$110,000,000
ASTOR CORPORATION
10 1/2% Senior Subordinated Notes due 2006
PURCHASE AGREEMENT
October 2, 1996
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Astor Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell to the several initial purchasers named above (the "Initial
Purchasers") $110,000,000 aggregate principal amount of its 10 1/2% Senior
Subordinated Notes due 2006 (the "Notes"). The Notes are to be issued pursuant
to the provisions of an Indenture to be dated as of October 8, 1996 (the
"Indenture") between the Company and State Street Bank and Trust Company, as
Trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers without
being registered under the United States Securities Act of 1933, as amended (the
"Securities Act"), in reliance on an exemption therefrom. The Initial
Purchasers have advised the Company that they will make an offering of the Notes
purchased by them hereunder in accordance with Section 4 hereof on the terms set
forth in the Preliminary Offering Memorandum and the Final Offering Memorandum
(each as defined below) as soon as practicable after the date hereof as in their
judgment is advisable.
It is understood that: (i) Adco Technologies, Inc. ("ADCO"), the
Company and AAC Acquisition Corp., a wholly-owned subsidiary of the Company
("Acquisition Company"), have entered into an Agreement and Plan of Merger (the
"Merger Agreement") dated as of July 12, 1996 pursuant to which Acquisition
Company will be merged with and into ADCO (the "Merger") and ADCO will become a
wholly-owned subsidiary of the Company, (ii) concurrent with the closing
hereunder, (A) ADCO Products, Inc., a subsidiary of ADCO, will be merged with
and into ADCO and ADCO will be merged with and into the Company, (B) the Company
has entered into, and will borrow under, the Senior Bank Facility (as defined
herein) to finance a portion of the
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merger consideration and to repay certain existing indebtedness of subsidiaries
of the Company.
In connection with the sale of the Notes, the Company has prepared a
preliminary Offering Memorandum dated September 20, 1996 (the "Preliminary
Offering Memorandum") and will prepare a final Offering Memorandum (the "Final
Offering Memorandum" and, with the Preliminary Offering Memorandum, each an
"Offering Memorandum") setting forth or including a description of the terms of
the Notes, the Guarantee (as defined below), the ADCO Acquisition (as defined in
the Final Offering Memorandum), the terms of the offering, a description of the
Company and any material developments relating to the Company occurring after
the date of the most recent financial statements included therein.
The Company's payment obligations under the Notes will be guaranteed
(the "Guarantee") by Astor Holdings II, Inc. (the "Guarantor").
The Astor Parties (as defined below) and the Initial Purchasers will
enter into a Registration Rights Agreement (the "Registration Rights
Agreement") concurrently with the issuance of the Notes. Pursuant to the
Registration Rights Agreement, under the circumstances and the terms set forth
therein, the Astor Parties will agree to file with the Securities and Exchange
Commission (the "Commission"): (i) a registration statement on form S-1 or S-4
(the "Exchange Offer Registration Statement") relating to an offer (the
"Exchange Offer") to the holders of Notes to exchange their Notes for an issue
of notes (the "New Notes") registered under the Securities Act and otherwise
identical in all material respects to the Notes or, alternatively, (ii) in the
event that applicable interpretations of the Commission do not permit the
Company to effect the Exchange Offer or do not permit any holder of the Notes to
participate in the Exchange Offer, a shelf registration statement (the "Shelf
Registration Statement") to cover resales of Transfer Restricted Securities by
such holders who satisfy certain conditions relating to the provision of
information in connection with the Shelf Registration Statement.
This Agreement, the Indenture, the Notes, the Guarantee and the
Registration Rights Agreement are hereinafter referred to collectively as the
"Operative Documents". The Company and Astor Holdings II, Inc. are hereinafter
referred to collectively as the "Astor Parties".
1. AGREEMENTS TO SELL AND PURCHASE. On the basis of the
representations and warranties contained in this Purchase Agreement (this
"Agreement"), and subject to its terms and conditions, the Company agrees to
issue and sell, and each Initial Purchaser agrees, severally and not jointly, to
purchase from the Company the principal amount of Notes set forth opposite the
name of such Initial Purchaser in Schedule I hereto, at 99.5% of the principal
amount thereof (the "Purchase Price").
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2. DELIVERY AND PAYMENT. Delivery of and payment for the Notes
shall be made at 10:00 A.M., New York City time, on October 8, 1996 (the
"Closing Date") in immediately available funds and at such place as the Initial
Purchasers shall designate. Certificates for the Notes shall be registered in
such names and issued in such denominations as the Initial Purchasers shall
request in writing not later than two business days prior to the Closing Date.
Such certificates shall be made available to the Initial Purchasers for
inspection not later than 9:30 A.M., New York City time, on the business day
next preceding the Closing Date. Certificates evidencing the Notes shall be
delivered to the Initial Purchasers on the Closing Date with any transfer taxes
thereon duly paid by the Company, against payment of the Purchase Price therefor
in same day funds to the order of the Company or as the Company may direct. The
Closing Date and the location of delivery of and the form of payment for the
Notes may be varied by agreement between the Initial Purchasers and the Company.
3. AGREEMENTS OF THE ASTOR PARTIES. Each of the Astor Parties
hereby agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if requested by
them, to confirm such advice in writing of the happening of any event during the
period referred to in paragraph (d) below which makes any statement of a
material fact made in the Final Offering Memorandum untrue or which requires the
making of any additions to or changes in such Offering Memorandum in order to
make such statement not misleading.
(b) To furnish to the Initial Purchasers during the period referred
to in paragraph (d) below as many copies of the Preliminary Offering Memorandum,
the Final Offering Memorandum and any supplements and amendments thereto as they
may reasonably request.
(c) Not to make any amendment or supplement to either Offering
Memorandum of which the Initial Purchasers shall not previously have been
advised or to which they shall reasonably object and to prepare, promptly upon
their reasonable request, any amendment or supplement to either Offering
Memorandum which may be necessary or advisable in connection with the offering
of the Notes by the Initial Purchasers.
(d) If, during the period after the first date of the offering of the
Notes and prior to the completion of the sale thereof (the "Offering Period"),
any event shall occur as a result of which, in the opinion of counsel for the
Initial Purchasers, it becomes necessary to amend or supplement the Final
Offering Memorandum in order to make the statements therein, in the light of the
circumstances when such Offering Memorandum is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement such Offering
Memorandum to comply with any law, forthwith to prepare an appropriate amendment
or supplement to such Offering Memorandum so that the statements in such
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Memorandum, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with law, and to furnish to the Initial Purchasers and to
such dealers as the Initial Purchasers shall specify such number of copies
thereof as the Initial Purchasers or such dealers may reasonably request.
(e) Prior to any offering of the Notes, to cooperate with the Initial
Purchasers and their counsel in connection with the registration or
qualification of the Notes for offer and sale by the Initial Purchasers and by
dealers under the state securities or Blue Sky laws of such jurisdictions as the
Initial Purchasers may request, to continue such qualification in effect so long
as required for distribution of the Notes and to file such consents to service
of process (except general consents to service of process) or other documents as
may be necessary in order to effect such registration or qualification.
(f) So long as any Notes are outstanding, to deliver without charge
to the holders thereof, promptly upon their becoming available, copies of (i)
all reports or other publicly available information of the Guarantor, the
Company or its subsidiaries that the Guarantor, the Company or its subsidiaries
shall mail or otherwise make available to their security holders, (ii) all
reports, financial statements and proxy information statements filed by the
Guarantor, the Company or its subsidiaries with the Commission or any national
securities exchange and (iii) such other publicly available information
concerning the Guarantor, the Company or its subsidiaries, including without
limitation, press releases, as the holders thereof may reasonably request.
