EXHIBIT 10.1
EXECUTION COPY
X.X. XXXXXX SECURITIES INC.
$ 210,000,000
IMCO RECYCLING INC.
10 3/8% Senior Secured Notes due 2010
Purchase Agreement
October 2, 2003
X.X. Xxxxxx Securities Inc.
As Representative of the
several Initial Purchasers listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
IMCO Recycling Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the several Initial Purchasers listed in Schedule 1 hereto
(the "Initial Purchasers"), for whom you are acting as representative (the
"Representative"), $210,000,000 principal amount of its 10 3/8% Senior Secured
Notes due 2010 (the "Securities"). The Securities will be issued pursuant to an
Indenture to be dated as of October 6, 2003 (the "Indenture") among the Company,
the guarantors listed in Schedule 2 hereto (the "Guarantors") and JPMorgan Chase
Bank, as trustee (the "Trustee"), and will be guaranteed on a senior basis by
each of the Guarantors (the "Guarantees").
The Securities will be sold to the Initial Purchasers without being
registered under the Securities Act of 1933, as amended (the "Securities Act"),
in reliance upon an exemption therefrom. The Company has prepared a preliminary
offering memorandum dated September 19, 2003 (the "Preliminary Offering
Memorandum") and will prepare an offering memorandum dated the date hereof (the
"Offering Memorandum") setting forth information concerning the Company and the
Securities. Copies of the Preliminary Offering Memorandum have been, and copies
of the Offering Memorandum will be, delivered by the Company to the Initial
Purchasers pursuant to the terms of this Purchase Agreement (the "Agreement").
The Company hereby confirms that it has authorized the use of the Preliminary
Offering Memorandum and the
Offering Memorandum in connection with the offering and resale of the Securities
by the Initial Purchasers in the manner contemplated by this Agreement.
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Offering Memorandum. References herein to the Preliminary
Offering Memorandum and the Offering Memorandum shall be deemed to refer to and
include any document incorporated by reference therein.
Holders of the Securities (including the Initial Purchasers and their
direct and indirect transferees) will be entitled to the benefits of a
Registration Rights Agreement, to be dated the Closing Date (as defined below)
and substantially in the form attached hereto as Exhibit A (the "Registration
Rights Agreement"), pursuant to which the Company and the Guarantors will agree
to file one or more registration statements with the Securities and Exchange
Commission (the "Commission") providing for the registration under the
Securities Act of the Securities or the Exchange Securities referred to (and as
defined) in the Registration Rights Agreement.
The Securities and the Guarantees will be secured on a first priority
basis, subject to permitted liens, on the real property, fixtures and equipment
relating to the Company's and Guarantors' wholly-owned domestic operating
plants, on the fixtures and equipment relating to substantially all of the
Company's and Guarantors' leased domestic operating plants and in an
intercompany note (the "Intercompany Note") issued by the Company's German
subsidiary to the Company (the "Collateral") as described in the mortgages,
deeds of trust or deeds to secure debt to be dated the Closing Date
(collectively, the "Mortgages") with respect to each property listed on Schedule
4 hereto, the Security Agreement to be dated the Closing Date (the "Security
Agreement") with respect to each property listed on Schedule 5 hereto, and the
Pledge Agreement to be dated the Closing Date (the "Pledge Agreement" and,
together with the Intercompany Note, the Mortgages and the Security Agreement,
the "Collateral Documents") with respect to the Intercompany Note, each to be
delivered to the Trustee, granting a first-priority security interest in the
Collateral, subject to permitted liens, for the benefit of the Trustee and each
holder of the Securities and the successors and assigns of the foregoing.
The Company hereby confirms its agreement with the several Initial
Purchasers concerning the purchase and resale of the Securities, as follows:
1. Purchase and Resale of the Securities. (a) The Company agrees to
issue and sell the Securities to the several Initial Purchasers as provided in
this Agreement, and each Initial Purchaser, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set
forth herein, agrees, severally and not jointly, to purchase from the Company
the respective principal amount of Securities set forth opposite such Initial
Purchaser's name in Schedule 1 hereto at a price equal to 99.383% of the
principal amount thereof. The Company will not be obligated to deliver any of
the Securities except upon payment for all the Securities to be purchased as
provided herein.
(b) The Company understands that the Initial Purchasers intend to offer
the Securities for resale on the terms set forth in the Offering Memorandum.
Each Initial Purchaser, severally and not jointly, represents, warrants and
agrees that:
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(i) it is a qualified institutional buyer within the meaning of
Rule 144A under the Securities Act (a "QIB") and an accredited investor
within the meaning of Rule 501(a) under the Securities Act;
(ii) it has not solicited offers for, or offered or sold, and will
not solicit offers for, or offer or sell, the Securities by means of
any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D under the Securities Act
("Regulation D") or in any manner involving a public offering within
the meaning of Section 4(2) of the Securities Act; and
(iii) it has not solicited offers for, or offered or sold, and
will not solicit offers for, or offer or sell, the Securities as part
of their initial offering except:
(A) within the United States to persons whom it reasonably
believes to be QIBs in transactions pursuant to Rule 144A under
the Securities Act ("Rule 144A") and in connection with each such
sale, it has taken or will take reasonable steps to ensure that
the purchaser of the Securities is aware that such sale is being
made in reliance on Rule 144A; or
(B) in accordance with the restrictions set forth in Annex A
hereto.
(c) Each Initial Purchaser acknowledges and agrees that the Company
and, for purposes of the opinions to be delivered to the Initial Purchasers
pursuant to Sections 5(f) and 5(g), counsel for the Company and counsel for the
Initial Purchasers, respectively, may rely upon the accuracy of the
representations and warranties of the Initial Purchasers, and compliance by the
Initial Purchasers with their agreements, contained in paragraph (b) above
(including Annex A hereto), and each Initial Purchaser hereby consents to such
reliance.
(d) The Company acknowledges and agrees that the Initial Purchasers may
offer and sell Securities to or through any affiliate of an Initial Purchaser
and that any such affiliate may offer and sell Securities purchased by it to or
through any Initial Purchaser.
2. Payment and Delivery. (a) Payment for and delivery of the Securities
will be made at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP at 10:00 A.M., New
York City time, on October 6, 2003, or at such other time or place on the same
or such other date, not later than the fifth business day thereafter, as the
Representative and the Company may agree upon in writing. The time and date of
such payment and delivery is referred to herein as the "Closing Date".
(b) Payment for the Securities shall be made by wire transfer in
immediately available funds to the account(s) specified by the Company to the
Representative against delivery to the nominee of The Depository Trust Company,
for the account of the Initial Purchasers, of one or more global notes
representing the Securities (collectively, the "Global Note"), with any transfer
taxes payable in connection with the sale of the Securities duly paid by the
Company. The Global Note will be made available for inspection by the
Representative not later than 1:00 P.M., New York City time, on the business day
prior to the Closing Date.
3. Representations and Warranties of the Company and the Guarantors.
The Company and the Guarantors jointly and severally represent and warrant to
each Initial Purchaser that:
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(a) Offering Memorandum. The Preliminary Offering Memorandum, as of its
date, did not, and the Offering Memorandum, as of its date and as of the Closing
Date, will not, contain any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that
the Company and the Guarantors make no representation or warranty with respect
to any statements or omissions made in reliance upon and in conformity with
information relating to any Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through the Representative expressly for use
in the Preliminary Offering Memorandum and the Offering Memorandum.
(b) Incorporated Information. The information incorporated by reference
in the Preliminary Offering Memorandum and the Offering Memorandum when filed
with the Commission conformed in all material respects to the requirements of
the Exchange Act and the rules and regulations of the Commission thereunder as
then in effect, and will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(c) Financial Statements.
(i) The financial statements and the related notes thereto of the
Company and its subsidiaries included in the Preliminary Offering
Memorandum and the Offering Memorandum comply as to form in all
material respects with the accounting requirements of the Securities
Act and the related published rules and regulations applicable to a
registration statement on Form S-1 under the Securities Act (except
that certain supporting schedules are omitted); such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods covered thereby and fairly present the financial condition,
results of operations and cash flows of the entities purported to be
covered thereby as of the dates indicated; the financial information
contained in the Preliminary Offering Memorandum and the Offering
Memorandum under the headings "Summary - Summary consolidated
historical and operating financial data," "Capitalization," "Selected
consolidated financial data" and "Management's discussion and analysis
of financial condition and results of operations" has been derived from
the accounting records of the Company and its subsidiaries and fairly
presents the financial condition, results of operations and cash flows
of the entities purported to be covered thereby as of the dates
indicated; the other historical financial and statistical information
and data included in the Preliminary Offering Memorandum and the
Offering Memorandum has been derived from the accounting records of the
Company and its subsidiaries and fairly presents the information shown
thereby; and the pro forma financial information and the related notes
thereto included in the Preliminary Offering Memorandum and the
Offering Memorandum has been prepared in accordance with the
Commission's rules and guidance with respect to pro forma financial
information, and the assumptions underlying such pro forma financial
information are reasonable and are set forth in the Preliminary
Offering Memorandum and the Offering Memorandum; and
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(ii) The financial statements and the related notes thereto of
VAW-IMCO Xxxx und Recycling GmbH ("VAW-IMCO") included in the
Preliminary Offering Memorandum and the Offering Memorandum comply as
to form in all material respects with the accounting requirements of
the Securities Act and the related published rules and regulations
applicable to a registration statement on Form S-1 under the Securities
Act (except that certain supporting schedules are omitted); such
financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout
the periods covered thereby and fairly present the financial condition,
results of operations and cash flows of the entities purported to be
covered thereby as of the dates indicated.
