Exhibit 4.1(c)
EXECUTION COPY
$29,000,000
15% SENIOR SECURED NOTES DUE 2010 OF
PAHC HOLDINGS CORPORATION
PURCHASE AGREEMENT
February 7, 2005
XXXXXXXXX & COMPANY, INC.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
PAHC Holdings Corporation, a Delaware corporation (the "Company"), hereby
agrees (this "Agreement") with you as follows:
1. ISSUANCE OF NOTES. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to Jefferies & Company, Inc.
(the "Initial Purchaser") $29,000,000 aggregate principal amount of its 15%
Senior Secured Notes due 2010 (each a "Note" and, collectively, the "Notes").
The Notes will be issued pursuant to an indenture (the "Indenture"), to be dated
as of February 10, 2005, by and between the Company and HSBC Bank USA, National
Association, as trustee (in such capacity, the "Trustee") and as collateral
agent (in such capacity, the "Collateral Agent"). Capitalized terms used but not
defined herein shall have the meanings set forth in the Indenture.
The Notes will be offered and sold to the Initial Purchaser pursuant to an
exemption from the registration requirements under the Securities Act of 1933,
as amended (the "Act"). Upon original issuance thereof, and until such time as
the same is no longer required under the applicable requirements of the Act, the
Notes shall bear the legends set forth in the final offering circular, dated the
date hereof (the "Final Offering Circular"). The Company has prepared a
preliminary offering circular, dated February 2, 2005 (the "Preliminary Offering
Circular"), and the Final Offering Circular relating to the offer and sale of
the Notes (the "Offering"). "Offering Circular" means, as of any date or time
referred to in this Agreement, the most recent offering circular (whether the
Preliminary Offering Circular or the Final Offering Circular, and any amendment
or supplement to either such document), including, without limitation, exhibits
and schedules thereto.
2. TERMS OF OFFERING. The Initial Purchaser has advised the Company,
and the Company understands, that the Initial Purchaser will make offers to sell
(the "Exempt Resales") some or all of the Notes purchased by the Initial
Purchaser hereunder on the terms set forth in the Final Offering Circular, as
amended or supplemented, to persons (the "Subsequent Purchasers") whom the
Initial Purchaser (i) reasonably believes to be "qualified institutional buyers"
as defined in Rule 144A under the Act, as such Rule may be amended from time to
time ("QIBs"), (ii) reasonably believes (based upon written representations made
by such persons to the Initial Purchaser) to be institutional "accredited
investors" ("Accredited Investors") as defined in Rule 501(a)(1), (2), (3) or
(7) under the Act or (iii) reasonably believes to be non-U.S. persons in
reliance upon Regulation S under the Act.
Pursuant to the terms of the Collateral Agreements, the Notes will be
secured by Liens in substantially all of the assets of the Company, including,
without limitation, a pledge of the Capital Stock of Phibro Animal Health
Corporation, a New York corporation ("Phibro Animal Health").
Holders of the Notes (including, without limitation, Subsequent
Purchasers) will have the registration rights set forth in the registration
rights agreement applicable to the Notes (the "Registration Rights Agreement"),
to be executed on and dated as of the Closing Date, as such term is defined
below. Pursuant to the Registration Rights Agreement, the Company will agree,
among other things, to file with the Securities and Exchange Commission (the
"SEC") (a) a registration statement under the Act registering the offer and sale
of senior secured notes (the "Exchange Notes") which shall be identical to the
Notes (except that the Exchange Notes shall have been registered pursuant to
such registration statement, will not be subject to restrictions on transfer or
contain additional interest provisions) to be offered in exchange for the Notes
(such offer to exchange being referred to as the "Exchange Offer"), and/or (b)
under certain circumstances, a shelf registration statement pursuant to Rule 415
under the Act (the "Shelf Registration Statement") relating to the resale by
certain holders of the Notes. If required under the Registration Rights
Agreement, the Company will issue Exchange Notes to the Initial Purchaser (the
"Private Exchange Notes"). If the Company shall fail to satisfy its obligations
under the Registration Rights Agreement, it will be required to pay additional
interest to the holders of the Notes under certain circumstances, as set forth
in the Registration Rights Agreement.
