EXHIBIT 1
EXECUTION COPY
ALARIS MEDICAL SYSTEMS, INC.
$170,000,000 11-5/8% SENIOR SECURED NOTES DUE 2006
PURCHASE AGREEMENT
October 11, 2001
New York, New York
UBS WARBURG LLC
BEAR, XXXXXXX & CO. INC.
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ALARIS Medical Systems, Inc., a Delaware corporation (the "ISSUER"),
agrees with you as follows:
1. ISSUANCE OF NOTES. The Issuer proposes to issue and sell to
UBS Warburg LLC and Bear, Xxxxxxx & Co. Inc. (the "INITIAL PURCHASERS")
$170,000,000 aggregate principal amount of 11-5/8% Senior Secured Notes due 2006
(the "ORIGINAL NOTES"). The Original Notes will be issued pursuant to an
indenture (the "INDENTURE"), to be dated the Closing Date (as defined herein),
by and between the Issuer and HSBC Bank USA, as trustee (the "TRUSTEE").
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Indenture.
The Notes will have the benefit of the Security Documents (as
defined in the Indenture), pursuant to which the Issuer will, among other
things, xxxxx x xxxx on certain of its assets as described in the Security
Documents.
The Original Notes will be offered and sold to the Initial
Purchasers pursuant to an exemption from the registration requirements under
the Securities Act of 1933, as amended (the "ACT"). The Issuer has prepared a
preliminary offering memorandum, dated October 5, 2001 (the "PRELIMINARY
OFFERING MEMORANDUM"), and a final offering memorandum dated and available for
distribution on the date hereof (the "OFFERING MEMORANDUM") relating to the
Issuer and the Original Notes.
The Initial Purchasers have advised the Issuer that the Initial
Purchasers intend, as soon as they deem practicable after this Purchase
Agreement (this "AGREEMENT") has been executed and delivered, to resell (the
"EXEMPT RESALES") the Original Notes purchased by the Initial Purchas-
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ers under this Agreement in private sales exempt from registration under the
Act on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom the Initial Purchasers reasonably
believe to be "qualified institutional buyers," as defined in Rule 144A under
the Act ("QIBs"), and (ii) other eligible purchasers pursuant to offers and
sales that occur outside the United States within the meaning of Regulation S
under the Act; the Persons specified in clauses (i) and (ii) are sometimes
collectively referred to herein as the "ELIGIBLE PURCHASERS."
Upon issuance of the Original Notes and until such time as the same
is no longer required under the applicable requirements of the Act, the Original
Notes shall bear the legend relating thereto set forth under "Notice to
Investors" in the Offering Memorandum.
Holders (including subsequent transferees) of the Original Notes
will have the registration rights set forth in the registration rights agreement
(the "REGISTRATION RIGHTS AGREEMENT") to be dated the Closing Date. Pursuant to
the Registration Rights Agreement, the Issuer will agree to (i) file with the
Securities and Exchange Commission (the "COMMISSION") under the circumstances
set forth in the Registration Rights Agreement, (a) a registration statement
under the Act (the "EXCHANGE OFFER REGISTRATION STATEMENT") relating to a new
issue of debt securities (collectively with the Private Exchange Notes (as
defined in the Registration Rights Agreement), the "EXCHANGE NOTES" and,
together with the Original Notes, the "NOTES") to be offered in exchange for the
Original Notes (the "EXCHANGE OFFER") and issued under the Indenture or an
indenture substantially identical to the Indenture and/or (b) under certain
circumstances set forth in the Registration Rights Agreement, a shelf
registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Original Notes, and (ii) to use its reasonable best efforts to
cause such Registration Statements to be declared effective. This Agreement, the
Notes, the Indenture, the Registration Rights Agreement and the Security
Documents are hereinafter sometimes referred to collectively as the "TRANSACTION
DOCUMENTS."
Proceeds from the issuance and sale of the Original Notes, together
with available cash of the Issuer, will be used to repay in full all outstanding
borrowings under the Issuer's existing bank credit facility (the "EXISTING BANK
FACILITY"), and the Existing Bank Facility will be terminated. In addition after
the Closing Date, the Issuer intends to take the actions, and has been advised
by its sole stockholder, ALARIS Medical, Inc., a Delaware corporation
("PARENT"), that Parent intends to take the actions, with respect to Parent's
7-1/4% convertible subordinated debentures due 2002 (the "CONVERTIBLE
DEBENTURES") as described in the Offering Memorandum under "Description of
Certain Indebtedness -- Indebtedness of Holdings -- 7-1/4% convertible
subordinated debentures" (the "DEBENTURE PAYMENT").
The issuance and sale of the Original Notes (including the grant of
mortgages and security interests pursuant to the Security Documents) the payment
and termination of the Existing Bank Facility as described above and the
Debenture Payment collectively referred to as the "TRANSACTIONS."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations, warranties and covenants contained in this Agreement, the
Issuer agrees to issue and sell to the Initial
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Purchasers, and on the basis of the representations, warranties and covenants
contained in this Agreement, and subject to the terms and conditions
contained in this Agreement, each of the Initial Purchasers, severally and
not jointly, agrees to purchase from the Issuer, the aggregate principal
amount of the Original Notes set forth opposite its name on SCHEDULE I
attached hereto. The purchase price for the Original Notes shall be 97% of
their principal amount.
3. DELIVERY AND PAYMENT. Delivery of, and payment of the
purchase price for, the Original Notes shall be made at 10:00 a.m., New York
time, on October 16, 2001 (such date and time, the "CLOSING DATE") at the
offices of Xxxxxx Xxxxxx & Xxxxxxx at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Closing Date and the location of delivery of and the form of
payment for the Original Notes may be varied by mutual agreement between the
Initial Purchasers and the Issuer.
All of the Original Notes shall be delivered by the Issuer to the
Initial Purchasers (or as the Initial Purchasers direct) through the facilities
of The Depository Trust Company against payment by the Initial Purchasers of the
purchase price therefor by means of transfer of immediately available funds to
such account or accounts specified by the Issuer in accordance with its
obligations under Sections 4(g) and 8(n) hereof on or prior to the Closing Date,
or by such means as the parties hereto shall agree prior to the Closing Date.
The Original Notes shall be evidenced by one or more certificates in global form
registered in such names as the Initial Purchasers may request upon at least one
business day's notice prior to the Closing Date and having an aggregate
principal amount corresponding to the aggregate principal amount of the Original
Notes
4. AGREEMENTS OF THE ISSUER. The Issuer covenants and agrees
with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons identified
by the Initial Purchasers, without charge, with as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and any
amendments or supplements thereto, as the Initial Purchasers may
reasonably request. The Issuer consents to the use of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments and
supplements thereto required pursuant to this Agreement, by the Initial
Purchasers in connection with Exempt Resales.
(b) Not to amend or supplement the Offering Memorandum prior to
the Closing Date unless the Initial Purchasers shall previously have been
advised of such proposed amendment or supplement at least two business
days prior to the proposed use, and shall not have objected to such
amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have
completed their distribution of the Original Notes, any event shall occur
that, in the judgment of the Issuer or in the judgment of counsel to the
Initial Purchasers, makes any statement of a material fact in the Offering
Memorandum, as then amended or supplemented, untrue or that requires the
making of any additions to or changes in the Offering Memorandum in order
to make the statements in the Offering Memorandum, as then amended or
supplemented, in the light of the circumstances under which they are made,
not misleading, or if it is necessary to amend or supple-
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ment the Offering Memorandum to comply with all applicable laws, the
Issuer shall promptly notify the Initial Purchasers of such event and
(subject to Section 4(b)) prepare an appropriate amendment or supplement
to the Offering Memorandum so that (i) the statements in the Offering
Memorandum, as amended or supplemented, will, in the light of the
circumstances at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not be misleading and (ii) the Offering
Memorandum will comply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel to the
Initial Purchasers in connection with the qualification or registration of
the Original Notes under the securities laws of such jurisdictions as the
Initial Purchasers may reasonably request and to continue such
qualification in effect so long as required for the Exempt Resales.
Notwithstanding the foregoing, the Issuer shall not be required to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or to file a general consent to service of process in any such
jurisdiction or subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if requested by
the Initial Purchasers, to confirm such advice in writing, of the issuance
by any securities commission of any stop order suspending the
qualification or exemption from qualification of any of the Original Notes
for offering or sale in any jurisdiction, or the initiation of any
proceeding for such purpose by any securities commission or other
regulatory authority. The Issuer shall use its reasonable best efforts to
prevent the issuance of any stop order or order suspending the
qualification or exemption of any of the Original Notes under any
securities laws, and if at any time any securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption of any of the Original Notes under any securities laws, the
Issuer shall use its reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time.
(f) Whether or not the transactions contemplated by this Agreement
are consummated, to pay all costs, expenses, fees, disbursements incident
to and in connection with: (i) the preparation, printing and distribution
of the Preliminary Offering Memorandum and the Offering Memorandum
(including, without limitation, financial statements) and all amendments
and supplements thereto, (ii) all expenses (including travel expenses)
incurred by the Issuer's employees and 100% of the costs of chartered
aircraft, if any, in connection with any meetings with prospective
investors in the Original Notes, (iii) the preparation, notarization (if
necessary) and delivery of the Note Documents and all other agreements,
memoranda, correspondence and documents prepared and delivered in
connection with this Agreement and with the Exempt Resales, (iv) fees and
disbursements of counsel of the Issuer, (v) the issuance, transfer and
delivery of the Original Notes by the Issuer to the Initial Purchasers,
including any stamp taxes in connection with the initial issuance of the
Original Notes,(vi) the qualification or registration of the Notes for
offer and sale under the securities laws of the several states of the
United States or provinces of Canada (including, without limitation, the
cost of printing and mailing preliminary and final Blue Sky or legal
investment memoranda and reasonable fees and disbursements of counsel
(including local counsel) to the Initial Purchasers directly relating
thereto), (vii) the furnishing of such copies of the Preliminary Offer-
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ing Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be reasonably requested for use in connection
with Exempt Resales, (viii) the preparation of certificates for the Notes,
(ix) the application for quotation of the Notes in The Portal Market
("PORTAL") of the National Association of Securities Dealers, Inc.
("NASD"), including, but not limited to, all listing fees and expenses,
(x) the approval of the Notes by The Depository Trust Company ("DTC") for
"book-entry" transfer, (xi) the rating of the Notes by rating agencies,
(xii) the fees and expenses of the Trustee and its counsel, (xiii) all
costs and expenses with respect to compliance with the provisions of
Section 8(n) hereof, including, without limitation, all recording and
filing fees and stamp, documentary or similar taxes, and (xiv) the
performance by the Issuer of its other obligations under the Transaction
Documents.
(g) To use the proceeds from the sale of the Original Notes in the
manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(h) To do and perform all things required to be done and performed
under this Agreement by it prior to or after the Closing Date and to
satisfy all conditions precedent on its part to the delivery of the
Original Notes.
(i) Not to, and not to permit any of its subsidiaries to, sell,
offer for sale or solicit offers to buy any security (as defined in the
Act) that would be integrated with the sale of the Original Notes in a
manner that would require the registration under the Act of the sale of
the Original Notes to the Initial Purchasers or any Eligible Purchasers.
(j) Not to, and to use its reasonable best efforts to cause its
affiliates (as defined in Rule 144 under the Act) not to, resell any of
the Original Notes that have been reacquired by any of them.
