Execution Copy
FIRST BRANDS CORPORATION
$150,000,000
7.25% SENIOR NOTES DUE 2007
PURCHASE AGREEMENT
------------------
March 5, 1997
BEAR, STEARNS & CO. INC.
TD SECURITIES (USA) INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST UNION CAPITAL MARKETS CORP.
c/o Bear, Stearns & Co. Inc.
245 Park Avenue
New York, New York 10167
Ladies and Gentlemen:
First Brands Corporation, a corporation organized and existing under
the laws of Delaware (the "Company"), hereby confirms its agreement with you
(the "Initial Purchasers"), as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers
$150,000,000 aggregate principal amount of its 7.25% Senior Notes Due 2007 (the
"Notes"). The Notes are to be issued under an indenture (the "Indenture") to be
dated as of March 1, 1997 between the Company and The Bank of New York, as
trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933 (the "Act"), in reliance on
one or more exemptions therefrom.
In connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum dated February 28, 1997 (together with the
documents incorporated by reference therein, the "Preliminary Memorandum") and a
final offering memorandum dated March 10, 1997 (together
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with the documents incorporated by reference therein, the "Final Memorandum";
the Preliminary Memorandum and the Final Memorandum each herein being referred
to as a "Memorandum"), each setting forth or including a description of the
terms of the Notes and the offering of the Notes, a description of the Company
and any material developments relating to the Company occurring after the date
of the most recent historical financial statements included or incorporated by
reference therein.
The Initial Purchasers and their direct and indirect transferees of
the Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration Rights
Agreement"), pursuant to which the Company has agreed, among other things, to
file a registration statement (the "Registration Statement") with the Securities
and Exchange Commission (the "Commission") registering the Exchange Notes (as
defined therein) or, in certain cases, the Notes under the Act.
2. Representations and Warranties. The Company represents and warrants
to and agrees with the Initial Purchasers that:
(a) None of the Preliminary Memorandum as of the date thereof, the
Final Memorandum or any amendment or supplement thereto as of the date thereof
and at all times subsequent thereto up to the Closing Date (as defined in
Section 3 below) contained or contains any untrue statement of a material fact
or omitted or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
Section 2(a) do not apply to statements or omissions made in reliance upon and
in conformity with information relating to the Initial Purchasers furnished to
the Company expressly for use in the Preliminary Memorandum, the Final
Memorandum or any amendment or supplement thereto.
(b) As of December 31, 1996, the Company had the capitalization set
forth in the Final Memorandum; all the subsidiaries of the Company meeting the
conditions for a "significant subsidiary" set forth in Rule 1-02(w) of the
Commission's Regulation S-X are listed on Schedule 2 attached hereto (each, a
"Subsidiary" and collectively, the "Subsidiaries"); all the outstanding shares
of capital stock
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of the Company and the Subsidiaries have been, and as of the Closing Date will
be, duly authorized and validly issued and are fully paid and nonassessable;
except as set forth in the Final Memorandum, all the outstanding shares of
capital stock of each of the Subsidiaries will be owned by the Company, directly
or through subsidiaries, free and clear of all liens, encumbrances, equities and
claims.
(c) Each of the Company and the Subsidiaries has been duly
incorporated, is validly existing and is in good standing as a corporation under
the laws of its jurisdiction of incorporation, with all requisite corporate
power and authority to own its properties and conduct its business as now
conducted, and as described in the Final Memorandum; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect on the general affairs, management,
business, condition (financial or otherwise), or results of operations of the
Company and the Subsidiaries, taken as a whole (any such event, a "Material
Adverse Effect").
(d) The Company has the corporate power and authority to execute,
deliver and perform each of its obligations under the Notes, the Exchange Notes
and the Private Exchange Notes (as defined in the Registration Rights
Agreement). The Notes, the Exchange Notes and the Private Exchange Notes have
each been duly authorized by all requisite corporate action of the Company and,
when executed by the Company and authenticated by the Trustee in accordance
with the provisions of the Indenture and, in the case of the Notes, when
delivered to and paid for by the Initial Purchasers in accordance with the terms
of this Agreement, will have been duly executed, issued and delivered and will
constitute valid and binding obligations of the Company, entitled to the
benefits of the Indenture and enforceable against the Company in accordance with
their terms, except that the enforcement thereof may be subject to (i) bank-
ruptcy, insolvency, reorganization, moratorium or other laws now or hereafter in
effect relating to or affecting creditors' rights generally (including
applicable fraudulent transfer laws), and (ii) general principles of equity
(regardless of whether enforceability is considered in a
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proceeding at law or in equity) and the discretion of the court before which any
proceeding therefor may be brought.
(e) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Indenture. The form of the
Indenture meets the requirements for qualification under the Trust Indenture Act
of 1939, as amended (the "TIA"). The Indenture has been duly authorized by all
requisite corporate action of the Company and, when executed and delivered by
the Company (assuming the due authorization, execution and delivery by the
Trustee), will constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect relating to
or affecting creditors' rights generally (including applicable fraudulent
transfer laws) and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and the
discretion of the court before which any proceeding therefor may be brought.