(g) To use the proceeds from the sale of the Notes in the manner
specified in the Offering Memorandum under the caption "Use of Proceeds".
(h) To pay all costs, expenses, fees and taxes incident to (i) the
preparation, printing, filing and distribution of each Offering Memorandum,
Exchange Offer, Registration Statement and any Shelf Registration Statement
(including financial statements and all amendments and supplements prior to or
during the period specified in paragraph (d), but not including fees and
disbursements of counsel to the Initial Purchasers), (ii) the registration or
qualification of the Notes and the New Notes for offer and sale under the
securities or Blue Sky laws of the several states (including the reasonable fees
and disbursements of counsel for the Initial Purchasers relating to such
registration or qualification and memoranda relating thereto), (iii) furnishing
such copies of the Offering Memorandum and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale of
the Notes by the Initial Purchasers or by dealers to whom Notes may be sold,
(iv) any fees charged by rating agencies for the rating of the Notes and the New
Notes, (v) the fees and expenses, if any, incurred in connection with the
designation of the Notes for trading in the PORTAL market and the deposit of the
global Notes with Depository Trust Company, (vi) any stamp or transfer taxes
payable in connection with the sale of the Notes to the Initial
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Purchasers, (vii) the issuance, transfer and delivery by the Company of the
Notes and the New Notes (including, without limitation, the fees of the
Company's transfer agent and the registrar, the cost of its personnel and other
internal costs, the costs of printing and engraving the certificates
representing the Notes and any stock and securities transfer taxes payable
thereon), (viii) the reasonable fees and expenses of the Trustee and the fees
and disbursements of counsel for the Trustee, (ix) the costs and expenses of the
Company relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Notes, including without
limitation, expenses associated with the production of road show slides and
graphics, travel and lodging expenses of officers of the Company (provided that
the costs of car services and charter aircraft during the "road show" will be
paid equally by the Company and the Initial Purchasers and the cost of
conference rooms and other meeting places used on the "road show" to make
investor presentations will be paid by the Initial Purchasers) and (x) the
performance by each Astor Party and its subsidiaries of their obligations under
this Agreement; PROVIDED that, except as otherwise provided in this Section 3(h)
and Section 6, the Initial Purchasers shall pay their own costs and expenses,
including the fees and disbursements of their counsel.
(i) To use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Notes.
(j) During the period beginning on the date hereof and continuing to
and including the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to purchase
debt securities of the Company substantially similar to the Notes (other than
(i) the Notes and (ii) commercial paper issued in the ordinary course of
business) without the prior written consent of the Initial Purchasers.
(k) Not to sell, offer for sale or solicit offers to buy or otherwise
negotiate, and not to permit its affiliates (as defined in Regulation 501(b) of
Regulation D under the Securities Act, "Affiliates") to sell, offer for sale or
solicit offers to buy or otherwise negotiate, directly or through any agent, in
respect of any security (as defined in the Securities Act) the offering of which
security will be integrated with the sale of the Notes in a manner which would
require the registration of the Notes under the Securities Act and to take all
action that is appropriate to assure that its offerings of other securities will
not be integrated for purposes of the Securities Act with the offerings
contemplated hereby.
(l) Except pursuant to the Exchange Offer or a Shelf Registration
Statement, not to solicit any offer to buy or sell the Notes by means of any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act ("Regulation D")) in any manner involving
a public offering within the
5
meaning of Section 4 (2) of the Securities Act, including: (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar medium or broadcast over television or radio and
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(m) Not to engage, or permit any person acting on behalf of either
Astor Party to engage, in any directed selling efforts within the meaning of
Regulation S under the Securities Act ("Regulation S") with respect to the
Notes, and to comply, and cause each such person so acting to comply, with the
offering restrictions requirement of Regulation S.
(n) So long as any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, during any period in which it is not subject to Section 13 or
15(d) of the Exchange Act, to make available to any holder of Notes in
connection with any sale thereof and any prospective purchaser of Notes from
such holder, in each case upon request, the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Securities Act.
(o) Not to, and not to permit any of its affiliates (as defined in
Rule 144(a)(1)) to, (i) purchase any of the Notes unless such Notes are held in
the form of a Certificated Note (as defined in the Final Offering Memorandum)
and (ii) resell any of the Notes, except as permitted by the Indenture.
4. OFFERING OF NOTES; RESTRICTIONS ON TRANSFER.
Each Initial Purchaser, as to itself, represents and warrants that:
(a) it is a qualified institutional buyer as defined in Rule 144A
under the Securities Act (a "QIB");
(b) it will not solicit offers for, or offer to sell, Notes by any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act;
(c) it will solicit offers for Notes only from, and will offer such
Notes only to, persons that it reasonably believes to be (i) in the case of
offers inside the United States, (A) QIBs or (B) other institutional "accredited
investors" (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act) that, prior to their purchase of the Notes, deliver to the Initial
Purchasers a letter containing the representations and agreements set forth in
Annex A to the Final Offering Memorandum and (ii) in the case of offers outside
the United States, to persons other than U.S. persons ("foreign purchasers,"
which term shall include dealers or other professional fiduciaries in the United
States
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acting on a discretionary basis for foreign beneficial owners (other than an
estate or trust)) in reliance upon Regulation S under the Securities Act who, in
each case, in purchasing such Notes are deemed to have represented and agreed as
provided in the Offering Memorandum under the caption "Notice to Investors";
(d) it understands that no action has been or will be taken in any
jurisdiction by the Astor Parties that would permit a public offering of the
Notes, or possession or distribution of either Offering Memorandum or any other
offering or publicity material relating to the Notes, in any country or
jurisdiction where action for that purpose is required;
(e) it will comply with all applicable laws and regulations in each
jurisdiction in which it acquires, offers, sells or delivers Notes or has in its
possession or distributes either Offering Memorandum or any such other material,
in all cases at its own expense;
(f) it understands that the Notes have not been registered under the
Securities Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Rule 144A
or Regulation S under the Securities Act or pursuant to another exemption from
the registration requirements of the Securities Act;
(g) it has not offered the Notes and will not offer and sell the
Notes (i) as part of the distribution at any time and (ii) otherwise until 40
days after the later of the date hereof and the Closing Date, except in
accordance with Rule 903 of Regulation S or as otherwise permitted in paragraph
(a) above; and neither it, nor its Affiliates 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 Notes; and it, its Affiliates and
any such other persons have complied and will comply with the offering
restrictions requirement of Regulation S;
(h) it has (i) not offered or sold and will not offer or sell any
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 ("Regulations"); (ii) complied and will
comply with all applicable provisions of the Financial Services Xxx 0000 and the
Regulations with respect to anything done by it in relation to the Notes in,
from or otherwise involving the U.K.; and (iii) only issued or passed on and
will only issue or pass on to any person in the U.K. any document received by it
in connection with the issue of the Notes if that person is of a kind described
in Article 11(3) of the Financial Services
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Xxx 0000 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on;
(i) it understands that the Notes have not been and will not be
registered under the Securities and Exchange Law of Japan, and represents that
it has not offered or sold, and agrees that it will not offer or sell, any
Notes, directly or indirectly in Japan or to or from any resident of Japan
except (i) pursuant to an exemption from the registration requirements of the
Securities and Exchange Law of Japan and (ii) in compliance with any other
applicable requirements of Japanese law; and
(j) it agrees that, at or prior to confirmation of sales of the
Notes, it will have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Notes from it
during the restricted period a confirmation or notice to substantially the
following effect:
The Securities covered hereby have not been registered under the U.S.