(k) Not to engage, not to allow any of its subsidiaries to engage,
and to use commercially reasonable efforts to cause its other affiliates
and any person acting on their behalf (other than, in any case, the
Initial Purchasers and any of their affiliates, as to whom the Issuer
makes no covenant) not to engage, in any form of general solicitation or
general advertising (within the meaning of Regulation D under the Act) in
connection with any offer or sale of the Original Notes in the United
States prior to the effectiveness of a registration statement with respect
to the Notes.
(l) Not to engage, not to allow any of its subsidiaries to engage,
and to use commercially reasonable efforts to cause its other affiliates
and any person acting on its behalf (other than, in any case, the Initial
Purchasers and any of their affiliates, as to whom the Issuer makes no
covenant) not to engage, in any directed selling effort with respect to
the Original Notes, and to comply with the offering restrictions
requirement of Regulation S under the Act. Terms used in this paragraph
have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the
Notes remain outstanding and are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act
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and during any period in which the Issuer is not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), to make available upon request the information required by
Rule 144A(d)(4) under the Act to (i) any holder or beneficial owner of
Notes in connection with any sale of such Notes and (ii) any prospective
purchaser of such Notes from any such holder or beneficial owner
designated by the holder or beneficial owner. The Issuer will pay the
expenses of printing and distributing such documents.
(n) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(o) To comply with all of its obligations set forth in the
representations letter of the Issuer to DTC relating to the approval of
the Notes by DTC for "book-entry" transfer and to use its commercially
reasonable efforts to obtain approval of the Notes by DTC for "book-entry"
transfer.
(p) Prior to the Closing Date, to furnish without charge to the
Initial Purchasers, (i) as soon as they have been prepared by the Issuer,
a copy of any regularly prepared internal financial statements of the
Issuer and its subsidiaries for any period subsequent to the period
covered by the financial statements appearing in the Offering Memorandum,
(ii) all other reports and other communications (financial or otherwise)
that the Issuer mails or otherwise makes available to its security holders
and (iii) such other information as the Initial Purchasers shall
reasonably request.
(q) Not to distribute prior to the Closing Date any offering
material in connection with the offer and sale of the Original Notes other
than the Preliminary Offering Memorandum and the Offering Memorandum.
(r) During the period of two years after the Closing Date or, if
earlier, until such time as the Original Notes are no longer restricted
securities (as defined in Rule 144 under the Act), not to be or become a
closed-end investment company required to be registered, but not
registered, under the Investment Company Act of 1940.
(s) In connection with the offering, until the Initial Purchasers
shall have notified the Issuer of the completion of the resale of the
Notes, not to, and not to permit any of its affiliates (as such term is
defined in Rule 501(b) of Regulation D under the Act) to, either alone or
with one or more other Persons, bid for or purchase any Notes for any
account in which it or any of its affiliates has a beneficial interest;
and neither the Issuer nor any of its affiliates will make bids or
purchases for the purpose of creating actual or apparent active trading
in, or of raising the price of, the Notes.
(t) To use its reasonable best efforts to effect the inclusion of
the Original Notes in Portal.
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5. REPRESENTATIONS AND WARRANTIES. (a) The Issuer represents and
warrants to the Initial Purchasers that:
(i) Each of the Preliminary Offering Memorandum and the
Offering Memorandum has been prepared for use in connection with the
Exempt Resales. None of the Preliminary Offering Memorandum, the
Offering Memorandum or any supplement or amendment thereto contains
any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Issuer makes no
representation or warranty with respect to information relating to
the Initial Purchasers contained in or omitted from the Preliminary
Offering Memorandum or the Offering Memorandum or any supplement or
amendment thereto in reliance upon and in conformity with
information furnished to the Issuer in writing by or on behalf of
the Initial Purchasers expressly for inclusion in the Preliminary
Offering Memorandum, the Offering Memorandum or any supplement or
amendment thereto. No order preventing the use of the Preliminary
Offering Memorandum or the Offering Memorandum, or any order
asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act,
has been issued or, to the knowledge of the Issuer, has been
threatened.
(ii) There are no securities of the Issuer that are listed on
a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated
interdealer quotation system of the same class as the Notes within
the meaning of Rule 144A under the Act.
(iii) As of the Closing Date, the Issuer shall have an
authorized capitalization as set forth under the heading
"Capitalization" in the Offering Memorandum. All of the issued and
outstanding shares of capital stock or other equity interests of the
Issuer have been duly authorized and validly issued, are fully paid
and nonassessable and were not issued in violation of any preemptive
or similar right. Attached as SCHEDULE II is a true and complete
list of each entity in which the Issuer has a direct or indirect
majority equity or voting interest (all such entities other than
River Medical, Inc. ("RMI"), the "SUBSIDIARIES"), their
jurisdictions of incorporation or formation, type of entity and
percentage equity ownership by the Issuer. All of the issued and
outstanding shares of capital stock or other equity interests of
each of the Subsidiaries have been duly and validly authorized and
issued, are fully paid and nonassessable, were not issued in
violation of any preemptive or similar right and, except as set
forth in the Offering Memorandum, are owned by the Issuer free and
clear of all Liens (as defined in the Indenture), (other than
transfer restrictions imposed by the Act, the securities or Blue Sky
laws of certain jurisdictions and security interests granted
pursuant to the Indenture and the Security Documents) (and prior to
the application of the proceeds of the sale of the Original Notes,
the Liens under, and granted pursuant to, the Existing Bank Facility
which obligations shall be satisfied contemporaneously with the
Closing Date and with respect to which appropriate releases shall be
delivered to the Trustee on the Closing Date). Except as set forth
in the Offering Memo-
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randum, there are no outstanding options, warrants or other rights
to acquire or purchase, or instruments convertible into or
exchangeable for, any shares of capital stock of the Issuer or any
of the Subsidiaries. No holder of any securities of Parent, the
Issuer or any of the Subsidiaries is entitled to have such
securities (other than the Notes) registered under any registration
statement contemplated by the Registration Rights Agreement. RMI has
no material liabilities or operations.
(iv) The Issuer and each of the Subsidiaries (a) is a
corporation, partnership or other entity duly organized and validly
existing under the laws of the jurisdiction of its organization;
(b) has all requisite corporate or other power and authority, and
has all governmental licenses, authorizations, consents and
approvals, necessary to own its property and carry on its business
as now being conducted, except if the failure to obtain any such
license, authorization, consent and approval could not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect; and (c) is qualified to do business and is in good
standing in all jurisdictions in which the nature of the business
conducted by it makes such qualification necessary and where failure
to be so qualified and in good standing, individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect. A "MATERIAL ADVERSE EFFECT" means any material adverse
effect on the business, condition (financial or other), results of
operations, properties or prospects of the Issuer and the
Subsidiaries, taken as a whole.
(v) The Issuer has all requisite corporate power and
authority to execute, deliver and perform all of its obligations
under the Transaction Documents to which it is a party and to
consummate the transactions contemplated hereby and by the
Transaction Documents to be consummated on its part and, without
limitation, the Issuer has all requisite corporate power and
authority to issue, sell and deliver and perform its obligations
under the Notes.
(vi) This Agreement has been duly authorized, executed and
delivered by the Issuer.
(vii) The Indenture has been duly authorized by the Issuer
and, when duly executed and delivered by the Issuer (assuming the
due authorization, execution and delivery thereof by the Trustee),
will be a legally binding and valid obligation of the Issuer,
enforceable against it in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought. The Indenture, when
executed and delivered, will conform in all material respects to the
description thereof in the Offering Memorandum.
(viii) The Original Notes have been duly authorized for
issuance and sale to the Initial Purchasers by the Issuer, and when
issued, authenticated and delivered by
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the Issuer against payment by the Initial Purchasers in accordance
with the terms of this Agreement and the Indenture, the Original
Notes will be legally binding and valid obligations of the Issuer,
entitled to the benefits of the Indenture and enforceable against
the Issuer in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles
of equity and the discretion of the court before which any
proceeding therefor may be brought. The Original Notes, when issued,
authenticated and delivered, will conform in all material respects
to the description thereof in the Offering Memorandum.
(ix) The Exchange Notes have been, or on or before the
Closing Date will be, duly authorized for issuance by the Issuer,
and when issued, authenticated and delivered by the Issuer in
accordance with the terms of the Registration Rights Agreement, the
Exchange Offer and the Indenture, the Exchange Notes will be legally
binding and valid obligations of the Issuer, entitled to the
benefits of the Indenture and enforceable against the Issuer in
accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and
the discretion of the court before which any proceeding therefor may
be brought.
(x) The Registration Rights Agreement has been duly
authorized by the Issuer and, when duly executed and delivered by
the Issuer (assuming the due authorization, execution and delivery
thereof by the Initial Purchasers), will constitute a valid and
legally binding obligation of the Issuer, enforceable against it in
accordance with its terms, except that (A) the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity and
the discretion of the court before which any proceeding therefor may
be brought and (B) any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and
public policy considerations. The Registration Rights Agreement,
when executed and delivered, will conform in all material respects
to the description thereof in the Offering Memorandum.
(xi) Each of the Security Documents has been duly authorized
by the Issuer and, when duly executed and delivered by the Issuer
(assuming the due authorization, execution and delivery thereof by
the Collateral Agent), will constitute a valid and legally binding
obligation of the Issuer, enforceable against it in accordance with
its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought.
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(xii) All taxes, fees and other governmental charges that are
due and payable on or prior to the Closing Date in connection with
the execution, delivery and performance of the Transaction Documents
and the execution, delivery and sale of the Original Notes shall
have been paid by or on behalf of the Issuer at or prior to the
Closing Date.
(xiii) None of Parent, the Issuer or any Subsidiary is (A) in
violation of its charter, bylaws or other constitutive documents,
(B) in default (or, with notice or lapse of time or both, would be
in default) in the performance or observance of any obligation,
agreement, covenant or condition contained in any bond, debenture,
note, indenture, mortgage, deed of trust, loan or credit agreement
or any material lease, license, franchise agreement, authorization,
permit, certificate or other material agreement or instrument to
which Parent, the Issuer or any Subsidiary is a party or by which
any of them is bound or to which any of their assets or properties
is subject (collectively, "AGREEMENTS AND INSTRUMENTS"), or (C) in
violation of any law, statute, rule, regulation, judgment, order or
decree of any domestic or foreign court with jurisdiction over any
of them or any of their assets or properties or other governmental
or regulatory authority, agency or other body, which, in the case of
clauses (B) and (C) herein, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect.
(xiv) The execution, delivery and performance of the
Transaction Documents and consummation of the Transactions does not
and will not violate, conflict with or constitute a breach of any of
the terms or provisions of or a default under (or an event that with
notice or the lapse of time, or both, would constitute a default),
or require consent under, or result in the creation or imposition of
a lien, charge or encumbrance on any property or assets of Parent,
the Issuer or any Subsidiary (other than as created pursuant to the
Indenture and the Security Documents) or an acceleration of any
indebtedness of Parent, the Issuer or any Subsidiary pursuant to,
(i) the charter, bylaws or other constitutive documents of Parent,
the Issuer or any Subsidiary, (ii) any of the Agreements and
Instruments, (iii) any law, statute, rule or regulation applicable
to Parent, the Issuer or any Subsidiary or their respective assets
or properties or (iv) any judgment, order or decree of any domestic
or foreign court or governmental agency or authority having
jurisdiction over Parent, the Issuer or any Subsidiary or their
respective assets or properties. Assuming the accuracy of the
representations and warranties of the Initial Purchasers in Section
5(b) of this Agreement, no consent, approval, authorization or order
of, or filing, registration, qualification, license or permit of or
with, any court or governmental agency, body or administrative
agency, domestic or foreign, is required to be obtained or made by
Parent, the Issuer or any Subsidiary for the execution, delivery and
performance by the Issuer or any Subsidiary of the Transaction
Documents and the consummation of the Transactions, except (w) such
as have been or will be obtained or made on or prior to the Closing
Date, (x) registration of the Exchange Offer or resale of the Notes
under the Act pursuant to the Registration Rights Agreement, (y)
qualification of the Indenture under the Trust Indenture Act of
1939, as amended (the "TRUST INDENTURE ACT"), in connection with the
issuance of
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the Exchange Notes and (z) such filings and recordings with
governmental authorities as may be required to perfect liens under
the Security Documents. No consents or waivers from any other person
or entity are required for the execution, delivery and performance
of this Agreement or any of the other Transaction Documents and the
consummation of the Transactions, other than such consents and
waivers as have been obtained or will be obtained prior to the
Closing Date and will be in full force and effect.
