EXHIBIT 4.1
MASTEC, INC.
$200,000,000
7-3/4% Senior Subordinated Notes due 2008
Purchase Agreement
January 30, 1998
JEFFERIES & COMPANY, INC.
BANCBOSTON SECURITIES INC.
CIBC OPPENHEIMER CORP.
NATIONSBANC MONTGOMERY SECURITIES LLC
$200,000,000
MASTEC, INC.
7-3/4% Senior Subordinated Notes due 2008
PURCHASE AGREEMENT
January 30, 1998
Jefferies & Company, Inc.
BancBoston Securities Inc.
CIBC Oppenheimer Corp.
NationsBanc Montgomery Securities LLC
c/o Jefferies & Company, Inc.
11100 Santa Monica Boulevard
Los Angeles, CA 90025
Ladies and Gentlemen:
MasTec, Inc., a Delaware corporation (the "COMPANY"), proposes
to issue and sell to Jefferies & Company, Inc., BancBoston Securities Inc., CIBC
Oppenheimer Corp. and NationsBanc Montgomery Securities LLC (each, an "INITIAL
PURCHASER" and, collectively, the "INITIAL PURCHASERS") an aggregate of
$200,000,000 in principal amount of its 7-3/4% Senior Subordinated Notes due
2008 (the "SERIES A NOTES"), subject to the terms and conditions set forth
herein. The Series A Notes are to be issued pursuant to the provisions of an
indenture (the "INDENTURE"), to be dated as of the Closing Date (as defined
below), among the Company and First Trust National Association, as trustee (the
"TRUSTEE"). The Series A Notes and the Series B Notes (as defined below)
issuable in exchange therefor are collectively referred to herein as the
"NOTES." Capitalized terms used but not defined herein shall have the meanings
given to such terms in the Indenture.
1. OFFERING CIRCULAR.
The Series A Notes will be offered and sold to the Initial Purchasers
pursuant to one or more exemptions from the registration requirements under the
Securities Act of 1933, as amended (the "ACT"). The Company has prepared a
preliminary offering circular, dated January 19, 1998 (the "PRELIMINARY OFFERING
CIRCULAR"), and a final offering circular, dated January 30, 1997 (the "OFFERING
CIRCULAR"), relating to the Series A Notes.
Upon original issuance thereof, and until such time as the same is no
longer required pursuant to the Indenture, the Series A Notes (and all
securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY HAS NOT
BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933,
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AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS
SET FORTH BELOW. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
(A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT OR (C) IT IS AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2),
(3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2)
AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS SECURITY
EXCEPT (A) TO THE COMPANY, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR 904 OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO
THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF
ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND
"UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF
THIS NOTE IN VIOLATION OF THE FOREGOING."
2. AGREEMENTS TO SELL AND PURCHASE.
On the basis of the representations, warranties and covenants contained in
this Agreement, and subject to the terms and conditions contained herein, the
Company agrees to issue and sell to the Initial Purchasers, and the Initial
Purchasers agree, severally and not jointly, to
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purchase from the Company, the principal amount of Series A Notes set forth
opposite the name of such Initial Purchaser on Schedule B hereto at a purchase
price equal to 97.336% of the principal amount thereof (the "PURCHASE PRICE").
3. TERMS OF OFFERING.
The Initial Purchasers have advised the Company that the Initial Purchasers
will make offers (the "EXEMPT RESALES") of the Series A Notes purchased
hereunder on the terms set forth in the Offering Circular, as amended or
supplemented, solely to (i) persons whom the Initial Purchasers reasonably
believe to be "qualified institutional buyers" as defined in Rule 144A under the
Act ("QIBS"), (ii) to a limited number of other institutional "accredited
investors," as defined in Rule 501(a) (1), (2), (3) or (7) under the Act, that
make certain representations and agreements to the Company (each, an "ACCREDITED
INSTITUTION"), and (iii) to persons permitted to purchase the Series A Notes in
offshore transactions in reliance upon Regulation S under the Act (each, a
"REGULATION S PURCHASER") (such persons specified in clauses (i), (ii) and (iii)
being referred to herein as the "ELIGIBLE PURCHASERS"). The Initial Purchasers
will offer the Series A Notes to Eligible Purchasers initially at a price equal
to 100% of the principal amount thereof. Such price may be changed at any time
without notice.
Holders (including subsequent transferees) of the Series A Notes will have
the registration rights set forth in the registration rights agreement (the
"REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Series A Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Securities and Exchange Commission (the "COMMISSION")
under the circumstances set forth therein, (i) a registration statement under
the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to the Company's
7-3/4% Series B Senior Subordinated Notes due 2008 (the "SERIES B NOTES"), to be
offered in exchange for the Series A Notes (such offer to exchange being
referred to as the "EXCHANGE OFFER") and (ii) under certain circumstances, a
shelf registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Series A Notes and to use its best efforts to cause such
Registration Statements to be declared and remain effective and usable for the
periods specified in the Registration Rights Agreement and to consummate the
Exchange Offer. This Agreement, the Indenture, the Notes and the Registration
Rights Agreement are hereinafter sometimes referred to collectively as the
"OPERATIVE DOCUMENTS."
4. DELIVERY AND PAYMENT.
a. Delivery of, and payment of the Purchase Price for, the Series A
Notes shall be made at the offices of Latham & Watkins, 885 Third Avenue New
York, New York or such other location as may be mutually acceptable. Such
delivery and payment shall be made at 9:00 a.m., New York City time, on February
4, 1998, or at such other time as shall be agreed upon by the Initial Purchasers
and the Company. The time and date of such delivery and the payment are herein
called the "CLOSING DATE."
b. One or more of the Series A Notes in definitive global form,
registered in the name of Cede & Co., as nominee of the Depository Trust Company
("DTC"),
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having an aggregate principal amount corresponding to the aggregate principal
amount of the Series A Notes (collectively, the "GLOBAL NOTE"), shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct) in each case with any transfer taxes thereon duly paid by the Company
against payment by the Initial Purchasers of the Purchase Price thereof by wire
transfer in same day funds to the order of the Company. The Global Note shall be
made available to the Initial Purchasers for inspection not later than 9:30
a.m., New York City time, on the business day immediately preceding the Closing
Date.