(d) No Material Adverse Change. Since the date of the most recent
financial statements of the Company included in the Preliminary Offering
Memorandum and the Offering Memorandum, (i) there has not been any change in the
capital stock (except for scheduled issuances of shares of common stock to
directors and grants and exercises of options under the Company's equity plans)
or long-term debt of the Company or any of its subsidiaries, or any dividend or
distribution of any kind declared, set aside for payment, paid or made by the
Company on any class of capital stock, or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
business, properties, management, financial position, results of operations or
prospects of the Company and its subsidiaries taken as a whole, (ii) neither the
Company nor any of its subsidiaries has entered into any transaction or
agreement that is material to the Company and its subsidiaries taken as a whole
or incurred any liability or obligation, direct or contingent, that is material
to the Company and its subsidiaries taken as a whole and (iii) neither the
Company nor any of its 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 disturbance or dispute or
any action, order or decree of any court or arbitrator or governmental or
regulatory authority, except in each case as otherwise disclosed in the
Preliminary Offering Memorandum and the Offering Memorandum.
(e) Organization and Good Standing. The Company and each of its
subsidiaries have been duly organized and are validly existing and in good
standing under the laws of their respective jurisdictions of organization, are
duly qualified to transact business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, and have all
power and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure to be
so qualified or have such power or authority would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
management, financial position, results of operations or prospects of the
Company and its subsidiaries taken as a whole or on the performance by the
Company and the Guarantors of their obligations under the Securities and the
Guarantees (a "Material Adverse Effect"). Other than Solar Aluminum Technology
Services and MABCO Steam Company LLC, the Company does not own or control,
directly or indirectly, any corporation, association or other entity other than
the subsidiaries listed in Schedule 3 to this Agreement.
(f) Capitalization. The Company has an authorized capitalization as set
forth in the Preliminary Offering Memorandum and the Offering Memorandum under
the heading
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"Capitalization" and, except as expressly disclosed in the Offering Memorandum,
all the outstanding shares of capital stock or other equity interests of each
subsidiary of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly by the
Company, free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party.
(g) Due Authorization. The Company and each of its subsidiaries have
full right, power and authority to execute and deliver this Agreement, the
Securities, the Indenture (including each Guarantee set forth therein), the
Collateral Documents, the Exchange Securities and the Registration Rights
Agreement (collectively, the "Transaction Documents") to the extent a party
hereto and thereto and to perform their respective obligations hereunder and
thereunder; and all action required to be taken for the due and proper
authorization, execution and delivery of each of the Transaction Documents and
the consummation of the transactions contemplated hereby and thereby has been
duly and validly taken.
(h) The Indenture. The Indenture has been duly authorized by the
Company and each of the Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and each of the Guarantors
enforceable against the Company and each of the Guarantors in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally or by equitable principles relating to enforceability (collectively,
the "Enforceability Exceptions"); and 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 "Trust Indenture Act"), and the rules and regulations
of the Commission applicable to an indenture that is qualified thereunder.
(i) The Securities and the Guarantees. The Securities have been duly
authorized by the Company and, when duly executed, authenticated, issued and
delivered as provided in the Indenture and paid for as provided herein, will be
duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms, subject to the Enforceability Exceptions, and will be entitled
to the benefits of the Indenture; and the Guarantees have been duly authorized
by each of the Guarantors and, when the Securities have been duly executed,
authenticated, issued and delivered as provided in the Indenture and paid for as
provided herein, will be valid and legally binding obligations of each of the
Guarantors, enforceable against each of the Guarantors in accordance with their
terms, subject to the Enforceability Exceptions, and will be entitled to the
benefits of the Indenture.
(j) The Exchange Securities. On the Closing Date, the Exchange
Securities (including the related guarantees) will have been duly authorized by
the Company and each of the Guarantors and, when duly executed, authenticated,
issued and delivered as contemplated by the Registration Rights Agreement, will
be duly and validly issued and outstanding and will constitute valid and legally
binding obligations of the Company, as issuer, and each of the Guarantors, as
guarantor, enforceable against the Company and each of the Guarantors in
accordance with their terms, subject to the Enforceability Exceptions, and will
be entitled to the benefits of the Indenture.
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(k) Purchase and Registration Rights Agreements. This Agreement has
been duly authorized, executed and delivered by the Company and each of the
Guarantors; and the Registration Rights Agreement has been duly authorized by
the Company and each of the Guarantors and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a
valid and legally binding agreement of the Company and each of the Guarantors
enforceable against the Company and each of the Guarantors in accordance with
its terms, subject to the Enforceability Exceptions, and except that rights to
indemnity and contribution thereunder may be limited by applicable law and
public policy.
(l) The Collateral Documents. The Collateral Documents have been duly
authorized by the Company and each of its subsidiaries to the extent a party
thereto, and, when duly executed and delivered in accordance with their
respective terms, will constitute valid and legally binding agreements or
obligations of the Company and each of its subsidiaries to the extent a party
thereto enforceable against the Company and each of its subsidiaries to the
extent a party thereto in accordance with their respective terms, subject to the
Enforceability Exceptions, and except that rights to indemnity and contribution
thereunder may be limited by applicable law and public policy.
(m) Descriptions of the Transaction Documents. Each Transaction
Document conforms in all material respects to the description thereof contained
in the Preliminary Offering Memorandum and the Offering Memorandum.
(n) Collateral Documents, Financing Statements and Collateral.
(i) The Mortgages will be effective to grant a legal, valid and
enforceable mortgage lien on all of the mortgagor's right, title and
interest in the real property listed on Schedule 4 hereto (the
"Mortgaged Properties"). All of the other real property owned by the
Company or any of the Guarantors are properties held for sale and are
comprised of the properties located at East Chicago, Indiana;
Zilwaukee, Michigan; and Sikeston, Missouri. When the Mortgages are
duly recorded in the proper recorders' offices or appropriate public
records and the mortgage recording fees and taxes in respect thereof
are paid and compliance is otherwise had with the formal requirements
of state law applicable to the recording of real estate mortgages
generally, each such Mortgage shall constitute a validly perfected and
enforceable first priority lien and security interest in the related
Mortgaged Property, for the benefit of the Trustee and the holders of
the Securities, subject only to the encumbrances and exceptions to
title expressly permitted in the Mortgages (including those liens
expressly permitted to be incurred or exist on the Collateral pursuant
to the Indenture) or expressly set forth in the title insurance
policies obtained with respect to each of the Mortgaged Properties
(such encumbrances and exceptions, the "Permitted Exceptions"), and to
the Enforceability Exceptions.
(ii) The Security Agreement will be effective to grant a legal,
valid and enforceable security interest on all of the grantor's right,
title and interest in the fixtures and equipment located at the leased
property listed on Schedule 5 hereto.
(iii) Upon filing of financing statements or Mortgages, as
applicable, with respect to the equipment and fixtures described in the
Mortgages and the Security Agreement (the "Personal Property
Collateral"), the security interests granted thereby
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will constitute valid, perfected first priority liens and security
interests on such Personal Property Collateral described therein for
the benefit of the Trustee and the holders of the Securities,
enforceable in accordance with the terms contained therein against all
creditors of any grantor or mortgagor and subject only to liens
expressly permitted to be incurred or exist on the Personal Property
Collateral under the Indenture.
(iv) The Company and its subsidiaries collectively own, have
rights in or have the power and authority to transfer rights in the
Collateral, free and clear of any liens other than the Permitted
Exceptions.
(v) Upon the taking of possession by the Trustee of the
Intercompany Note, together with the related endorsement executed in
blank by a duly authorized officer of the pledgor thereof, the security
interest in the Intercompany Note granted pursuant to the Pledge
Agreement will constitute a valid, perfected first priority lien and
security interest on the Intercompany Note for the benefit of the
Trustee and the holders of the Securities, enforceable in accordance
with the terms of the Pledge Agreement against all creditors of the
Company.
(o) Amendments to the Existing Loan Agreements. Each of the Amendments
(as defined in Section 5(n) hereof) has been, or as of the Closing Date will be,
duly authorized by the Company and each of its subsidiaries to the extent a
party thereto, and, when duly executed and delivered in accordance with their
respective terms, will constitute valid and legally binding agreements of the
Company and each of its subsidiaries to the extent a party thereto enforceable
against the Company and each of its subsidiaries to the extent a party thereto
in accordance with their respective terms, subject to the Enforceability
Exceptions, and except that rights to indemnity and contribution thereunder may
be limited by applicable law and public policy.
(p) No Violation or Default. Neither the Company nor any of its
subsidiaries is (i) in violation of its charter or by-laws or similar
organizational documents; (ii) in default, and no event has occurred that, with
notice or lapse of time or both, would constitute such a default, in the due
performance or observance of any term, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement 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 is bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject; or
(iii) in violation of any law or statute or any judgment, order, rule or
regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or
violation that would not, individually or in the aggregate, have a Material
Adverse Effect.