(xv) Except as set forth in the Offering Memorandum, there is
(A) no action, suit or proceeding before or by any court, arbitrator
or governmental agency, body or official, domestic or foreign, now
pending or, to the knowledge of the Issuer or any Subsidiary,
threatened or contemplated, to which Parent, the Issuer or any
Subsidiary is or may be a party or to which the business, assets or
property of such Person is or may be subject, (B) no statute, rule,
regulation or order that has been enacted, adopted or issued or, to
the knowledge of the Issuer, that has been proposed by any
governmental body or agency, domestic or foreign, or (C) no
injunction, restraining order or order of any nature by a federal or
state court or foreign court of competent jurisdiction to which the
Issuer or any Subsidiary is or may be subject, in each case, that
could reasonably be expected, individually or in the aggregate,
(1) to have a Material Adverse Effect or (2) to interfere with or
adversely affect the consummation of any of the Transactions,
assuming, in the case of clause (A), such action, suit or proceeding
is determined adversely to Parent, the Issuer or any Subsidiary.
Every request of any securities authority or agency of any
jurisdiction for additional information with respect to the
Transactions that has been received by Xxxxxx, the Issuer or any
Subsidiary or their counsel prior to the date hereof has been, or
will prior to the Closing Date be, complied with in all material
respects.
(xvi) Except as could not reasonably be expected to have a
Material Adverse Effect, no labor disturbance by the employees of
the Issuer or any Subsidiary exists or, to the knowledge of the
Issuer, is imminent.
(xvii) Except as set forth in the Offering Memorandum, the
Issuer and each Subsidiary (A) is in compliance with, or not subject
to costs or liabilities under, laws, regulations, rules of common
law, orders and decrees, as in effect as of the date hereof, and any
present judgments and injunctions issued or promulgated thereunder
relating to pollution or protection of public and employee health
and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants applicable to it or its business
or operations or ownership or use of its property ("ENVIRONMENTAL
LAWS"), other than noncompliance or such costs or liabilities that,
individually or in the aggregate, could not reasonably be expected
to have a Material Adverse Effect, and (B) possesses all permits,
licenses or other approvals required under applicable Environmental
Laws, except where the failure to possess any such permit, license
or other approval could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect. All
currently pending and, to the knowledge of the Issuer, threatened
proceedings, notices of violation, demands, no-
-12-
tices of potential responsibility or liability, suits and
existing environmental investigations by any governmental
authority which the Issuer or the Subsidiaries could reasonably
expect to result in a Material Adverse Effect are fully and
accurately described in all material respects in the Offering
Memorandum. The Issuer and each Subsidiary maintains a system of
internal environmental management controls sufficient to provide
reasonable assurance of compliance in all material respects of
its business facilities, real property and operations with
requirements of applicable Environmental Laws.
(xviii) The Issuer and each Subsidiary has (A) all licenses,
certificates, permits, authorizations, approvals, franchises and
other rights from, and has made all declarations and filings with,
all applicable authorities, all self-regulatory authorities and all
courts and other tribunals (each, an "AUTHORIZATION") necessary to
engage in the business conducted by it in the manner described in
the Offering Memorandum, except where the failure to hold such
Authorizations could not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect, and (B) no
reason to believe that any governmental body or agency, domestic or
foreign, is considering limiting, suspending or revoking any such
Authorization, except where such limitation, suspension or
revocation could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. All such
Authorizations are valid and in full force and effect and the Issuer
and each Subsidiary is in compliance in all material respects with
the terms and conditions of all such Authorizations and with the
rules and regulations of the regulatory authorities having
jurisdiction with respect to such Authorizations, except for any
invalidity, failure to be in full force and effect or noncompliance
with any Authorization that could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
(xix) The Issuer and each Subsidiary has good, valid and
marketable title in fee simple to all items of owned real property,
including, without limitation, all Mortgaged Property (as defined in
the Indenture and described in SCHEDULE II annexed thereto), and
valid title to all personal property owned by each of them,
including, without limitation, all Collateral (as defined in the
Indenture), in each case free and clear of any pledge, lien,
encumbrance, security interest or other defect or claim of any third
party, except (i) as created pursuant to the Indenture and the
Security Documents (and prior to the application of the proceeds of
the sale of the Original Notes, the Liens under, and granted
pursuant to the Existing Bank Facility which obligations shall be
satisfied contemporaneously with the Closing Date and with respect
to which appropriate releases shall be delivered to the Trustee on
the Closing Date), (ii) such as do not materially and adversely
affect the value of such property and do not interfere with the use
made or proposed to be made of such property by the Issuer or such
Subsidiary to an extent that such interference could reasonably be
expected to have a Material Adverse Effect, and (iii) as described
in the Offering Memorandum and (iv) in the case of Collateral (as
defined in the Indenture) as permitted by the Indenture and Security
Documents. All leased real property and personal property
(including, without limitation, all Collateral that is leased and
buildings held under lease
-13-
by the Issuer or any such Subsidiary are held under valid,
subsisting and enforceable leases, with such exceptions as do not
materially interfere with the use made or proposed to be made of
such property and buildings by the Issuer or such Subsidiary.
(xx) Except as disclosed in the Offering Memorandum, the
Issuer and each Subsidiary owns, possesses or has the right to
employ all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names
(collectively, the "INTELLECTUAL PROPERTY") necessary to conduct the
businesses operated by it as described in the Offering Memorandum,
except where the failure to own, possess or have the right to employ
such Intellectual Property, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect. Except
as disclosed in the Offering Memorandum, neither the Issuer nor any
Subsidiary has received any notice of infringement of or conflict
with (and neither knows of any such infringement or a conflict with)
asserted rights of others with respect to any of the foregoing that
could reasonably be expected to have a Material Adverse Effect.
Except as disclosed in the Offering Memorandum, the use of the
Intellectual Property in connection with the business and operations
of the Issuer and the Subsidiaries, to the Issuer's knowledge, does
not infringe on the rights of any person, except for such
infringement as could not reasonably be expected to have a Material
Adverse Effect.
(xxi) All tax returns required to be filed by Parent, the
Issuer and each Subsidiary have been filed in all jurisdictions
where such returns are required to be filed; and all taxes,
including withholding taxes, value added and franchise taxes,
penalties and interest, assessments, fees and other charges due or
claimed to be due from such entities or that are due and payable
have been paid, other than those being contested in good faith and
for which reserves have been provided in accordance with generally
accepted accounting principles or those currently payable without
penalty or interest and except where the failure to make such
required filings or payments could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
To the knowledge of the Issuer, there are no material proposed
additional tax assessments against any of the Issuer and the
Subsidiaries or their assets or property.
(xxii) Neither the Issuer nor any Subsidiary has any liability
for any prohibited transaction or accumulated funding deficiency
(within the meaning of Section 412 of the Code) or any complete or
partial withdrawal liability with respect to any pension, profit
sharing or other plan which is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which the
Issuer or any Subsidiary makes or ever has made a contribution and
in which any employee of the Issuer or any Subsidiary is or has ever
been a participant. With respect to such plans, the Issuer and each
Subsidiary is in compliance in all material respects with all
applicable provisions of ERISA.
-14-
(xxiii) None of Parent, the Issuer or any Subsidiary is an
"investment company" or a company "controlled" by an "investment
company" incorporated in the United States within the meaning of the
Investment Company Act of 1940, as amended.
(xxiv) Parent, the Issuer and the Subsidiaries maintain a
system of internal accounting controls sufficient to provide
reasonable assurance that: (A) transactions are executed in
accordance with management's general or specific authorizations; (B)
transactions are recorded as necessary to permit preparation of
their financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (C)
access to assets is permitted only in accordance with management's
general or specific authorization; and (D) the recorded
accountability for their assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect
to any differences.
(xxv) The Issuer and the Subsidiaries maintain insurance
covering their properties, assets, operations personnel and
businesses, and such insurance is of such type and in such amounts
in accordance with customary industry practice to protect the Issuer
and the Subsidiaries and their businesses.
(xxvi) Neither the Issuer nor any of its affiliates (as
defined in Rule 501(b) of Regulation D under the Act) has (A) taken,
directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Issuer to
facilitate the sale or resale of the Original Notes or (B) sold, bid
for, purchased or paid any person any compensation for soliciting
purchases of the Original Notes in a manner that would require
registration of the Original Notes under the Act or paid or agreed
to pay to any person any compensation for soliciting another to
purchase any other securities of the Issuer in a manner that would
require registration of the Original Notes under the Act.
(xxvii) Neither the Issuer nor any of its affiliates (as
defined in Regulation D under the Act) has, directly or through any
agent (other than the Initial Purchasers or any affiliate of the
Initial Purchasers, as to which no representation is made), sold,
offered for sale, contracted to sell, pledged, solicited offers to
buy or otherwise disposed of or negotiated in respect of any
security (as defined in the Act) that is currently or will be
integrated with the sale of the Original Notes in a manner that
would require the registration of the Original Notes under the Act.
(xxviii) Neither the Issuer nor any of its affiliates, or any
person acting on its or their behalf (other than any Initial
Purchaser, as to whom the Issuer makes no representation), is
engaged in any directed selling effort with respect to the Original
Notes, and each of them has complied with the offering restrictions
requirement of Regulation S under the Act. Terms used in this
paragraph have the meaning given to them by Regulation S.
-15-
(xxix) No form of general solicitation or general advertising
(prohibited by the Act in connection with offers or sales such as
the Exempt Resales) was used by the Issuer or any of its
representatives (other than any Initial Purchaser, as to whom the
Issuer makes no representation) in connection with the offer and
sale of any of the Original Notes or in connection with Exempt
Resales, including, but not limited to, articles, notices or other
communications published in any newspaper, magazine or similar
medium or broadcast over television or radio or displayed on any
computer terminal, or any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising.
Neither the Issuer nor any of its affiliates has entered into, and
neither the Issuer nor any of its affiliates will enter into, any
contractual arrangement with respect to the distribution of the
Original Notes except for this Agreement.
(xxx) As of June 30, 2001, none of the Issuer, any Subsidiary
or RMI had any material liabilities or obligations, direct or
contingent, that would be required under generally accepted
accounting principles to be included in a balance sheet that were
not set forth in the Issuer's consolidated balance sheet as of such
date or in the notes thereto set forth in the Offering Memorandum.