5. AGREEMENTS OF THE COMPANY.
The Company hereby agrees with the Initial Purchasers as follows:
a. To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, confirm such advice in writing, (i) of the issuance by
any state securities commission of any stop order suspending the qualification
or exemption from qualification of any Series A Notes for offering or sale in
any jurisdiction designated by the Initial Purchasers pursuant to Section 5(e)
hereof, or the initiation of any proceeding by any state securities commission
or any other federal or state regulatory authority for such purpose and (ii) of
the happening of any event during the period referred to in Section 5(c) below
that makes any statement of a material fact made in the Preliminary Offering
Circular or the Offering Circular untrue or that requires any additions to or
changes in the Preliminary Offering Circular or the Offering Circular in order
to make the statements therein not misleading in light of the circumstances
under which such statements were made. The Company shall use its reasonable best
efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of any Series A Notes under any state securities or
Blue Sky laws and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order suspending the
qualification or exemption of any Series A Notes under any state securities or
Blue Sky laws, the Company shall use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
b. To furnish the Initial Purchasers and those persons identified by
the Initial Purchasers to the Company as many copies of the Preliminary Offering
Circular and the Offering Circular, and any amendments or supplements thereto,
as the Initial Purchasers may reasonably request for the time period specified
in Section 5(c). Subject to the Initial Purchasers compliance with their
representations and warranties and agreements set forth in Section 7 hereof, the
Company consents to the use of the Preliminary Offering Circular and the
Offering Circular, and any amendments and supplements thereto required pursuant
hereto, by the Initial Purchasers in connection with Exempt Resales.
c. During such period as in the opinion of counsel for the Initial
Purchasers an Offering Circular is required by law to be delivered in connection
with Exempt Resales by the Initial Purchasers, (i) not to make any amendment or
supplement to the Offering Circular of which the Initial Purchasers shall not
previously have been advised or to which the Initial Purchasers shall reasonably
object after being so advised and (ii) to prepare promptly upon the Initial
Purchasers reasonable request, any amendment or supplement to the Offering
Circular which may be necessary or advisable in connection with such Exempt
Resales or such market-making activities.
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d. If, during the period referred to in Section 5(c) above, any
event shall occur or condition shall exist as a result of which, in the opinion
of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Circular in order to make the statements therein, in the
light of the circumstances when such Offering Circular is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering Circular
to comply with any applicable law, forthwith to prepare an appropriate amendment
or supplement to such Offering Circular so that the statements therein, as so
amended or supplemented, will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Offering Circular will comply with
applicable law, and to furnish to the Initial Purchasers and such other persons
as the Initial Purchasers may designate such number of copies thereof as the
Initial Purchasers may reasonably request.
e. Prior to the sale of all Series A Notes pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Series A Notes for offer and sale to the Initial Purchasers
and pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue such
registration or qualification in effect so long as required for Exempt Resales
and to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; PROVIDED,
HOWEVER, that the Company shall not be required in connection therewith to
qualify as a foreign corporation in any jurisdiction in which it is not now so
qualified or to take any action that would subject it to general consent to
service of process or taxation other than as to matters and transactions
relating to the Preliminary Offering Circular, the Offering Circular or Exempt
Resales, in any jurisdiction in which it is not now so subject.
f. So long as the Notes are outstanding, to furnish to the Initial
Purchasers, upon request and as soon as practical after they become available,
copies of all reports or other communications furnished by the Company to its
security holders generally or publicly available information filed with the
Commission or any national securities exchange on which any class of securities
of the Company is listed and such other publicly available information
concerning the Company and/or its subsidiaries as the Initial Purchasers may
reasonably request.
g. So long as any of the Series A Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the Act,
during any period in which the Company is not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
available to any holder of Series A Notes in connection with any sale thereof
and any prospective purchaser of such Series A Notes from such holder, the
information ("RULE 144A INFORMATION") required by Rule 144A(d)(4) under the Act.
h. Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the obligations of the Company under
this Agreement, including: (i) the fees, disbursements and expenses of counsel
to the Company and accountants of the Company in connection with the sale and
delivery of the Series A Notes to the Initial Purchasers and pursuant to Exempt
Resales, and all other fees and expenses in connection with the preparation,
printing, filing and distribution of the Preliminary Offering Circular, the
Offering Circular and all amendments and supplements to any of the foregoing
(including financial statements), including the mailing and
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delivering of copies thereof to the Initial Purchasers and persons designated by
them in the quantities specified herein, (ii) all costs and expenses related to
the original issuance and delivery of the Series A Notes to the Initial
Purchasers and pursuant to Exempt Resales, including any transfer or other taxes
payable thereon, (iii) all expenses in connection with the registration or
qualification of the Series A Notes for offer and sale pursuant to Exempt
Resales under the securities or Blue Sky laws of the several states and all
costs of printing or producing any preliminary and supplemental Blue Sky
memoranda in connection therewith (including the filing fees and reasonable fees
and disbursements of counsel for the Initial Purchasers in connection with such
registration or qualification and memoranda relating thereto), (iv) the cost of
printing certificates representing the Series A Notes, (v) all expenses and
listing fees in connection with the application for quotation of the Series A
Notes in the National Association of Securities Dealers, Inc. ("NASD") Automated
Quotation System - PORTAL ("PORTAL"), (vi) the fees and expenses of the Trustee
and the Trustee's counsel in connection with the Indenture and the Notes, (vii)
the costs and charges of any transfer agent, registrar and/or depositary
(including DTC), (viii) any fees charged by rating agencies for the rating of
the Notes and (ix) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration Rights Agreement.
Except as otherwise provided in this Section 5(h) or Section 11 hereof, the
Company shall have no liability to the Initial Purchasers for their costs and
expenses, including the fees and expenses of their counsel.
i. To use its reasonable best efforts to permit the Series A Notes
to be designated as PORTAL market securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the PORTAL market and to
maintain the listing of the Series A Notes on PORTAL for so long as the Series A
Notes are outstanding.
j. To use its reasonable best efforts to obtain the approval of DTC
for "book-entry" transfer of the Notes, and to comply with all of its agreements
set forth in the representation letters of the Company to DTC relating to the
approval of the Notes by DTC for "book-entry" transfer.
k. Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Act) that would be
integrated with the sale of the Series A Notes to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Series A Notes under the Act.
l. Not to voluntarily claim, and to actively resist any attempts to
claim, the benefit of any usury laws against the holders of any Notes.
m. To comply with all of its agreements set forth in the
Registration Rights Agreement.
n. To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Series A Notes.