(q) No Conflicts. The execution, delivery and performance by the
Company and each of its subsidiaries of each of the Transaction Documents to
which each is a party (including the filing of any applicable financing
statements pursuant to the Mortgages, the Security Agreement or the Pledge
Agreement), the issuance and sale of the Securities (including the Guarantees),
the grant and perfection of security interests in the Collateral pursuant to the
Mortgages, the Security Agreement and the Pledge Agreement and compliance by the
Company and each of its subsidiaries with the terms thereof and the consummation
of the transactions contemplated by the Transaction Documents will not (i)
conflict with or result in a breach or violation of any of
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the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any indenture,
mortgage, deed of trust, loan agreement 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 is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, (ii) result in any violation
of the provisions of the charter or by-laws or similar organizational documents
of the Company or any of its subsidiaries or (iii) result in the violation of
any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority, except, in the case of
clauses (i) and (iii) above, for any such conflict, breach or violation that
would not, individually or in the aggregate, have a Material Adverse Effect.
(r) No Consents Required. No consent, approval, authorization, order,
registration or qualification of or with any court or arbitrator or governmental
or regulatory authority is required for the execution, delivery and performance
by the Company and each of its subsidiaries of each of the Transaction Documents
to which each is a party (including the filing of any applicable financing
statements pursuant to the Mortgages, the Security Agreement and the Pledge
Agreement), the issuance and sale of the Securities (including the Guarantees),
the grant and perfection of security interests in the Collateral pursuant to the
provisions of the Mortgages, the Security Agreement and the Pledge Agreement and
compliance by the Company and each of its subsidiaries with the terms thereof
and the consummation of the transactions contemplated by the Transaction
Documents, except for such consents, approvals, authorizations, orders and
registrations or qualifications as may be required (i) to perfect the Trustee's
security interests granted pursuant to the Mortgages, the Security Agreement,
the Pledge Agreement or financing statements, (ii) to release existing liens,
(iii) under applicable state securities laws in connection with the purchase and
resale of the Securities by the Initial Purchasers and (iv) with respect to the
Exchange Securities (including the related guarantees) under the Securities Act
and applicable state securities laws as contemplated by the Registration Rights
Agreement.
(s) Legal Proceedings. Except as described in the Preliminary Offering
Memorandum and the Offering Memorandum, there are no legal, governmental or
regulatory investigations, actions, suits or proceedings pending to which the
Company or any of its subsidiaries is or may be a party or to which any property
of the Company or any of its subsidiaries is or may be the subject that,
individually or in the aggregate, if determined adversely to the Company or any
of its subsidiaries, could reasonably be expected to have a Material Adverse
Effect; and no such investigations, actions, suits or proceedings are threatened
or, to the best knowledge of the Company and each of the Guarantors,
contemplated by any governmental or regulatory authority or threatened by
others.
(t) Independent Accountants.
(i) Ernst & Young LLP ("Ernst & Young"), who have certified
certain financial statements of the Company and its subsidiaries are
independent public accountants with respect to the Company and its
subsidiaries within the meaning of Rule 101 of the Code of Professional
Conduct of the American Institute of Certified Public Accountants and
its interpretations and rulings thereunder.
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(ii) Ernst & Young AG Wirtschaftsprufungsgesellschaft ("Ernst &
Young Germany"), who have certified certain financial statements of
VAW-IMCO are independent public accountants with respect to VAW-IMCO
within the meaning of Rule 101 of the Code of Professional Conduct of
the American Institute of Certified Public Accountants and its
interpretations and rulings thereunder.
(iii) Xxxxxx Xxxxxxxx Wirtschaftsprufungsgesellschaft
Stuerberatungsgesellschaft mbH ("Xxxxxx Xxxxxxxx"), who have certified
certain financial statements of VAW-IMCO were independent public
accountants with respect to VAW-IMCO when serving as VAW-IMCO's
independent auditor, within the meaning of Rule 101 of the Code of
Professional Conduct of the American Institute of Certified Public
Accountants and its interpretations and rulings thereunder.
(u) Title to Real and Personal Property. The Company and its
subsidiaries have good and marketable title in fee simple to, or have valid
rights to lease or otherwise use all items of real and personal property that
are described or referred to in the Mortgages and all other real or personal
property that are material to the respective businesses of the Company and its
subsidiaries, in each case free and clear of all liens, encumbrances, claims and
defects and imperfections of title except with respect to the Mortgaged
Properties, other than Permitted Exceptions and except with respect to all other
real and personal property those that (i) do not materially interfere with the
use made and proposed to be made of such property by the Company and its
subsidiaries or (ii) could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
(v) Title to Intellectual Property. The Company and its subsidiaries
own or possess adequate rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses and know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses;
and the conduct of their respective businesses will not conflict in any material
respect with any such rights of others, and the Company and its subsidiaries
have not received any notice of any claim of infringement of or conflict with
any such rights of others.
(w) Investment Company Act. Neither the Company nor any of its
subsidiaries is, and after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the
Offering Memorandum none of them will be, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, "Investment Company Act").
(x) Taxes. The Company and its subsidiaries have paid all federal,
state, local and foreign taxes and filed all tax returns required to be paid or
filed through the date hereof; and except as otherwise disclosed in the
Preliminary Offering Memorandum and the Offering Memorandum, there is no tax
deficiency that has been, or could reasonably be expected to be, asserted
against the Company or any of its subsidiaries or any of their respective
properties or assets.
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(y) Licenses and Permits. The Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by, and have
made all declarations and filings with, the appropriate federal, state, local or
foreign governmental or regulatory authorities that are necessary for the
ownership or lease of their respective properties or the conduct of their
respective businesses as described in the Preliminary Offering Memorandum and
the Offering Memorandum, except where the failure to possess or make the same
would not, individually or in the aggregate, have a Material Adverse Effect; and
except as described in the Preliminary Offering Memorandum and the Offering
Memorandum, neither the Company nor any of its subsidiaries has received notice
of any revocation or modification of any such license, certificate, permit or
authorization or has any reason to believe that any such license, certificate,
permit or authorization will not be renewed in the ordinary course.
(z) No Labor Disputes. No labor disturbance by or dispute with
employees of the Company or any of its subsidiaries exists or, to the best
knowledge of the Company and each of the Guarantors, is contemplated or
threatened, except for any such disturbance or dispute which would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(aa) Compliance With Environmental Laws. The Company and its
subsidiaries (i) are in compliance with any and all applicable federal, state,
local and foreign laws, rules, regulations, decisions and orders relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (collectively, "Environmental
Laws"), (ii) have received and are in compliance with all permits, licenses or
other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) except as expressly disclosed in the
Offering Memorandum, have not received notice of any actual or potential
liability for the investigation or remediation of any disposal or release of
hazardous or toxic substances or wastes, pollutants or contaminants, except in
any such case for any such failure to comply with, or failure to receive
required permits, licenses or approvals, or liability, as would not,
individually or in the aggregate, have a Material Adverse Effect.
(bb) Compliance With ERISA. Each employee benefit plan, within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), that is maintained, administered or contributed to by the
Company or any of its affiliates for employees or former employees of the
Company and its affiliates has been maintained in compliance with its terms and
the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as
amended (the "Code"); no prohibited transaction, within the meaning of Section
406 of ERISA or Section 4975 of the Code, has occurred with respect to any such
plan excluding transactions effected pursuant to a statutory or administrative
exemption; and for each such plan that is subject to the funding rules of
Section 412 of the Code or Section 302 of ERISA, no "accumulated funding
deficiency" as defined in Section 412 of the Code has been incurred, whether or
not waived, and the fair market value of the assets of each such plan (excluding
for these purposes accrued but unpaid contributions) exceeds the present value
of all benefits accrued under such plan determined using reasonable actuarial
assumptions.
11
(cc) Accounting Controls. The Company and its subsidiaries maintain
systems 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; Ernst & Young and the audit committee
of the Company's board of directors have been advised of (x) all significant
deficiencies in the design or operation of internal accounting controls which
could adversely affect the Company's ability to record, process, summarize and
report financial data and (y) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company's
internal accounting controls; the Company has identified for Ernst & Young any
material weaknesses in internal accounting controls; and since the date of the
most recent evaluation of the Company's disclosure controls and procedures,
there have been no significant changes in internal accounting controls or in
other factors that could significantly affect internal accounting controls,
including any corrective actions with regard to significant deficiencies and
material weaknesses.
(dd) Insurance. The Company and its subsidiaries have insurance
covering their respective properties, operations, personnel and businesses,
including business interruption insurance, which insurance is in amounts and
insures against such losses and risks as are adequate to protect the Company and
its subsidiaries and their respective businesses and are ordinary and customary
for comparable companies in the same or similar businesses; and neither the
Company nor any of its subsidiaries has (i) received notice from any insurer or
agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance or (ii) any
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage at
reasonable cost from similar insurers as may be necessary to continue its
business.