This Agreement, the Indenture, the Collateral Agreements, the
Registration Rights Agreement, the Notes, the Exchange Notes, the Private
Exchange Notes and the Escrow and Security Agreement, to be dated February 10,
2005 (the "Escrow Agreement"), between the Company and HSBC Bank USA, National
Association, as escrow agent and collateral agent, pursuant to which the Company
will deposit the gross proceeds from the Offering in an escrow account (the
"Escrow Account"), are referred to herein as the "Documents."
3. PURCHASE, SALE AND DELIVERY. On the basis of the representations,
warranties, agreements and covenants herein contained and subject to the selling
restrictions, terms and conditions herein set forth, the Company agrees to issue
and sell to the Initial Purchaser, and the Initial Purchaser agrees to purchase
from the Company, the Notes at a purchase price of 100% of the principal amount
thereof. Delivery to the Initial Purchaser of and payment for the Notes shall be
made at a closing (the "Closing") to be held at 10:00 a.m., New York time, on
February 10, 2005 (the "Closing Date") at the New York offices of Mayer, Brown,
Xxxx & Maw LLP.
As consideration for the placement of the Notes and financial advisory
services rendered, the Company agrees to pay to the Initial Purchaser the
following fees:
(i) $870,000, representing a commission on the placement of the Notes equal
to 3.0% of the gross proceeds; and
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(ii) a financial advisory fee of $580,000;
in each case due and payable on the Closing Date. The Initial Purchaser may net
the above fees against the purchase price of the Notes.
The Company shall deliver to the Initial Purchaser one or more
certificates representing the Notes in definitive form, for your account
registered in such names and denominations as the Initial Purchaser may request
no later than 9:00 p.m. two days immediately preceding the Closing Date, against
payment by the Initial Purchaser of the purchase price therefor by immediately
available federal funds bank wire transfer to the Escrow Account. The
certificates representing the Notes in definitive form shall be made available
to the Initial Purchaser for inspection at the New York offices of Mayer, Brown,
Xxxx & Maw LLP (or such other place as shall be reasonably acceptable to the
Initial Purchaser) not later than 10:00 a.m. one business day immediately
preceding the Closing Date. Notes to be represented by one or more definitive
global securities in book-entry form will be deposited on the Closing Date, by
or on behalf of the Company, with The Depository Trust Company ("DTC") or its
designated custodian, and registered in the name of Cede & Co.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Initial Purchaser that, as of the date hereof and
as of the Closing Date:
(a) The Preliminary Offering Circular as of its date did not, and the Final
Offering Circular as of its date did not, and as of the Closing Date will
not, and each supplement or amendment thereto as of its date will not,
contain any untrue statement of a material fact or omit to state any
material fact (except, in the case of the Preliminary Offering Circular,
for pricing terms and other financial terms intentionally left blank)
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided,
however, that the Company does not make any representation or warranty as
to information furnished in writing to it by the Initial Purchaser
specifically for use therein. No injunction or order has been issued that
either (i) asserts that any of the transactions contemplated by this
Agreement or any other Document is subject to the registration requirements
of the Act, or (ii) would prevent or suspend the issuance or sale of any of
the Notes or the use of the Preliminary Offering Circular, the Final
Offering Circular or any amendment or supplement thereto, in any
jurisdiction. Each of the Preliminary Offering Circular and the Final
Offering Circular, as of their respective dates contained, and the Final
Offering Circular, as amended or supplemented, as of the Closing Date will
contain, all the information specified in, and meet the requirements of,
Rule 144A(d)(4) under the Act.