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6. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. As of the
date hereof, the Company represents and warrants to, and agrees with, the
Initial Purchasers that:
a. The Preliminary Offering Circular and the Offering Circular do
not and will not, as of their respective dates and, in the case of the Offering
Circular, as of the Closing Date, and any supplement or amendment to them will
not, as of their respective dates and as of the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or 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 contained in this paragraph (a) shall not apply
to statements in or omissions from the Preliminary Offering Circular or the
Offering Circular (or any supplement or amendment thereto) based upon
information relating to an Initial Purchaser furnished to the Company in writing
by or on behalf of such Initial Purchaser expressly for use therein. No stop
order preventing the use of the Preliminary Offering Circular or the Offering
Circular, or any amendment or supplement thereto, or any order asserting that
any of the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
b. Each of the Company and its subsidiaries (as defined in Section
6(d) below) has been duly incorporated, is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described in the
Preliminary Offering Circular and the Offering Circular and to own, lease and
operate its properties, and each is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a whole (a
"MATERIAL ADVERSE EFFECT").
c. All outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights.All outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully
paid, nonassessable and not subject to any preemptive or similar rights.
d. The entities listed on Schedule A hereto are the only
"significant subsidiaries", direct or indirect, of the Company, as defined in
Rule 1-02 of the Commission's Regulation S-X (the "subsidiaries"). All of the
outstanding shares of capital stock of each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and non-assessable,
and, except as disclosed in the Offering Circular [or on Schedule A hereto], are
owned by the Company, directly or indirectly through one or more subsidiaries,
free and clear of any security interest, claim, lien or encumbrance (each, a
"LIEN").
e. This Agreement has been duly authorized, executed and delivered
by the Company.This Agreement has been duly authorized, executed and delivered
by the Company.
f. The Indenture has been duly authorized by the Company and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Indenture has been duly executed and delivered by the Company, the Indenture
will be a valid and binding
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agreement of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws affecting
creditors' rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended (the
"TIA" or "TRUST INDENTURE ACT"), and the rules and regulations of the Commission
applicable to an indenture which is qualified thereunder.
g. The Series A Notes have been duly authorized and, on the Closing
Date, will have been validly executed and delivered by the Company. When the
Series A Notes have been issued, executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Series A Notes
will be entitled to the benefits of the Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting creditors'
rights generally and (ii) the availability of equitable remedies may be limited
by equitable principles of general applicability. On the Closing Date, the
Series A Notes will conform as to legal matters to the description thereof
contained in the Offering Circular.
h. On the Closing Date, the Series B Notes will have been duly
authorized by the Company. When the Series B Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Notes will be entitled to the benefits of the Indenture
and will be the valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting creditors' rights generally
and (ii) rights of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability.
i. The Registration Rights Agreement has been duly authorized by the
Company and, on the Closing Date, will have been duly executed and delivered by
the Company. When the Registration Rights Agreement has been duly executed and
delivered, the Registration Rights Agreement will be a valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) the
availability of equitable remedies may be limited by equitable principles of
general applicability. On the Closing Date, the Registration Rights Agreement
will conform as to legal matters to the description thereof in the Offering
Circular.
j. No action has been taken and no law, statute, rule or regulation
or order has been enacted, adopted or issued by any governmental agency or body
which prevents the execution, delivery and performance of any of the Operative
Documents, the issuance of the Series A Notes, or suspends the sale of the
Series A Notes in any jurisdiction referred to in Section 5(e); and no
injunction, restraining order or other order or relief of any nature by a
federal or state court or other tribunal of competent jurisdiction has been
issued with respect to the Company or any of its subsidiaries which would
prevent or suspend the issuance or sale of the Series A Notes in any
jurisdiction referred to in Section 5(e).
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k. Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or in default in the performance of any
obligation, agreement, covenant or condition contained in any indenture, loan
agreement, mortgage, lease or other agreement or instrument, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound, except for such defaults
as would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
l. Assuming the accuracy of the Initial Purchasers' representations,
warranties and agreements set forth in Section 7 hereof, the execution, delivery
and performance of this Agreement and the other Operative Documents by the
Company, compliance by the Company with all provisions hereof and thereof and
the consummation of the transactions contemplated hereby and thereby will not
(i) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as may
be required under the securities or Blue Sky laws of the various states and
except for the filing of the Registration Statements by the Company with the
Commission pursuant to the Registration Rights Agreement), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound, (iii) violate
or conflict with any applicable law or any rule, regulation, judgment, order or
decree of any court or any governmental body or agency having jurisdiction over
the Company, any of its subsidiaries or their respective property, (iv) result
in the imposition or creation of (or the obligation to create or impose) a Lien
under, any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
their respective property is bound, or (v) result in the termination, suspension
or revocation of any Authorization (as defined below) of the Company or any of
its subsidiaries or result in any other impairment of the rights of the holder
of any such Authorization except, in each case, for such conflicts, breaches,
defaults, violations, Liens, terminations, suspensions, revocations or
impairments (other than conflicts with or breaches of the terms and provisions
of, or a default under, the charter or by-laws of the Company or any of its
subsidiaries) which would not reasonably be expected to have a Material Adverse
Effect.
m. Except as disclosed in the Offering Circular, there are no legal
or governmental proceedings pending or, to the knowledge of the Company,
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject, which
would be reasonably expected to result, singly or in the aggregate, in a
Material Adverse Effect.
n. Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS") or any provisions of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
the rules and regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
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o. There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental
Laws or any Authorization, any related constraints on operating activities and
any potential liabilities to third parties) which would, singly or in the
aggregate, have a Material Adverse Effect.
p. The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all patents, patent rights, licenses, inventions,
copyrights, know how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names ("intellectual property") currently
employed by them in connection with the business now operated by them except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, be reasonably be
expected to have a Material Adverse Effect; and neither the Company nor any of
its subsidiaries has received any notice of infringement of or conflict with
asserted rights of others with respect to any of such intellectual property
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
q. The Company and each of its subsidiaries carry insurance
(including self-insurance) against such losses and risks and in such amounts as,
in their reasonable determination, are adequate for the conduct of the
businesses in which they are engaged.
r. Except as disclosed or incorporated by reference in the Offering
Circular, no relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries
on the other hand, which would be required by the Act to be described in the
Offering Circular if the Offering Circular were a prospectus included in a
registration statement on Form S-1 filed with the Commission.
s. Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to, all
governmental or regulatory authorities and self-regulatory organizations and all
courts and other tribunals, including without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, license and operate its
respective properties and to conduct its business, except where the failure to
have any such Authorization or to make any such filing or notice would not,
singly or in the aggregate, be reasonably expected to have a Material Adverse
Effect. Each such Authorization is valid and in full force and effect and each
of the Company and its subsidiaries is in compliance with all the terms and
conditions thereof and with the rules and regulations of the authorities and
governing bodies having jurisdiction with respect thereto; and no event has
occurred (including, without limitation, the receipt of any notice from any
authority or governing body) which allows or, after notice or lapse of time or
both, would allow, revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or both, would result
in any other impairment of the rights of the holder of any such Authorization;
and such Authorizations contain no restrictions that are burdensome to the
Company or any of its subsidiaries; except, in each such case, where such
failure to be valid and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such
10
restriction would not, singly or in the aggregate, be reasonably expected to
have a Material Adverse Effect.