(ee) No Unlawful Payments. Neither the Company nor any of its
subsidiaries nor, to the best knowledge of the Company and each of the
Guarantors, any director, officer, agent, employee or other person associated
with or acting on behalf of the Company or any of its subsidiaries has (i) used
any corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity, (ii) made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds, (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977 or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(ff) Solvency. On and immediately after the Closing Date, the Company
(after giving effect to the issuance of the Securities and the other
transactions related thereto as described in the Offering Memorandum) will be
Solvent. As used in this paragraph, the term "Solvent" means, with respect to a
particular date, that on such date (i) the present fair market value (or present
fair saleable value) of the assets of the Company is not less than the total
amount required to pay the liabilities of the Company on its total existing
debts and liabilities (including contingent liabilities) as they become absolute
and matured; (ii) the Company is able to realize upon its assets and pay its
debts and other liabilities, contingent obligations and commitments as
12
they mature and become due in the normal course of business; (iii) assuming
consummation of the issuance of the Securities as contemplated by this Agreement
and the Offering Memorandum, the Company is not incurring debts or liabilities
beyond its ability to pay as such debts and liabilities mature; (iv) the Company
is not engaged in any business or transaction, and does not propose to engage in
any business or transaction, for which its property would constitute
unreasonably small capital after giving due consideration to the prevailing
practice in the industry in which the Company is engaged; and (v) the Company is
not a defendant in any civil action that would result in a judgment that the
Company is or would become unable to satisfy.
(gg) Xxxxxxxx-Xxxxx Act. The Company has complied with the effective
provisions of the Xxxxxxxx-Xxxxx Act of 2002 applicable to it as of the date
hereof, and, to the best of the Company's knowledge, the Company's directors and
officers, in their capacities as such, have complied with the effective
provisions of the Xxxxxxxx-Xxxxx Act of 2002 applicable to them as of the date
hereof (except for certain late filings of reports under Section 16(a) of the
Exchange Act).
(hh) No Restrictions on Subsidiaries. As of the Closing Date, no
subsidiary of the Company will be prohibited, directly or indirectly, under any
agreement or other instrument to which it is a party or is subject, other than
under the Indenture and the Intercompany Note, from paying any dividends to the
Company, from making any other distribution on such subsidiary's capital stock,
from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary's properties or assets to
the Company or any other subsidiary of the Company.
(ii) No Broker's Fees. Neither the Company nor any of its subsidiaries
is a party to any contract, agreement or understanding with any person (other
than this Agreement) that would give rise to a valid claim against any of them
or any Initial Purchaser for a brokerage commission, finder's fee or like
payment in connection with the offering and sale of the Securities.
(jj) Rule 144A Eligibility. On the Closing Date, the Securities will
not be of the same class as securities listed on a national securities exchange
registered under Section 6 of the Exchange Act or quoted in an automated
inter-dealer quotation system; and each of the Preliminary Offering Memorandum
and the Offering Memorandum, as of its respective date, contains or will contain
all the information that, if requested by a prospective purchaser of the
Securities, would be required to be provided to such prospective purchaser
pursuant to Rule 144A(d)(4) under the Securities Act.
(kk) No Integration. Neither the Company nor any of its affiliates (as
defined in Rule 501(b) of Regulation D) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(ll) No General Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no representation is
made) has (i) solicited offers for, or offered or sold, the Securities
13
by means of any form of general solicitation or general advertising within the
meaning of Rule 502(c) of Regulation D or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act or (ii)
engaged in any directed selling efforts within the meaning of Regulation S under
the Securities Act ("Regulation S"), and all such persons have complied with the
offering restrictions requirement of Regulation S.
(mm) Securities Law Exemptions. Assuming the accuracy of the
representations and warranties of the Initial Purchasers contained in Section
1(b) (including Annex A hereto) and their compliance with their agreements set
forth therein, it is not necessary, in connection with the issuance and sale of
the Securities to the Initial Purchasers and the offer, resale and delivery of
the Securities by the Initial Purchasers in the manner contemplated by this
Agreement and the Offering Memorandum, to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture Act.
(nn) No Stabilization. Neither the Company nor any of the Guarantors
has taken, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Securities.
(oo) Margin Rules. Neither the issuance, sale and delivery of the
Securities nor the application of the proceeds thereof by the Company as
described in the Offering Memorandum will violate Regulation T, U or X of the
Board of Governors of the Federal Reserve System or any other regulation of such
Board of Governors.
(pp) Forward-Looking Statements. No forward-looking statement (within
the meaning of Section 27A of the Securities Act and Section 21E of the Exchange
Act) contained in the Preliminary Offering Memorandum and the Offering
Memorandum has been made or reaffirmed without a reasonable basis or has been
disclosed other than in good faith.
(qq) Statistical and Market Data. Nothing has come to the attention of
the Company that has caused the Company to believe that the statistical and
market-related data included or incorporated by reference in the Preliminary
Offering Memorandum and the Offering Memorandum is not based on or derived from
sources that are reliable and accurate in all material respects.
4. Further Agreements of the Company and the Guarantors. The Company
and each of the Guarantors jointly and severally covenant and agree with each
Initial Purchaser that:
(a) Delivery of Copies. The Company will deliver to the Initial
Purchasers as many copies of the Preliminary Offering Memorandum and the
Offering Memorandum (including all amendments and supplements thereto) as the
Representative may reasonably request.
(b) Amendments or Supplements. Before making or distributing any
amendment or supplement to the Preliminary Offering Memorandum or the Offering
Memorandum or filing with the Commission any document that will be incorporated
by reference therein, the Company will furnish to the Representative and counsel
for the Initial Purchasers a copy of the proposed amendment or supplement or
document to be incorporated by reference therein for review, and will not
distribute any such proposed amendment or supplement or file any such document
with the Commission to which the Representative reasonably objects.
14
(c) Notice to the Representative. The Company will advise the
Representative promptly, and confirm such advice in writing, (i) of the issuance
by any governmental or regulatory authority of any order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or the initiation or threatening of any proceeding for that purpose,
(ii) of the occurrence of any event at any time prior to the completion of the
initial offering of the Securities as a result of which the Offering Memorandum
as then amended or supplemented would include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances existing when the Offering Memorandum
is delivered to a purchaser, not misleading and (iii) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the
Securities for offer and sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and the Company will use its
reasonable best efforts to prevent the issuance of any such order preventing or
suspending the use of the Preliminary Offering Memorandum or the Offering
Memorandum or suspending any such qualification of the Securities and, if any
such order is issued, will obtain as soon as possible the withdrawal thereof.
(d) Ongoing Compliance of the Offering Memorandum. If at any time prior
to the completion of the initial offering of the Securities (i) any event shall
occur or condition shall exist as a result of which the Offering Memorandum as
then amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, not misleading or (ii) it is necessary
to amend or supplement the Offering Memorandum to comply with law, the Company
will immediately notify the Initial Purchasers thereof and forthwith prepare
and, subject to paragraph (b) above, furnish to the Initial Purchasers such
amendments or supplements to the Offering Memorandum (or any document to be
filed with the Commission and incorporated by reference therein) as may be
necessary so that the statements in the Offering Memorandum as so amended or
supplemented (or including such document to be incorporated by reference
therein) will not, in the light of the circumstances existing when the Offering
Memorandum is delivered to a purchaser, be misleading or so that the Offering
Memorandum will comply with law.
(e) Blue Sky Compliance. The Company will qualify the Securities for
offer and sale under the securities or Blue Sky laws of such jurisdictions as
the Representative shall reasonably request and will continue such
qualifications in effect so long as required for the offering and resale of the
Securities; provided that neither the Company nor any of the Guarantors shall be
required to (i) qualify as a foreign corporation or other entity or as a dealer
in securities in any such jurisdiction where it would not otherwise be required
to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it
is not otherwise so subject.
(f) Clear Market. During the period from the date hereof through and
including the date that is 90 days after the date hereof, the Company and each
of the Guarantors will not, without the prior written consent of the
Representative, offer, sell, contract to sell or otherwise dispose of any debt
securities issued or guaranteed by the Company or any of the Guarantors and
having a tenor of more than one year.
15
(g) Use of Proceeds. The Company will apply the net proceeds from the
sale of the Securities as described in the Offering Memorandum under the heading
"Use of Proceeds". The Company shall deposit $27,376,000 into the Collateral
Account at Closing pursuant to the terms of the Indenture.
(h) Supplying Information. While the Securities remain outstanding and
are "restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, the Company and each of the Guarantors will, during any period
in which the Company is not subject to and in compliance with Section 13 or
15(d) of the Exchange Act, furnish to holders of the Securities and prospective
purchasers of the Securities designated by such holders, upon the request of
such holders or such prospective purchasers, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(i) PORTAL and DTC. The Company will assist the Initial Purchasers in
arranging for the Securities to be designated Private Offerings, Resales and
Trading through Automated Linkages ("PORTAL") Market securities in accordance
with the rules and regulations adopted by the National Association of Securities
Dealers, Inc. ("NASD") relating to trading in the PORTAL Market and for the
Securities to be eligible for clearance and settlement through The Depository
Trust Company ("DTC").
(j) No Resales by the Company. Until the issuance of the Exchange
Securities, the Company will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to, resell any of the Securities
that have been acquired by any of them, except for Securities purchased by the
Company or any of its affiliates and resold in a transaction registered under
the Securities Act.