(f) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Registration Rights Agreement. The
Registration Rights Agreement has been duly authorized by all requisite
corporate action of the Company and, when executed and delivered by the Company,
will constitute a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except that (A) the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect relating to
or affecting creditors' rights generally (including applicable fraudulent
transfer laws) and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and the
discretion of the court before which any proceeding therefor may be brought and
(B) any rights to indemnity or contribution thereunder may be limited by federal
and state securities laws and public policy considerations.
(g) The Company has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions
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contemplated hereby. This Agreement has been duly authorized, executed and
delivered by the Company.
(h) No consent, approval, authorization or order of any court or
governmental agency or body is required for the performance of this Agreement or
the consummation by the Company of the transactions contemplated hereby, except
such as have been obtained and such as may be required under state securities or
"Blue Sky" laws in connection with the purchase and resale of the Notes by the
Initial Purchasers and except that the exchange offer contemplated by the
Registration Rights Agreement requires an effective registration statement. None
of the Company or the Subsidiaries is (i) in violation of its certificate of
incorporation or bylaws (or similar organizational document), (ii) in breach or
violation of any statute, judgment, decree, order, rule or regulation applicable
to any of them except for any such breach or violation which would not,
individually or in the aggregate, have a Material Adverse Effect, or (iii) in
breach of or default under (nor has any event occurred which, with notice or
passage of time or both, would constitute a default under) or in violation of
any of the terms or provisions of any indenture, mortgage, deed of trust, loan
agreement, note or other instrument pursuant to which the Company or its
Subsidiaries has indebtedness for borrowed money outstanding or any material
lease, license, franchise agreement, permit, certificate, contract or other
material agreement or instrument to which any of them is a party (collectively,
"Contracts"), except for any such breach, default, violation or event which
would not, individually or in the aggregate, have a Material Adverse Effect.
(i) The execution, delivery and performance by the Company of this
Agreement, the Indenture and the Registration Rights Agreement and the
consummation by the Company of the transactions contemplated hereby and thereby
(including the issuance and sale of the Notes to the Initial Purchasers), and
the fulfillment of the terms hereof and thereof, will not constitute or result
in a breach of or a default under (or an event which with notice or passage of
time or both would constitute a default under) or violation of any of (i) the
terms or provisions of any Contract, except for any such breach, violation,
default or event which would not, individually or in the aggregate, have a
Material Adverse Effect, (ii) the certificate of incorporation or bylaws (or
similar organizational document)
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of the Company or any of the Subsidiaries, or (iii) (assuming compliance with
all applicable state securities or "Blue Sky" laws and assuming the accuracy of
the representations and warranties of the Initial Purchasers in Section 8
hereof) any statute, judgment, decree, order, rule or regulation applicable to
the Company or any of the Subsidiaries or any of their respective properties or
assets, except for any such breach or violation which would not, individually or
in the aggregate, have a Material Adverse Effect.
(j) The consolidated financial statements of the Company (including
the notes thereto) included or incorporated by reference in the Final
Memorandum present fairly in all material respects the financial position,
results of operations and cash flows of the Company at the dates and for the
periods to which they relate and have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, except as
otherwise stated therein. KPMG Peat Marwick LLP (the "Independent Accountants")
is an independent public accounting firm within the meaning of the Act and the
rules and regulations promulgated thereunder.
(k) Other than as described in the Memorandum or the documents
incorporated by reference therein, there is not pending or, to the knowledge of
the Company, threatened any action, suit, proceeding, inquiry or investigation
to which the Company or any of the Subsidiaries is a party, or to which the
property or assets of the Company or any of the Subsidiaries are subject, before
or brought by any court, arbitrator or governmental agency or body which, if
determined adversely to the Company or any of the Subsidiaries, would,
individually or in the aggregate, have a Material Adverse Effect or which seeks
to restrain, enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of the Notes to be sold hereunder or the consummation of the
transactions contemplated hereby.
(l) Each of the Company and the Subsidiaries possesses all licenses,
permits, certificates, consents, orders, approvals and other authorizations from
all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, presently
required or necessary to own or lease, as the case may be, and to operate its
properties and to carry on its businesses in the manner described in the Final
Memorandum
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("Permits"), except where the failure to obtain such Permits would not,
individually or in the aggregate, have a Material Adverse Effect; each of the
Company and the Subsidiaries has fulfilled and performed in all material
respects all of its obligations with respect to such Permits and no event has
occurred which allows, or after notice or lapse of time would allow, revocation
or termination thereof or results in any other material impairment of the rights
of the holder of any such Permit; and none of the Company or the Subsidiaries
has received any notice of any proceeding relating to revocation or modification
of any such Permit, except as described in the Final Memorandum and except where
such revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect.
(m) Since the date of the most recent financial statements included or
incorporated by reference in the Final Memorandum, except as described therein,
none of the Company or the Subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and since the respective dates as of which
information is given in the Final Memorandum, there has not been any material
adverse change in the capital stock or consolidated short-term or long-term debt
of the Company (exclusive of the issue of Notes contemplated by this Agreement)
or any event or development that, individually or in the aggregate, has had or
would be reasonably likely to have a Material Adverse Effect, otherwise than as
set forth or contemplated in the Final Memorandum.