t. None of the Company or any of its subsidiaries or any of their
respective officers, directors, partners, employees, agents or affiliates or any
other person acting on behalf of the Company or any of its subsidiaries, as the
case may be, has, directly or indirectly, given or agreed to give any money,
gift or similar benefit (other than legal price concessions to customers in the
ordinary course of business) to any customer, supplier, employee or agent of a
customer or supplier, official or employee of any governmental agency (domestic
or foreign) or any political party or candidate for office (domestic or foreign)
or other person who was, is or may be in a position to help or hinder the
business of the Company or any of its subsidiaries (or assist the Company or any
of its subsidiaries in connection with any actual or proposed transaction) which
(i) would be reasonably expected to subject the Company or any of its
subsidiaries or any other individual or entity to any damage or penalty in any
civil, criminal or governmental litigation or proceeding (domestic or foreign)
which would have a Material Adverse Effect, (ii) if not given in the past, could
reasonably be expected to have had a Material Adverse Effect on the assets,
business or operations of the Company or any of its subsidiaries or (iii) if not
continued in the future, could reasonably be expected to have a Material Adverse
Effect.
u. Except as disclosed in the Offering Circular, there is no (i)
significant unfair labor practice complaint, grievance or arbitration proceeding
pending or threatened against the Company or any of its subsidiaries before the
National Labor Relations Board or any state or local labor relations board, (ii)
strike, labor dispute, slowdown or stoppage pending or threatened against the
Company or any of its subsidiaries or (iii) union representation question
existing with respect to the employees of the Company or any of its
subsidiaries, except in the case of clauses (i), (ii) and (iii) for such actions
which, singly or in the aggregate, would not have a Material Adverse Effect.
v. The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
w. All tax returns required to be filed by the Company and each of
its subsidiaries in any jurisdiction have been filed, other than those filings
being contested in good faith, and all taxes, including withholding taxes,
penalties and interest, assessments, fees and other charges due pursuant to such
returns or pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good faith and
for which adequate reserves have been provided, except where the failure to file
such tax returns or pay such taxes, penalties, fees and other charges would not
reasonably be expected to have a Material Adverse Effect.
11
x. All indebtedness of the Company that will be repaid with the
proceeds of the issuance and sale of the Series A Notes was incurred, and the
indebtedness represented by the Series A Notes is being incurred, for proper
purposes and in good faith and the Company was, at the time of the incurrence of
such indebtedness that will be repaid with the proceeds of the issuance and sale
of the Series A Notes, and will be on the Closing Date (after giving effect to
the application of the proceeds from the issuance of the Series A Notes)
solvent, and had at the time of the incurrence of such indebtedness that will be
repaid with the proceeds of the issuance and sale of the Series A Notes and will
have on the Closing Date (after giving effect to the application of the proceeds
from the issuance of the Series A Notes) sufficient capital for carrying on its
business and was, at the time of the incurrence of such indebtedness that will
be repaid with the proceeds of the issuance and sale of the Series A Notes, and
will be on the Closing Date (after giving effect to the application of the
proceeds from the issuance of the Series A Notes) able to pay its debts as they
mature.
y. The accountants, Coopers & Lybrand, L.L.P., that have certified
the financial statements included in the Preliminary Offering Circular and the
Offering Circular are independent public accountants with respect to the
Company, as required by the Act and the Exchange Act. The historical financial
statements, together with related notes, set forth and incorporated by reference
in the Preliminary Offering Circular and the Offering Circular comply as to form
in all material respects with the requirements applicable to registration
statements on Form S-1 under the Act.
z. The historical financial statements, together with related notes
forming part of the Offering Circular (and any amendment or supplement thereto),
present fairly, in all material respects, the consolidated financial position,
results of operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Offering Circular at the respective
dates or for the respective periods to which they apply; such statements and
related notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; and the other financial and statistical information
and data of the Company set forth or incorporated by reference in the Offering
Circular (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
aa. The PRO FORMA financial information included in the Preliminary
Offering Circular and the Offering Circular have been prepared on a basis
consistent with the historical financial information of the Company and its
subsidiaries and gives effect to assumptions used in the preparation thereof on
a reasonable basis and in good faith and present fairly, in all material
respects, the historical and proposed transactions contemplated by the
Preliminary Offering Circular and the Offering Circular. The other PRO FORMA
financial and statistical information and data included in the Offering Circular
are, in all material respects, accurately presented and prepared on a basis
consistent with the PRO FORMA financial statements.
bb. The Company is not and, after giving effect to the offering and
sale of the Series A Notes and the application of the net proceeds thereof as
described in the Offering Circular, will not be, an "investment company," as
such term is defined in the Investment Company Act of 1940, as amended.
12
cc. There are no contracts, agreements or understandings between the
Company and any person granting such person the right, by reason of the
execution by the Company of this Agreement or any other Operative Document or
the consummation of the transactions contemplated hereby or thereby, to require
the Company to file a registration statement under the Act with respect to any
securities of the Company or to require the Company to include such securities
with the Notes registered pursuant to any Registration Statement.
dd. Neither the Company nor any of its subsidiaries nor any agent
thereof acting on the behalf of them has taken, and none of them will take, any
action that might cause this Agreement or the issuance or sale of the Series A
Notes to violate Regulation G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part
220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve System.
ee. No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(g)(2) under the Act (i) has
imposed (or has informed the Company that it is considering imposing) any
condition (financial or otherwise) on the Company's retaining any rating
assigned to the Company, any securities of the or (ii) has indicated to the
Company that it is considering (a) the downgrading, suspension, or withdrawal
of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating so assigned or (b) any change in the outlook
for any rating of the Company or any securities of the Company.
ff. Since the respective dates as of which information is given in
the Offering Circular other than as set forth in the Offering Circular
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there has not occurred any material adverse change or any
development involving a prospective material adverse change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and its subsidiaries, taken as a whole and (ii) neither the Company
nor any of its subsidiaries has incurred any liability or obligation, direct or
contingent that is material to the Company and its subsidiaries, taken as a
whole.
gg. Each of the Preliminary Offering Circular and the Offering
Circular, as of its date, contains all the information specified in, and meeting
the requirements of, Rule 144A(d)(4) under the Act.