(k) No Integration. Neither the Company nor any of its affiliates (as
defined in Rule 501(b) of Regulation D) will, directly or through any agent,
sell, offer for sale, solicit offers to buy or otherwise negotiate in respect
of, any security (as defined in the Securities Act), that is or will be
integrated with the sale of the Securities in a manner that would require
registration of the Securities under the Securities Act.
(l) No General Solicitation or Directed Selling Efforts. None of the
Company or any of its affiliates or any other person acting on its or their
behalf (other than the Initial Purchasers, as to which no covenant is given)
will (i) solicit offers for, or offer or sell, the Securities by means of any
form of general solicitation or general advertising within the meaning of Rule
502(c) of Regulation D or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act or (ii) engage in any directed
selling efforts within the meaning of Regulation S, and all such persons will
comply with the offering restrictions requirement of Regulation S.
(m) No Stabilization. Neither the Company nor any of the Guarantors
will take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation
of the price of the Securities.
(n) Perfection of Security Interests. The Company and each Guarantor
shall use their reasonable best efforts to complete on or prior to the Closing
Date all filings and other similar
16
actions required in connection with the perfection of security interests as and
to the extent contemplated by the Mortgages.
(o) Post-Closing Documentation. If the Company or such Guarantor has
not obtained (1) mortgagee policies of title insurance in favor of the Trustee,
issued by a nationally-recognized title insurance company, on all of the real
property that will be secured by the Collateral Documents, (2) certified
as-built surveys of the real property covered by the Collateral Documents by
registered surveyors, bearing legal descriptions conforming exactly to those
contained in the title insurance policies referred to above and related matters,
or (3) results of lien searches in each of the jurisdictions where fixtures or
equipment covered by the Collateral Documents are located or where filings
covering such fixtures or equipment may be made, in each case prior to the
Closing Date, the Company and each Guarantor shall use their reasonable best
efforts to obtain such items and deliver such items to the Representative
promptly after the Closing Date and do all acts which may be reasonably
necessary to confirm that the Trustee holds duly created, enforceable and
perfected first priority Liens in the Collateral, subject to Permitted Liens.
5. Conditions of Initial Purchasers' Obligations. The obligation of
each Initial Purchaser to purchase Securities on the Closing Date as provided
herein is subject to the performance by the Company and each of the Guarantors
of their respective covenants and other obligations hereunder and to the
following additional conditions:
(a) Representations and Warranties. The representations and warranties
of the Company and the Guarantors contained herein shall be true and correct on
the date hereof and on and as of the Closing Date; and the statements of the
Company, the Guarantors and their respective officers made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the
Closing Date.
(b) No Downgrade. Subsequent to the execution and delivery of this
Agreement, (i) no downgrading shall have occurred in the rating accorded the
Securities or any other debt securities or preferred stock issued or guaranteed
by the Company or any of the Guarantors by any "nationally recognized
statistical rating organization," as such term is defined by the Commission for
purposes of Rule 436(g)(2) under the Securities Act and (ii) no such
organization shall have publicly announced that it has under surveillance or
review, or has changed its outlook with respect to, its rating of the Securities
or of any other debt securities or preferred stock issued or guaranteed by the
Company or any of the Guarantors (other than an announcement with positive
implications of a possible upgrading).
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, no event or condition of a type described in Section
3(d) hereof shall have occurred or shall exist, which event or condition is not
described in the Offering Memorandum (excluding any amendment or supplement
thereto or any document filed with the Commission after the date hereof and
incorporated by reference therein) and the effect of which in the judgment of
the Representative makes it impracticable or inadvisable to proceed with the
offering, sale or delivery of the Securities on the terms and in the manner
contemplated by this Agreement and the Offering Memorandum.
17
(d) Officer's Certificate. The Representative shall have received on
and as of the Closing Date (1) a certificate of an executive officer of the
Company and of each Guarantor who has specific knowledge of the Company's or
such Guarantor's financial matters and is satisfactory to the Representative (i)
confirming that such officer has carefully reviewed the Offering Memorandum and,
to the best knowledge of such officer, the representation set forth in Section
3(a) hereof is true and correct, (ii) confirming that the other representations
and warranties of the Company and the Guarantors in this Agreement are true and
correct and that the Company and the Guarantors have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Date, (iii) to the effect set
forth in paragraphs (b) and (c) above and (iv) confirming that there are no
ongoing negotiations with respect to any anticipated significant acquisitions,
other than as disclosed in the Preliminary Offering Memorandum or the Offering
Memorandum and (2) on the date of this Agreement, a certificate of an executive
officer of the Company certifying, to the best of such officer's knowledge,
calculation of the borrowing base calculation under the New Credit Agreement (as
defined below) as of September 30, 2003, in form and substance reasonably
satisfactory to the Representative.
(e) Comfort Letters. On the date of this Agreement and on the Closing
Date, Ernst & Young shall have furnished to the Representative, at the request
of the Company, letters, dated the respective dates of delivery thereof and
addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, containing statements and information of the
type customarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Preliminary Offering Memorandum and the Offering Memorandum; provided
that the letter delivered on the Closing Date shall use a "cut-off" date no more
than three business days prior to the Closing Date.
(f) Opinion of Counsel for the Company. Fulbright & Xxxxxxxx L.L.P.,
counsel for the Company, shall have furnished to the Representative, at the
request of the Company, their written opinion, dated the Closing Date and
addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, to the effect set forth in Annex B hereto.
(g) Opinion of General Counsel of the Company. Xxxxx X. Xxxxx, Senior
Vice President and General Counsel of the Company, shall have furnished to the
Representative his written opinion, dated the Closing Date and addressed to the
Initial Purchasers, in form and substance reasonably satisfactory to the
Representative, to the effect set forth in Annex C hereto.
(h) Opinions of Local Counsel to the Company. Local counsel to the
Company in the States of Texas, Idaho, Illinois, Indiana, Kentucky, Michigan,
Ohio, Tennessee and Oklahoma shall have furnished to the Representative, at the
request of the Company, their written opinion, dated the Closing Date and
addressed to the Initial Purchasers, in form and substance reasonably
satisfactory to the Representative, substantially to the effect set forth in the
drafts thereof delivered to counsel to the Representative prior to the date
hereof.
(i) Opinion of German Counsel to the Company. Xxxxxxx &
Xxxxxxx-Xxxxxxxxx, German counsel to VAW-IMCO shall have furnished to the
Representative, at the request of VAW-IMCO, their written opinion, dated the
Closing Date and addressed to the Initial Purchasers, in form and substance
reasonably satisfactory to the Representative, substantially to
18
the effect set forth in the draft thereof delivered to counsel to the
Representative prior to the date hereof.
(j) Opinion of Counsel for the Initial Purchasers. The Representative
shall have received on and as of the Closing Date an opinion and 10b-5 statement
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Initial Purchasers, with
respect to such matters as the Representative may reasonably request, and such
counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(k) No Legal Impediment to Issuance. No action shall have been taken
and no statute, rule, regulation or order shall have been enacted, adopted or
issued by any federal, state or foreign governmental or regulatory authority
that would, as of the Closing Date, prevent the issuance or sale of the
Securities or the issuance of the Guarantees; and no injunction or order of any
federal, state or foreign court shall have been issued that would, as of the
Closing Date, prevent the issuance or sale of the Securities or the issuance of
the Guarantees.
(l) Good Standing. The Representative shall have received on and as of
the Closing Date satisfactory evidence of the good standing or equivalent status
of the Company, its the Guarantors and VAW-IMCO in their respective
jurisdictions of organization and their good standing or equivalent status in
such other jurisdictions as the Representative may reasonably request, in each
case in writing or any standard form of telecommunication, from the appropriate
governmental authorities of such jurisdictions.
(m) Registration Rights Agreement. The Initial Purchasers shall have
received a counterpart of the Registration Rights Agreement that shall have been
executed and delivered by a duly authorized officer of the Company and each of
the Guarantors.
(n) Amendments to the Existing Loan Agreements. Concurrently with or
prior to the issue and sale of the Securities by the Company, the Company shall
have amended (i) the Loan Agreement, dated as of May 1, 1996, between the City
of Morgantown, Kentucky and IMCO Recycling Inc. with respect to the issuance of
$5,740,000 Solid Waste Disposal Facilities Revenue Bonds, Series 1996; the Loan
Agreement, dated as of April 15, 1997, between the City of Morgantown, Kentucky
and IMCO Recycling Inc. with respect to the issuance of $4,600,000 Solid Waste
Disposal Facilities Revenue Bonds, Series 1997; and the Loan Agreement, dated as
of June 15, 1998, between the City of Morgantown, Kentucky and IMCO Recycling
Inc. with respect to the issuance of $4,100,000 Solid Waste Disposal Facilities
Revenue Bonds, Series 1998 (collectively, the "Loan Agreement Amendments"), in
each case, in the form previously delivered to the Representative; (ii) the
Credit Agreement, dated as of June 3, 2003 (the "Commerzbank Term Loan
Amendment"), between Commerzbank Aktiengesellschaft and VAW-IMCO; the Credit
Agreement with respect to term loans, dated as of May 2003, between Landesbank
Rheinland-Pfalz and VAW-IMCO; the Credit Agreement, dated as of May 28, 1999
between Commerzbank Aktiengesellschaft and VAW-IMCO; the Credit Agreement, dated
as of June 30, 1998 between Commerzbank Aktiengesellschaft and VAW-IMCO; the
Credit Agreement, dated as of September 30, 1997 between Commerzbank
Aktiengesellschaft and VAW-IMCO; and the two Credit Agreements, dated as of July
31, 1997 and as amended through the date hereof, between Commerzbank
Aktiengesellschaft and VAW-IMCO (collectively, the "German Loan Amendments, and,
together with the Loan Agreement Amendments, the
19
"Amendments"), in each case, to permit the prepayment and termination of those
loans at Closing, in the form previously delivered to the Representative. The
Representative shall have received conformed counterparts thereof and all other
documents and agreements entered into and received thereunder in connection with
the Amendments.