(n) None of the Company or the Subsidiaries will be an "investment
company" or "promoter" or "principal underwriter" for an "investment company",
as such terms are defined in the Investment Company Act of 1940, as amended, and
the rules and regulations thereunder.
(o) The Notes, the Exchange Notes, the Indenture and the Registration
Rights Agreement will conform in all material respects to the descriptions
thereof in the Final Memorandum.
(p) No holder of securities of the Company or any Subsidiary will be
entitled to have such securities registered under the registration statements
required to be filed
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by the Company pursuant to the Registration Rights Agreement other than as
expressly permitted thereby.
(q) Neither the Company nor its respective "affiliates" (as defined in
Rule 501(b) of Regulation D under the Act) have directly, or through any agent,
(i) sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any "security" (as defined in the Act) which is or could be
integrated with the sale of the Notes in a manner that would require the
registration under the Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) in connection with the offering of the Notes or in any manner
involving a public offering within the meaning of Section 4(2) of the Act.
(r) Assuming the accuracy of the representations and warranties of the
Initial Purchasers in Section 8 hereof, it is not necessary in connection with
the offer, sale and delivery of the Notes to the Initial Purchasers in the
manner contemplated by this Agreement to register any of the Notes under the Act
or to qualify the Indenture under the TIA.
(s) No securities of the Company are of the same class (within the
meaning of Rule 144A under the Act) as the Notes and listed on a national
securities exchange registered under Section 6 of the Securities Exchange Act of
1934 (the "Exchange Act"), or quoted in a U.S. automated inter-dealer quotation
system.
(t) None of the Company or the Subsidiaries has taken, nor will any of
them take, directly or indirectly, any action designed to, or that might be
reasonably expected to, cause or result in stabilization or manipulation of the
price of the Notes.
3. Purchase, Sale and Delivery of the Notes. On the basis of the
representations, warranties, agreements and covenants herein contained and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers, acting
severally and not jointly, agree to purchase the Notes in the respective amounts
set forth on Schedule 1 hereto from the Company, at 98.878% of their principal
amount plus accrued interest from March 1, 1997. One or
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more certificates in definitive form for the Notes that the Initial Purchasers
have agreed to purchase hereunder, and in such denomination or denominations and
registered in such name or names as the Initial Purchasers request upon notice
to the Company at least 36 hours prior to the Closing Date, shall be delivered
by or on behalf of the Company to the Initial Purchasers, against payment by or
on behalf of the Initial Purchasers of the purchase price therefor by wire
transfer (same day funds) to such account or accounts as the Company shall
specify prior to the Closing Date, or by such means as the parties hereto shall
agree prior to the Closing Date. Such delivery of and payment for the Notes
shall be made at the offices of Cravath, Swaine & Moore, Worldwide Plaza, 825
Eighth Avenue, New York, New York at 10:00 a.m., New York time, on March 10,
1997, or at such other place, time or date as the Initial Purchasers, on the one
hand, and the Company, on the other hand, may agree upon, such time and date of
delivery against payment being herein referred to as the "Closing Date". The
Company will make such certificate or certificates for the Notes available for
checking and packaging by the Initial Purchasers at the offices of Bear, Stearns
& Co. Inc. in New York, New York, or at such other place as Bear, Stearns & Co.
Inc. may designate, at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchasers. The Initial Purchasers propose
to make an offering of the Notes at the price and upon the terms set forth in
the Final Memorandum, as soon as practicable after this Agreement is entered
into and as in the judgment of the Initial Purchasers is advisable.
5. Covenants of the Company. The Company covenants and agrees with
each of the Initial Purchasers that:
(a) The Company will not amend or supplement the Final Memorandum or
any amendment or supplement thereto of which the Initial Purchasers shall not
previously have been advised and furnished a copy for a reasonable period of
time prior to the proposed amendment or supplement and as to which the Initial
Purchasers shall not have given their consent, which consent shall not be
unreasonably withheld. The Company will promptly, upon the reasonable request of
the Initial Purchasers or counsel for the Initial Purchasers, make any
amendments or supplements to the Preliminary Memorandum or the Final Memorandum
that may be
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necessary or advisable in connection with the resale of the Notes by the
Initial Purchasers.
(b) The Company will cooperate with the Initial Purchasers in
arranging for the qualification of the Notes for offering and sale under the
securities or "Blue Sky" laws of such jurisdictions as the Initial Purchasers
may designate and will continue such qualifications in effect for as long as may
be necessary to complete the resale of the Notes; provided, however, that in
connection therewith, the Company shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or subject itself to taxation in excess of a nominal dollar amount
in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the distribution by the
Initial Purchasers of the Notes or the Private Exchange Notes, any event occurs
or information becomes known as a result of which, in the judgment of the
Company or in the opinion of counsel for the Initial Purchasers, the Final
Memorandum as then amended or supplemented would include any untrue statement
of a material fact, or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time, in
the judgment of the Company or in the opinion of counsel for the Initial
Purchasers, to amend or supplement the Final Memorandum to comply with
applicable law, the Company will promptly notify the Initial Purchasers thereof
and will prepare, at the expense of the Company, an amendment or supplement to
the Final Memorandum that corrects such statement or omission or effects such
compliance.