hh. When the Series A Notes are issued and delivered pursuant to
this Agreement, the Series A Notes will not be of the same class (within the
meaning of Rule 144A under the Act) as any security of the Company that is
listed on a national securities exchange registered under Section 6 of the
Exchange Act or that is quoted in a United States automated inter-dealer
quotation system.
ii. No form of general solicitation or general advertising (as
defined in Regulation D under the Act) was used by the Company or any of its
representatives (other than the Initial Purchasers or their representatives, as
to whom the Company makes no representation) in connection with the offer and
sale of the Series A Notes contemplated hereby, including, but not limited to,
articles, notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees
13
have been invited by any general solicitation or general advertising. No
securities of the same class as the Series A Notes have been issued and sold by
the Company within the six-month period immediately prior to the date hereof.
jj. Assuming the accuracy of the Initial Purchasers'
representations, warranties and agreements set forth in Section 7 hereof, prior
to the effectiveness of any Registration Statement, the Indenture is not
required to be qualified under the TIA.
kk. None of the Company nor any of its respective affiliates or any
person acting on its or their behalf (other than the Initial Purchasers or their
representatives, as to whom the Company makes no representation) has engaged or
will engage in any directed selling efforts within the meaning of Regulation S
under the Act ("REGULATION S") with respect to the Series A Notes.
ll. The Series A Notes offered and sold in reliance on Regulation S
have been and will be offered and sold only in offshore transactions.
mm. The sale of the Series A Notes pursuant to Regulation S is not
part of a plan or scheme to evade the registration provisions of the Act.
nn. The Company and its respective affiliates and all persons acting
on their behalf (other than the Initial Purchasers or their representatives, as
to whom the Company makes no representation) have complied with and will comply
with the offering restriction requirements of Regulation S in connection with
the offering of the Series A Notes outside the United States and, in connection
therewith, the Offering Circular will contain the disclosure required by Rule
902(h).
oo. The Company is a "reporting issuer" as defined in Rule 902 under
the Act.
pp. No registration under the Act of the Series A Notes is required
for the sale of the Series A Notes to the Initial Purchasers as contemplated
hereby or for the Exempt Resales assuming the accuracy of the Initial
Purchasers' representations and warranties and agreements set forth in Section 7
hereof.
qq. Each certificate signed by any officer of the Company and
delivered to the Initial Purchasers or counsel for the Initial Purchasers shall
be deemed to be a representation and warranty by the Company to the Initial
Purchasers as to the matters covered thereby.
The Company acknowledges that the Initial Purchasers and, for purposes of
the opinions to be delivered to the Initial Purchasers pursuant to Section 9
hereof, counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and hereby consents
to such reliance.
7. INITIAL PURCHASERS' REPRESENTATIONS AND WARRANTIES. Each of the
Initial Purchasers, severally and not jointly, represent and warrant to, and
agree with, the Company as follows:
14
a. Such Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Series A Notes.
b. Such Initial Purchaser (i) is not acquiring the Series A Notes
with a view to any distribution thereof or with any present intention of
offering or selling any of the Series A Notes in a transaction that would
violate the Act or the securities laws of any state of the United States or any
other applicable jurisdiction and (ii) will be reoffering and reselling the
Series A Notes only to (A) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A, (B) Accredited
Institutions that execute and deliver a letter containing certain
representations and agreements in the form attached as ANNEX A to the Offering
Circular and (C) in offshore transactions in reliance upon Regulation S under
the Act.
c. Such Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
contemplated hereby, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar medium or
broadcast over television or radio, or any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.
d. Such Initial Purchaser agrees that, in connection with Exempt
Resales, such Initial Purchaser will solicit offers to buy the Series A Notes
only from, and will offer to sell the Series A Notes only to, Eligible
Purchasers. Each Initial Purchaser further agrees that it will offer to sell the
Series A Notes only to, and will solicit offers to buy the Series A Notes only
from (i) Eligible Purchasers that such Initial Purchaser reasonably believes are
QIBs, (ii) Accredited Institutions who make the representations contained in,
and execute and return to such Initial Purchaser, a certificate in the form of
ANNEX A attached to the Offering Circular and (iii) Regulation S Purchasers, in
each case, that agree that (A) the Series A Notes purchased by them may be
resold, pledged or otherwise transferred within the time period referred to
under Rule 144(k) (taking into account the provisions of Rule 144(d) under the
Act, if applicable) under the Act, as in effect on the date of the transfer of
such Series A Notes, only (I) to the Company or any of its subsidiaries, (II) to
a person whom the seller reasonably believes is a QIB purchasing for its own
account or for the account of a QIB in a transaction meeting the requirements of
Rule 144A under the Act, (III) in an offshore transaction (as defined in Rule
902 under the Act) meeting the requirements of Rule 904 of the Act, (IV) in a
transaction meeting the requirements of Rule 144 under the Act, (V) to an
Accredited Institution that, prior to such transfer, furnishes the Trustee a
signed letter containing certain representations and agreements relating to the
registration of transfer of such Series A Note (the form of which is
substantially the same as ANNEX A to the Offering Circular) and, if such
transfer is in respect of an aggregate principal amount of Series A Notes less
than $250,000, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Act, (VI) in accordance with another
exemption from the registration requirements of the Act (and based upon an
opinion of counsel acceptable to the Company) or (VII) pursuant to an effective
registration statement and, in each case, in accordance with the applicable
securities laws of any state of the United States or any other applicable
jurisdiction and (B) they will deliver to each
15
person to whom such Series A Notes or an interest therein is transferred a
notice substantially to the effect of the foregoing.
e. None of such Initial Purchaser or any of its affiliates or any
person acting on its or their behalf has engaged or will engage in any directed
selling efforts within the meaning of Regulation S with respect to the Series A
Notes.
f. The Series A Notes offered and sold by such Initial Purchaser
pursuant hereto in reliance on Regulation S have been and will be offered and
sold only in offshore transactions.
g. The sale of the Series A Notes offered and sold by such Initial
Purchaser pursuant hereto in reliance on Regulation S is not part of a plan or
scheme to evade the registration provisions of the Act.
h. Such Initial Purchaser agrees that it has not offered or sold and
will not offer or sell the Series A Notes in the United States or to, or for the
benefit or account of, a U.S. person (other than a distributor), in each case,
as defined in Rule 902 under the Act (i) as part of its distribution at any time
and (ii) otherwise until 40 days after the later of the commencement of the
offering of the Series A Notes pursuant hereto and the Closing Date, other than
in accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act.
i. Such Initial Purchaser agrees that, at or prior to confirmation
of a sale of Series A Notes by it to any distributor, dealer or person receiving
a selling concession, fee or other remuneration during the 40-day restricted
period referred to in Rule 903(c)(2) under the Act, it will send to such
distributor, dealer or person receiving a selling concession, fee or other
remuneration a confirmation or notice to substantially the following effect:
"The Series A Notes covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered and sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of your
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the Offering and the Closing Date,
except in either case in accordance with Regulation S under the
Securities At (or Rule 144A or to Accredited Institutions in
transactions that are exempt from the registration requirements of
the Securities Act), and in connection with any subsequent sale by
you of the Series A Notes covered hereby in reliance on Regulation S
during the period referred to above to any distributor, dealer or
person receiving a selling concession, fee or other remuneration,
you must deliver a notice to substantially the foregoing effect.