(o) The New Credit Facility. Concurrently with or prior to the issue
and sale of the Securities by the Company, the Company shall have entered into
that certain Revolving Credit and Security Agreement, to be dated as of the
Closing Date (the "New Credit Agreement"), in form and substance satisfactory to
the Representative. The Representative shall have received conformed
counterparts thereof and all other documents and agreements entered into and
received thereunder in connection with the closing of the New Credit Agreement.
(p) PORTAL and DTC. The Securities shall have been approved by the NASD
for trading in the PORTAL Market and shall be eligible for clearance and
settlement through DTC.
(q) Lien Searches. The Representative shall have received the results
of a recent lien search in each of the jurisdictions where assets of the Company
and the Guarantors are located and any jurisdictions in which valid filings with
respect to such assets of the Company and the Guarantor may be in effect, and
such search shall reveal no liens on any of the assets of the Company and the
Guarantors or their respective subsidiaries except for Permitted Exceptions.
(r) Security Agreement. The Initial Purchasers shall have received
conformed counterparts of the Security Agreement that shall have been executed
and delivered by duly authorized officers of each party thereto.
(s) Intercompany Note. The Representative shall have received
satisfactory confirmation that the Intercompany Note pledged pursuant to the
Pledge Agreement, together with the related endorsement executed in blank by a
duly authorized officer of the pledgor thereof, is being held by the Trustee
pursuant to the Pledge Agreement.
(t) Filings, Registration and Recordings. Except as otherwise
contemplated by the Mortgages, the Security Agreement and the Pledge Agreement,
each document (including any Uniform Commercial Code financing statement)
required by the Mortgages, the Security Agreement and the Pledge Agreement, or
under law or reasonably requested by the Representative, in each case, to be
filed, registered or recorded, or delivered for filing on or prior to the
Closing Date, in order to create in favor of the Trustee, for the benefit of the
holders of the Securities, a perfected first priority lien and security interest
in the Personal Property Collateral which can be perfected by the making of such
filings, registrations or recordations prior and superior to the right of any
other person (other than liens expressly permitted to be incurred or to exist on
the Personal Property Collateral under the Indenture) shall be in proper form
for filing, registration or recordation.
(u) Mortgages, etc.
(i) The Representative shall have received releases of the
Collateral pledged pursuant to the existing credit facility;
20
(ii) The Representative shall have received landlord lien waivers
with respect to the leased properties located at Wendover, Utah;
Hillsboro, Illinois; and The City of Airway Heights, Washington;
(iii) The Representative shall have received a first priority
Mortgage (or deed of trust or deed to secure debt, as applicable) with
respect to each of the Mortgaged Properties, executed and delivered by
a duly authorized officer of the Company or Guarantor party thereto.
(iv) Subject to Section 4(o), the Representative shall have
received, and the title company issuing the policy referred to in
clause (iii) below (the "Title Insurance Company") shall have received,
maps or plats of an as-built survey of the sites of the Mortgaged
Properties which were delivered to the Representative by an independent
professional licensed land surveyor satisfactory to the Representative
and the Title Insurance Company.
(v) Subject to Section 4(o), the Representative shall have
received in respect of each of the Mortgaged Properties a mortgagee's
title insurance policy (or policies) or marked up signed title
commitment pursuant to a "New York" style real estate closing with the
Title Insurance Company. Each such policy or commitment shall (a) be in
an amount equal to an amount mutually agreeable by the Company and the
Representative; (b) be issued at ordinary rates; (c) insure that the
Mortgage insured thereby creates a valid first priority lien and
security interest in each such Mortgaged Property free and clear of all
defects and encumbrances, except for those defects and encumbrances
expressly permitted as a Permitted Exception; (d) name the Trustee for
the benefit of the holders of the Securities as the insured thereunder;
(e) be in the form of ALTA Loan Policy - 1970 (Amended 10/17/70 and
10/17/84) (or equivalent policies); (f) contain such endorsements and
affirmative coverage as the Representative shall reasonably request and
(g) be issued by title companies satisfactory to the Representative
(including any such title companies acting as co-insurers or
reinsurers, at the option of the Representative). The Representative
shall have received evidence satisfactory to it that all premiums in
respect of such policy or commitment, all charges for mortgage
recording tax, and all related expenses, if any, have been paid.
(vi) The Representative shall have received a copy of all recorded
documents referred to, or listed as exceptions to title in, the title
policies or policies referred to in clause (iii) above and a copy of
all other material documents affecting the Mortgaged Properties.
(v) Additional Documents. On or prior to the Closing Date, the
Company and the Guarantors shall have furnished to the Representative
such further certificates and documents as the Representative may
reasonably request.
All opinions, letters, certificates and evidence mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Initial Purchasers.
21
6. Indemnification and Contribution.
(a) Indemnification of the Initial Purchasers. The Company and each of
the Guarantors jointly and severally agree to indemnify and hold harmless each
Initial Purchaser, its affiliates, directors and officers and each person, if
any, who controls such Initial Purchaser within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, legal
fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint
or several, that arise out of, or are based upon, any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary
Offering Memorandum or the Offering Memorandum (or any amendment or supplement
thereto) or any omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages or liabilities arise out of, or are based upon, any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with any information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through
the Representative expressly for use therein; provided, that with respect to any
such untrue statement in or omission from the Preliminary Offering Memorandum,
the indemnity agreement contained in this paragraph (a) shall not inure to the
benefit of any Initial Purchaser to the extent that the sale to the person
asserting any such loss, claim, damage or liability was an initial resale by
such Initial Purchaser and any such loss, claim, damage or liability of or with
respect to such Initial Purchaser results from the fact that both (i) a copy of
the Offering Memorandum (excluding any documents incorporated by reference
therein) was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person and (ii) the untrue
statement in or omission from such Preliminary Offering Memorandum was corrected
in the Offering Memorandum unless, in either case, such failure to deliver the
Offering Memorandum was a result of non-compliance by the Company with the
provisions of Section 4 hereof.
(b) Indemnification of the Company. Each Initial Purchaser agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of
the Guarantors and each person, if any, who controls the Company or any of the
Guarantors within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph
(a) above, but only with respect to any losses, claims, damages or liabilities
that arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with any information relating to such Initial Purchaser furnished to the Company
in writing by such Initial Purchaser through the Representative expressly for
use in the Preliminary Offering Memorandum and the Offering Memorandum (or any
amendment or supplement thereto), it being understood and agreed that the only
such information consists of the following: the statements concerning the
Initial Purchasers contained in the third paragraph, the fourth and fifth
sentences of the eighth paragraph and the tenth paragraph under the heading,
"Plan of distribution" in the Preliminary Offering Memorandum and the Offering
Memorandum.
(c) Notice and Procedures. If any suit, action, proceeding (including
any governmental or regulatory investigation), claim or demand shall be brought
or asserted against any person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above,
22
such person (the "Indemnified Person") shall promptly notify the person against
whom such indemnification may be sought (the "Indemnifying Person") in writing;
provided that the failure to notify the Indemnifying Person shall not relieve it
from any liability that it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have to an Indemnified Person otherwise than under this Section 6. If any
such proceeding shall be brought or asserted against an Indemnified Person and
it shall have notified the Indemnifying Person thereof, the Indemnifying Person
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 6 that the Indemnifying Person may designate in such
proceeding and shall pay the fees and expenses of such counsel related to such
proceeding, as incurred. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person, (iii) the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it that are different from or in addition to those
available to the Indemnifying Person or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood and agreed that the Indemnifying Person shall
not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for any Initial Purchaser, its affiliates, directors and officers
and any control persons of such Initial Purchaser shall be designated in writing
by X.X. Xxxxxx Securities Inc. and any such separate firm for the Company, the
Guarantors and any control persons of the Company and the Guarantors shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested that an Indemnifying Person reimburse the
Indemnified Person for fees and expenses of counsel as contemplated by this
paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by the Indemnifying Person of such
request and (ii) the Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (x) includes an unconditional release of such
Indemnified Person, in form and substance reasonably satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (y) does not
23
include any statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantors on the one hand and the
Initial Purchasers on the other from the offering of the Securities or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and the
Guarantors on the one hand and the Initial Purchasers on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Guarantors on the one hand and
the Initial Purchasers on the other shall be deemed to be in the same respective
proportions as the net proceeds (before deducting expenses) received by the
Company from the sale of the Securities and the total discounts and commissions
received by the Initial Purchasers in connection therewith, as provided in this
Agreement, bear to the aggregate offering price of the Securities. The relative
fault of the Company and the Guarantors on the one hand and the Initial
Purchasers on the other 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 any Guarantor or by the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) Limitation on Liability. The Company, the Guarantors and the
Initial Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 6 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 that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages and liabilities referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this
Section 6, in no event shall an Initial Purchaser be required to contribute any
amount in excess of the amount by which the total discounts and commissions
received by such Initial Purchaser with respect to the offering of the
Securities exceeds 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. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities 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 6 are several in proportion to their respective
purchase obligations hereunder and not joint.