Securities Act of 1933 (the "Securities Act") and may not be offered
and sold within the United States or to, or for the account or benefit
of, U.S. persons (i) as part of their distribution at any time or (ii)
otherwise until 40 days after the later of the commencement of the
offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by Regulation
S.
Terms used in this Section 4 have the meanings given to them by Regulation S.
5. REPRESENTATIONS AND WARRANTIES OF THE ASTOR PARTIES. The Astor
Parties jointly and severally represent and warrant to the Initial Purchasers
that:
(a) The Final Offering Memorandum (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was, on the
date of its issuance, and is, at the date hereof, accurate in all material
respects and did not and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and the Final Offering Memorandum (as amended or
supplemented as necessary) will be, as of the Closing Date, accurate in all
material respects and will not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances, existing at the Closing Date, not
misleading; PROVIDED that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information relating to the Initial Purchasers furnished to the Company in
writing by such Initial Purchasers expressly for use therein.
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(b) The Preliminary Offering Memorandum was, on the date of its
issuance, accurate in all material respects and did not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; PROVIDED that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with the information relating to the Initial Purchasers
furnished to the Company in writing by such Initial Purchasers expressly for use
therein.
(c) Each Astor Party and each of its subsidiaries has been duly
organized, is validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation, has all requisite corporate power and
authority to carry on its business as it is currently being conducted and as
described in each Offering Memorandum and to own, lease and operate its
properties, and is duly qualified and in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a material adverse
effect on the business, operations or financial condition of the Astor Parties
and their subsidiaries, taken as a whole.
(d) Each Astor Party has all requisite corporate power and authority
to execute, deliver and perform its obligations under this Agreement and the
other Operative Documents and, in the case of the Company, to issue, sell and
deliver the Notes to the Initial Purchasers as provided herein and, in the case
of the Guarantor, to guarantee the Notes.
(e) Except for (i) the shares of voting preferred stock of ABI
Acquisition 1 plc ("ABI 1") which are owned by the Guarantor and (ii) one share
of common stock in each of the ABI 1 and ABI Acquisition 2 plc ("ABI 2") owned
by Xxxxxxx X. Xxxxxx, all of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and are
owned by the Company, directly or indirectly, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature except the
lien of the UBS Credit Facility (as defined in the Final Offering Memorandum)
immediately prior to its termination on the Closing Date and the lien of the
Senior Secured Credit Agreement (the "Senior Bank Facility") to be dated as of
October 8, 1996 among the Company, the lenders party thereto and The Chase
Manhattan Bank, as agent for the lenders, upon execution and delivery thereof.
(f) The execution, delivery and performance of each Operative
Document and compliance by each Astor Party which is a party thereto with all
the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not require any consent, approval,
authorization or other order of
9
any court, regulatory body, administrative agency or other governmental body
(except (i) such as have been obtained, (ii) such as may be required under the
securities or Blue Sky laws of various states and (iii) such as may be required
under federal securities laws in connection with the Exchange Offer or the Shelf
Registration Statement) and will not conflict with or constitute a breach of any
of the terms or provisions of, or a default under, the charter or by-laws of any
Astor Party or any of its subsidiaries or any agreement, indenture or other
instrument to which an Astor Party or any of its subsidiaries is a party or by
which an Astor Party or any of its subsidiaries or their respective property is
bound, or violate or conflict with any laws, administrative regulations or
rulings or court decrees applicable to an Astor Party, any of its subsidiaries
or their respective property.
(g) This Agreement has been duly authorized, executed and delivered
by each Astor Party and (assuming the due execution and delivery thereof by the
Initial Purchasers) is the valid and legally binding agreement of such Astor
Party, enforceable against such Astor Party in accordance with its terms, except
that the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and the application of
equitable principles of general applicability.
(h) The Indenture has been duly authorized by each Astor Party and,
when duly executed and delivered by each Astor Party (assuming the due execution
and delivery thereof by the Trustee), will be the valid and legally binding
obligation of such Astor Party, enforceable against such Astor Party in
accordance with its terms, except that the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and the application of equitable principles of general applicability.
When executed and delivered, the Indenture will conform in all material respects
to the description thereof in each Offering Memorandum.
(i) The Notes and the Guarantees to be endorsed thereon have been
duly authorized by the Company and the Guarantor, respectively. When the Notes
are duly executed and authenticated in accordance with the terms of the
Indenture, the Guarantees endorsed on the Notes have been duly executed by the
Guarantor and the Notes have been delivered against payment therefor in
accordance with the terms hereof, the Notes and the Guarantees endorsed thereon
will be entitled to the benefits of the Indenture and will be the valid and
legally binding obligations of the Company and the Guarantor, respectively,
enforceable against the Company and the Guarantor, respectively, in accordance
with their respective terms, except that the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and the application of equitable principles of general applicability.
When issued, authenticated and delivered, the Notes will conform in all material
respects to the description thereof in each Offering Memorandum.
(j) The New Notes and the Guarantees to be endorsed thereon have been
duly authorized by the Company and the Guarantor, respectively. When the New
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Notes are duly executed and delivered and authenticated in accordance with the
terms of the Indenture, the Guarantees endorsed on the New Notes have been duly
executed and delivered by the Guarantor and the New Notes have been exchanged
for the Notes in the manner contemplated by the Registration Rights Agreement
and the Indenture, the New Notes and the Guarantees endorsed thereon will be
entitled to the benefits of the Indenture and will be valid and legally binding
obligations of the Company and the Guarantor, respectively, enforceable against
the Company and the Guarantor, respectively, in accordance with their respective
terms, except that the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and the
application of equitable principles of general applicability.
(l) The Senior Bank Facility has been duly authorized by the Company,
and, when executed and delivered by the Company, will be a legally valid and
binding agreement of the Company, enforceable against the Company in accordance
with its terms, except that the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
the application of equitable principles of general applicability.
(m) The Merger Agreement has been duly authorized, executed and
delivered by the Company and is a legally valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, except
that the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and the application of
equitable principles of general applicability.
(n) The Registration Rights Agreement has been duly and validly
authorized by each Astor Party and, when duly executed and delivered by each
Astor Party, will be the legally valid and binding agreement of such Astor
Party, enforceable against each Astor Party in accordance with its terms, except
that the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and the application of
equitable principles of general applicability. When executed and delivered, the
Registration Rights Agreement will conform in all material respects to the
description thereof in each Offering Memorandum.
(o) Since the respective dates as of which information is given in
each Offering Memorandum, except as otherwise stated therein, (i) there has been
no material adverse change, or any development that is reasonably likely to
result in a material adverse change, in the business, condition (financial or
otherwise), earnings, business, operations or prospects of the Astor Parties and
their subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business, (ii) there have been no transactions entered into by such
Astor Party or any of its subsidiaries, other than those in the ordinary course
of business, that are material with respect to such Astor Party and its
subsidiaries, (iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of
11
the Astor Parties and their subsidiaries, taken as a whole, except in each case
as described in each Offering Memorandum and (iv) there has been no dividend or
distribution of any kind declared, paid or made by either Astor Party on any
class of its capital stock.