Terms used above have the meanings assigned to them in Regulation
S."
j. Such Initial Purchaser further represents and agrees that (i) it
has not offered or sold and will not offer or sell any Series A Notes to persons
in the United Kingdom prior to the expiration of the period of six months from
the issue date of the Series A Notes, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances
16
which have not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities Regulations
1995, (ii) it has complied and will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it in relation to
the Series A Notes in, from or otherwise involving the United Kingdom and (iii)
it has only issued or passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with the issuance of the
Series A Notes to a person who is of a kind described in Article 11(3) of the
Financial Services Act of 1986 (Investment Advertisements) (Exemptions) Order
1996 or is a person to whom the document may otherwise lawfully be issued or
passed on.
k. Such Initial Purchaser agrees that it will not offer, sell or
deliver any of the Series A Notes in any jurisdiction outside the United States
except under circumstances that will result in compliance with the applicable
laws thereof, and that it will take at its own expense whatever action is
required to permit its purchase and resale of the Series A Notes in such
jurisdictions. Such Initial Purchaser understands that no action has been taken
to permit a public offering in any jurisdiction outside the United States where
action would be required for such purpose.
The Initial Purchasers acknowledge that the Company and, for purposes of
the opinions to be delivered to each Initial Purchaser pursuant to Section 9
hereof, counsel to the Company and counsel to the Initial Purchasers will rely
upon the accuracy and truth of the foregoing representations and the Initial
Purchasers hereby consent to such reliance.
8. INDEMNIFICATION.
a. The Company agrees to indemnify and hold harmless each of the
Initial Purchasers, their directors, officers and each person, if any, who
controls an Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments (including, without limitation, any legal or
other expenses reasonably incurred in connection with investigating or defending
any matter, including any action, that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Offering Circular
(or any amendment or supplement thereto) or the Preliminary Offering Circular or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, except
insofar as such losses, claims, damages, liabilities or judgments are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon information relating to an Initial Purchaser furnished in writing to
the Company by or on behalf of such Initial Purchaser expressly for use in the
Preliminary Offering Circular or the Offering Circular; PROVIDED, HOWEVER, that
the indemnification contained in this paragraph (a) with respect to the
Preliminary Offering Circular shall not inure to the benefit of any Initial
Purchaser (or to the benefit of any person controlling such Initial Purchaser)
on account of any such loss, claim, damage, liability or judgment arising from
the sale of the Notes by such Initial Purchaser to any person if the untrue
statement or alleged untrue statement or omission or alleged omission of
material fact contained in the Preliminary Offering Circular was corrected in
the Offering Circular and the Initial Purchaser sold Notes to that person
without sending or giving at or prior to the written confirmation of such sale,
a copy of the Offering Circular (as then amended or
17
supplemented) if the Company has previously furnished sufficient copies thereof
to the Initial Purchaser on a timely basis to permit such sending or giving.
b. Each of the Initial Purchasers severally and not jointly, agrees
to indemnify and hold harmless the Company, and its respective directors and
officers and each person, if any, who controls (within the meaning of Section 15
of the Act or Section 20 of the Exchange Act) the Company, to the same extent as
the foregoing indemnity from the Company to the Initial Purchasers but only with
respect to information relating to such Initial Purchaser furnished in writing
to the Company by or on behalf of such Initial Purchaser expressly for use in
the Preliminary Offering Circular or the Offering Circular.
c. In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred. Any
indemnified party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses reasonably available to it which are
different from or additional to those available to the indemnifying party (in
which case the indemnifying party shall not have the right to assume the defense
of such action on behalf of the indemnified party). In any such case, the
indemnifying party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Jefferies & Company, Inc., in the case of the parties indemnified pursuant to
Section 8(a), and by the Company, in the case of parties indemnified pursuant to
Section 8(b). The indemnifying party shall indemnify and hold harmless the
indemnified party from and against any and all losses, claims, damages,
liabilities and judgments by reason of any settlement of any action (i) effected
with its written consent or (ii) effected without its written consent if (a) the
settlement is entered into more than thirty business days after the indemnifying
party shall have received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the indemnifying party), (b) such indemnifying party shall
have received notice of the terms of such settlement at least twenty business
days prior to such settlement being entered into and (c) prior to the date of
such settlement, the indemnifying party shall have failed to comply with such
reimbursement request. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
18
indemnified party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the indemnified party.
d. To the extent the indemnification provided for in this Section 8
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Initial Purchasers on the other hand from the
offering of the Series A Notes or (ii) if the allocation provided by clause
8(d)(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Company, on the one hand, and
the Initial Purchasers, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand and the Initial Purchasers, on
the other hand, shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Series A Notes (before deducting expenses)
received by the Company, and the total discounts and commissions received by the
Initial Purchasers bear to the total price to investors of the Series A Notes,
in each case as set forth in the table on the cover page of the Offering
Circular. The relative fault of the Company, on the one hand, and the Initial
Purchasers, on the other hand, 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, on the one hand, or the Initial Purchasers, on the
other hand, and the parties' relative intent, knowledge, 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 Section 8(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 in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action, that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discounts and commissions received by such Initial Purchasers
exceeds the amount of any damages which the Initial Purchasers has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective
19
principal amount of Series A Notes purchased by each of the Initial Purchasers
hereunder and not joint.
e. The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
9. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations of
the Initial Purchasers to purchase the Series A Notes under this Agreement are
subject to the satisfaction of each of the following conditions:
a. All the representations and warranties of the Company contained
in this Agreement shall be true and correct in all material respects on the
Closing Date with the same force and effect as if made on and as of the Closing
Date.
b. On or after the date hereof, (i) there shall not have occurred
any downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal of, or
of any review (or of any potential or intended review) for a possible change
that does not indicate the direction of the possible change in, any rating of
the Company or any securities of the Company (including, without limitation, the
placing of any of the foregoing ratings on credit watch with negative or
developing implications or under review with an uncertain direction) by any
"nationally recognized statistical rating organization" as such term is defined
for purposes of Rule 436(g)(2) under the Act, (ii) there shall not have occurred
any change, nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any securities of the
Company by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Notes than that on which the Notes were marketed.
c. Since the respective dates as of which information is given in
the Offering Circular other than as set forth in the Offering Circular
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole and (ii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in your judgment, is material and adverse and,
in your judgment, makes it impracticable to market the Series A Notes on the
terms and in the manner contemplated in the Offering Circular.
d. The Initial Purchasers shall have received on the Closing Date a
certificate dated the Closing Date, signed by the President and the Chief
Financial Officer of the Company, confirming the matters set forth in Sections
9(a), 9(b) and 9(c) and stating that the Company has complied in all material
respects with all the agreements and satisfied in all material respects all of
the conditions herein contained and required to be complied with or satisfied on
or prior to the Closing Date.