(b) Each corporation, partnership, or other entity in which the Company,
directly or indirectly through any of its subsidiaries, will own as of the
Closing Date more than fifty percent (50%) of any class of Capital Stock is
listed on Schedule I attached hereto (the "Subsidiaries"). The Capital
Stock of each such Subsidiary that will be owned, directly or indirectly,
by the Company as of the Closing Date, will be owned by the Company, as of
the Closing Date, free and clear of all Liens other than Permitted Liens
(and, in the case of Capital Stock of any Subsidiary held by any other
Subsidiary, Permitted Liens (as defined in the 0000 Xxxxxxxxx)) and in the
case of La Cornubia S.A, Liens in favor of its creditors (including The
Republic of France) pursuant to bankruptcy proceedings filed with respect
to La Cornubia S.A. in The Republic of France. Each such Subsidiary of the
Company will be a Restricted Subsidiary.
(c) The Company and its Subsidiaries (i) have been duly organized or formed, as
the case may be, are validly existing and are in good standing (to the
extent relevant in such jurisdiction) under the laws of their jurisdiction
of organization or formation, as the case may be, (ii) have all requisite
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corporate or other power and corporate or other authority to carry on their
business and to own, lease and operate their properties and assets, and
(iii) are duly qualified or licensed to do business and are in good
standing (to the extent relevant in such jurisdiction) as a foreign
corporation, partnership or other entity as the case may be, authorized to
do business in each jurisdiction in which the nature of such businesses or
the ownership or leasing of such properties requires such qualification,
except where the failure to be so qualified would not, individually or in
the aggregate, have a material adverse effect on (A) the properties,
business, prospects, operations, earnings, assets, liabilities or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a
whole, (B) the ability of the Company to perform its obligations in all
material respects under any Document to which it is a party, (C) the
enforceability of any Collateral Agreement or the attachment, perfection or
priority of any of the Liens intended to be created thereby or (D) the
validity of any of the Documents or the consummation of any of the
transactions contemplated therein (each, a "Material Adverse Effect").
(d) All of the issued and outstanding shares of Capital Stock of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable, and were not issued in violation of, and except as set forth
in the Final Offering Circular are not subject to, any preemptive or
similar rights. The column entitled "Actual" in the table under the caption
"Capitalization" in the Final Offering Circular (including the footnotes
thereto) sets forth, as of September 30, 2004, the capitalization of the
Company and its Subsidiaries, taken as a whole. All of the outstanding
shares of Capital Stock of each of the Subsidiaries are owned, directly or
indirectly, by the Company, free and clear of all liens, security
interests, mortgages, pledges, charges, equities, claims or restrictions on
transferability or encumbrances of any kind (collectively, "Liens"), other
than those imposed by the Act and the securities or "Blue Sky" laws of
certain domestic or foreign jurisdictions, restrictions on the
transferability of Voting Stock of Phibro Animal Health provided in that
certain Stockholders Agreement, dated as of November 30, 2000, among, inter
alia, Phibro Animal Health, Xxxx X. Xxxxxxxx and the Palladium Investors
(the "Stockholders Agreement (Palladium)"), and Liens constituting
Permitted Liens (and, in the case of Capital Stock of any Subsidiary held
by any other Subsidiary, Permitted Liens (as defined in the 0000
Xxxxxxxxx)) and in the case of La Cornubia S.A, Liens in favor of its
creditors (including The Republic of France) pursuant to bankruptcy
proceedings filed with respect to La Cornubia S.A. in The Republic of
France. Except as set forth in the Final Offering Circular, there are no
outstanding (A) options, warrants or other rights for third parties to
purchase from the Company or any of its Subsidiaries, (B) agreements,
contracts, arrangements or other obligations of the Company or any of its
Subsidiaries to issue to third parties or (C) other rights of third parties
to convert any obligation into or exchange any securities for, in the case
of each of clauses (A) through (C), shares of Capital Stock in the Company
or any of its Subsidiaries.