(d) The Company will, without charge, provide to the Initial
Purchasers and to counsel for the Initial Purchasers as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchasers may reasonably request.
(e) The Company will apply the net proceeds from the sale of the Notes
as set forth under "Use of Proceeds" in the Final Memorandum.
(f) For so long as any of the Notes remain outstanding, the Company
will furnish to the Initial
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Purchasers who are then making a market in the Notes copies of all reports and
other substantive communications (financial or otherwise) furnished by the
Company to the Trustee, or the holders of the Notes and, as soon as available,
copies of any reports or financial statements furnished to or filed by the
Company with the Commission or any national securities exchange on which any
class of securities of the Company may be listed.
(g) Prior to the Closing Date, the Company will furnish to the Initial
Purchasers, as soon as they have been prepared, a copy of any unaudited interim
financial statements of the Company for any quarterly period subsequent to the
period covered by the most recent financial statements appearing in the Final
Memorandum.
(h) None of the Company or any of its "affiliates" will sell, offer
for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) which could be integrated with the sale of
the Notes in a manner which would require the registration under the Act of the
Notes.
(i) The Company will not, and will not permit any of the Subsidiaries
to, engage in any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) in connection with the offering of
the Notes or in any manner involving a public offering within the meaning of
Section 4(2) of the Act.
(j) For so long as any of the Notes remain outstanding, the Company
will make available, upon request, to any seller of such Notes the information
specified in Rule 144A(d)(4) under the Act, in the event that the Company is not
then subject to Section 13 or 15(d) of the Exchange Act.
(k) The Company will use its reasonable efforts to (i) permit the
Notes to be designated PORTAL securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the Private Offerings,
Resales and Trading through Automated Linkages market (the "Portal Market") and
(ii) permit the Notes to be eligible for clearance and settlement through The
Depository Trust Company.
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6. Expenses. The Company agrees to pay all costs and expenses incident
to the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing, word processing or other production of documents with respect to
the transactions contemplated hereby, including any costs of printing the
Preliminary Memorandum and the Final Memorandum and any amendment or supplement
thereto, and any "Blue Sky" memoranda, (ii) all arrangements relating to the
delivery to the Initial Purchasers of copies of the foregoing documents, (iii)
the fees and disbursements of the counsel, the accountants and any other experts
or advisors retained by the Company, (iv) preparation (including printing),
issuance and delivery to the Initial Purchasers of the Notes, (v) the
qualification of the Notes under state securities and "Blue Sky" laws, including
filing fees and reasonable fees and disbursements of counsel for the Initial
Purchasers relating thereto, (vi) expenses of the Company in connection with any
meetings with prospective investors in the Notes, (vii) fees and expenses of the
Trustee including fees and expenses of counsel, (viii) all expenses and listing
fees incurred in connection with the application for quotation of the Notes on
the PORTAL Market and (ix) any fees charged by investment rating agencies for
the rating of the Notes. If the sale of the Notes provided for herein is not
consummated because any condition to the obligations of the Initial Purchasers
set forth in Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 11 hereof or because of any failure, refusal or
inability on the part of the Company to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder (other than solely
by reason of a default by the Initial Purchasers of their obligations hereunder
after all conditions hereunder have been satisfied in accordance herewith), the
Company agrees to promptly reimburse the Initial Purchasers upon demand for all
reasonable out-of-pocket expenses (including reasonable fees, disbursements and
charges of Cravath, Swaine & Moore, counsel for the Initial Purchasers) that
shall have been incurred by the Initial Purchasers in connection with the
proposed purchase and sale of the Notes.
7. Conditions of the Initial Purchasers' Obligations. The obligations
of the Initial Purchasers to purchase and pay for the Notes shall, in their sole
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discretion, be subject to the satisfaction or waiver of the following conditions
on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received a
letter, dated as of the Closing Date and addressed to the Initial Purchasers, of
Einar M. Rod, Esq., General Counsel for the Company, in form and substance
satisfactory to counsel for the Initial Purchasers, to the effect that:
He and/or members of his staff have participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, representatives of the Initial
Purchasers and counsel for the Initial Purchasers, at which conferences the
contents of the Final Memorandum and related matters were discussed and, on the
basis of such participation, although he has not independently verified and is
not passing upon and assumes no responsibility for the accuracy, completeness or
fairness of the statements contained in the Final Memorandum, no facts have come
to his attention which lead him to believe that the Final Memorandum, on the
date thereof or at the Closing Date, contained or contains an untrue statement
of a material fact or omitted or omits to state a material fact in order to make
the statements contained therein, in the light of the circumstances under which
they were made, not misleading (it being understood that such counsel need
express no opinion with respect to the financial statements and related notes
thereto and the other financial, statistical and accounting data included in the
Final Memorandum).
References to the Final Memorandum in this subsection (a) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
(b) On the Closing Date, the Initial Purchasers shall have received
the opinion, dated as of the Closing Date and addressed to the Initial
Purchasers, of Kirkland & Ellis, special counsel for the Company, in form and
substance satisfactory to counsel for the Initial Purchasers, to the effect
that:
(i) Each of the Company and the Subsidiaries is validly existing and
in good standing under the laws of its respective jurisdiction of
incorporation and has
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all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Final
Memorandum. The Company is duly qualified to do business as a foreign
corporation in good standing in the jurisdictions set forth on Schedule B
thereto.