20
e. The Initial Purchasers shall have received on the Closing Date an
opinion (satisfactory to you and counsel for the Initial Purchasers), dated the
Closing Date, of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.,
special counsel for the Company, to the effect that:
(i). each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described
in the Offering Circular and to own, lease and operate its
properties;
(ii). the Series A Senior Notes have been duly authorized and,
when executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be
entitled to the benefits of the Indenture and will be valid and
binding obligations of the Company, enforceable in accordance with
their terms except as (A) the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (B) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of
general applicability;
(iii). the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its
terms except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(iv). this Agreement has been duly authorized, executed and
delivered by the Company;
(v). The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except as (A) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (B) rights of acceleration and the
availability of equitable remedies may be limited by equitable
principles of general applicability;
(vi). the Series B Senior Notes have been duly authorized by
the Company;
(vii). the statements under the captions "Certain Federal
Income Tax Considerations" and "Description of Notes" in the
Offering Circular, insofar as such statements constitute a summary
of the legal matters,
21
documents or proceedings referred to therein, fairly present in all
material respects such legal matters, documents and proceedings;
(viii). assuming the accuracy and fulfillment of the
representations, warranties and agreements of the Company and the
Initial Purchasers in this Agreement, the execution, delivery and
performance of this Agreement and the other Operative Documents by
the Company, the compliance by the Company with all provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except (a) such as may be
required under the securities or Blue Sky laws and regulations of
the various states or such as may be required by NASD, as to which
such counsel need not express any opinion or (b) in the case of the
Registration Rights Agreement, those that will be required under the
Act, the TIA, state securities or Blue Sky laws and regulations or
such as may be required by NASD) or (ii) conflict with or constitute
a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries;
(ix). the Company is not and, after giving effect to the
offering and sale of the Series A Notes and the application of the
net proceeds thereof as described in the Offering Circular, will not
be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(x). assuming the accuracy and fulfillment of the
representations, warranties and agreements of the Company and the
Initial Purchasers in this Agreement, the Indenture complies as to
form in all material respects with the requirements of the TIA, and
the rules and regulations of the Commission applicable to an
indenture which is qualified thereunder; it is not necessary in
connection with the offer, sale and delivery of the Series A Notes
to the Initial Purchasers in the manner contemplated by this
Agreement or in connection with the Exempt Resales to qualify the
Indenture under the TIA;
(xi). no registration under the Act of the Series A Notes is
required for the sale of the Series A Notes to the Initial
Purchasers as contemplated by this Agreement or for the Exempt
Resales assuming that (i) each Initial Purchasers is a QIB, an
Accredited Institution or a Regulation S Purchaser, (ii) the
accuracy of, and compliance with, the Initial Purchasers'
representations and agreements contained in Section 7 of this
Agreement, (iii) the accuracy of the representations of the Company
set forth in Sections 6(ii), (kk), (ll), (mm) and (nn) of this
Agreement and (iv) with respect to Accredited Institutions, the
accuracy of the representations made by each such Accredited
Institution as set forth in the letter of representation executed by
such Accredited Institution in the form of ANNEX A to the Offering
Circular; and
22
(xii). such counsel has no reason to believe that, as of the
date of the Offering Circular or as of the Closing Date, the
Offering Circular, as amended or supplemented, if applicable (except
for the financial statements and other financial, statistical or
accounting data included therein, as to which such counsel need not
express any belief) contains any untrue statement of a material fact
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.
The opinion of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
described in Section 9(e) above shall be rendered to you at the request of the
Company and shall so state therein. In giving such opinion with respect to the
matters covered by Section 9(e)(xii), counsel for the Company may state that
their opinion and belief are based upon their participation in the preparation
of the Offering Circular and any amendments or supplements thereto and review
and discussion of the contents thereof, but are without independent check or
verification except as specified. The opinion of such counsel may be limited to
the laws of the State of Florida, the General Corporation Law of the State of
Delaware and the federal laws of the United States.
f. The Initial Purchasers shall have received on the Closing Date an
opinion (satisfactory to you and counsel for the Initial Purchasers), dated the
Closing Date, of Jose M. Sariego, Esq., Senior Vice President-General Counsel
for the Company, to the effect that:
(i). all of the outstanding shares of capital stock of each of
the Company's subsidiaries have been duly authorized and validly
issued and are fully paid and non-assessable, and, except as
disclosed on Schedule A, are owned by the Company or another
subsidiary of the Company, free and clear of any Lien (other than
Liens to secure Indebtedness disclosed in the Offering Circular);
(ii). each of the Company and its subsidiaries is duly
qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature
of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified
would not reasonably be expected to have a Material Adverse Effect;
(iii). to such counsel's knowledge, neither the Company nor
any of its subsidiaries is in violation of its respective charter or
by-laws and, to the best of such counsel's knowledge after due
inquiry, except as disclosed in the Offering Circular, neither the
Company nor any of its subsidiaries is in default in the performance
of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries,
taken as a whole, to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries or their
respective property is bound;
23
(iv). the execution, delivery and performance of this Agreement
and the other Operative Documents by the Company, the compliance by
the Company with all provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby
will not (i) violate or conflict with any applicable law, rule or
regulation of the United States of America, the State of Florida or
the General Corporation Law of the State of Delaware or, to such
counsel's knowledge, any judgment, order or decree of any federal or
state court located in the State of Florida or Delaware which is
applicable to the Company, any of its subsidiaries or their
respective property or (ii) to such counsel's knowledge, result in
the imposition or creation of (or the obligation to create or
impose) a Lien under, any material agreement or instrument to which
the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or their respective property is
bound.