(p) Neither Astor Party nor any of its subsidiaries is in violation
of its charter or by-laws or in default in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or instrument
material to the conduct of the business of such Astor Party and its
subsidiaries, taken as a whole, to which either Astor Party, or any of its
subsidiaries is a party or by which either Astor Party or any of its
subsidiaries or their respective property is bound.
(q) Except as set forth in each Offering Memorandum, there is (i) no
action, suit or proceeding before or by any court, arbitrator or governmental
agency, body or official, domestic or foreign, now pending, threatened or
contemplated to which either Astor Party or any of its subsidiaries is or may be
a party or to which the business or property of either Astor Party or any of its
subsidiaries is or may be subject, (ii) no statute, rule, regulation or order
that has been enacted, adopted or issued by any governmental agency or that has
been proposed by any governmental body and (iii) no injunction, restraining
order or order of any nature by a federal or state court of competent
jurisdiction has been or may be issued that, in the case of clause (i), (ii) and
(iii) above, is required to be disclosed in the Final Offering Memorandum in
order to make the statements therein not misleading and that is not so
disclosed, might adversely affect either Astor Party and its subsidiaries or the
property of either Astor Party or any of its subsidiaries or would interfere
with or adversely affect the issuance or marketability of the Notes or in any
manner draw into question the validity of any Operative Document. No contract,
agreement, instrument or document of a character required to be described in the
Final Offering Memorandum in order to make the statements therein not misleading
is not so described.
(r) Except as disclosed in each Offering Memorandum, neither Astor
Party nor any of its subsidiaries has violated any foreign, federal, state or
local law or regulation relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws") nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any applicable
federal or state wages and hours laws nor any provisions of the Employee
Retirement Income Security Act or the rules and regulations promulgated
thereunder, which in each case could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), earnings, business,
operations or prospects of the Astor Parties and their subsidiaries, taken as a
whole.
(s) Each Astor Party and each of its subsidiaries (i) has all
permits, licenses, franchises and authorizations of governmental or regulatory
authorities
12
("permits"), including, without limitation, under any applicable Environmental
Laws, material to the ownership, leasing and operation of its properties and the
conduct of its business and (ii) has fulfilled and performed all of its material
obligations with respect to such permits and no event has occurred which allows,
or after notice or lapse of time would allow, revocation or termination thereof
or results in any other material impairment of the rights of the holder of any
such permit. Except as described in each Offering Memorandum, such permits
contain no restrictions that are materially burdensome to either Astor Party or
any of its subsidiaries.
(t) The costs and liabilities associated with the effect of
Environmental Laws on the business, operations and properties of the Company and
its subsidiaries (including without limitation any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related constraints
on operating activities and any potential liabilities to third parties) would
not, singly or in the aggregate, have a material adverse effect on the condition
(financial or otherwise), earnings, business, operations or prospects of the
Company and its subsidiaries, taken as a whole.
(u) Except as otherwise set forth in each Offering Memorandum or such
as are not material to the business, prospects, financial condition or results
of operations of the Astor Parties and their subsidiaries, taken as a whole,
each Astor Party and each of its subsidiaries has good and marketable title,
free and clear of all liens, claims, encumbrances and restrictions (except liens
for taxes not yet due and payable, the lien of the UBS Credit Facility prior to
its termination on the Closing Date and thereafter the Senior Bank Facility) to
all property and assets described in each Offering Memorandum as being owned by
it. All leases to which the Company or any of its subsidiaries is a party are
valid and binding and no default has occurred or is continuing thereunder which
might result in any material adverse change in the condition (financial or
otherwise), earnings, business, operations or prospects of the Astor Parties and
their subsidiaries, taken as a whole, and the Astor Parties and their
subsidiaries enjoy peaceful and undisturbed possession under all such leases to
which any of them is a party as lessee with such exceptions as do not materially
interfere with the use made by such Astor Party or such subsidiary.
(v) There is (i) no significant unfair labor practice complaint
pending against either Astor Party or any of its subsidiaries or, to the best
knowledge of each Astor Party, threatened against any of them, before the
National Labor Relations Board or any state or local labor relations board, and
no significant grievance or more significant arbitration proceeding arising out
of or under any collective bargaining agreement is so pending against either
Astor Party or any of its subsidiaries or, to the best knowledge of each Astor
Party, threatened against any of them, and (ii) no significant strike, labor
dispute, slowdown or stoppage pending against either Astor Party or any of its
subsidiaries or, to the best knowledge of either Astor Party, threatened against
it or any of
13
its subsidiaries except for such actions specified in clause (i) or (ii) above,
which, singly or in the aggregate, could not reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), earnings,
business, operations or prospects of each Astor Party and its subsidiaries,
taken as a whole.
(w) Each Astor Party and its subsidiaries owns or possesses, or can
acquire, or reasonably believes it can acquire, on reasonable terms, rights
adequate to the present operations of the businesses now operated by it under
the 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 presently employed by it in connection with the businesses now
operated by it, except to the extent that the failure to own, possess or acquire
such rights would not, singly or in the aggregate, have a material adverse
effect on the condition (financial or otherwise), earnings, business, operations
or prospects of either Astor Party and its subsidiaries, taken as a whole, and,
neither Astor Party nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to any
of the foregoing.
(x) Neither Astor Party nor any of its subsidiaries has 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 any Astor Party or any of its subsidiaries to facilitate the
sale or resale of the Notes.
(y) Neither Astor Party nor any of its subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the "Investment
Company Act") or (ii) a "holding company" or a "subsidiary company" of a holding
company or an "affiliate" thereof within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(z) Each Astor Party and each of its subsidiaries maintains
reasonably adequate insurance.
(aa) The financial statements, together with related schedules and
notes forming part of each Offering Memorandum (and any amendment or supplement
thereto), present fairly the financial position, results of operations and
changes in financial position of the Guarantor and its subsidiaries on the basis
stated in each Offering Memorandum at the respective dates or for the respective
periods to which they apply; such statements and related schedules and notes
have been prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in each Offering Memorandum (and any amendment or supplement thereto) is, in all
material
14
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the relevant entity.
(bb) Each Astor Party and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurance that
(1) transactions are executed in accordance with management's general or
specific authorizations; (2) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (3) access to assets
is permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(cc) The present fair salable value of the assets of each Astor Party
and its subsidiaries exceeds the amount that will be required to be paid on or
in respect of the existing debts and other liabilities (including contingent
liabilities) of such Astor Party and its subsidiaries as they become absolute
and matured. The assets of each Astor Party and its subsidiaries do not
constitute unreasonably small capital to carry out their businesses as conducted
or proposed to be conducted. Neither any Astor Party nor any of its
subsidiaries intends to, nor does such Astor Party believe that it or its
subsidiaries will, incur debts beyond its or their ability to pay such debts as
they mature. Upon consummation of the Transactions (as defined in the Final
Offering Memorandum) (including the issuance of the Notes), the present fair
salable value of the assets of the Company and its subsidiaries will exceed the
amount that will be required to be paid on or in respect of its existing debts
and other liabilities (including contingent liabilities) as they become absolute
and matured. The assets of the Company and its subsidiaries, upon the issuance
of the Notes, will not constitute unreasonably small capital to carry out its
businesses as now conducted, including the capital needs of the Company and its
subsidiaries, taking into account the projected capital requirements and capital
availability of the Company and its subsidiaries. No Astor Party (i) is
entering into the Transactions with the intent to hinder, delay, or defraud any
entity to which it is or will become indebted or (ii) will receive less than
reasonably equivalent value in exchange for entering into the Transactions.