Since June 30, 2001, except as set forth or contemplated in the
Offering Memorandum, (a) none of Parent, the Issuer, any Subsidiary
or RMI has (1) incurred any liabilities or obligations, direct or
contingent, that could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, or (2) entered into
any material transaction not in the ordinary course of business, (b)
there has not been any event or development in respect of the
business or condition (financial or other) of Parent, the Issuer,
the Subsidiaries and RMI that, either individually or in the
aggregate, could reasonably be expected to have a Material Adverse
Effect, (c) there has been no dividend or distribution of any kind
declared, paid or made by Parent or the Issuer on any class of its
capital stock and (d) there has not been any change in the long-term
debt of Parent, the Issuer or any of the Subsidiaries, other than
required repayments of principal under the Existing Bank Facility
and accretion of additional principal of Parent's 11-1/8% senior
discount notes due 2008.
(xxxi) Neither the Issuer nor any Subsidiary (or any agent
thereof acting on their behalf) has taken, and none of them will
take, any action that might cause this Agreement or the issuance or
sale of the Notes to violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System, as in effect, or as the
same may hereafter be in effect, on the Closing Date.
(xxxii) PricewaterhouseCoopers LLP are independent accountants
within the meaning of the Act. The historical financial statements
and the notes thereto of the Issuer included in the Offering
Memorandum present fairly in all material respects the consolidated
financial position, results of operations, cash flows and changes in
stockholder's equity of the Issuer and the Subsidiaries at the
respective dates and for the respective periods indicated. The
historical financial statements and the notes thereto of Parent
included in Parent's annual report on Form 10-K for the year ended
-16-
December 31, 2001 and its quarterly report on Form 10-Q for the
period ended June 30, 2001 present fairly in all material respects
the consolidated financial position results of operations, cash
flows and changes in stockholders' equity of Parent at the
respective dates and for the periods indicated. All such financial
statements have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis throughout the
periods presented (except as disclosed therein). The other financial
and statistical information and data included in the Offering
Memorandum are accurately presented in all material respects and
prepared on a basis consistent with the financial statements and the
books and records of Parent, the Issuer and the Subsidiaries.
(xxxiii) As of the date hereof and as of the Closing Date,
immediately prior to and immediately following the consummation of
the Transactions, Parent, the Issuer and each Subsidiary is and will
be Solvent. Neither Parent nor the Issuer is contemplating the
filing of a petition by it under any bankruptcy or insolvency laws
or the liquidating of all or a substantial portion of its property,
and the Issuer has no knowledge of any Person contemplating the
filing of any such petition against Parent or the Issuer. As used
herein, "SOLVENT" shall mean, for any Person on a particular date,
that on such date (a) the fair value of the property of such Person
is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person, (b) the present
fair salable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such
Person does not intend to, and does not believe that it will, incur
debts and liabilities beyond such Person's ability to pay as such
debts and liabilities mature, (d) such Person is not engaged in a
business or a transaction, and is not about to engage in a business
or a transaction, for which such Person's property would constitute
an unreasonably small capital and (e) such Person is able to pay its
debts as they become due and payable.
(xxxiv) Except as described in the section entitled "Plan of
Distribution" in the Offering Memorandum, there are no contracts,
agreements or understandings between Parent, the Issuer or any
Subsidiary and any other Person other than the Initial Purchasers
pursuant to this Agreement that would give rise to a valid claim
against Parent, the Issuer, any such Subsidiary or either Initial
Purchaser for a brokerage commission, finder's fee or like payment
in connection with the issuance, purchase and sale of the Notes.
(xxxv) The statistical and market-related data and
forward-looking statements (within the meaning of Section 27A of the
Act and Section 21E of the Exchange Act) included in the Offering
Memorandum are based on or derived from sources that the Issuer
believes to be reliable and accurate in all material respects and
represent its good faith estimates that are made on the basis of
data derived from such sources.
(xxxvi) Each certificate signed by any officer of the Issuer
and delivered to the Initial Purchasers or counsel for the Initial
Purchasers pursuant to, or in connection
-17-
with, this Agreement shall be deemed to be a representation and
warranty by the Issuer to the Initial Purchasers as to the matters
covered by such certificate.
(xxxvii) Upon filing of financing statements (containing
adequate descriptions of the personal property Collateral) execution
and delivery of control agreements with the Issuer's banks (and/or
with securities intermediaries) and recording of the Mortgage (as
defined in the Indenture) and the Security Agreement (or other
appropriate assignment documents) with the appropriate governmental
authorities (including payment of the appropriate filing or
recording fees and any applicable taxes) and delivery of the
applicable documents to the Trustee in accordance with the
provisions of the Security Documents, the Trustee will have a valid
and perfected Lien on Collateral consisting of real property and a
perfected security interest in Collateral consisting of personal
property, on the Closing Date, superior to and prior to the Liens of
all third persons other than, in the case of the personal property
Collateral, Prior Liens (as defined in the Security Agreement) and
thereafter, subject to no other Liens, except for Permitted
Collateral Liens (as defined in the Security Agreement or as defined
in the Indenture), as applicable, and, in the case of the Mortgaged
Property, Prior Liens (as defined in the Mortgage) and thereafter
subject to no other Liens, except for Permitted Collateral Liens (as
defined in the applicable Security Documents).
(xxxviii) To the Issuer's knowledge (prior to, but not on or
after, the Closing Date), no taking has been commenced or is
contemplated with respect to all or any portion of the Mortgaged
Property or for the relocation of roadways providing access to the
Mortgaged Property, except as could not reasonably be expected to
have a Material Adverse Effect. To the Issuer's knowledge (prior to,
but not on or after, the Closing Date), there are no material
actions, suits, claims, legal proceedings or other proceedings
affecting the Mortgaged Property or any portion thereof, before any
court or agency the adverse determination of which could reasonably
be expected to have a Material Adverse Effect.
(xxxix) To the Issuer's knowledge (prior to, but not on or
after, the Closing Date), the Mortgaged Property has adequate rights
of access to public ways and is served by water, electric, sewer,
sanitary sewer and storm drain facilities except as could not
reasonably be expected to have a Material Adverse Effect. To the
Issuer's knowledge, all public utilities necessary to the continued
use and enjoyment of the Mortgaged Property as presently used and
enjoyed are located in the public right-of-way abutting the premises
or within easements serving the premises, and all such utilities are
connected so as to serve the Mortgaged Property without passing over
other property, (i) except for such easements or property of the
utility company providing such utility service in each case or (ii)
except as could not reasonably be expected to have a Material
Adverse Effect. To the Issuer's knowledge, all roads necessary for
the full utilization of the Mortgaged Property for its current
purpose have been completed and dedicated to public use and accepted
by all regulatory and governmental authorities or are the subject of
leases or access easement for the benefit of
-18-
the Mortgaged Property except as could not reasonably be expected
to have a Material Adverse Effect.
(xl) To the Issuer's knowledge, there are no pending or
proposed special or other assessments for public improvements or
otherwise affecting the Mortgaged Property other than those that
could not reasonably be expected to have a Material Adverse Effect,
nor are there any contemplated improvements to the Mortgaged
Property that may result in such special or other assessments other
than those that could not reasonably be expected to have a Material
Adverse Effect.
(xli) To the Issuer's knowledge, none of the buildings within
the Mortgaged Property is located in a special flood hazard area as
defined by the Federal Insurance Administration except as shown on
the survey or could not reasonably be expected to have a Material
Adverse Effect.
(xlii) To the Issuer's knowledge, the Mortgaged Property is
free of material structural defects and all material building
systems contained therein are in good working order subject to
ordinary wear and tear, except in each case as could not reasonably
be expected to have a Material Adverse Effect.
(xliii) To the Issuer's knowledge, except in each case as
could not reasonably be expected to have a Material Adverse Effect,
(i) no improvements on adjoining properties encroach upon the
Mortgaged Property, (ii) no easements or other encumbrances upon the
Mortgaged Property encroach upon any of the improvements so as to
affect the value or marketability of the Mortgaged Property except
those insured against by title insurance, (iii) no improvements
encroach upon a property lien or easement requiring removal and
relocation of all or a portion of the improvements at the facility,
and (iv) all of the improvements comply with all requirements of any
applicable zoning and subdivision laws and ordinances.
The Issuer acknowledges that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 8 of this Agreement, counsel to the Issuer and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and the Issuer hereby consents to such reliance.
(b) Each Initial Purchaser acknowledges that it is purchasing the
Original Notes pursuant to a private sale exemption from registration under the
Act, and that the Original Notes have not been registered under the 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 the registration
requirements of the Act. Each Initial Purchaser, severally and not jointly,
represents, warrants and covenants to the Issuer that:
(i) Neither it, nor any person acting on its behalf, has or
will solicit offers for, or offer or sell, the Original Notes by any
form of general solicitation or general advertising (as those terms
are used in Regulation D under the Act) or in any manner
-19-
involving a public offering within the meaning of Section 4(2) of
the Act and it has and will solicit offers for the Original Notes
only from, and will offer and sell the Original Notes only to,
(1) Persons whom such Initial Purchaser reasonably believes to be
QIBs or, if any such Person is buying for one or more
institutional accounts for which such Person is acting as
fiduciary or agent, only when such Person has represented to such
Initial Purchaser that each such account is a QIB to whom notice
has been given that such sale or delivery is being made in
reliance on Rule 144A, and, in each case, in reliance on the
exemption from the registration requirements of the Act pursuant
to Rule 144A, or (2) Persons other than U.S. Persons outside the
United States in reliance on the exemption from the registration
requirements of the Act provided by Regulation S.
(ii) With respect to offers and sales outside the United
States, such Initial Purchaser has offered the Original Notes and
will offer and sell the Original Notes (1) as part of its
distribution at any time and (2) otherwise until 40 days after the
later of the commencement of the offering of the Original Notes and
the Closing Date, only in accordance with Rule 903 of Regulation S
or another exemption from the registration requirements of the Act.
Accordingly, neither such Initial Purchaser nor any person acting on
its behalf has engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the
Original Notes, and any such persons have complied and will comply
with the offering restrictions requirements of Regulation S. Terms
used in this Section 5(b)(ii) have the meanings given to them by
Regulation S.
(iii) Each Initial Purchaser further represents and agrees
that (a) it has not offered or sold and prior to the date six months
after the date of issue of the Original Notes will not offer or sell
any Original Notes 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
Public Offers of Securities Regulations 1995, (b) it has complied,
and will comply, with all applicable provisions of the Financial
Services Act of 1986 of Great Britain and with respect to anything
done by it in relation to the Original Notes in, from or otherwise
involving the United Kingdom, and (c) it has issued or passed on and
will issue or pass on in the United Kingdom any document received by
it in connection with the issuance of the Original Notes only to a
person who is of a kind described in Article 9(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order
1996 of Great Britain or is a person to whom the document may
otherwise lawfully be issued or passed on.
The Initial Purchasers understand that the Issuer and, for purposes
of the opinions to be delivered to them pursuant to Section 8 hereof, counsel to
the Issuer and counsel to the Initial Purchasers
-20-
will rely upon the accuracy and truth of the foregoing representations, and
each Initial Purchaser hereby consents to such reliance.
6. INDEMNIFICATION. (a) The Issuer agrees to indemnify and hold
harmless the Initial Purchasers, each person, if any, who controls any Initial
Purchaser within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, the agents, employees, officers and directors of any Initial
Purchaser and the agents, employees, officers and directors of any such
controlling person from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including, but not limited, to reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in
settlement of any claim or litigation) (collectively, "LOSSES") to which they or
any of them may become subject under the Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Offering Memorandum or the Offering Memorandum, or
in any supplement thereto or amendment thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; PROVIDED, HOWEVER, that the Issuer will not be
liable in any such case to the extent, but only to the extent, that any such
Loss arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission relating to an Initial Purchaser made
therein in reliance upon and in conformity with written information furnished to
the Issuer by or on behalf of such Initial Purchaser expressly for use therein.