(ii) Except as set forth in or contemplated by the Final Memorandum,
to the knowledge of such counsel, no holder of securities of the Company is
entitled to have such securities registered under a registration statement
filed by the Company pursuant to the Registration Rights Agreement.
(iii) To the knowledge of such counsel, no legal or governmental
proceedings are pending to which the Company is a party or to which the
property or assets of the Company are subject which would be required under
the Act to be described in a registration statement or in a prospectus and
are not described in the Final Memorandum or in a document incorporated by
reference therein, or which seek to restrain, enjoin, prevent the
consummation by the Company of or otherwise challenge the issuance or sale
of the Notes to be sold hereunder to the Initial Purchasers or the
application of the net proceeds therefrom as described in the Final
Memorandum under the caption "Use of Proceeds".
(iv) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Indenture, the Notes, the
Exchange Notes and the Private Exchange Notes; the form of the Indenture
meets the requirements for qualification under the TIA; the Indenture has
been duly authorized by all requisite corporate action of the Company and,
when duly executed and delivered by the Company (assuming the due
authorization, execution and delivery thereof by the Trustee), will
constitute the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except that the
enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other laws now or hereafter in effect
relating to or affecting creditors' rights generally (including applicable
fraudulent transfer laws) and (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding at law or in
15
equity) and the discretion of the court before which any proceeding
therefor may be brought.
(v) The Notes have each been duly authorized by all requisite
corporate action of the Company and when duly executed and delivered by the
Company and paid for by the Initial Purchasers in accordance with the terms
of this Agreement (assuming the due authorization, execution and delivery
of the Indenture by the Trustee and due authentication and delivery of the
Notes by the Trustee in accordance with the Indenture), will constitute the
valid and binding obligations of the Company, entitled to the benefits of
the Indenture, and enforceable against the Company in accordance with their
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights generally
(including applicable fraudulent transfer laws) and (ii) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and the discretion of the court before
which any proceeding therefor may be brought.
(vi) The Exchange Notes and the Private Exchange Notes have been duly
authorized by all requisite corporate action of the Company and, when the
Exchange Notes and the Private Exchange Notes have been duly executed and
delivered by the Company in accordance with the terms of the Registration
Rights Agreement and the Indenture (assuming the due authorization, execu-
tion and delivery of the Indenture by the Trustee and due authentication
and delivery of the Exchange Notes and the Private Exchange Notes by the
Trustee in accordance with the Indenture), will constitute the valid and
legally binding obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company in accordance with their
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights generally
(including applicable fraudulent transfer laws) and (ii) general principles
of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and the discretion of the court before
which any proceeding therefor may be brought.
16
(vii) The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Registration Rights
Agreement; the Registration Rights Agreement has been duly authorized by
all requisite corporate action of the Company and, when duly executed and
delivered by the Company (assuming due authorization, execution and
delivery thereof by the Initial Purchasers), will constitute the valid and
legally binding agreement of the Company enforceable against the Company in
accordance with its terms, except that (A) the enforcement thereof may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
laws now or hereafter in effect relating to or affecting creditors' rights
generally (including applicable fraudulent transfer laws) and (ii) general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity) and the discretion of the court before
which any proceeding therefor may be brought and (B) any rights to
indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(viii) The Company has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby; the execution, delivery and
performance of this Agreement and the consummation by the Company of the
transactions contemplated hereby have been duly authorized by all requisite
corporate action of the Company. This Agreement has been duly executed and
delivered by the Company.
(ix) The Indenture, the Notes, the Exchange Notes and the Registration
Rights Agreement conform as to legal matters in all material respects to
the descriptions thereof contained in the Final Memorandum.
(x) The execution and delivery of this Agreement, the Indenture and
the Registration Rights Agreement and the consummation of the transactions
contemplated hereby and thereby (including the issuance and sale of the
Notes to the Initial Purchasers) will not result in a breach or violation
of (i) the articles of incorporation or bylaws of the Company, or
17
(ii) (assuming compliance with all applicable state securities or "Blue
Sky" laws and assuming the accuracy of the representations and warranties
of the Initial Purchasers in Section 8 hereof) any United States Federal or
New York State statute, judgment, decree, order, rule or regulation of any
governmental authority or regulatory body or the Delaware General
Corporation Law of which such counsel is aware, which, in such counsel's
experience, is normally applicable both to general business corporations
which are not engaged in regulated business activities and to transactions
of the type contemplated by the Final Memorandum (but without having made
any special investigation as to other laws and provided that such opinion
need not cover any laws or regulations to which the Company or its
affiliates may be subject as a result of the Initial Purchasers' legal or
regulatory status or the involvement of the Initial Purchasers in such
transaction), except for any such conflict, breach or violation which would
not, individually or in the aggregate, have a Material Adverse Effect.