(dd) There are no holders of securities of either Astor Party or its
subsidiaries who, by reason of the execution by any of the Astor Parties of this
Agreement or the consummation of the transactions contemplated hereby, have the
right to request or demand that such Astor Party or any of its subsidiaries
registers under the Securities Act securities held by them.
(ee) Except as disclosed in each Offering Memorandum, other than this
Agreement, there are no contracts, agreements or understandings between any
Astor Party or any of its subsidiaries and any person that would give rise to a
valid claim against such
15
Astor Party, its subsidiaries or the Initial Purchasers for a brokerage
commission, finder's fee or like payment in connection with the issuance,
purchase or sale of the Notes.
(ff) None of either Astor Party, any of its subsidiaries or any agent
thereof acting on the behalf of any of them 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 G (12 C.F.R. Part 207), Regulation T (12 C.F.R. Part
220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve System.
(gg) Each of Ernst & Young LLP, with respect to each Astor Party, and
KPMG Peat Marwick LLP, with respect to ABI, is an "independent public
accountant", as defined in the Securities Act.
(hh) Except as would not result, singly or in the aggregate, in a
material adverse effect on the condition (financial or otherwise), earnings,
business, operations or prospects of the Astor Parties and their subsidiaries,
taken as a whole, all tax returns required to be filed by each Astor Party and
its subsidiaries in all jurisdictions have been so filed and all taxes,
including withholding 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
adequate reserves have been provided or those currently payable without penalty
or interest. Neither Astor Party knows of any material proposed additional tax
assessments against it or any of its subsidiaries.
(ii) There exist no conditions that would constitute a default (or an
event which with notice or the lapse of time, or both, would constitute a
default) under any of the Operative Documents or the Senior Bank Facility.
(jj) Each Astor Party and its subsidiaries have complied with all of
the provisions of Florida H.B. 1771, codified as Section 517.075 of the Florida
statutes, and all regulations promulgated thereunder relating to issuers doing
business with the Government of Cuba or with any person or any affiliate located
in Cuba.
(kk) None of any Astor Party nor any Affiliate of any Astor Party has
directly, or through any agent, (i) sold, offered for sale, solicited offers to
buy or otherwise negotiated in respect of, any security (as defined in the
Securities Act) the offering of which security is or will be integrated with the
sale of the Notes in a manner that would require the registration of the Notes
under the Securities Act or (ii) solicited any offer to buy or sell the Notes
by any form of general solicitation or general advertising (as those terms are
used in Regulation D) in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
16
(ll) None of any Astor Party, its Affiliates or any person acting on
its or their behalf has engaged in any directed selling efforts (as that term is
defined in Regulation S) with respect to the Notes.
(mm) It is not necessary in connection with the offer, sale and
delivery of the Notes in the manner contemplated by this Agreement to register
the Notes under the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939. The Notes satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(nn) Neither Astor Party has taken and neither Astor Party will take,
directly or indirectly, any action prohibited by Rule 10b-6 of the Securities
Exchange Act of 1934, as amended.
(oo) Except as disclosed in each Offering Memorandum, there are no
business relationships or related party transactions which would be required to
be disclosed by Item 404 of Regulation S-K of the Securities and Exchange
Commission in a registration statement of each Astor Party becoming effective on
the date hereof.
6. INDEMNIFICATION. (a) Each Astor Party jointly and severally
agrees to indemnify and hold harmless each of the Initial Purchasers and each
person, if any, who controls each Initial Purchaser within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, and the
respective officers, directors, partners, employees, representatives and agents
of the Initial Purchasers (each an "Indemnified Person") from and against any
and all losses, claims, damages, liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in either
Offering Memorandum (as amended or supplemented if an Astor Party shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, liabilities or judgments are caused by any such
untrue statement or omission or alleged untrue statement or omission (i) based
upon information relating to the Initial Purchasers furnished in writing to the
Company by any Initial Purchaser expressly for use therein or (ii) contained in
or omitted from the Preliminary Offering Memorandum and (x) such untrue
statement or omission was corrected in the Final Offering Memorandum, (y) a copy
of the Final Offering Memorandum (as then amended or supplemented) was required
by law to have been delivered by the Initial Purchaser seeking indemnification
and (z) a copy of the Final Offering Memorandum (as then amended or
supplemented) was not delivered by or on behalf of the Initial Purchaser to the
person asserting the claim or action. The Company shall notify the Initial
Purchasers promptly of the institution, threat or assertion of any claim,
proceeding (including governmental or regulatory investigation) or litigation in
connection with the matters addressed by this Agreement which involve any Astor
Party or an Indemnified Person.
17
(b) If any action is brought against any Indemnified Person, based
upon either Offering Memorandum or any amendment or supplement thereto and with
respect to which indemnity may be sought against any Astor Party, such
Indemnified Person shall promptly notify such Astor Party in writing and such
Astor Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Person and payment of all
fees and expenses. Any Indemnified Person shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such
Indemnified Person unless (i) the employment of such counsel shall have been
specifically authorized in writing by such Astor Party, (ii) such Astor Party
shall have failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both such
Indemnified Person and such Astor Party and such Indemnified Person shall have
been advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
such Astor Party (in which case such Astor Party shall not have the right to
assume the defense of such action on behalf of such Indemnified Person, it being
understood, however, that such Astor Party shall not, in connection with any one
such action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all such Indemnified Persons, which firm
shall be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, and that all such fees and expenses shall be reimbursed as they are
incurred).
(c) No Astor Party shall be liable for any settlement of any such
action effected without its written consent, but, if settled with the written
consent of such Astor Party, such Astor Party agrees to indemnify and hold
harmless any Indemnified Person from and against any loss or liability by reason
of such settlement. Notwithstanding the immediately preceding sentence, if in
any case where the fees and expenses of counsel are at the expense of the
indemnifying party and an Indemnified Person shall have requested the
indemnifying party to reimburse the Indemnified Person for such fees and
expenses of counsel as incurred, such indemnifying party agrees that it shall be
liable for any settlement of any action effected without its written consent if
(i) such settlement is entered into more than ten business days after the
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall have failed to reimburse the Indemnified Person in
accordance with such request for reimbursement prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified
Person from all liability on claims that are the subject matter of such
proceeding.
18
(d) Each Initial Purchaser agrees to indemnify and hold harmless the
Company, the Guarantor, each person controlling the Company or the Guarantor
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act and their respective officers, directors, partners, employees,
representatives and agents (the "Astor Indemnified Persons"), to the same extent
as the foregoing indemnity from the Astor Parties to such Initial Purchaser but
only with reference to information relating to such Initial Purchaser furnished
in writing by such Initial Purchaser to the Company, expressly for use in
either Offering Memorandum. If any action shall be brought against any Astor
Indemnified Person based on either Offering Memorandum and in respect of which
indemnity may be sought against any Initial Purchaser, such Initial Purchaser
shall have the rights and duties given to the Astor Parties (except that if the
Astor Parties shall have assumed the defense thereof, such Initial Purchaser
shall not be required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such counsel
shall be at such Initial Purchaser's expense), and the Astor Indemnified Persons
shall have the rights and duties given to the Initial Purchasers by Section 6(b)
hereof.