This indemnity agreement will be in addition to any liability that the Issuer
may otherwise have, including, but not limited to, liability under this
Agreement. Any amount advanced by the Issuer to an indemnified party pursuant to
this Section 6 as a result of such Losses shall be returned to the Issuer if it
shall be finally judicially determined that such indemnified party was not
entitled to indemnification (including such advances) by the Issuer.
(b) Each Initial Purchaser agrees to indemnify and hold harmless
the Issuer, and each person, if any, who controls the Issuer within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, each of its
agents, employees, officers and directors and the agents, employees, officers
and directors of any such controlling person from and against any Losses to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise insofar as such Losses (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Preliminary Offering Memorandum or the Offering
Memorandum, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but only
to the extent, that any such Loss arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission relating
to such Initial Purchaser made therein in reliance upon and in conformity with
information furnished in writing to the Issuer by or on behalf of such Initial
Purchaser expressly for use therein. The Issuer and the Initial Purchasers
acknowledge that the information described in Section 9 is the only information
furnished in writing by the Initial Purchasers to the Issuer expressly for use
in the Preliminary Offering Memorandum or the Offering Memorandum. Any amount
advanced by an Initial Purchaser to an indemnified
-21-
party pursuant to this Section 6 as a result of such Losses shall be returned
to such Initial Purchasers if it shall be finally judicially determined that
such indemnified party was not entitled to indemnification (including such
advances) by the Initial Purchaser.
(c) Promptly after receipt by an indemnified party under
subsection 6(a) or 6(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "ACTION"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 6 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying parties (or such
indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent, which consent may not be unreasonably
withheld. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by paragraph (a) or (b)
of this Section 6, then the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 45 days prior notice of its intention to settle.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
-22-
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such proceeding.
7. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuer, on the one hand, and the Initial Purchasers, on the other hand, from
the offering of the Original Notes or (ii) if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Issuer,
on the one hand, and the Initial Purchasers, on the other hand, in connection
with the statements or omissions that resulted in such Losses, as well as any
other relevant equitable considerations. The relative benefits received by the
Issuer, on the one hand, and the Initial Purchasers, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
of Original Notes (net of discounts and commissions but before deducting
expenses) received by the Issuer are to (y) the total discount received by the
Initial Purchasers. The relative fault of the Issuer, on the one hand, and the
Initial Purchasers, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuer or the Initial Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or alleged statement or omission.
The Issuer and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall any Initial Purchaser be
required to contribute any amount in excess of the amount by which the total
discount applicable to the Original Notes purchased by such Initial Purchaser
pursuant to this Agreement exceeds the amount of any damages that such Initial
Purchaser has otherwise been required to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person, if
any, who controls any Initial Purchaser within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as the Initial Purchasers, and each person, if any, who controls
the Issuer within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and each director, officer, employee and agent of the Issuer shall
have the same rights to contribution as the Issuer. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim for contribution may be
made against another party or parties under this Section 7, notify such party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that it has been prejudiced in any material
respect by such failure; PROVIDED, HOWEVER, that no additional notice shall be
required
-23-
with respect to any action for which notice has been given under Section 6
for purposes of indemnification. Anything in this section to the contrary
notwithstanding, no party shall be liable for contribution with respect to
any action or claim settled without its written consent; PROVIDED, HOWEVER,
that such written consent was not unreasonably withheld.
8. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS. The obligations
of the Initial Purchasers to purchase and pay for the Original Notes, as
provided for in this Agreement, shall be subject to satisfaction of the
following conditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the Issuer
contained in this Agreement shall be true and correct, or true and correct
in all material respects where such representations and warranties are not
qualified by materiality or Material Adverse Effect, on the date of this
Agreement and, in each case, after giving effect to the transactions
contemplated hereby, on the Closing Date, except that if a representation
or warranty is made as of a specific date, such representation or warranty
shall be true and correct (or true and correct in all material respects,
as applicable), as of such date. The Issuer shall have performed or
complied in all material respects with all of the agreements and covenants
contained in this Agreement and required to be performed or complied with
by it at or prior to the Closing Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers on the date of this Agreement or at
such later date as the Initial Purchasers may determine. No stop order
suspending the qualification or exemption from qualification of the
Original Notes in any jurisdiction shall have been issued and no
proceeding for that purpose shall have been commenced or shall be pending
or threatened.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would, as of the Closing Date, prevent the
issuance and sale of the Original Notes or consummation of the Exchange
Offer; except as disclosed in the Offering Memorandum, no action, suit or
proceeding shall have been commenced and be pending against or affecting
or, to the best knowledge of the Issuer, threatened against Parent, the
Issuer or any Subsidiary before any court or arbitrator or any
governmental body, agency or official that, if adversely determined, could
reasonably be expected to have a Material Adverse Effect; and no stop
order preventing the use of the Preliminary Offering Memorandum or the
Offering Memorandum, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act shall have been
issued.
(d) Intentionally omitted.
(e) The Initial Purchasers shall have received certificates, dated
the Closing Date, signed by two authorized officers of the Issuer
confirming, as of the Closing Date, to its knowledge, the matters set
forth in paragraphs (a), (b), and (c) of this Section 8.
-24-
(f) The Initial Purchasers shall have received on the Closing Date
opinions dated the Closing Date, addressed to the Initial Purchasers, of
(i) Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel to the Issuer, (ii) one or
more special patent counsels to the Issuer, (iii) Xxxxxx X. Xxxxxxxxx,
general counsel of the Issuer, substantially in the form of EXHIBITS A-1,
A-2, and A-3 attached hereto and (iv) Xxxxx, Xxxxxx & XxXxxxxx, special
regulatory counsel to the Issuer in form and substance reasonably
satisfactory to the Initial Purchasers and their counsel.
(g) The Initial Purchasers shall have received on the Closing Date
an opinion dated the Closing Date of Xxxxxx Xxxxxx & Xxxxxxx, counsel to
the Initial Purchasers.
(h) On the date hereof, the Initial Purchasers shall have received
a "comfort letter" from PricewaterhouseCoopers LLP, independent public
accountants for the Issuer, dated the date of this Agreement, addressed to
the Initial Purchasers and in form and substance reasonably satisfactory
to the Initial Purchasers and counsel to the Initial Purchasers. In
addition, the Initial Purchasers shall have received "bring-down comfort
letter" from PricewaterhouseCoopers LLP, dated as of the Closing Date,
addressed to the Initial Purchasers and in form and substance reasonably
satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers.
(i) Each of the other Transaction Documents shall have been
executed and delivered and the Initial Purchasers shall have received
copies, conformed as executed, thereof.
(j) The Existing Bank Facility shall be, substantially
simultaneously with the closing hereunder, repaid in full and terminated.
Each of the other Transactions (other than the Debenture Payment) shall
have been, or shall substantially simultaneously be consummated.
(k) The Initial Purchasers shall have been furnished with wiring
instructions for the application of the proceeds of the Original Notes in
accordance with this Agreement and such other information as they may
reasonably request.
(l) Xxxxxx Xxxxxx & Xxxxxxx, counsel to the Initial Purchasers,
shall have been furnished with such documents as they may reasonably
request to enable them to review or pass upon the matters referred to in
this Section 8 and in order to evidence the accuracy, completeness or
satisfaction in all material respects of any of the representations,
warranties or conditions contained in this Agreement.
(m) The Original Notes shall be eligible for trading in The Portal
Market upon issuance. All agreements set forth in the representation
letter of the Issuer to DTC relating to the approval of the Notes by DTC
for "book-entry" transfer shall have been complied with.
(n) In accordance with the terms of the Indenture, the Initial
Purchasers and the Trustee shall have received each of the following
documents which shall be reasonably satisfactory
-25-
in form and substance to the Initial Purchasers, the Trustee and each of
their respective counsel with respect to the Mortgaged Property and the
Collateral, as appropriate:
(i) a Mortgage in favor of the Trustee encumbering the
Issuer's fee interest in the Mortgaged Property, duly executed and
acknowledged by such owner or holder of the fee interest
constituting such Mortgaged Property, in form for recording in the
appropriate recording office of the political subdivision where such
Mortgaged Property is situated, together with such certificates,
affidavits, questionnaires or returns as shall be required in
connection with the recording or filing thereof and such financing
statements and other similar statements as are contemplated in
respect of such Mortgage by the local counsel opinion referred to in
subparagraph (xii) below, and any other instruments necessary to
grant the interests purported to be granted by such Mortgage under
the laws of any applicable jurisdiction, which Mortgage and
financing statements and other instruments shall be effective to
create a Lien on such Mortgaged Property in favor of the Trustee,
subject to no Liens other than Prior Liens, as of the Closing Date,
and thereafter Permitted Collateral Liens;
(ii) such consents, approvals, amendments, supplements,
estoppels, tenant subordination agreements or other instruments as
shall be reasonably necessary in order for the owner or holder of
the fee interest to grant the Lien contemplated by the Mortgage with
respect to the Mortgaged Property;
(iii) with respect to the Mortgage, a policy of title
insurance (or commitment to issue such a policy) insuring (or
committing to insure) the Lien of such Mortgage as a valid mortgage
Lien on the real property and fixtures described therein, with the
priority described in the Offering Memorandum, in respect of the
Notes in an amount not less than 115% of the fair market value of
such Mortgaged Property as reasonably determined, in good faith, by
the Issuer and reasonably acceptable to the Initial Purchasers, and
which policy (or commitment) shall (a) be issued by a title company
reasonably acceptable to the Initial Purchasers (including, without
limitation, First American Title Insurance Company), (b) include
such reinsurance arrangements (with provisions for direct access),
if any, as shall be reasonably acceptable to the Initial Purchasers,
(c) have been supplemented by endorsements reasonably requested by
the Initial Purchasers and available at commercially reasonable
premium costs (including, without limitation, endorsements on
matters relating to usury, first loss, last dollar, non-imputation,
public road access, contiguity (where appropriate), environmental,
address, survey, doing business, and so-called comprehensive
coverage over covenants and restrictions); it being understood that
where such endorsements are not available at commercially reasonable
rates, the Issuer will obtain from local or special counsel opinions
relating to usury and zoning letters from the appropriate
governmental authorities or other evidence as to such matters, in
each case, in form and substance reasonably satisfactory to the
Initial Purchasers and (d) contain only such exceptions to title as
shall be reasonably agreed to by the Initial Purchasers with respect
to such Mortgaged Property;
-26-
(iv) with respect to the Mortgaged Property, a survey (i) in
such form as shall be required by the title insurance company to
issue the so-called comprehensive endorsement required under
paragraph (iii) hereof and to remove the standard survey exception
from such policy (or commitment) and (ii) to the extent commercially
reasonable, complying with the minimum detail requirements of the
American Land Title Association (as such requirements are in effect
on the date or delivery of such survey) certified to the Trustee and
dated (or redated) not earlier than twelve months prior to the date
of delivery thereof, or if earlier, accompanied by an officers'
certificate stating that there have been no material changes to the
Mortgaged Property since the date of the survey, unless there shall
have occurred any material exterior change in the property affected
thereby during such period, in which event such survey shall be
dated or redated to a date after the completion of such change,
which survey shall locate all improvements, public streets and
recorded easements affecting such Mortgaged Property and in such
form as shall be required by the title insurance company to issue
the so-called comprehensive endorsement required under paragraph
(iii) hereof and to remove the standard survey exception from such
policy (or commitment);
(v) policies or certificates of insurance as required by the
Security Documents, which policies or certificates shall bear
endorsements of the character required pursuant to the Security
Documents;
(vi) Uniform Commercial Code ("UCC"), judgment, tax lien and
Intellectual Property searches confirming that the personal property
comprising a part of the Mortgaged Property or the Collateral is
subject to no Liens other than Prior Liens;
(vii) such affidavits, certificates and instruments of
indemnification as shall be reasonably required to induce the title
insurance company to issue the policy or policies (or commitment)
contemplated in subparagraph (iii) above;
(viii) checks or wire transfers to the title insurance company
in respect of amounts in payment of required recording cost and
transfer taxes due in respect of the execution, delivery or
recording of the Mortgage, together with a check or wire transfer
for the title insurance company in payment of its premium, search
and examination charges, applicable survey costs and any other
amounts then due in connection with the issuance of its policies (or
commitments);
(ix) copies of all Leases and Subleases (as defined in the
Mortgage);
(x) a certificate of an officer of the Issuer and the
Subsidiary constituting the owner of the Mortgaged Property made
with respect to the Mortgaged Property, in the form of EXHIBIT B
hereto;
(xi) [Intentionally omitted];
-27-
(xii) an opinion from local counsel in North Carolina that
shall be in form and substance reasonably satisfactory to the
Initial Purchasers and their counsel;
(xiii) certificates representing all the outstanding Equity
Interests owned by the Issuer in ALARIS Consent Corp. and ALARIS
Release Corp. which shall have been duly and validly pledged
thereunder to the Collateral Agent for the benefit of the Holders of
the Notes, accompanied by instruments of transfer and stock powers
endorsed in blank; and
(xiv) the Issuer shall have authorized, executed and delivered
all documents and taken all actions necessary or appropriate to
grant in favor of the Trustee, as Collateral Agent, for the benefit
of the Holders of the Notes a fully perfected first priority pledge
of and security interest in 65% of the Equity Interests owned by the
Issuer in each existing direct Foreign Subsidiary organized under
the laws of Canada, Australia and the United Kingdom, under the laws
of such jurisdiction (including, without limitation, the filing of
registrations and financing statements (or the foreign equivalent,
if applicable), the delivery of all certificates, agreements or
instruments representing such Equity Interests, accompanied by
instruments of transfer endorsed in blank to the extent required or
permitted under the jurisdiction of organization of the applicable
issuer of such Equity Interests) and (ii) the Trustee, as Collateral
Agent, shall have received, on behalf of itself and the holders of
the Notes, a favorable written opinion of foreign counsel in Canada,
Australia and the United Kingdom, in form and substance reasonably
satisfactory to the Initial Purchasers and their counsel (a) dated
as of the Closing Date, (b) addressed to the Trustee and the Initial
Purchasers and (c) covering such other matters relating to the
Transaction Documents and the Transaction as the Initial Purchasers
shall reasonably request.