(xi) To the knowledge of such counsel, no consent, approval,
authorization or order of any United States Federal, State of New York or
Delaware governmental authority is required to be obtained by the Company
for the issuance and sale by the Company of the Notes to the Initial
Purchasers or the other transactions contemplated hereby, except such as
may be required under Blue Sky laws, as to which such counsel need express
no opinion, and those which have previously been obtained except where the
failure to obtain such consents or waivers would not result in a Material
Adverse Effect and except that the exchange offer contemplated by the
Registration Rights Agreement requires an effective registration statement
under the Act and the qualification of the Indenture under the TIA.
(xii) No registration under the Act of the Notes is required in
connection with the sale of the Notes to the Initial Purchasers as
contemplated by this Agreement and the Final Memorandum or in connection
with the initial resale of the Notes by the Initial Purchasers in
accordance with Section 8 of this Agreement, and prior to the commencement
of the Exchange Offer (as defined in the Registration Rights
18
Agreement) or the effectiveness of the Shelf Registration Statement (as
defined in the Registration Rights Agreement), the Indenture is not
required to be qualified under the TIA, in each case assuming (i) that the
purchasers who buy such Notes in the initial resale thereof are qualified
institutional buyers as defined in Rule 144A promulgated under the Act
("QIBs") or institutional accredited investors as defined in Rule
501(a)(1), (2), (3) or (7) promulgated under the Act ("Accredited
Investors") or foreign persons under Regulation S, (ii) the accuracy of the
Initial Purchasers' representations in Section 8 and those of the Company
contained in this Agreement regarding the absence of a general solicitation
in connection with the sale of such Notes to the Initial Purchasers and the
initial resale thereof, (iii) the due performance by the Initial Purchasers
of the agreements set forth in Section 8 hereof and (iv) the accuracy of
the representations made by each Accredited Investor who purchases Notes in
the initial resale as set forth in the Final Memorandum.
(xiii) Assuming the proceeds from the sale of the Notes are applied as
described in the Final Memorandum, neither the consummation of the
transactions contemplated by this Agreement nor the sale, issuance,
execution or delivery of the Notes will violate Regulation G, T, U or X of
the Board of Governors of the Federal Reserve System.
(xiv) None of the Company or the Subsidiaries is an "investment
company" or "promoter" or "principal underwriter" for an "investment
company", as such terms are defined in the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
The opinion of Kirkland & Ellis described in this Section shall be rendered to
the Initial Purchasers at the request of the Company and shall so state therein.
At the time the foregoing opinion is delivered, such counsel shall
additionally state that such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company, representa tives of the Initial
Purchasers and counsel for the Initial Purchasers, at which conferences the
contents of the Final
19
Memorandum and related matters were discussed and, on the basis of such
participation (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), although such counsel has
not independently verified and is not passing upon and assumes no responsibility
for the accuracy, completeness or fairness of the statements contained in the
Final Memorandum, no facts have come to its attention which leads it to believe
that the Final Memorandum, on the date thereof or at the Closing Date, contained
or contains an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements contained therein, in
the light of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with respect to the
financial statements and related notes thereto and the other financial,
statistical and accounting data included in the Final Memorandum).
References to the Final Memorandum in this subsection (b) shall
include any amendment or supplement thereto prepared in accordance with the
provisions of this Agreement at the Closing Date.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the federal laws of the
United States, the laws of the States of New York and the Delaware General
Corporation Law. Such counsel may also state that, insofar as such opinion
involves factual matters, such counsel have relied, to the extent they deem
proper, upon certificates of officers of the Company and certificates of public
officials; provided, however, that such certificates have been provided to the
Initial Purchasers.
(c) On the Closing Date, the Initial Purchasers shall have received
the opinion, in form and substance satisfactory to the Initial Purchasers, dated
as of the Closing Date and addressed to the Initial Purchasers, of Cravath,
Swaine & Moore, counsel for the Initial Purchasers, with respect to certain
legal matters relating to this Agreement and such other related matters as the
Initial Purchasers may reasonably require. In rendering such opinion, Cravath,
Swaine & Moore shall have received from the Company and may rely upon such
certificates and other documents and information as it may reasonably request to
pass upon such matters.
20
(d) The Initial Purchasers shall have received from the Independent
Accountants comfort letters dated the date hereof and the Closing Date, in form
and substance satisfactory to the Initial Purchasers and their counsel.
(e) The representations and warranties of the Company contained in
this Agreement shall be true and correct on and as of the date hereof and on and
as of the Closing Date as if made on and as of the Closing Date; the statements
of the Company's officers made pursuant to any certificate delivered in
accordance with the provisions hereof shall be true and correct on and as of the
date made and on and as of the Closing Date; the Company shall have performed
all covenants and agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; and, except
as described in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), subsequent to the date of the most recent
financial statements in such Final Memorandum, there shall have been no event or
development that, individually or in the aggregate, has or would be reasonably
likely to have a Material Adverse Effect.
(f) The sale of the Notes hereunder shall not be enjoined (temporarily
or permanently) on the Closing Date.