(e) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party on the one hand
and the indemnified party on the other hand from the offering of the Notes or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying parties and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Astor Parties, on the one
hand, and the Initial Purchasers, on the other hand, shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Astor Parties bear to the total underwriting
discounts and commissions received by the Initial Purchasers, in each case as
set forth on the cover page of the Final Offering Memorandum. The relative
fault of the Astor Parties, 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 to state a
material fact relates to information supplied by the Astor Parties or an Initial
Purchaser and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Astor Parties and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 6(e) were
determined by pro rata
19
allocation (even if the Initial Purchasers were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Initial Purchaser shall be
required to contribute any amount in excess of the amount by which the total
underwriting discount applicable to the Notes purchased by such Initial
Purchaser exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Initial Purchasers' obligations to contribute
pursuant to this subsection are several and in proportion to the respective
amount of Notes purchased by each Initial Purchaser hereunder and not joint.
(f) Each of the Astor Parties hereby designates National Registered
Agents, Inc. as its authorized agent upon whom process may be served in any
action, suit or proceeding that may be instituted in any state or federal court
in the State of New York by an Indemnified Person asserting a claim for
indemnification or contribution under or pursuant to this Section. Each Astor
Party accepts the jurisdiction of such court in such action and waives, to the
fullest extent permitted by applicable law, any defense based upon lack of
personal jurisdiction or venue. A copy of any such process shall be sent or
given to such Astor Party at the address for notices specified in Section 9
hereof.
The indemnity and contribution agreements contained in this Section
are in addition to any liability which the indemnifying persons may otherwise
have to the indemnified persons referred to above.
7. CONDITIONS OF SEVERAL OBLIGATIONS OF THE INITIAL PURCHASERS. The
several obligations of the Initial Purchasers under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of each Astor Party
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date and no
certificate, opinion, written statement or letter furnished pursuant to this
Section 7 to the Initial Purchasers or to their counsel shall contain any
misstatement or omission . The Astor Parties shall have performed or complied
with all of the agreements herein contained and required to be performed or
complied with by them at or prior to the Closing Date.
20
(b) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have been any downgrading, nor shall
any notice have been given of any intended or potential downgrading, or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any securities of the Company or any of
its subsidiaries by any "nationally recognized statistical rating organization",
as such term is defined for purposes of Rule 436(g)(2) under the Securities Act.
(c) (i) Since the date of the latest balance sheet included in the
Preliminary Offering Memorandum, there shall not have been any material adverse
change, or any development involving a prospective material adverse change, in
the condition (financial or otherwise), earnings, business, operations or
prospects of the Astor Parties and their subsidiaries, taken as a whole,(ii)
since the date of the latest balance sheet included in the Preliminary Offering
Memorandum there shall not have been any material change, or any development
involving a prospective material adverse change, in the capital stock or in the
long-term debt of either Astor Party and its subsidiaries from that set forth in
the Preliminary Offering Memorandum and no dividend or distribution of any kind
shall have been declared, paid or made by either Astor Party on any class of its
capital stock,(iii) neither any Astor Party nor any of its subsidiaries shall
have incurred any liabilities or obligations, direct or contingent, or entered
into any transactions, not in the ordinary course of business, that are
material, individually or in the aggregate, to the Astor Parties and their
subsidiaries, taken as a whole, other than those reflected in the Preliminary
Offering Memorandum and (iv) on the Closing Date the Initial Purchasers shall
have received a certificate dated the Closing Date, signed by the President and
the Chief Financial Officer of the Company, confirming the matters set forth in
paragraphs (a), (b) and (c) of this Section.
(d) No action shall have been taken and no statute, rule or
regulation or order shall have been enacted, adopted or issued by any
governmental agency that would as of the Closing Date prevent the issuance of
the Notes. No injunction, restraining order or order of any nature by a federal
or state court of competent jurisdiction shall have been issued as of the
Closing Date that would prevent or interfere with the issuance of the Notes. On
the Closing Date, no action, suit or proceeding shall be pending against or
affecting or, to the best knowledge of either Astor Party or any of its
subsidiaries, threatened against, either Astor Party or any of its subsidiaries
before any court or arbitrator or any governmental body, agency or official,
except as disclosed in the Final Offering Memorandum and except for such
actions, suits or proceedings that if adversely determined would not, either
individually or in the aggregate, have a material adverse effect on the issuance
or marketability of the Notes or would not, individually or in the aggregate,
have a material adverse effect on the condition (financial or otherwise),
earnings, business, operations or prospects of the Astor Parties and their
subsidiaries, taken as a whole, or would not in any manner draw into question
the validity of any Operative Document.
21
(e) The Initial Purchasers shall have received on the Closing Date an
opinion (satisfactory to the Initial Purchasers and counsel to the Initial
Purchasers), dated the Closing Date, of Xxxxxx, Xxxx & Xxxxxxxx, counsel for the
Company, substantially to the effect that:
(i) Each of the Astor Parties and ABI Corporation is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware and has the requisite corporate power and
corporate authority to own, lease and operate its properties and to conduct
its business as described in the Final Offering Memorandum. ABI 1 is a
corporation duly domesticated, validly existing and in good standing under
the laws of the State of Delaware and has the requisite corporate power and
corporate authority to own, lease and operate its properties and to conduct
its business as described in the Final Offering Memorandum. Each of the
Astor Parties, ABI Corporation and ABI 1 is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions
identified to such counsel by the Company in an officers' certificate as
being jurisdictions in which the nature of the property owned or leased by
such person or the nature of the business transacted by such person makes
such qualification necessary, except where the failure to be so qualified
would not have a material adverse effect on the business, operations or
financial condition of the Astor Parties and their subsidiaries, taken as a
whole (a "Material Adverse Effect").
(ii) Each Astor Party has the requisite corporate power and
corporate authority to execute, deliver and perform its obligations under
the Operative Documents.
(iii) Each of the Indenture and the Registration Rights Agreement
has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(iv) Each of the Indenture and the Registration Rights Agreement
has been duly authorized, executed and delivered by the Guarantor and is a
valid and legally binding agreement of the Guarantor, enforceable against
the Guarantor in accordance with its terms.
(v) This Agreement has been duly authorized, executed and
delivered by each Astor Party.
(vi) The Merger Agreement has been duly authorized, executed and
delivered by the Company.
22
(vii) The Notes and the Guarantees endorsed thereon have been duly
authorized and executed by the Company and the Guarantor, respectively.
When the Notes are authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in accordance with the
terms hereof, the Notes and the Guarantees endorsed thereon will be
entitled to the benefits of the Indenture and will be the valid and legally
binding obligations of the Company and the Guarantor, respectively,
enforceable against the Company and the Guarantor, respectively, in
accordance with their respective terms,.
(viii) The New Notes and the Guarantees to be endorsed thereon have
been duly authorized by the Company and the Guarantor, respectively. When
the New Notes are duly executed and delivered and authenticated in
accordance with the terms of the Indenture, the Guarantees endorsed on the
New Notes have been duly executed and delivered by the Guarantor and the
New Notes have been exchanged for the Notes in the manner contemplated by
the Registration Rights Agreement and the Indenture, the New Notes and the
Guarantees endorsed thereon will be entitled to the benefits of the
Indenture and will be valid and legally binding obligations of the Company
and the Guarantor, respectively, enforceable against the Company and the
Guarantor, respectively, in accordance with their respective terms.
(ix) The Indenture, the Registration Rights Agreement, the Notes
and the Guarantee conform in all material respects to the descriptions
thereof contained in the Final Offering Memorandum.
(x) The Initial Purchasers may rely on the opinion of such
counsel delivered to the lenders under the Senior Bank Facility as if such
opinion were addressed to them.