(e) No holder of securities of the Company or any of its Subsidiaries will be
entitled to have such securities registered under the registration
statements required to be filed by the Company with respect to the Exchange
Notes or the Private Exchange Notes pursuant to the Registration Rights
Agreement.
(f) The Company has all requisite corporate or other power and corporate or
other authority to execute, deliver and perform its obligations under the
Documents to which it is a party and to consummate the transactions
contemplated thereby.
(g) The execution, delivery and performance of each of this Agreement, the
Indenture, the Escrow Agreement and the Collateral Agreements have been
duly and validly authorized by the Company. Each of the Indenture, the
Escrow Agreement and the Collateral Agreements, when executed and delivered
by the Company, will constitute a legal, valid and binding obligation of
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the Company, enforceable against the Company in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent conveyance
or other similar laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity (whether applied by
a court of law or equity) and the discretion of the court before which any
proceeding therefor may be brought.
(h) The execution, delivery and performance of the Registration Rights
Agreement has been duly and validly authorized by the Company. The
Registration Rights Agreement, when executed and delivered by the Company,
will constitute a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except that
(A) the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, receivership, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (whether applied by a court
of law or 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.
(i) The Notes, when issued, will be in the form contemplated by the Indenture.
The Indenture meets the requirements for qualification under the Trust
Indenture Act of 1939, as amended (the "TIA"). The execution, delivery and
performance of each of the Notes, Exchange Notes and Private Exchange Notes
have each been duly and validly authorized by the Company and, in the case
of the Notes, when authenticated, delivered to and paid for by the Initial
Purchaser in accordance with the terms of this Agreement and the Indenture,
will have been duly executed, issued and delivered and will be legal, valid
and binding obligations of the Company, entitled to the benefit of the
Indenture, the Collateral Agreements, the Registration Rights Agreement,
and enforceable against the Company in accordance with their terms, except
that the enforcement thereof may be subject to (i) bankruptcy, insolvency,
reorganization, receivership, moratorium, fraudulent conveyance or other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (whether applied by a court
of law or equity) and the discretion of the court before which any
proceeding therefor may be brought. Upon and following delivery to the
Initial Purchaser, the Notes will rank at least pari passu in right of
payment with all other Indebtedness of the Company that is outstanding on
the Closing Date or that may be incurred thereafter and senior in right of
payment to all Indebtedness of the Company that is outstanding on the
Closing Date or that may be incurred thereafter and which by its terms is
subordinated in right of payment to all other Indebtedness of the Company.
(j) Neither the Company nor any of its Subsidiaries is in violation of its
certificate of incorporation, by-laws, limited liability operating
agreement or other organizational document (as applicable with respect to
the Company or such Subsidiary, its "Charter Documents"). Neither the
Company nor any of its Subsidiaries is (i) in violation of any federal,
state, local or foreign statute, law (including, without limitation, common
law) or ordinance, or any judgment, decree, rule, regulation or order,
except for such violations that would not, individually or in the
aggregate, result in a Material Adverse Effect (collectively, "Applicable
Law") of any federal, state, local and other governmental authority,
governmental or regulatory agency or body, court, arbitrator or
self-regulatory organization, domestic or foreign having jurisdiction over
the Company or any of its Subsidiaries or any of their respective assets,
properties or operations (each, a "Governmental Authority") applicable to
any of them or any of their respective properties, or (ii) in breach of or
default under any bond, debenture, note or other evidence of Indebtedness,
indenture, mortgage, deed of trust, lease or any other agreement or
instrument to which any of them is a party or by which any of them or their
respective property is bound (collectively, "Applicable Agreements"), other
than as disclosed in the Final Offering Circular and except for any such
breaches or defaults
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that would not, individually or in the aggregate, result in a Material
Adverse Effect. There exists no condition that, with the passage of time or
otherwise, would (a) constitute a violation of any such (i) Charter
Document or (ii) Applicable Law, (b) constitute a breach of or default
under any Applicable Agreement or (c) result in the imposition of any
penalty or the acceleration of any Indebtedness and, in the case of clause
(a)(ii), (b) or (c) above, could reasonably be expected to result in a
Material Adverse Effect.