(xv) All Security Documents shall have been executed by the
respective parties thereto in form and substance reasonably
satisfactory to the Initial Purchasers.
The documents required to be delivered by this Section 8 will be
delivered at the office of counsel for the Initial Purchasers on the Closing
Date.
9. INITIAL PURCHASERS INFORMATION. The Issuer and the Initial
Purchasers severally acknowledge that the statements with respect to the
delivery of the Original Notes to the Initial Purchasers set forth in the first
sentence of the fourth paragraph, the sixth paragraph and the first sentence of
the eighth paragraph under "Plan of Distribution" in the Preliminary Offering
Memorandum and the Offering Memorandum constitute the only information furnished
in writing by the Initial Purchasers expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All
representations and warranties, covenants and agreements contained in this
Agreement, including the agreements contained in Sections 4(f) and 11(d), the
indemnity agreements contained in Section 6 and the contribution agreements
contained in Section 7, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Initial Purchasers
or any controlling person thereof or by or on
-28-
behalf of the Issuer or any controlling person thereof, and shall survive
delivery of and payment for the Original Notes to and by the Initial
Purchasers. The agreements contained in Sections 4(f), 6, 7, 9 and 11(d)
shall survive the termination of this Agreement, including pursuant to
Section 11.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION. (a) This Agreement
shall become effective upon execution and delivery of a counterpart hereof by
each of the parties hereto.
(b) The Initial Purchasers shall have the right to terminate this
Agreement at any time prior to the Closing Date by notice to the Issuer from the
Initial Purchasers, without liability (other than with respect to Sections 6 and
7) on the Initial Purchasers' part to the Issuer or any affiliate thereof if, on
or prior to such date, (i) the Issuer shall have failed, refused or been unable
to perform in any material respect any agreement on its part to be performed
under this Agreement when and as required, (ii) any other condition to the
obligations of the Initial Purchasers under this Agreement to be fulfilled by
the Issuer pursuant to Section 8 is not fulfilled when and as required, (iii)
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited, or minimum prices shall have been established thereon by the
Commission, or by such exchange or other regulatory body or governmental
authority having jurisdiction, (iv) a general banking moratorium shall have been
declared by federal or New York authorities, (v) there is an outbreak or
escalation of hostilities or other national or international calamity, in any
case involving the United States, on or after the date of this Agreement, or
there has been a declaration by the United States of a national emergency or war
or other national or international calamity or crisis (economic, political,
financial or otherwise) which affects the U.S. and international markets, making
it, in the Initial Purchasers' reasonable judgment, impracticable to proceed
with the offering or delivery of the Original Notes on the terms and in the
manner contemplated in the Offering Memorandum or (vi) there shall have been
such a material adverse change or material disruption in the financial, banking
or capital markets generally (including, without limitation, the markets for
debt securities of companies similar to the Issuer) or the effect (or potential
effect if the financial markets in the United States have not yet opened) of
international conditions on the financial markets in the United States shall be
such as, in the Initial Purchasers' reasonable judgment, to make it inadvisable
or impracticable to proceed with the offering or delivery of the Notes on the
terms and in the manner contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 11 shall be
given at the address specified in Section 12 below by telephone, or facsimile
confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to Section
11(b)(i) or (ii), or if the sale of the Notes provided for in this Agreement is
not consummated because of any refusal, inability or failure on the part of the
Issuer to satisfy any condition to the obligations of the Initial Purchasers set
forth in this Agreement to be satisfied on its part or because of any refusal,
inability or failure on the part of the Issuer to perform any agreement in this
Agreement or comply with any provision of this Agreement, the Issuer will
reimburse the Initial Purchasers for all of their reasonable out-of-pocket
expenses (including, without limitation, the fees and expenses of the Initial
Purchasers' counsel) incurred in connection with this Agreement.
-29-
(e) If any Initial Purchaser shall fail to purchase and pay for
any of the Original Notes agreed to be purchased by such Initial Purchaser
hereunder and such failure to purchase shall constitute a default in the
performance of its obligations under this Agreement, the remaining Initial
Purchaser shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Original Notes, and if such nondefaulting
Initial Purchaser does not purchase all the Original Notes, this Agreement will
terminate without liability to any nondefaulting Initial Purchaser or the
Issuer. In the event of a default by any Initial Purchaser as set forth in this
paragraph (e), the Closing Date shall be postponed for such period, not
exceeding five business days, as the nondefaulting Initial Purchaser shall
determine in order that the required changes in the Offering Memorandum or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Initial Purchaser of its liability, if
any, to the Issuer or any nondefaulting Initial Purchaser for damages occasioned
by its default hereunder.
12. NOTICE. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchasers, shall be mailed,
delivered, or, telegraphed or telecopied and confirmed in writing to UBS Warburg
LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telephone: (000) 000-0000, fax
number: 000-000-0000), Attention: Syndicate Department, with a copy to Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (telephone: (212)
000-0000, fax: (000) 000-0000), Attention: Xxxxxx X. Xxxxxxx, Esq.; and if sent
to the Issuer, shall be mailed, delivered or, telegraphed or telecopied and
confirmed in writing to ALARIS Medical Systems, Inc., 00000 Xxxxxxxxx Xxxxxx,
Xxx Xxxxx, XX 00000 (telephone: (000) 000-0000, fax: (000) 000-0000), Attention:
Xxxxxx X. Xxxxxxxxx, Esq., with a copy to Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP,
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (telephone: (212)
000-0000, fax: (000) 000-0000), Attention: Xxxxxxxx Xxxxx Xxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged by telecopier machine, if telecopied; and one business day after
being timely delivered to a next-day air courier.
13. PARTIES. This Agreement shall inure solely to the benefit of,
and shall be binding upon, the Initial Purchasers, the Issuer and the
controlling persons and agents referred to in Sections 6 and 7, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Notes from the Initial Purchasers.
14. CONSTRUCTION. This Agreement shall be construed in accordance
with the internal laws of the State of New York (without giving effect to any
provisions thereof relating to conflicts of law).
15. CAPTIONS. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
-30-
16. COUNTERPARTS. This Agreement may be executed in various
counterparts that together shall constitute one and the same instrument.
[Signature Pages Follow]
S-1
If the foregoing Purchase Agreement correctly sets forth the
understanding among the Issuer and the Initial Purchasers, please so indicate in
the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Issuer and the Initial
Purchasers.
ALARIS MEDICAL SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxx
------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Vice President & Chief
Financial Officer
Confirmed and accepted as of
the date first above written:
UBS WARBURG LLC
BEAR, XXXXXXX & CO. INC.
By: UBS Warburg LLC
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
SCHEDULE I
INITIAL PURCHASER PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
----------------- -----------------------------------------
UBS Warburg LLC $ 85,000,000
Bear, Xxxxxxx & Co. Inc. $ 85,000,000
------------
Total $170,000,000
============
SCHEDULE II
LIST OF SUBSIDIARIES
------------------------------------------------------------------------------------------------------------------------------
Subsidiary Jurisdiction of Type of Entity Percent of Equity Ownership by
Incorporation or the Issuer
Formation
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical UK, Limited United Kingdom Foreign Directly owns 100%
corporation
operating under
the laws of the
United Kingdom
------------------------------------------------------------------------------------------------------------------------------
IVAC Industries, Ltd. United Kingdom Foreign Indirectly owns 100%(1)
corporation
operating under
the laws of the
United Kingdom
------------------------------------------------------------------------------------------------------------------------------
ALARIS Release Corporation Delaware Corporation Directly owns 100%
------------------------------------------------------------------------------------------------------------------------------
IVAC Overseas Holdings, Inc. Delaware Corporation Indirectly owns 100%(2)
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Espana, S.L. Spain Foreign Indirectly owns 100%(3)
corporation
operating under
the laws of Spain
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Holland, B.V. Netherlands Foreign Indirectly owns 100%(4)
corporation
operating under
the laws of the
Netherlands
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical France, S.A. France Foreign Directly owns < .01%;
corporation Indirectly owns 99.99%(5);
operating under Indirectly owns < .01%(6)
the laws of
France
------------------------------------------------------------------------------------------------------------------------------
----------------------
(1) Issuer owns one hundred (100%) percent of ALARIS Medical UK, Limited,
which owns one hundred (100%) percent of IVAC Industries, Ltd.
(2) Issuer owns one hundred (100%) percent of ALARIS Release Corporation,
which owns one hundred (100%) percent of IVAC Overseas Holdings, Inc.
(3) Issuer owns one hundred (100%) percent of ALARIS Release Corporation,
which owns one hundred (100%) percent of IVAC Overseas Holdings, Inc.,
which owns one hundred (100%) percent of ALARIS Medical Espana, S.L.