(v). after due inquiry, other than as disclosed in the Offering
Circular, such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which would reasonably
be expected to result, singly or in the aggregate, in a Material
Adverse Effect;
(vi). the statements under the caption "Description of Certain
Indebtedness" in the Offering Circular, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present in all material respects such
legal matters, documents and proceedings;
(vii). such counsel has no reason to believe that, as of the
date of the Offering Circular or as of the Closing Date, the
Offering Circular, as amended or supplemented, if applicable (except
for the financial statements and other financial, statistical or
accounting data included therein, as to which such counsel need not
express any belief) contains any untrue statement of a material fact
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.
The opinion of Jose M. Sariego, Esq. described in Section 9(f) above shall
be rendered to you at the request of the Company and shall so state therein. In
giving such opinion with respect to the matters covered by Section 9(f)(vii),
Mr. Sariego may state that his opinion and belief are based upon his
participation in the preparation of the Offering Circular and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification except as specified. The opinion of
such counsel may be limited to the laws of the State of Florida, the General
Corporation Law of the State of Delaware and the federal laws of the United
States.
24
g. The Initial Purchasers shall have received on the Closing Date an
opinion, dated the Closing Date, of Latham & Watkins, counsel for the Initial
Purchasers, in form and substance reasonably satisfactory to the Initial
Purchasers.
h. The Initial Purchasers shall have received, at the time this
Agreement is executed and at the Closing Date, letters dated the date hereof or
the Closing Date, as the case may be, in form and substance satisfactory to the
Initial Purchasers from Coopers & Lybrand, L.L.P, independent public
accountants, containing the information and statements of the type ordinarily
included in accountants' "comfort letters" to the Initial Purchasers with
respect to the financial statements and certain financial information contained
in the Offering Circular.
i. The Series A Notes shall have been approved by the NASD for
trading and duly listed in PORTAL.
j. The Company shall have executed the Indenture and the Initial
Purchasers shall have received an original copy thereof, duly executed by the
Company.
k. The Company shall have executed the Registration Rights Agreement
and the Initial Purchasers shall have received an original copy thereof, duly
executed by the Company.
l. The Company shall not have failed at or prior to the Closing Date
to perform or comply in all material respects with any of the agreements herein
contained and required to be performed or complied with by the Company, at or
prior to the Closing Date.
10. EFFECTIVENESS OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by the Initial Purchasers by written notice to the Company if any of the
following has occurred: (i) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in the Initial
Purchasers' judgment, is material and adverse and, in the Initial Purchasers'
judgment, makes it impracticable to market the Series A Notes on the terms and
in the manner contemplated in the Offering Circular, (ii) the suspension or
material limitation of trading in securities or other instruments on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market
or limitation on prices for securities or other instruments on any such exchange
or the Nasdaq National Market, (iii) the suspension of trading of any securities
of the Company on any exchange or in the over-the-counter market, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
opinion has a material adverse effect on the financial markets in the United
States.
25
If on the Closing Date any one or more of the Initial Purchasers shall fail
or refuse to purchase the Series A Notes which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of the Series
A Notes which such defaulting Initial Purchaser or Initial Purchasers, as the
case may be, agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Series A Notes to be purchased on such
date by all Initial Purchasers, each non-defaulting Initial Purchaser shall be
obligated severally, in the proportion which the principal amount of the Series
A Notes set forth opposite its name in Schedule B bears to the aggregate
principal amount of the Series A Notes which all the non-defaulting Initial
Purchaser or Initial Purchasers, as the case may be, agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the aggregate
principal amount of the Series A Notes which any Initial Purchaser has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 10
by an amount in excess of one-ninth of such principal amount of the Series A
Notes without the written consent of such Initial Purchaser. If on the Closing
Date any Initial Purchaser or Initial Purchasers shall fail or refuse to
purchase the Series A Notes and the aggregate principal amount of the Series A
Notes with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of the Series A Notes to be purchased by all Initial
Purchasers and arrangements satisfactory to the Initial Purchasers and the
Company for purchase of such the Series A Notes are not made with 48 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Initial Purchaser and the Company. In any such case which does
not result in termination of this Agreement, either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Offering Circular
or any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Initial Purchaser from liability
in respect of any default of any such Initial Purchaser under this Agreement.
11. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company, to MasTec, Inc.,
3155 N.W. 77th Avenue, Suite 130, Miami Florida, 33122-1205, telephone: (305)
599-1800, Attention Jose M. Sariego, Esq. and Edwin D. Johnson and (ii) if to
the Initial Purchasers, c/o Jefferies & Company, Inc., 11100 Santa Monica
Boulevard, Los Angeles, California 90025, Attention: High Yield Capital Markets,
or in any case to such other address as the person to be notified may have
requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company and the Initial Purchasers set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Series A
Notes, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of the Initial Purchasers, the officers or
directors of the Initial Purchasers, any person controlling the Initial
Purchasers, the Company, the officers or directors of the Company, or any person
controlling the Company, (ii) acceptance of the Series A Notes and payment for
them hereunder and (iii) termination of this Agreement.
If for any reason the Series A Notes are not delivered by or on behalf of
the Company as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10), the Company agrees to reimburse the
Initial Purchasers for all out-of-pocket
26
expenses (including the reasonable fees and disbursements of counsel) incurred
by them. Notwithstanding any termination of this Agreement, the Company shall be
liable for all expenses which it has agreed to pay pursuant to Section 5(h)
hereof.
This Agreement has been and is made solely for the benefit of and shall be
binding upon the Company, the Initial Purchasers, the Initial Purchasers'
directors and officers, any controlling persons referred to herein, the
directors of the Company and their respective successors and assigns, all as and
to the extent provided in this Agreement, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Series A Notes from the
Initial Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
27
Please confirm that the foregoing correctly sets forth the agreement among
the Company and the Initial Purchasers.
Very truly yours,
MASTEC, INC.
By:
Name:
Title:
JEFFERIES & COMPANY, INC.
By:
Name:
Title:
BANCBOSTON SECURITIES INC.
By:_________________________________
Name:
Title:
CIBC OPPENHEIMER CORP.
By:__________________________________
Name:
Title
NATIONSBANC MONTGOMERY SECURITIES LLC
By:___________________________________
Name:
Title
28
SCHEDULE A
SUBSIDIARIES
29
SCHEDULE B
INITIAL PURCHASER PRINCIPAL AMOUNT OF NOTES
----------------- -------------------------
Jefferies & Company, Inc. $ 140,000,000
BancBoston Securities Inc. 20,000,000
CIBC Oppenheimer Corp. 20,000,000
NationsBanc Montgomery Securities LLC 20,000,000
TOTAL $ 150,000,000
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