24
(f) Non-Exclusive Remedies. The remedies provided for in this Section 6
are not exclusive and shall not limit any rights or remedies that may otherwise
be available to any Indemnified Person at law or in equity.
7. Termination. This Agreement may be terminated in the absolute
discretion of the Representative, by notice to the Company, if after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on the New
York Stock Exchange or the over-the-counter market, (ii) trading of any
securities issued or guaranteed by the Company or any of the Guarantors shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities shall have been declared by
federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis, either within or outside the United States, that, in the
judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of
the Securities on the terms and in the manner contemplated by this Agreement and
the Offering Memorandum.
8. Defaulting Initial Purchaser. (a) If, on the Closing Date, any
Initial Purchaser defaults on its obligation to purchase the Securities that it
has agreed to purchase hereunder, the non-defaulting Initial Purchasers may in
their discretion arrange for the purchase of such Securities by other persons
satisfactory to the Company on the terms contained in this Agreement. If, within
36 hours after any such default by any Initial Purchaser, the non-defaulting
Initial Purchasers do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of 36 hours within which to
procure other persons satisfactory to the non-defaulting Initial Purchasers to
purchase such Securities on such terms. If other persons become obligated or
agree to purchase the Securities of a defaulting Initial Purchaser, either the
non-defaulting Initial Purchasers or the Company may postpone the Closing Date
for up to five full business days in order to effect any changes that in the
opinion of counsel for the Company or counsel for the Initial Purchasers may be
necessary in the Offering Memorandum or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the
Offering Memorandum that effects any such changes. As used in this Agreement,
the term "Initial Purchaser" includes, for all purposes of this Agreement unless
the context otherwise requires, any person not listed in Schedule 1 hereto that,
pursuant to this Section 8, purchases Securities that a defaulting Initial
Purchaser agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
all the Securities, then the Company shall have the right to require each
non-defaulting Initial Purchaser to purchase the principal amount of Securities
that such Initial Purchaser agreed to purchase hereunder plus such Initial
Purchaser's pro rata share (based on the principal amount of Securities that
such Initial Purchaser agreed to purchase hereunder) of the Securities of such
defaulting Initial Purchaser or Initial Purchasers for which such arrangements
have not been made.
25
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Initial Purchaser or Initial Purchasers by the
non-defaulting Initial Purchasers and the Company as provided in paragraph (a)
above, the aggregate principal amount of such Securities that remains
unpurchased exceeds one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement shall terminate without liability on
the part of the non-defaulting Initial Purchasers. Any termination of this
Agreement pursuant to this Section 8 shall be without liability on the part of
the Company or the Guarantors, except that the Company and each of the
Guarantors will continue to be liable for the payment of expenses as set forth
in Section 9 hereof and except that the provisions of Section 6 hereof shall not
terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Initial
Purchaser of any liability it may have to the Company, the Guarantors or any
non-defaulting Initial Purchaser for damages caused by its default.
9. Payment of Expenses. (a) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company and each of the Guarantors jointly and severally agree to pay or
cause to be paid all costs and expenses incident to the performance of their
respective obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the
Securities and any taxes payable in that connection, (ii) the costs incident to
the preparation and printing of the Preliminary Offering Memorandum and the
Offering Memorandum (including any amendment or supplement thereto) and the
distribution thereof, (iii) the costs of reproducing and distributing each of
the Transaction Documents and perfecting the security interest in the Collateral
as contemplated by the Mortgages, (iv) the fees and expenses of the Company's
and the Guarantors' counsel (including local and special counsel) with respect
to perfecting the security interest in the Collateral as contemplated by the
Collateral Documents and independent accountants, (v) the fees and expenses
incurred in connection with the registration or qualification and determination
of eligibility for investment of the Securities under the laws of such
jurisdictions as the Representative may designate and the preparation, printing
and distribution of a Blue Sky Memorandum (including the related fees and
expenses of counsel for the Initial Purchasers), (vi) any fees charged by rating
agencies for rating the Securities, (vii) the fees and expenses of the Trustee
and any paying agent (including related fees and expenses of any counsel to such
parties), (viii) all expenses and application fees incurred in connection with
the application for the inclusion of the Securities on the PORTAL Market and the
approval of the Securities for book-entry transfer by DTC and (x) all expenses
incurred by the Company in connection with any "road show" presentation to
potential investors.
(b) If (i) this Agreement is terminated pursuant to Section 7, (ii) the
Company for any reason fails to tender the Securities for delivery to the
Initial Purchasers or (iii) the Initial Purchasers decline to purchase the
Securities for any reason permitted under this Agreement (except pursuant to
Section 8), the Company and each of the Guarantors jointly and severally agrees
to reimburse the non-defaulting Initial Purchasers for all out-of-pocket costs
and expenses (including the fees and expenses of their counsel) reasonably
incurred by the non-defaulting Initial Purchasers in connection with this
Agreement and the offering contemplated hereby.
26
10. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and any controlling persons referred to herein, and the
affiliates, officers and directors of each Initial Purchaser referred to in
Section 6 hereof. Nothing 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 provision contained herein. No purchaser of
Securities from any Initial Purchaser shall be deemed to be a successor merely
by reason of such purchase.
11. Survival. The respective indemnities, rights of contribution,
representations, warranties and agreements of the Company, the Guarantors and
the Initial Purchasers contained in this Agreement or made by or on behalf of
the Company, the Guarantors or the Initial Purchasers pursuant to this Agreement
or any certificate delivered pursuant hereto shall survive the delivery of and
payment for the Securities and shall remain in full force and effect, regardless
of any termination of this Agreement or any investigation made by or on behalf
of the Company, the Guarantors or the Initial Purchasers.
12. Certain Defined Terms. For purposes of this Agreement, (a) except
where otherwise expressly provided, the term "affiliate" has the meaning set
forth in Rule 405 under the Securities Act; (b) the term "business day" means
any day other than a day on which banks are permitted or required to be closed
in New York City; (c) the term "Exchange Act" means the Securities Exchange Act
of 1934, as amended; and (d) the term "subsidiary" has the meaning set forth in
Rule 405 under the Securities Act.
13. Miscellaneous. (a) Authority of the Representative. Any action by
the Initial Purchasers hereunder may be taken by X.X. Xxxxxx Securities Inc. on
behalf of the Initial Purchasers, and any such action taken by X.X. Xxxxxx
Securities Inc. shall be binding upon the Initial Purchasers.
(b) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted and
confirmed by any standard form of telecommunication. Notices to the Initial
Purchasers shall be given to the Representative c/o X.X. Xxxxxx Securities Inc.,
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxxxx (fax:
(000) 000-0000). Notices to the Company and the Guarantors shall be given to
them at IMCO Recycling Inc., 0000 Xxxxx X'Xxxxxx Xxxx., Xxxxx 0000, Xxxxxxx
Tower at Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxx (fax:
(000) 000-0000).
(c) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which
may include counterparts delivered by any standard form of telecommunication),
each of which shall be an original and all of which together shall constitute
one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of
this Agreement, nor any consent or approval to any departure therefrom, shall in
any event be effective unless the same shall be in writing and signed by the
parties hereto.
27
(f) Headings. The headings herein are included for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
28
If the foregoing is in accordance with your understanding, please
indicate your acceptance of this Agreement by signing in the space provided
below.
Very truly yours,
IMCO RECYCLING INC.
By
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
IMCO INVESTMENT COMPANY
IMCO ENERGY CORP.
IMCO RECYCLING OF INDIANA INC.
IMCO RECYCLING OF ILLINOIS INC.
ALCHEM ALUMINUM, INC.
IMSAMET, INC.
ROCK CREEK ALUMINUM, INC.
ALCHEM ALUMINUM SHELBYVILLE INC.
INTERAMERICAN ZINC, INC.
U.S. ZINC CORPORATION
IMCO RECYCLING OF CALIFORNIA, INC.
IMCO RECYCLING OF OHIO INC.
IMCO RECYCLING SERVICES COMPANY
IMCO OPERATIONS SERVICES COMPANY
IMCO INTERNATIONAL, INC.
PITTSBURG ALUMINUM, INC.
IMCO RECYCLING OF IDAHO INC.
IMCO RECYCLING OF UTAH INC.
INDIANA ALUMINUM INC.
GULF REDUCTION CORPORATION
MIDWEST ZINC CORPORATION
METALCHEM, INC.