(k) Neither the execution, delivery or performance of the Documents nor the
consummation of any transactions contemplated therein will conflict with,
violate, constitute a breach of or a default (with the passage of time or
otherwise) under, require the consent of any person (other than consents
already obtained and in full force and effect) under, result in the
imposition of a Lien on any assets of the Company or any of its
Subsidiaries (except for Liens created pursuant to the Documents), or
result in an acceleration of Indebtedness under or pursuant to (i) the
Charter Documents, (ii) any Applicable Agreement, or (iii) any Applicable
Law, except for conflicts, violations, breaches, defaults, consents, Lien
impositions or accelerations of Indebtedness that, in the case of clause
(ii) or (iii) above, would not result in a Material Adverse Effect.
Immediately after consummation of the Offering and the transactions
contemplated in the Documents (including the application of the proceeds of
the Notes as disclosed in the Final Offering Circular), no Default or Event
of Default (each, as defined in the Indenture) will exist.
(l) When executed and delivered, the Documents will conform in all material
respects to the descriptions thereof in the Final Offering Circular.
(m) No consent, approval, authorization or order of any Governmental Authority
or third party is required for the issuance and sale by the Company of the
Notes to the Initial Purchaser or the consummation by the Company of the
other transactions contemplated hereby, except such as have been obtained
(and are in full force and effect) and such as may be required under
foreign securities laws or state securities or "Blue Sky" laws in
connection with the purchase and resale of the Notes by the Initial
Purchaser.
(n) Except as disclosed in the Final Offering Circular, there is no action,
claim, suit, demand, hearing, notice of violation or deficiency, or
proceeding, domestic or foreign (collectively, "Proceedings"), pending or,
to the knowledge of the Company, threatened, that either (i) seeks to
restrain, enjoin, prevent the consummation of, or otherwise challenge any
of the Documents or any of the transactions contemplated therein, or (ii)
would, individually or in the aggregate, have a Material Adverse Effect.
The Company is not subject to any judgment, order, decree, rule or
regulation of any Governmental Authority that would, individually or in the
aggregate, have a Material Adverse Effect. No injunction or order has been
issued and no Proceeding is pending or, to the knowledge of the Company or
any of its Subsidiaries, threatened that (i) asserts that the offer, sale
and delivery of the Notes to the Initial Purchaser pursuant to this
Agreement or the initial resale of the Notes by the Initial Purchaser in
the manner contemplated by this Agreement is subject to the registration
requirements of the Act, or (ii) would prevent or suspend the issuance or
sale of the Notes, including the Exempt Resales, or the use of the
Preliminary Offering Circular, the Final Offering Circular, or any
amendment or supplement thereto, in any jurisdiction.
(o) The Company and its Subsidiaries possess all licenses, permits,
certificates, consents, orders, approvals and other authorizations from,
and have made all declarations and filings with, all Governmental
Authorities, presently required or necessary to own or lease, as the case
may be, and to operate their respective properties and to carry on their
respective businesses as now or proposed to be conducted as set forth in
the Final Offering Circular ("Permits"), except where the
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failure to obtain such Permits would not, individually or in the aggregate,
have a Material Adverse Effect; the Company and its Subsidiaries have
fulfilled and performed all of their 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
(i) as disclosed in the Final Offering Circular and (ii) where such failure
to perform such obligations would not, individually or in the aggregate,
result in a Material Adverse Effect; and neither the Company nor any of its
Subsidiaries have received any notice of any proceeding relating to
revocation or modification of any such Permit, except as described in the
Final Offering Circular or except where such revocation or modification
would not, individually or in the aggregate, have a Material Adverse
Effect.