(g) The Initial Purchasers shall have received a certificate of the
Company, dated the Closing Date, signed by its Chairman of the Board, President
or any Senior Vice President and the Chief Financial Officer or Controller, to
the effect that:
(i) the representations and warranties of the Company contained in
this Agreement are true and correct as of the date hereof and as of the
Closing Date, and the Company has performed all covenants and agreements
and satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since the date of
the most recent financial statements in the Final Memorandum (exclusive of
any amendment or supplement thereto after the date hereof), no event or
events have occurred, no information has become known nor does any
condition exist that, individually or in
21
the aggregate, would have a Material Adverse Effect; and
(iii) the sale of the Notes hereunder have not been enjoined
(temporarily or permanently).
(h) On the Closing Date, the Initial Purchasers shall have received
the Registration Rights Agreement executed by the Company and such agreement
shall be in full force and effect at all times from and after the Closing Date.
On or before the Closing Date, the Initial Purchasers and counsel for
the Initial Purchasers shall have received such further documents, opinions,
certificates, letters and schedules or instruments relating to the business,
corporate, legal and financial affairs of the Company and the Subsidiaries as
they shall have heretofore reasonably requested from the Company.
All such documents, opinions, certificates, letters, schedules or
instruments delivered pursuant to this Agreement will comply with the provisions
hereof only if they are reasonably satisfactory in all material respects to the
Initial Purchasers and counsel for the Initial Purchasers. The Company shall
furnish to the Initial Purchasers such conformed copies of such documents,
opinions, certificates, letters, schedules and instruments in such quantities as
the Initial Purchasers shall reasonably request.
8. Offering of Notes; Restrictions on Transfer. Each of the Initial
Purchasers represents and warrants (as to itself only) that it is a QIB. Each of
the Initial Purchasers agrees with the Company (as to itself only) that (i) it
has not and will not engage in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Act) in
connection with the offering of the Notes or in any manner involving a public
offering within the meaning of Section 4(2) of the Act; and (ii) it has and will
solicit offers for the Notes only from, and will offer the Notes only to (A) in
the case of offers inside the United States, (x) persons whom the Initial
Purchasers reasonably believe to be QIBs or, if any such person is buying for
one or more institutional accounts for which such person is acting as fiduciary
or agent, only when such person has represented to the Initial Purchasers that
22
each such account is a QIB, to whom notice has been given that such sale or
delivery is being made in reliance on Rule 144A, and, in each case, in
transactions under Rule 144A or (y) a limited number of other institutional
investors reasonably believed by the Initial Purchasers to be Accredited
Investors that, prior to their purchase of the Notes, deliver to the Initial
Purchasers a letter containing the representations and agreements set forth in
Annex A to the Final Memorandum and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("foreign purchasers", which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)); provided, however, that in the case of this clause (B), in
purchasing such Notes such persons are deemed to have represented and agreed as
provided under the caption "Notice to Investors" contained in the Final
Memorandum.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser and each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited
to reasonable attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any Memorandum, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with the
information relating to the Initial Purchasers furnished to the Company
23
expressly for use therein; and provided further, that this indemnity agreement
with respect to the Preliminary Memorandum shall not inure to the benefit of any
Initial Purchaser from whom the person asserting such losses, liabilities,
claims, damages or expenses purchased Notes, or any person controlling such
Initial Purchaser, if a copy of the Final Memorandum (as then amended or
supplemented if the Company shall have furnished any such amendments or sup-
plements thereto, but excluding documents incorporated or deemed to be
incorporated by reference therein) was not sent or given by or on behalf of the
Initial Purchasers to such person at or prior to the written confirmation of the
sale of such Notes to such person and if the Final Memorandum (as so amended or
supplemented, but excluding documents incorporated or deemed to be incorporated
by reference therein) would have corrected the defect giving rise to such loss,
liability, claim, damage or expense, it being understood that this proviso shall
have no application if such defect shall have been corrected in a document which
is incorporated or deemed to be incorporated by reference in the Final
Memorandum. This indemnity agreement will be in addition to any liability which
the Company may otherwise have including under this Agreement.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company
and each other person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), jointly or several, to which they or any of them
may become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of material fact contained in any Memorandum or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage
24
or expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with the information relating to the Initial Purchasers
furnished to the Company expressly for use therein. This indemnity will be in
addition to any liability which any Initial Purchaser may otherwise have
including under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under paragraph (a) or (b) above). In case any such
action is brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to take charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have been advised by counsel that there may
be defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties. Anything in
this subsection to the contrary notwithstanding, an indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent;
25
provided, however, that such consent was not unreasonably withheld.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in the preceding paragraphs of this Section 9 is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Initial Purchasers shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature contemplated by such indemnifi-
cation provision (including any investigation, legal and other expenses incurred
in connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the Company any
contribution received by the Company from persons, other than the Initial
Purchasers, who may also be liable for contribution, including persons who
control the Company within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act, officers and directors of the Company) as incurred to which
the Company and one or more of the Initial Purchasers may be subject, in such
proportions as is appropriate to reflect the relative benefits received by the
Company and the Initial Purchasers from the offering of the Notes or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in the preceding paragraphs of this Section 9, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company and the Initial Purchasers in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable con-
siderations. The relative benefits received by the Company and the Initial
Purchasers shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of discounts and commissions but before
deducting expenses) received by the Company and (y) the discounts and commis-
sions received by the Initial Purchasers, respectively. The relative fault of
the Company and of the Initial Purchasers shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Initial Purchasers and the parties'
relative intent, know-
26
ledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Initial Purchasers agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), (i) in no case shall any
Initial Purchaser be required to contribute any amount that in the aggregate
exceeds the price at which the Notes were sold by such Initial Purchaser under
this Agreement, less the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls an Initial Purchaser within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Initial Purchaser, and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, and each officer and director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of this paragraph (d). Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this paragraph (d) or otherwise. No
party shall be liable for contribution with respect to any action or claim
settled without its consent; provided, however, that such consent was not
unreasonably withheld.
10. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Company, its
officers and the Initial Purchasers set forth in this Agreement or made by or on
behalf of them pursuant to this Agreement shall remain in
27
full force and effect, regardless of (i) any investigation made by or on behalf
of the Company, any of its officers or directors, the Initial Purchasers or any
other person referred to in Section 9 hereof and (ii) delivery of and payment
for the Notes. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6, 9 and 15 hereof shall remain in full force
and effect, regardless of any termination or cancelation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the sole
discretion of the Initial Purchasers by notice to the Company given prior to the
Closing Date in the event that the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to the
Closing Date: (i) any domestic or international event or act or occurrence has
materially disrupted, or in the opinion of the Initial Purchasers will in the
immediate future materially disrupt, the market for the Company's securities or
securities in general; or (ii) if trading on the New York or American Stock
Exchanges shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required, on the New York or American Stock Exchanges by the New York or
American Stock Exchanges or by order of the Commission or any other governmental
authority having jurisdiction; or (iii) if a banking moratorium has been
declared by a state or federal authority or if any new restriction materially
adversely affecting the offering of the Notes shall have become effective; or
(iv) if, subsequent to the date of this Agreement, there has been any
downgrading in the rating of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended or potential
downgrading in the rating of the Company or of a possible change in any such
rating that does not indicate the direction of the possible change; or (v) (A)
if the United States becomes engaged in hostilities or there is an escalation of
hostilities involving the United States or there is a declaration of a national
emergency or war by the United States or (B) if there shall have been such
change in political, financial or economic conditions if the effect of any such
event in (A) or (B) as in the judgment of the Initial Purchasers makes it
impracticable or inadvisable to
28
proceed with the offering, sale and delivery of the Notes on the terms
contemplated by the Final Memorandum.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Section
10 hereof.
12. Information Supplied by the Initial Purchasers. The statements set
forth in the last paragraph on the front cover page, the third paragraph on page
2, and in the third paragraph and the fourth sentence of the fourth paragraph
under the heading "Plan of Distribution" in the Final Memorandum (to the extent
such statements relate to the Initial Purchasers) constitute the only
information furnished by the Initial Purchasers to the Company for the purposes
of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing and, if
sent to the Initial Purchasers, shall be mailed or delivered to Bear, Stearns &
Co. Inc., 245 Park Avenue, New York, New York 10167, Attention: Capital Markets,
4th Floor; if sent to the Company, shall be mailed or delivered to the Company
at 83 Wooster Heights Road, Danbury, Connecticut 06813-1911, Attention: General
Counsel.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; and one business day
after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of and be
binding upon the Initial Purchasers, the Company and their respective successors
and legal representatives, and nothing expressed or mentioned in this Agreement
is intended or shall be construed to give any other person any legal or
equitable right, remedy or claim under or in respect of this Agreement, or any
provisions herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company contained in Section 9 of this Agreement shall also be for the
benefit of any person or persons who control the Initial Purchasers within the
meaning of
29
Section 15 of the Act or Section 20 of the Exchange Act and (ii) the indemnities
of the Initial Purchasers contained in Section 9 of this Agreement shall also be
for the benefit of the directors and officers of the Company and any person or
persons who control the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Notes from the Initial
Purchasers will be deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein shall be governed by and construed
in accordance with the laws of the state of New York applicable to contracts
made and to be performed wholly therein, without giving effect to any provisions
thereof relating to conflicts of law.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
30
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between the Company
and the Initial Purchasers.
Very truly yours,
FIRST BRANDS CORPORATION
By: /s/ JOSEPH B. FUREY
__________________________________
Name: Joseph B. Furey
Title: Vice President, Controller
& Secretary
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BEAR, STEARNS & CO. INC.
TD SECURITIES (USA) INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
FIRST UNION CAPITAL MARKETS CORP.,
By: Bear Stearns & Co. Inc.,
By: /s/ TIMOTHY A. O'NEILL
_________________________________
Name: Timothy A. O'Neill
Title: Senior Managing Director
SCHEDULE 1
Principal
Amount of
Initial Purchaser Notes
- ----------------- ----------
Bear, Stearns & Co. Inc. ........................... $130,000,000
TD Securities (USA) Inc. ........................... 10,000,000
Credit Lyonnais Securities (USA) Inc. .............. 5,000,000
First Union Capital Markets Corp. .................. 5,000,000
------------
Total ........................................ $150,000,000
SCHEDULE 2
List of Material Subsidiaries
-----------------------------
A & M Products Inc.