing indemnity with respect to
any untrue statement contained in or any omission from a preliminary
prospectus shall not inure to the benefit of any Underwriter (or any person
controlling such
16
Underwriter) from whom the person asserting any such loss, liability, claim,
damage or expense purchased any of the Notes that are the subject thereof if
the Company shall sustain the burden of proving that such person was not
sent or given a copy of the Prospectus (or the Prospectus as amended or
supplemented) (in each case exclusive of the documents from which
information is incorporated by reference) at or prior to the written
confirmation of the sale of such Notes to such person and the untrue
statement contained in or the omission from such preliminary prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company or any Subsidiary Guarantor; and
(iii) against any and all expense whatsoever, as incurred (including fees
and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under subparagraph (i) or (ii) above;
PROVIDED, HOWEVER, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission (A) made in
reliance upon and in conformity with written information furnished to the
Company or any Subsidiary Guarantor by any Underwriter through you expressly for
use in the Registration Statement (or any amendment thereto), including the Rule
430A Information, if applicable, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or (B) made or omitted from the
Statement of Eligibility of the Trustee on Form T-1, other than any such untrue
statement or omission or alleged untrue statement or omission made therein or
omitted therefrom in reliance upon information furnished in writing to the
Trustee by the Company or any Subsidiary Guarantor for use therein.
The Company and the Subsidiary Guarantors each agrees to indemnify and hold
harmless Merrill Lynch and each person, if any, who controls Merrill Lynch
within the meaning of either Section 15 of the 1933 Act, or Section 20 of the
1934 Act, from and against any and all losses, claims, damages, liabilities and
judgments incurred as a result of Merrill Lynch's participation as a "qualified
independent underwriter" within the meaning of Schedule E to the By-Laws of the
NASD in connection with the offering of the Notes, except for any losses,
claims, damages, liabilities and judgments resulting from Merrill Lynch's or
such controlling person's, willful misconduct.
(b) Each Underwriter agrees severally and not jointly to indemnify and hold
harmless the Company and its directors, each of the Subsidiary Guarantors and
their respective directors, each of the officers who signed the Registration
Statement, and each person, if any, who controls the Company or any of the
Subsidiary Guarantors within the meaning of Section 15 of the 1933 Act, against
any and all loss, liability, claim, damage and expense described in the
indemnity agreement in Section 6(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registra-
tion Statement (or any amendment thereto), including the Rule 430A Information,
if applicable, or any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter expressly for use in
the Registration Statement (or any amendment thereto), including the Rule 430A
Information, if applicable, or such preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of such
17
action. In no event shall the indemnifying party or parties be liable for the
fees and expenses of more than one counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company, the Subsidiary Guarantors
and the Underwriters shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such indemnity
incurred by the Company, the Subsidiary Guarantors and one or more of the
Underwriters, as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount appearing on the cover page of the Prospectus bears to the initial
public offering price appearing thereon and the Company is responsible for the
balance; PROVIDED, HOWEVER, that no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as such Underwriter, and each director of
the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as the Company.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. The representations, warranties, indemnities, agreements and other
statements of the Company or its officers set forth in or made pursuant to this
Agreement will remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Company, any Underwriter or any person
who controls the Company or any Underwriter within the meaning of Section 15 of
the 1933 Act and will survive delivery of and payment for the Notes.