(p) The Company and each of its Subsidiaries has good and marketable title to
all real property owned by it and good title to all personal property owned
by it and good and indefeasible title to all leasehold estates in real and
personal property being leased by it (collectively, the "Property") and, as
of the Closing Date, the Property will be free and clear of all Liens
(other than restrictions on the transferability of Voting Stock of Phibro
Animal Health provided in the Stockholders Agreement (Palladium), Permitted
Liens (and, in the case of Property of each Subsidiary, Permitted Liens (as
defined in the 2007 Indenture))). All Applicable Agreements to which the
Company or any of its Subsidiaries is a party or by which any of them is
bound are valid and enforceable against the Company or such Subsidiary, as
applicable, and are valid and enforceable against the other party or
parties thereto and are in full force and effect with only such exceptions
as would not, individually or in the aggregate, have a Material Adverse
Effect. The assets of the Company and its Subsidiaries include all of the
assets and properties necessary or required in, or otherwise material to,
the conduct of the businesses of each of them as currently conducted and as
proposed to be conducted (as described in the Final Offering Circular), and
such assets are in good working condition, except where the failure of such
assets to be in working condition would not, individually or in the
aggregate, have a Material Adverse Effect. As of the date hereof, the
Company does not own any assets, and the only assets of the Company on the
Closing Date will be the Capital Stock of Phibro Animal Health and the
proceeds of the Notes.
(q) All Tax returns required to be filed by the Company and each of its
Subsidiaries have been filed (taking into account all applicable
extensions) and all such returns are true, complete and correct in all
material respects. All material Taxes that are due from the Company and its
Subsidiaries have been paid other than those (i) currently payable without
penalty or interest or (ii) being contested in good faith and by
appropriate proceedings and for which adequate reserves have been
established in accordance with generally accepted accounting principles of
the United States, consistently applied ("GAAP"). To the knowledge of the
Company, after due inquiry, there are no actual or proposed Tax assessments
against the Company or any of its Subsidiaries that would, individually or
in the aggregate, have a Material Adverse Effect. The accruals and reserves
on the books and records of the Company and its Subsidiaries in respect of
any material Tax liability for any period not finally determined are
adequate in all material respects to meet any assessments of Tax accrued
through the date as of which they relate and for which the Company or any
of its Subsidiaries may be liable. For purposes of this Agreement, the term
"Tax" and "Taxes" shall mean all federal, state, local and foreign taxes,
and other assessments of a similar nature (whether imposed directly or
through withholding), including, without limitation, any interest,
additions to tax, or penalties applicable thereto.
(r) The Company and its Subsidiaries own, or are licensed under, and have the
right to use, or can acquire on reasonable terms, adequate patents, patent
rights, licenses, inventions, copyrights, know-how (including, without
limitation, trade secrets and other unpatented and/or unpatentable
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proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names (collectively, "Intellectual
Property") necessary for the conduct of their businesses and, as of the
Closing Date, such Intellectual Property will be free and clear of all
Liens, other than Permitted Liens (and, in the case of Intellectual
Property of each Subsidiary, Permitted Liens (as defined in the 2007
Indenture)), except where the failure to do so could reasonably be expected
to have a Material Adverse Effect. To the Company's knowledge, no claims or
notices of any potential claim have been asserted by any person challenging
the use of any such Intellectual Property by the Company or any of its
Subsidiaries or questioning the validity or effectiveness of the
Intellectual Property or any license or agreement related thereto (other
than any claims that, if successful, would not, individually or in the
aggregate, have a Material Adverse Effect). To the Company's knowledge, the
use of such Intellectual Property by the Company or any of its Subsidiaries
will not infringe on the Intellectual Property rights of any other person.
(s) The Company maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (i) material transactions are executed
in accordance with management's general or specific authorization, (ii)
material transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP, and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
material differences.