(4) Issuer owns one hundred (100%) percent of ALARIS Release Corporation,
which owns one hundred (100%) percent of IVAC Overseas Holdings, Inc.,
which owns one hundred (100%) percent of ALARIS Medical Holland, B.V.
(5) Issuer owns one hundred (100%) of ALARIS Release Corporation, which
owns one hundred
Footnote continued on next page.
-2-
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Norway A/S Norway Foreign Directly owns 100%
corporation
operating under
the laws of
Norway
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Italia, S.P.A. Italy Foreign Directly owns 90%;
corporation Indirectly owns 10%(7)
operating under
the laws of Italy
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Australia Pty Limited Australia Foreign Directly owns 100%
corporation
operating under
the laws of
Australia
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Nordic, AB Sweden Foreign Directly owns 100%
corporation
operating under
the laws of
Sweden
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Deutschland, GmbH Germany Foreign Directly owns 100%
corporation
operating under
the laws of
Germany
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Canada Ltd. Canada Foreign Directly owns 100%
corporation
operating under
the laws of
Canada
------------------------------------------------------------------------------------------------------------------------------
Sistemas Medicos ALARIS, S.A. de C.V. Mexico Foreign Directly owns 99.9%;
corporation Indirectly owns .1%(8)
operating under
the laws of
Mexico
------------------------------------------------------------------------------------------------------------------------------
ALARIS Consent Corporation Delaware Corporation Directly owns 100%
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical S.A. (Proprietary) South Africa Foreign Directly owns 100%
Limited corporation
operating under
the laws of
South Africa
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical Systems Foreign Sales Barbados Foreign Directly owns 100%
Corporation corporation
operating under
the laws of
Barbados
------------------------------------------------------------------------------------------------------------------------------
----------------------
Footnote continued from previous page.
(100%) percent of IVAC Overseas Holdings, Inc., which owns ninety-nine
and ninety-nine one hundredths (99.99%) percent of ALARIS Medical
France, S.A.
(6) Issuer owns one hundred (100%) percent of ALARIS Release Corporation,
which owns one hundred (100%) percent of IVAC Overseas Holdings, Inc.,
which owns one hundred (100%) percent of ALARIS Medical Holland, B.V.,
which owns less than or equal to one one-hundredths (less than or
equal to .01%) percent of ALARIS Medical France, S.A.
(7) Issuer owns one hundred (100%) percent of ALARIS Release Corporation,
which owns one hundred (100%) percent of IVAC Overseas Holdings, Inc.,
which owns one hundred (100%) percent of ALARIS Medical Holland, B.V.,
which owns ten (10%) percent of ALARIS Medical Italia, S.P.A.
(8) Issuer owns one hundred (100%) percent of ALARIS Release Corporation,
which owns one hundred (100%) percent of IVAC Overseas Holdings, Inc.,
which owns one-tenth (.1%) percent of Sistemas Medicos ALARIS, S.A. de
C.V.
-3-
------------------------------------------------------------------------------------------------------------------------------
ALARIS Medical New Zealand Limited New Zealand Foreign Directly owns 100%
corporation
operating under
the laws of New
Zealand
------------------------------------------------------------------------------------------------------------------------------
River Medical, Inc. Delaware Corporation Directly owns 100%
------------------------------------------------------------------------------------------------------------------------------
EXHIBIT A-1
FORM OF OPINION OF XXXXX XXXXXXX XXXXXXX & XXXXX LLP
The opinion of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP, counsel for the
Issuer (capitalized terms not otherwise defined herein shall have the meanings
provided in the
Purchase Agreement, to which this is an Exhibit), to be
delivered pursuant to Section 8(f) of the
Purchase Agreement shall be to the
effect that:
(i) Each of the Issuer and the Subsidiaries listed on ANNEX
A hereto under the heading "Covered Subsidiaries" (each, a
"Subsidiary" and collectively, the "Subsidiaries") [opinion will
cover Release Corp. and Consent Corp. and IVAC Overseas Holdings,
Inc.] (a) is a validly existing corporation in good standing under
the laws of Delaware, (b) has all requisite corporate power and
authority necessary to own its property and carry on its business as
now being conducted, and (c) based solely on certificates of good
standing and qualification issued by public officials of the states
listed on Annex A hereto under the heading "Qualification" is
qualified to do business and is in good standing in the states
identified on ANNEX A hereto.
(ii) The Issuer has all requisite corporate power and
authority to execute, deliver and perform all of its obligations
under the Transaction Documents to which it is a party and to
consummate the Transactions. The Issuer has all requisite corporate
power and authority to issue, sell and deliver and perform its
obligations under the Notes.
(iii) The
Purchase Agreement has been duly authorized,
executed and delivered by the Issuer.
(iv) The Indenture has been duly authorized, executed and
delivered by the Issuer and is a legally binding and valid
obligation of the Issuer, enforceable against it in accordance with
its terms, except as the enforceability thereof is subject to (a)
applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium and other laws relating to or affecting the
rights of creditors generally, and (b) the exercise of judicial
discretion in accordance with general principles of equity
regardless of whether such enforceability is considered in a
proceeding at law or in equity. The Indenture conforms in all
material respects to the description thereof contained in the
Offering Memorandum.
(v) The Original Notes have been duly authorized for
issuance and sale to the Initial Purchasers by the Issuer and, when
issued, authenticated and delivered by the Issuer against payment by
the Initial Purchasers in accordance with the terms of the
Purchase
Agreement and the Indenture, the Original Notes will be legally
binding
-2-
and valid obligations of the Issuer, entitled to the benefits
of the Indenture and enforceable against the Issuer in
accordance with their terms, except as the enforceability thereof is
subject to (a) applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws relating to or
affecting the rights of creditors generally, and (b) the exercise of
judicial discretion in accordance with general principles of equity
regardless of whether such enforceability is considered in a
proceeding at law or in equity.
(vi) The Exchange Notes have been duly authorized for
issuance by the Issuer, and when issued, authenticated and delivered
by the Issuer in accordance with the terms of the Registration
Rights Agreement, the Exchange Offer and the Indenture, the Exchange
Notes will be legally binding and valid obligations of the Issuer,
entitled to the benefits of the Indenture and enforceable against
the Issuer in accordance with their terms, except that as the
enforceability of the Exchange Notes is subject to (a) applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and other laws relating to or affecting the rights of
creditors generally, and (b) the exercise of judicial discretion in
accordance with general principles of equity regardless of whether
such enforceability is considered in a proceeding at law or in
equity.
(vii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Issuer and constitutes a
valid and legally binding obligation of the Issuer enforceable
against it in accordance with its terms, (a) except as
enforceability thereof is subject to (i) applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar and other laws relating to or affecting the rights of
creditors generally, and by (ii) the exercise of judicial discretion
in accordance with general principles of equity regardless of
whether such enforceability is considered in a proceeding at law or
in equity, and (b) except that any rights to indemnity or
contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(viii) Each of the Security Documents has been duly
authorized, executed and delivered by the Issuer and constitutes a
valid and legally binding obligation of the Issuer, enforceable
against it in accordance with their respective terms, except as the
enforceability thereof is subject to (a) applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and
other laws relating to or affecting the rights of creditors
generally, and (b) the exercise of judicial discretion in accordance
with general principles of equity, regardless of whether such
enforceability is considered in a proceeding at law or in equity.
(ix) The execution, delivery and performance by the Issuer of
the other Transaction Documents to which it is a party and the
consummation of the Transactions do not and will not violate,
conflict with or constitute a breach of any of the terms or
provisions of, or a default under (or an event that with notice or
the lapse of time, or both, would constitute a default), or require
consent under, or result in the
-3-
creation or imposition of a lien, charge or encumbrance on any
property or assets of Parent, the Issuer or any Subsidiary
(other than as created pursuant to the Indenture, and the
Security Documents) (and assuming satisfaction in full of all
obligations to the Parent, the Issuer and the Subsidiaries of
the Issuer of their respective obligations under the documents
executed in connection with the Existing Bank Facility and the
release and termination of Liens that secure such obligations)
or an acceleration of any indebtedness of Parent, the Issuer or
any Subsidiary pursuant to, (a) the charter, bylaws or other
constitutive documents of Parent, the Issuer or any Subsidiary,
(b) any agreement listed on ANNEX B hereto [will include all
indentures and material agreements listed in current public
filings], (c) any Applicable Law (as defined below) which, in our
experience, is normally applicable both to general business
corporations which are not engaged in regulated business
activities and to transactions of the type contemplated by the
Transaction Documents (but without our having made any special
investigation as to any other laws, rules or regulations) or (d)
any existing judgment, order or decree of which we have
knowledge of any domestic or foreign court or governmental
agency or authority having jurisdiction over the Parent, Issuer
or any Subsidiary or their respective assets or properties. The
term "Applicable Law" means the federal statutes, rules and
regulations of the United States of America, the statutes, rules
and regulations of the States of New York, the Delaware General
Corporation Law and Article 9 of the Delaware Uniform Commercial
Code.
(x) Assuming the accuracy of the representations and
warranties of the Initial Purchasers in Section 5(b) of the
Purchase
Agreement, no consent, approval, authorization or order of, or
filing, registration, qualification, license or permit of or with,
any United States, Delaware or New York court or governmental
agency, body or administrative agency, is required to be obtained or
made by Parent, the Issuer or any Subsidiary for the execution,
delivery and performance by the Issuer of the Transaction Documents
and the consummation of the Transactions, except (a) such as have
been or will be obtained or made on or prior to the Closing Date,
(b) registration of the Exchange Offer or resale of the Notes under
the Act pursuant to the Registration Rights Agreement, (c)
qualification of the Indenture under the Trust Indenture Act, in
connection with the issuance of the Exchange Notes or (d) such
filings and recordings with governmental authorities as may be
required to perfect liens under the Security Documents.
(xi) To the best of our knowledge, there does not exist any
judgment, order, injunction or other restraint issued or filed with
respect to any of the Transactions or the performance by the Issuer
of its obligations under the Transaction Documents.
(xii) None of Parent, the Issuer or any Subsidiary is an
"investment company" or a company "controlled" by an "investment
company" incorporated in the United States within the meaning of the
Investment Company Act of 1940, as amended.
(xiii) No registration under the Act of the Original Notes or
qualification of the Indenture under the Trust Indenture Act is
required for the sale of the Original
-4-
Notes to the Initial Purchasers as contemplated by the
Purchase
Agreement or for the Exempt Resales, assuming in each case that
(a) the purchasers who buy the Original Notes in the Exempt Resales
are Eligible Purchasers and (b) the accuracy of and compliance with
the Initial Purchasers' representations, warranties and covenants
contained in Section 5(b) of the
Purchase Agreement.
(xiv) To our knowledge, neither the Issuer nor any Subsidiary
(or any agent thereof acting on their behalf) has taken any action
that might cause the execution and performance of the Transaction
Documents by the Issuer to violate Regulations T, U or X of the
Board of Governors of the Federal Reserve System.
(xv) The statements under the captions "Description of Certain
Indebtedness" and "Certain United States Federal Income Tax
Considerations" in the Offering Memorandum, insofar as such
statements purport to constitute a summary of legal matters,
documents or proceedings referred to therein, fairly present in all
material respects such legal matters, documents and proceedings.
(xvi) The statements in the Offering Memorandum set forth in
the first four paragraphs under the heading "- Legal Proceedings"
insofar as such statements constitute summaries of legal
proceedings, fairly summarize the matters referred to therein.