Section 9. TERMINATION OF AGREEMENT. (a) You may terminate this Agreement,
by notice to the Company, at any time at or prior to the Closing Time (i) if
there has been, since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the condition
(financial or otherwise), earnings, business affairs or business prospects of
the Company and its subsidiaries, considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in your judgment, impracticable to market
the Notes or enforce contracts for the sale of the Notes, or (iii) if trading in
any securities of the Company has been suspended by the Commission or the NASD,
or if trading generally on either the American Stock Exchange or the New York
Stock Exchange or in the over-the-counter market has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or by order of the Commission,
the NASD or any other governmental authority, or (iv) if a banking moratorium
has been declared by either federal, New York or Oklahoma authorities, or (v) if
there shall have been any downgrading, or any notice given of any intended or
potential downgrading or of a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the Company's
securities, including the Notes, by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule 436(g)(2)
under the 1933 Act, or (vi) if there shall have come to such your attention any
facts that would cause you to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of the Notes, contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the circumstances existing at
the time of such delivery, not misleading.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4 hereof. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
18
(c) This Agreement may also terminate pursuant to the provisions of Section
2, with the effect stated in such Section.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one of the
Underwriters shall fail at the Closing Time to purchase the Notes that it is
obligated to purchase pursuant to this Agreement (the "Defaulted Notes"), the
non-defaulting Underwriter shall have the right, within 24 hours thereafter, to
make arrangements to purchase all, but not less than all, of the Defaulted Notes
in such amounts as may be agreed upon and upon the terms set forth in this
Agreement; if, however, the non-defaulting Underwriter has not completed such
arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Notes does not exceed
10% of the aggregate principal amount of the Notes to be purchased pursuant
to this Agreement, the non-defaulting Underwriter shall be obligated to
purchase the full amount thereof, or
(b) if the aggregate principal amount of Defaulted Notes exceeds 10% of
the aggregate principal amount of the Notes to be purchased pursuant to this
Agreement, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either the non-defaulting Underwriter or the Company shall have
the right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Section 11. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to you shall be directed to you, c/o Merrill Lynch, Pierce, Fenner &
Smith Incorporated, at Merrill Lynch World Headquarters, North Tower, World
Financial Center, New York, New York 10281, attention of Thomas W. Regan, Jr.;
and notices to the Company shall be directed to it at Fleming Companies, Inc.,
P.O. Box 26647, 6301 Waterford Boulevard, Oklahoma City, Oklahoma 73216,
attention of Harry L. Winn, Jr.
Section 12. PARTIES. This Agreement is made solely for the benefit of the
Underwriters, the Company, the Subsidiary Guarantors and, to the extent
expressed, any person who controls the Company or the Subsidiary Guarantors or
any of the Underwriters within the meaning of Section 15 of the 1933 Act, and
the directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and, subject to the provisions of Section 10, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from any of the Underwriters of the Notes. All of the obligations of the
Underwriters hereunder are several and not joint.
Section 13. GOVERNING LAW AND TIME. This Agreement shall be governed by
the laws of the State of New York. Specified times of the day refer to New York
City time.
Section 14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and when a counterpart has been executed by each party, all such
counterparts taken together shall constitute one and the same agreement.
------------------------
19
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us a counterpart hereof, whereupon this instrument
will become a binding agreement among the Company, the Subsidiary Guarantors and
the Underwriters in accordance with its terms.
Very truly yours,
FLEMING COMPANIES, INC.
By _________________________________
Name:
Title:
Each of the Subsidiary Guarantors
Listed on Exhibit B
By _________________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P. MORGAN SECURITIES INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By _________________________________
Name:
Title:
Investment Banking Group
20
EXHIBIT A
FLEMING COMPANIES, INC.
(AN OKLAHOMA CORPORATION)
% SENIOR NOTES DUE 2001
FLOATING RATE SENIOR NOTES DUE 2001
PRICE DETERMINATION AGREEMENT
-------------------------------------
, 1994
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P. MORGAN SECURITIES INC.
c/oMERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated ,
1994 (the "Purchase Agreement") between Fleming Companies, Inc. (the "Company")
and each of the subsidiary guarantors as are listed on Exhibit B to the Purchase
Agreement, as guarantors (the "Subsidiary Guarantors"), and Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities
Inc. (collectively, the "Underwriters"). The Purchase Agreement provides for the
purchase by the Underwriters from the Company, subject to the terms and
conditions set forth therein, of the Company's % Senior Notes due 2001 (the
"Fixed Rate Notes") and Floating Rate Senior Notes due 2001 (the "Floating Rate
Notes"). This Agreement is the Price Determination Agreement referred to in the
Purchase Agreement. Terms not otherwise defined herein shall have the meanings
assigned to them in the Purchase Agreement.