(xi) The statements (other than financial, statistical and
accounting data) under the captions "Executive Compensation - Management
Compensation and Employment Agreements", "- 1995 Stock Incentive Plan of
Parent", "- 1997 Incentive Bonus Program", "- 1997 Management Bonus
Program", "- Retirement Savings Plans", "- Indemnification of Directors and
Officers", "Acquisition of ADCO", "Certain Transactions", "Senior Bank
Facility," the summary of the key elements of the Reorganization Plan under
"Prior Reorganization", "Business - Legal Proceedings", "Description of
Notes", "Plan of Distribution", "ERISA Considerations" and "Notice to
Investors" in the Final Offering Memorandum, insofar as such statements
constitute a summary of legal matters, documents or proceedings referred to
therein, fairly present the information required with respect to such legal
matters, documents and proceedings in order to make the statements therein
not materially misleading.
23
(xii) Assuming the accuracy of the representations and warranties
of the Company contained in paragraphs (kk) and (ll) of Section 5 hereof
and of the Initial Purchasers contained in Section 4 hereof and assuming
compliance with the representations and covenants of the Company contained
in Section 3 hereof and with the representations and covenants referred to
under the captions "Plan of Distribution" and "Notice to Investors" in the
Final Offering Memorandum, the issuance and sale of the Notes to the
Initial Purchasers and the initial offering, resale and delivery of the
Notes by the Initial Purchasers, in each case in the manner contemplated in
the Final Offering Memorandum and this Agreement, are exempt from the
registration requirements of the Securities Act of 1933, as amended,
provided that no opinion need be expressed as to any subsequent resales of
the Notes.
(xiii) (i) The shares of issued and outstanding capital stock of
ABI Corporation have been duly authorized and validly issued and are fully
paid and non-assessable and owned of record and, to the knowledge of such
counsel, beneficially by ABI 1, to the knowledge of such counsel, free and
clear of any lien, security interest, encumbrance or similar arrangement,
except the lien of the UBS Credit Facility immediately prior to its
termination on the Closing Date and the lien of the Senior Bank Facility
upon execution and delivery thereof. (ii) The shares of issued and
outstanding common stock of ABI 1 have been duly authorized and validly
issued and are fully paid and non-assessable and owned of record and, to
the knowledge of such counsel, beneficially by the Company (except for one
share owned by Xxxxxxx X. Xxxxxx), to the knowledge of such counsel, free
and clear of any lien, security interest, encumbrance or similar
arrangement, except the lien of the UBS Credit Facility immediately prior
to its termination on the Closing Date and the lien of the Senior Bank
Facility upon execution and delivery thereof. (iii) The shares of issued
and outstanding voting preferred stock of ABI 1 have been duly authorized
and validly issued and are fully paid and non-assessable and owned of
record and, to the knowledge of such counsel, beneficially by the
Guarantor, to the knowledge of such counsel, free and clear of any lien,
security interest, encumbrance or similar arrangement, except the lien of
the UBS Credit Facility immediately prior to its termination on the Closing
Date and the lien of the Senior Bank Facility upon execution and delivery
thereof.
(xiv) Neither Astor Party is an "investment company" or a company
"controlled" by an investment company within the meaning of the Investment
Company Act of 1940, as amended.
(xv) To the knowledge of such counsel, no authorization,
approval, consent or order of, or filing with, any court or governmental
body or agency of the United States or the States of New York or Delaware
is required for the issuance and sale of the Notes pursuant hereto, except
(i) such as have been
24
obtained or completed and (ii) such authorizations, approvals, consents,
orders or filings as may be required under state securities or Blue Sky
laws or regulations.
(xvi) The execution and delivery of the Operative Documents, the
issuance, sale and delivery of the Notes and the performance by the Astor
Parties of their respective obligations under the Operative Documents will
not (i) result in a breach or violation of the Certificate of Incorporation
or Bylaws of the Company or the Guarantor, as applicable, (ii) to the
knowledge of such counsel, constitute a default under any statute, rule or
regulation which default would have a Material Adverse Effect or would have
an adverse effect on the Company's or the Guarantor's ability to duly and
timely perform their obligations under the Operative Documents, (iii)
constitute a default under any order, judgment or decree identified to such
counsel by the Company in an officers' certificate of any federal or state
government to which either Astor Party or ABI Corporation or ABI 1 is bound
or to which any of their properties is subject or (iv) constitute a default
under any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument identified to such counsel by the Company in an
officers' certificate as being a material instrument to which either Astor
Party is a party or by which either Astor Party is bound or to which
any of their properties is subject.
(xvii) To the knowledge of such counsel without search of court or
agency records, there is no action, suit or proceeding before any court or
governmental agency, domestic or foreign, now pending or threatened to
which either Astor Party, ABI Corporation or ABI 1 is or may be a party or
to which the business or property of either Astor Party, ABI Corporation or
ABI 1 is subject, or any contract or other document that would be required
to be described in the Final Offering Memorandum if the Final Offering
Memorandum were a registration statement on Form S-1 under the Securities
Act that is not so described in the Final Offering Memorandum.
(xviii) To the knowledge of such counsel, no holder of any security
of either Astor Party has any right to require the Company or the
Guarantor, as applicable, to register such security under the Securities
Act other than rights pursuant to the Registration Rights Agreement and
that certain Stockholders Agreement dated as of June 27, 1995 among Astor
Holdings, Inc. and certain of its stockholders, optionholders and
warrantholders.
In addition, such counsel shall advise that, in the course of the preparation by
the Company of the Offering Memorandum, such counsel have participated in
conferences and discussions with officers and other representatives of the
Company and others at which the contents of the Final Offering Memorandum were
discussed. Although such counsel have not independently verified, are not
passing upon and do not assume
25
responsibility for the accuracy, completeness or fairness of the statements and
information included in the Final Offering Memorandum, no facts have come to
such counsel's attention which cause such counsel to believe that the Final
Offering Memorandum (except for any financial statements and notes and schedules
thereto, pro forma financial information or other financial, statistical or
accounting data contained or incorporated by reference therein, as to all of
which such counsel make no comment), as of the date thereof and as of the
Closing Date, contained any untrue statement of a material fact or omitted to
state any material fact necessary to make the statements made therein, in light
of the circumstances under which they are made, not misleading.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion (satisfactory to the Initial Purchasers and counsel of the Initial
Purchasers) dated the Closing Date, of Xxxxx & Xxxxx, special U.K. counsel to
the Company, substantially to the effect that:
(i) Each of ABI 1, ABI 2 and Astor Stag Limited ("Astor Stag" and,
collectively, the "U.K. Subsidiaries") is a company duly incorporated under
the laws of England and, in reliance on the searches of such counsel
specified in their opinion, not in liquidation. Each U.K. Subsidiary has
the power to carry out the objects set out in its memorandum (a copy of
which is attached to such opinion).
(ii) The share register of ABI 1, ABI 2 and Astor Stag show that: (A)
the Company, the Guarantor and Xxxxxxx X. Xxxxxx are the registered owners
of all the shares of ABI 1, (B) ABI 1 and Xxxxxxx X. Xxxxxx are the
registered owners of all the shares of ABI 2, and (C) ABI 2 is the
registered owner of all the shares of Astor Stag. The share registers do
not show beneficial ownership of those shares. There are not fixed or
floating charges shown over such shares on such counsel's search of ABI 1's
or ABI 2's mortgage register at the Companies Registry (other than a fixed
and floating charged dated 16th June in favor of Union Bank of
Switzerland), but that search would not necessarily show a fixed charge as
fixed charges over shares are not generally registerable in England and
Wales.