(xvii) The Security Agreement is sufficient to create in the
Trustee's favor a valid security interest in, lien on and pledge of
all right, title and interest of the Issuer in that portion of the
Pledged Collateral (as defined in the Security Agreement) in which a
security interest may be created under Article 9 of the UCC,
provided however, the enforceability of such security interest is
subject to (a) applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws relating to or
affecting the rights of creditors generally, and (b) the exercise of
judicial discretion in accordance with general principles of equity,
regardless of whether such enforceability is considered in a
proceeding at law or in equity.
(xviii) With respect to that portion of the Pledged Collateral
(as defined in the Security Agreement) in which a security interest
therein may be perfected by filing a financing statement in the
State of Delaware under Article 9 of the Delaware Uniform Commercial
Code and as to which a financing statement naming the Issuer as
debtor is required to be on file in the State of Delaware in order
that a security interest in such property be perfected by filing
(such portion of the Pledged Collateral being referred to herein as
"UCC Filing Collateral"), the appropriate filing office is the
Office of the Delaware Secretary of State (the "Filing Office").
Assuming the Financing Statement in the form attached to this letter
as Exhibit A has been filed in the Filing Office, and has not
subsequently lapsed, or been modified, released, or terminated, the
Trustee's security interest in such UCC Filing Collateral will be
perfected.
-5-
(xix) When the Security Agreement (or a short form of the
Security Agreement) is recorded in the United States Patent and
Trademark Office, which recording is within three months after the
date of the assignment pursuant to the Security Agreement, the
Security Agreement (or a short form of the Security Agreement) shall
constitute an assignment to the Trustee for collateral purposes of
each of the Issuer's trademarks described therein that are
registered in the United States Patent and Trademark Office.
(xx) When the Security Agreement (or a short form of the
Security Agreement) is recorded in the United States Patent and
Trademark Office, which recording is within three months after the
date of the assignment pursuant to the Security Agreement, the
Security Agreement (or a short form of the Security Agreement) shall
constitute an assignment to the Trustee for collateral purposes of
each of the Issuer's patents described therein that are registered
in the United States Patent and Trademark Office.
(xxi) When the Security Agreement (or a short form of the
Security Agreement) is recorded in the Copyright Office of the
United States Library of Congress, the Security Agreement (or a
short form of the Security Agreement) shall constitute a transfer to
the Trustee for collateral purposes of each of the Issuer's
copyrights described therein that are registered in the Copyright
Office of the United States Library of Congress.
(xxii) The provisions of the Deposit Account Control Agreement
are effective to give the Secured Party (as defined in the Deposit
Account Control Agreement) "control" (within the meaning of Section
9-104 of the UCC) over the Deposit Account described in the Deposit
Account Control Agreement maintained with the Bank as to which the
Issuer is the account holder, and to perfect the Secured Party's
security interest in such Deposit Account.
(xxiii) The provisions of the Securities Account Control
Agreement are effective to give the Secured Party (as defined in the
Securities Account Control Agreement) "control" (within the meaning
of Section 8-106 of the UCC) over those Security Entitlements as to
which the Issuer is the Entitlement Holder that are carried in the
Securities Account described in the Securities Account Control
Agreement, and to perfect the Secured Party's security interest in
such Securities Account.
(xxiv) With respect to each of the Initial Pledged Shares (as
such term is defined in the Security Agreement) listed on Annex B
hereto, assuming (a) each security certificate evidencing such
Initial Pledged Shares is either (1) in bearer form or (2) in
registered form, indorsed in the name of the Trustee or in blank,
and (b) the Trustee takes possession of the security certificates
evidencing such Initial Pledged Shares in the State of New York (and
the Trustee continuously thereafter maintains possession of such
security certificates in the State of New York), the security
interests created in
-6-
favor of the Trustee in such Initial Pledged Shares under the
Security Agreement shall be perfected.
We have participated in the preparation of the Offering Memorandum.
From time to time we have had discussions with officers, directors and employees
of the Issuer and the Subsidiaries, the independent accountants who examined the
consolidated financial statements of the Issuer and the Subsidiaries included in
the Offering Memorandum, and the Initial Purchasers at which the contents of the
Offering Memorandum and related matters were discussed. We have not
independently verified and are not passing upon, and do not assume
responsibility for, the accuracy, completeness or fairness (except as set forth
in paragraph (xv) above) of the information contained in the Offering
Memorandum. Based upon the participation and discussions described above,
however, no facts have come to our attention that cause us to believe that the
Offering Memorandum, as of its date or as of the date hereof, contained or
contains an untrue statement of a material fact, or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that we have not been requested to and do not make any comment with
respect to the financial statements and the notes thereto and the other
financial and accounting data included in the Offering Memorandum).
The opinion will be subject to assumptions, qualifications and
limitations which are customary for opinions rendered in transactions similar to
the Transactions.
ANNEX A
COVERED SUBSIDIARIES
ANNEX B
B-1-1
EXHIBIT A-2
FORM OF OPINION OF INTELLECTUAL PROPERTY COUNSEL
[To be attached].
B-2-1
EXHIBIT A-3
FORM OF OPINION OF XXXXXX X. XXXXXXXXX,
GENERAL COUNSEL FOR THE COMPANY
The opinion of Xxxxxx X. Xxxxxxxxx, general counsel for the Issuer
(capitalized terms not otherwise defined herein shall have the meanings provided
in the Purchase Agreement, to which this is an Exhibit), to be delivered
pursuant to Section 8(f) of the Purchase Agreement shall be to the effect that:
(i) Except as disclosed in the Offering Memorandum, there
are no pending actions, suits or proceedings against or affecting
the Parent, the Issuer or any Subsidiary or any of their respective
properties that, if determined adversely to Parent, the Issuer or
any Subsidiary, could, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect or could materially
and adversely affect the ability of the Issuer and the Subsidiaries
to perform their obligations under the Transaction Documents or that
are otherwise material in the context of the issuance and sale of
the Notes or issuance of the Exchange Notes; and to such counsel's
knowledge, no such actions, suits or proceedings are threatened or
contemplated.
(ii) Except as set forth in the Offering Memorandum, there is
(a) no action, suit or proceeding before or by any court, arbitrator
or governmental agency, body or official, domestic or foreign, now
pending or, to the knowledge of such counsel, threatened or
contemplated, to which Parent, the Issuer or any Subsidiary is or
may be a party or to which the business, assets or property of such
Person is or may be subject, (b) no statute, rule, regulation or
order that has been enacted, adopted or issued, or to the knowledge
of such counsel, that has been proposed by any governmental body or
agency, domestic or foreign, (c) no injunction, restraining order or
order of any nature by a federal or state court or foreign court of
competent jurisdiction to which Parent, the Issuer or any Subsidiary
is or may be subject that could reasonably be expected, individually
or in the aggregate, (1) to have a Material Adverse Effect or (2) to
interfere with or adversely affect the consummation of any of the
Transactions, assuming, in the case of clause (a), such action, suit
or proceeding is determined adversely to Parent, the Issuer or any
Subsidiary.
(iii) None of Parent, the Issuer or any domestic Subsidiary is
(a) in violation of its charter, bylaws or other constitutive
documents or (b) in default (or, with notice or lapse of time or
both, would be in default) in the performance or observance of any
obligation, agreement, covenant or condition contained in any of the
Agreements and Instruments, or (c) to my knowledge after due
inquiry, in violation of any law, statute, rule, regulation,
judgment, order or decree of any domestic or foreign court with
jurisdiction over any of them or any of their assets or properties
or other governmental or regulatory authority, agency or other body,
that, in the case of clauses (b) and (c) herein, individually or in
the aggregate, could reasonably be expected to have a Material
Adverse Effect.
B-4-1
I have participated in the preparation of the Offering Memorandum.
From time to time I have had discussions with officers, directors and employees
of the Issuer and the Subsidiaries, the independent accountants who examined the
consolidated financial statements of the Issuer and its subsidiaries included in
the Offering Memorandum, and the Initial Purchasers, at which the contents of
the Offering Memorandum and related matters were discussed. I have not
independently verified and am not passing upon, and do not assume responsibility
for, the accuracy, completeness or fairness of the information contained in the
Offering Memorandum. Based upon the participation and discussions described
above, however, no facts have come to my attention that cause me to believe that
the Offering Memorandum, as of its date or as of the date hereof, contained or
contains an untrue statement of a material fact, or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading (it being
understood that I have not been requested to and do not make any comment with
respect to the financial statements and the notes thereto and the other
financial and accounting data included in the Offering Memorandum).
This opinion will be subject to assumptions, qualifications and
limitations customary for opinions rendered in transactions similar to the
Transactions.
B-4-2
EXHIBIT B
FORM OF REAL PROPERTY OFFICERS' CERTIFICATE
ALARIS MEDICAL SYSTEMS, INC.
OFFICER'S CERTIFICATE PURSUANT TO
SECTION 8(n)(x) OF THE PURCHASE AGREEMENT
The undersigned, ______________________________ and ______________
________________, do hereby certify on behalf of the Mortgagor (as hereinafter
defined) as follows:
1. We are the ______________________________ and ______________
_____________________, respectively, of ALARIS Medical Systems, Inc., a Delaware
corporation (the "COMPANY" and "MORTGAGOR");
2. We have each read and reviewed (i) that certain purchase
agreement dated as of October 11, 2001 (the "PURCHASE AGREEMENT"; capitalized
terms used herein and not otherwise defined shall have such meanings assigned to
such terms in the Purchase Agreement), entered into by and among the Company and
UBS Warburg LLC and Bear, Xxxxxxx & Co. Inc., as initial purchasers (the
"INITIAL PURCHASERS"), (ii) Section 8 of the Purchase Agreement (the "CONDITIONS
PRECEDENT") and (iii) any definitions or other provisions contained in the
Purchase Agreement as we have deemed necessary;
3. In the opinion of each of the undersigned, the aforesaid
review is of a nature and scope sufficient to enable each of the undersigned to
express an informed opinion as to whether or not the Conditions Precedent have
been complied with; and
4. To the best knowledge of each of the undersigned, after due
inquiry, the Conditions Precedent have been complied with and, except as
disclosed on SCHEDULE A attached hereto or on any prior lien schedule of any
Mortgage,
(i) there has been an issuance of a valid and proper
certificate of occupancy or other local equivalent for the use
currently being made of the Mortgaged Property;
(ii) there are no outstanding citations, violations or
similar notices indicating that such Mortgaged Property contains
conditions which are not in compliance (except where non-compliance
would not result in a material impairment of the value or utility of
such Mortgaged Property) with local codes or ordinances relating to
building or fire safety or structural soundness;
(iii) there are no tenants or persons in possession of any
Mortgaged Property; and
-2-
(iv) there are no disputes regarding boundary lines,
location, encroachment or possession of any portions of such
Mortgaged Property and no state of facts exists which could give
rise to any such claim.
5. The Company is lessee under certain leases with respect to
each property listed on SCHEDULE B attached hereto, however, the Company has
sub-leased out the entire leased premises to the third parties identified on
SCHEDULE B and no longer conducts business out of, or maintains any equipment or
inventory at such leased premises.
IN WITNESS WHEREOF, the undersigned have executed this certificate
this ___ day of October, 2001.
------------------------------------
Name:
Title:
------------------------------------
Name:
Title:
SCHEDULE A
Exceptions
SCHEDULE B
========================= ========================= ===========================
Leased Premises Lessor Sub-Lessee
========================= ========================= ===========================
========================= ========================= ===========================
C-1
E-1