Pursuant to Section 2 of the Purchase Agreement, the Company agrees with the
Underwriters as follows:
A. THE FIXED RATE NOTES.
1. The initial public offering price of the Fixed Rate Notes shall be %
of the principal amount thereof, plus accrued interest, if any, from
, 1994 to the Closing Time.
2. The purchase price of the Fixed Rate Notes to be paid by the
Underwriters shall be % of the principal amount thereof, plus accrued
interest, if any, from , 1994 to the Closing Time.
3. The interest rate to be borne by the Fixed Rate Notes shall be % per
annum, payable semi-annually on and of each year,
commencing , 1994.
4. The Fixed Rate Notes will mature on , 2001.
5. The Fixed Rate Notes may be redeemed at the option of the Company, in
whole or in part, at any time on or after , 1999, at a
redemption price equal to % of the principal amount thereof, if redeemed
during the 12-month period beginning on , 1999, and % of
the principal amount thereof, if redeemed during the 12-month period beginning
on , 2000, together with accrued and unpaid interest, if
any, to the date of redemption.
In addition, the Company may redeem up to 20% of the initial aggregate
principal amount of the Fixed Rate Notes at any time on or prior to
, 1997, within 180 days of a Public Equity Offering (as
defined in the Senior Note Indentures) with the net proceeds of such offering,
at a redemption
21
price equal to % of the principal amount thereof, together with accrued and
unpaid interest, if any, to the date of redemption; provided that, after having
given effect to such redemption, at least $200 million aggregate principal
amount of the Fixed Rate Notes remains outstanding.
B. THE FLOATING RATE NOTES.
1. The initial public offering price of the Floating Rate Notes shall be
% of the principal amount thereof, plus accrued interest, if any, from
, 1994 to the Closing Time.
2. The purchase price of the Floating Rate Notes to be paid by the
Underwriters shall be % of the principal amount thereof, plus accrued
interest, if any, from , 1994 to the Closing Time.
3. The Floating Rate Notes will bear interest at a rate of % per annum
from , 1994 through and including ,
1995 and at a rate per annum thereafter, determined quarterly, equal to the rate
determined on the basis of the Applicable LIBOR Rate (as defined in the Senior
Note Indentures). Interest on the Floating Rate Notes will be payable quarterly
on , , , and
of each year commencing , 1995.
4. The Floating Rate Notes will mature on , 2001.
5. The Floating Rate Notes may be redeemed at the option of the Company, in
whole or in part, on any Interest Payment Date (as defined in the Floating Rate
Senior Note Indenture) on or after , 1995 and on or prior
to , 1999 at a redemption price equal to 100.5% of the
principal amount thereof, together with accrued and unpaid interest, if any, to
the date of redemption, and after , 1999 at a redemption
price equal to 100% of the principal amount thereof, together with accrued and
unpaid interest, if any, to the date of redemption.
The Company represents and warrants to each of the Underwriters that the
representations and warranties of the Company set forth in Section 1 of the
Purchase Agreement are accurate as though expressly made at and as of the date
hereof.
22
This Agreement shall be governed by the laws of the State of New York.
Very truly yours,
FLEMING COMPANIES, INC.
By ______________________________
Name:
Title:
Each of the Subsidiary Guarantors
Listed on Exhibit B
By ______________________________
Name:
Title:
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
J.P. MORGAN SECURITIES INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By _____________________________
Name:
Title:
Investment Banking
Group
23
EXHIBIT B
Subsidiary Guarantors
ATI, Inc.
Badger Markets, Inc.
Baker's Supermarkets, Inc.
Ball Motor Service, Inc.
Big W of Florida, Inc.
Boogaart Stores of Nebraska, Inc.
Central Park Super Duper, Inc.
Commercial Cold/Dry Storage Company
Consumer's Markets, Inc.