In rendering such opinion, such counsel may rely as to matters of fact (but not
as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and the U.K. Subsidiaries and public
officials.
(g) The Initial Purchasers shall have received on the Closing Date a
copy of the opinion delivered to the Trustee pursuant to Section 14.4 of the
Indenture and an appropriate letter entitling the Initial Purchasers to rely on
such opinion.
(h) The Initial Purchasers shall have received on the Closing Date a
copy of the opinion, dated the Closing Date, of Xxxxxx, Xxxxx & Xxxxxxx LLP,
counsel for ADCO, and delivered to the Company pursuant to the Merger Agreement
and an
26
appropriate letter of such counsel entitling the Initial Purchasers to rely on
such portion of such opinion as the Initial Purchasers shall request.
(i) All proceedings taken in connection with the sale of the Notes as
herein contemplated shall be reasonably satisfactory in form and substance to
the Initial Purchasers and to Xxxxx Xxxx & Xxxxxxxx, counsel for the Initial
Purchasers, and the Initial Purchasers shall have received on the Closing Date
an opinion, dated the Closing Date, of Xxxxx Xxxx & Xxxxxxxx in form and
substance reasonably satisfactory to the Initial Purchasers.
(j) At the time this Agreement is executed and delivered by the Astor
Parties and on the Closing Date, the Initial Purchasers shall have received
letters, substantially in the form previously approved by the Initial
Purchasers, from Ernst & Young LLP and KPMG, independent public accountants,
with respect to the financial statements and certain financial information
contained in each Offering Memorandum.
(k) The Initial Purchasers shall have received on or before the
Closing Date a copy of a letter from each of Standard & Poor's Ratings Group and
Xxxxx'x Investors Services assigning to the Notes ratings of B- and B3,
respectively. Such ratings shall have been confirmed on the Closing Date by the
applicable rating agency and neither of such rating agencies shall have
announced that it has its rating of the Notes under surveillance or review.
(l) The Notes shall be eligible for trading in the PORTAL market.
(m) Counsel for the Initial Purchasers shall have been furnished with
such documents as they may reasonably require for the purpose of enabling them
to review or pass upon the matters referred to in this Section 7 in order to
evidence the accuracy, completeness or satisfaction in all material respects of
any of the representations, warranties or conditions herein contained.
(n) Each Operative Document shall have been executed and delivered by
each party thereto and a true and complete copy of each thereof shall have been
delivered to the Initial Purchasers.
(o) No Astor Party shall have failed at or prior to the Closing Date
to perform or comply with any of the agreements contained in any Operative
Document and required to be performed or complied with by such Astor Party at or
prior to the Closing Date.
(p) The Merger Agreement shall be in full force and effect on the
Closing Date, and the Merger shall have become effective as of the Closing Date.
No waiver, amendment or modification of any provision of the Merger Agreement
shall have
27
occurred other than any waiver, amendment or modification which in the Initial
Purchasers' judgment does not make it impracticable to market the Notes on the
terms and in the manner contemplated in the Final Offering Memorandum.
(q) The Senior Bank Facility shall be in full force and effect on the
Closing Date, and prior to or contemporaneously with the Closing Date, each of
the actions contemplated or required to occur and each of the conditions
contemplated or required to be satisfied on or prior to the closing of the
Senior Bank Facility, shall have occurred or been satisfied and no waiver,
amendment or modification of any provision of the Senior Bank Facility shall
have occurred, other than any such action or condition or any such waiver,
amendment or modification which in the Initial Purchasers' judgment does not
make it impracticable to market the Notes on the terms and in the manner
contemplated in the Final Offering Memorandum; and the Company shall have
received the proceeds of the borrowings under the Senior Bank Facility prior to
or simultaneously with the closing hereunder in the manner described in the
Final Offering Memorandum.
All opinions, certificates, letters and other documents required by
this Section to be delivered by any Astor Party will be in compliance with the
provisions thereof only if they are reasonably satisfactory in form and
substance to the Initial Purchasers. The Company will furnish the Initial
Purchasers with such conformed copies of such opinions, certificates, letters
and other documents as it shall reasonably request.
8. TERMINATION. This Agreement may be terminated at any time prior
to the Closing Date by the Initial Purchasers by notice to the Company if any of
the following has occurred:(i) any Astor Party shall have failed, refused or
been unable to perform in any material respect any agreement on its part then to
be performed under any Operative Document,(ii) since the respective dates as of
which information is given in either Offering Memorandum, any adverse change in
the condition (financial or otherwise), earnings, business, operations or
prospects of the Astor Parties or their subsidiaries, taken as a whole, whether
or not arising in the ordinary course of business, which would, in the Initial
Purchasers' judgment, make it impracticable to market the Notes on the terms and
in the manner contemplated in the Final Offering Memorandum,(iii) any outbreak
or escalation of hostilities or other national or international calamity or
crisis or change in economic conditions or in the financial markets of the
United States or elsewhere that, in the Initial Purchasers' judgment, is
material and adverse and would, in the Initial Purchasers' judgment, make it
impracticable to market the Notes on the terms and in the manner contemplated in
the Final Offering Memorandum,(iv) the suspension or material limitation of
trading in securities on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market System or limitation on prices for
securities on any such exchange or national market system,(v) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
the Initial Purchasers' opinion materially and adversely affects, or will
materially and adversely affect, the
28
condition (financial or otherwise), earnings, business, operations or prospects
of the Astor Parties and their subsidiaries, taken as a whole,(vi) the
declaration of a banking moratorium by either federal or New York State
authorities or (vii) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in the
Initial Purchasers' opinion has a material adverse effect on the financial
markets in the United States.
Notwithstanding any termination of this Agreement, the Astor Parties
shall be liable for all expenses which it has agreed to pay pursuant to Section
3 hereof. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 3 hereof.
9. MISCELLANEOUS. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to any Astor Party, to 0000 Xxx
Xxxxx Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Chief
Administrative Officer, (b) if to the Initial Purchasers, to Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxx, High Yield Group, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Astor Parties, and their respective
officers and directors and of the Initial Purchasers set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Notes, regardless of (i) any
investigation, or statement as to the results thereof, made by the Initial
Purchasers or on the Initial Purchasers behalf or by or on behalf of either
Astor Party or its subsidiaries, their respective officers or directors or any
controlling person of either Astor Party or its subsidiaries,(ii) acceptance of
and payment for the Notes hereunder or (iii) termination of this Agreement.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Astor Parties, the
Initial Purchasers, any directors and officers or controlling persons referred
to herein and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" shall
not include a purchaser of any of the Notes from the Initial Purchasers merely
because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
29
30
Please confirm that the foregoing correctly sets forth the agreement
between the Astor Parties and the Initial Purchasers.
Very truly yours,
ASTOR CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name:
Title:
ASTOR HOLDINGS II, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
Acting severally on behalf of
themselves and the several
Initial Purchasers named in
Schedule I hereto.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name:
Title:
CHASE SECURITIES INC.
Acting severally on behalf of
themselves and the several
Initial Purchasers named in
Schedule I hereto.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
--------------------------------
Name:
Title:
31
SCHEDULE I
Principal Amount of Notes
Initial Purchasers to be Purchased
------------------ -------------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation $ 68,200,000
Chase Securities Inc. 41,800,000
-----------
Total $110,000,000