WESTERN ZINC CORPORATION
U.S. ZINC EXPORT CORPORATION
By
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
IMCO RECYCLING OF MICHIGAN L.L.C.
By: IMCO Recycling Inc., its manager
By
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
IMCO MANAGEMENT PARTNERSHIP L.P.
By: IMCO Recycling Inc.,
its general partner
By
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
By: IMCO Investment Company,
its limited partner
By
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
IMCO INDIANA PARTNERSHIP L.P.
By: IMCO Energy Corp.,
its general partner
By
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: IMCO Recycling of Indiana, Inc.,
its limited partner
By
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Accepted: October 2, 2003
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers listed
in Schedule 1 hereto.
By
-------------------------------
Authorized Officer
SCHEDULE 1
Initial Purchaser Principal Amount
----------------- -----------------
X.X. Xxxxxx Securities Inc. $ 147,000,000
PNC Capital Markets, Inc. $ 47,250,000
Citigroup Global Markets Inc. $ 15,750,000
-----------------
Total $ 210,000,000
SCHEDULE 2
Guarantors
Alchem Aluminum, Inc.
Alchem Aluminum Shelbyville Inc.
Gulf Reduction Corporation
IMCO Energy Corp.
IMCO Indiana Partnership L.P.
IMCO International, Inc.
IMCO Investment Company
IMCO Management Partnership L.P.
IMCO Operations Services Company
IMCO Recycling of California, Inc.
IMCO Recycling of Idaho Inc.
IMCO Recycling of Illinois Inc.
IMCO Recycling of Indiana Inc.
IMCO Recycling of Michigan L.L.C.
IMCO Recycling of Ohio Inc.
IMCO Recycling of Utah Inc.
IMCO Recycling Services Company
IMSAMET, Inc.
Indiana Aluminum Inc.
Interamerican Zinc, Inc.
MetalChem, Inc.
Guarantors
Midwest Zinc Corporation
Pittsburg Aluminum, Inc.
Rock Creek Aluminum, Inc.
U.S. Zinc Corporation
Western Zinc Corporation
U.S. Zinc Export Corporation
2
SCHEDULE 3
Subsidiaries of the Company
Alchem Aluminum, Inc.
Alchem Aluminum Shelbyville Inc.
Gulf Reduction Corporation
IMCO Energy Corp.
IMCO Funding Corporation
IMCO Indiana Partnership L.P.
IMCO International, Inc.
IMCO Investment Company
IMCO Management Partnership L.P.
IMCO Operations Services Company
IMCO Recycling of California, Inc.
IMCO Recycling of Idaho Inc.
IMCO Recycling of Illinois Inc.
IMCO Recycling of Indiana Inc.
IMCO Recycling of Michigan L.L.C.
IMCO Recycling of Ohio Inc.
IMCO Recycling of Utah Inc.
IMCO Recycling Services Company
IMSAMET, Inc.
Indiana Aluminum Inc.
Interamerican Zinc, Inc.
MetalChem, Inc.
Subsidiaries of the Company
Midwest Zinc Corporation
Pittsburg Aluminum, Inc.
Rock Creek Aluminum, Inc.
U.S. Zinc Corporation
Western Zinc Corporation
U.S. Zinc Export Corporation
Imsamet of Arizona
Solar Aluminum Technology Services
Dutch Aluminum C.V.
IMCO Recycling Holding B.V.
MetalChem Handel GmbH IMCO Recycling (UK) Ltd.
VAW-IMCO Xxxx und Recycling GmbH
IMCO Reciclaje de Mexico, S. de X.X. de C.V.
IMCO Reciclaje de Neuvo Xxxx, S. de X.X. de C.V.
IMCO Reciclaje Servicios Administrativos, S. de X.X. de C.V.
IMCO Reciclaje Servicios de Manufactura, S. de X.X. de C.V.
IMCO Brazil Holding Ltda.
IMCO Reciclagem de Materiais Industria e Comercio Ltda.
2
SCHEDULE 4
Mortgaged Properties
IMCO Recycling of Idaho
West 0000 Xxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx
IMCO Recycling of Illinois
000 X. Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, Xxxxxxxx
IMCO Indiana Partnership LP
0000 0xx Xxxxxx
Xxxxxxx, Xxxxxxx
IMCO Recycling Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxx 0000
Xxxxxxxxxx, Xxxxxxxx
IMCO Recycling of Michigan LLC
000 X. Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx
InterAmerican Zinc, Inc. (plant/equipment)
IMCO Recycling of Michigan LLC (land)
000 X. Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx
Alchem Aluminum, Inc.
000 X. Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx
Alchem Aluminum, Inc.
000 Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Alchem Aluminum, Inc.
000 X. Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx
Alchem Aluminum, Inc.
Butters Avenue
Coldwater, Michigan
Mortgaged Properties
Alchem Aluminum, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx
Alchem Aluminum, Inc.
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxx Xxxxxxxx, Xxxxxxxx
Rock Creek Aluminum, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxx
Rock Creek Aluminum, Inc.
0000 X. Xxxxx Xxxxxx
Xxxx Xxxxx, Xxxx
IMCO Recycling of Ohio Inc.
0000 Xxxxxxx Xxxx, XX
Xxxxxxxxxxxx, Xxxx
IMCO Recycling Inc.
0000 Xxxxx 0xx Xxxxxx
Xxxxxxx 00 Xxxxx
Xxxxxxx, Xxxxxxxx
Midwest Zinc Corporation
000 Xxxxxxxxxxxxx Xxxx.
Xxxxxxxxxxx, Xxxxxxxxx
IMCO Recycling Inc.
000 Xxxxxxxxxx Xxxxx
Xxxxx Bend Industrial Park
Loudon, Tennessee
Midwest Zinc Corporation
0000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxx
IMCO Recycling Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxx
2
Mortgaged Properties
Alchem Aluminum Shelbyville Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx
Gulf Reduction Corporation
0000 Xxxxxxxx
Xxxxxxx, Xxxxx
Gulf Reduction Corporation (land)
U.S. Zinc Corporation (plant/equipment)
0000 Xxxxxxxxxx
Xxxxxxx, Xxxxx
3
SCHEDULE 5
Leased Properties
Gulf Reduction Corporation
Buildings 106 and 000
Xxxxxxx Xxxxxxxxxx Xxxx
The City of Airway Heights, Spokane County, Washington
Midwest Zinc Corporation
0000 Xxxxxxxx
Xxxxxx Xxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxxx
IMCO Recycling of Utah Inc.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxx, Xxxxxx Xxxxxx, Xxxx
ANNEX A
Restrictions on Offers and Sales Outside the United States
In connection with offers and sales of Securities outside the United
States:
(a) Each Initial Purchaser acknowledges that the Securities have not
been registered under the Securities Act and may not be offered or sold within
the United States or to, or for the account or benefit of, U.S. persons except
pursuant to an exemption from, or in transactions not subject to, the
registration requirements of the Securities Act.
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) Such Initial Purchaser has offered and sold the Securities,
and will offer and sell the Securities, (A) as part of their
distribution at any time and (B) otherwise until 40 days after the
later of the commencement of the offering of the Securities and the
Closing Date, only in accordance with Regulation S under the Securities
Act ("Regulation S") or Rule 144A or any other available exemption from
registration under the Securities Act;
(ii) None of such Initial Purchaser or any of its affiliates or
any other person acting on its or their behalf has engaged or will
engage in any directed selling efforts with respect to the Securities,
and all such persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(iii) At or prior to the confirmation of sale of any Securities
sold in reliance on Regulation S, such Initial Purchaser will have sent
to each distributor, dealer or other person receiving a selling
concession, fee or other remuneration that purchase Securities from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"),
and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after the
later of the commencement of the offering of the Securities and
the date of original issuance of the Securities, except in
accordance with Regulation S or Rule 144A or any other available
exemption from registration under the Securities Act. Terms used
above have the meanings given to them by Regulation S."; and
(iv) Such Initial Purchaser has not and will not enter into any
contractual arrangement with any distributor with respect to the
distribution of the Securities, except with its affiliates or with the
prior written consent of the Company.
Terms used in paragraph (a) and this paragraph (b) and not otherwise defined in
this Agreement have the meanings given to them by Regulation S.
(c) Each Initial Purchaser, severally and not jointly, represents,
warrants and agrees that:
(i) it has not offered or sold and, prior to the date six months
after the Closing Date, will not offer or sell any Securities to
persons in the United Kingdom 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
businesses or otherwise in circumstances which have not resulted and
will not result in an offer to the public in the United Kingdom within
the meaning of the United Kingdom Public Offers of Securities
Regulations 1995 (as amended);
(ii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
Section 21 of the United Kingdom Financial Services and Markets Act
2000 (the "FSMA")) received by it in connection with the issue or sale
of any Securities in circumstances in which Section 21(1) of the FSMA
does not apply to the Company or the Guarantors; and
(iii) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in relation
to the Securities in, from or otherwise involving the United Kingdom.
(d) Each Initial Purchaser acknowledges that no action has been or will
be taken by the Company that would permit a public offering of the Securities,
or possession or distribution of the Preliminary Offering Memorandum, the
Offering Memorandum or any other offering or publicity material relating to the
Securities, in any country or jurisdiction where action for that purpose is
required.
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