D.L. Foot Stores, Inc.
Del-Arrow Super Duper, Inc.
Festival Foods, Inc.
Fleming Direct Sales Corporation
Fleming Foods East, Inc.
Fleming Foods of Alabama, Inc.
Fleming Foods of Ohio, Inc.
Fleming Foods of Tennessee, Inc.
Fleming Foods of Texas, Inc.
Fleming Foods of Virginia, Inc.
Fleming Foods of South, Inc.
Fleming Foods of West, Inc.
Fleming Foreign Sales Corporation
Fleming Franchising, Inc.
Fleming Holdings, Inc.
Fleming International, Ltd.
Fleming Site Media, Inc.
Fleming Supermarkets of Florida, Inc.
Fleming Technology Leasing Company, Inc.
Fleming Transportation Service, Inc.
Food Brands, Inc.
Food-4-Less, Inc.
Food Holdings, Inc.
Food Saver of Iowa, Inc.
Gateway Development Co., Inc.
Gateway Food Distributors, Inc.
Gateway Foods, Inc.
Gateway Foods of Altoona, Inc.
Gateway Foods of Pennsylvania, Inc.
Gateway Foods of Twin Ports, Inc.
Gateway Foods Service Corporation
Grand Central Leasing Corporation
Great Bend Supermarkets, Inc.
Hub City Transportation, Inc.
Kensington and Harlem, Inc.
LAS, Inc.
Ladysmith East IGA, Inc.
Ladysmith IGA, Inc.
Lake Markets, Inc.
M&H Desoto, Inc.
M&H Financial Corp.
M&H Realty Corp.
Malone & Hyde, Inc.
Malone & Hyde of Lafayette, Inc.
Manitowoc IGA, Inc.
Moberly Foods, Inc.
Mt. Morris Super Duper, Inc.
Niagra Falls Super Duper, Inc.
Northern Supermarkets of Oregon, Inc.
Northgate Plaza, Inc.
109 West Main Street, Inc.
121 East Main Street, Inc.
Peshtigo IGA, Inc.
Piggly Wiggly Corporation
Quality Incentive Company, Inc.
Rainbow Transportation Services, Inc.
Route 16, Inc.
Route 219, Inc.
Route 417, Inc.
Richland Center IGA, Inc
Scrivner, Inc.
Scrivner-Food Holdings, Inc.
Scrivner of Alabama, Inc.
Scrivner of Illinois, Inc.
Scrivner of Iowa, Inc.
Scrivner of Kansas, Inc.
Scrivner of New York, Inc.
Scrivner of North Carolina, Inc.
Scrivner of Pennsylvania, Inc.
Scrivner of Tennessee, Inc.
Scrivner of Texas, Inc.
Scrivner Super Stores of Illinois, Inc.
Scrivner Super Stores of Iowa, Inc.
Scrivner Transportation, Inc.
Sehon Foods, Inc.
Selected Products, Inc.
Sentry Markets, Inc.
Smar Trans, Inc.
South Ogden Super Duper, Inc.
Southern Supermarkets, Inc. (TX)
Southern Supermarkets, Inc. (OK)
Southern Supermarkets of Louisiana, Inc.
Star Groceries, Inc.
Store Equipment, Inc.
Sundries Service, Inc.
Switzer Foods, Inc.
35 Church Street, Inc.
Thompson Food Basket, Inc.
29 Super Market, Inc.
27 Slayton Avenue, Inc.
WPC, Inc.
24
SCHEDULE A
PRINCIPAL
PRINCIPAL AMOUNT OF
AMOUNT OF FIXED FLOATING RATE
RATE NOTES TO NOTES TO BE
UNDERWRITER BE PURCHASED PURCHASED
- -------------------------------------------------------------------------------- --------------- ---------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated.......................................................... $ $
J.P. Morgan Securities Inc......................................................
--------------- ---------------
Total................................................................. $ $
--------------- ---------------
--------------- ---------------
25