(t) The audited consolidated financial statements and related notes of the
Company and its Subsidiaries contained in the Final Offering Circular (the
"Financial Statements") present fairly in all material respects the
financial position, results of operations and cash flows of the Company and
its consolidated Subsidiaries, as of the respective dates and for the
respective periods to which they apply and have been prepared in accordance
with GAAP and except as disclosed in the Final Offering Circular, the
requirements of Regulation S-X of the Act. The historical financial data
set forth under "Summary Historical and Unaudited Consolidated Financial
Data" and "Selected Consolidated Financial Data" included in the Final
Offering Circular have been prepared on a basis consistent with that of the
Financial Statements and present fairly in all material respects the
financial position and results of operations of the Company and its
consolidated Subsidiaries as of the respective dates and for the respective
periods indicated. All other financial, statistical, and market and
industry-related data included in the Final Offering Circular are fairly
and accurately presented and are based on or derived from sources that the
Company believes to be reliable and accurate in all material respects.
PricewaterhouseCoopers LLP are independent public accountants with respect
to the Company.
(u) Subsequent to the respective dates as of which information is given in the
Final Offering Circular, except as disclosed in the Final Offering
Circular, (i) neither the Company nor any of its Subsidiaries has (x)
incurred any liabilities, direct or contingent, that are material,
individually or in the aggregate, to the Company and its Subsidiaries, or
(y) entered into any transactions not in the ordinary course of business
which are material with respect to the Company and its Subsidiaries
considered as one enterprise, (ii) there has not been any material decrease
in the Capital Stock or any material increase in long-term Indebtedness or
any material increase in short-term Indebtedness of the Company and its
Subsidiaries, or any payment of or declaration to pay any dividends or any
other distribution with respect to the Company, and (iii) there has not
been any material adverse change in the properties, business, prospects,
operations, earnings, assets, liabilities or condition (financial or
otherwise) of the Company and its Subsidiaries, taken as a whole, since
June 30, 2004 (each of clauses (i), (ii) and (iii), a "Material Adverse
Change"). To the knowledge of the Company after due inquiry, there is no
event that is reasonably likely to
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occur, which if it were to occur, would, individually or in the aggregate,
have a Material Adverse Effect, except such events that have been
adequately disclosed in the Final Offering Circular.
(v) No "nationally recognized statistical rating organization" (as such term is
defined for purposes of Rule 436(g)(2) under the Act) (i) has imposed (or
has informed the Company that it is considering imposing) any condition
(financial or otherwise) on the Company retaining any rating assigned to
the Company or any of its Subsidiaries or to any securities of the Company
or any of its Subsidiaries, or (ii) has indicated to the Company that it is
considering (A) the downgrading, suspension, or withdrawal of, or any
review for a possible change that does not indicate the direction of the
possible change in, any rating so assigned, or (B) any change in the
outlook for any rating of the Company or any of its Subsidiaries or any
securities of the Company or any of its Subsidiaries.
(w) All Indebtedness represented by the Notes is being incurred for the
purposes set forth in the Final Offering Circular under the heading "Use of
Proceeds." On the Closing Date, the Company will be solvent. As used in
this paragraph, "solvent" means, with respect to a particular date, that on
such date the present fair market value (present fair saleable value) of
the assets of the Company is not less than the total amount required to pay
the probable liabilities of the Company on its total existing debts and
liabilities (including, without limitation, contingent liabilities) as they
become absolute and matured, the Company is able to realize upon its assets
and pay its debts and other liabilities, contingent obligations and
commitments as they mature and become due in the normal course of business,
assuming the sale of the Notes as contemplated by this Agreement and the
Final Offering Circular, the Company is not incurring debts or liabilities
beyond its ability to pay as such debts and liabilities mature, and the
Company is not engaged in any business or transaction, and is not about to
engage in any business or transaction, for which its property would
constitute unreasonably small capital after giving due consideration to the
prevailing practice in the industry in which the Company is engaged. In
computing the amount of such contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount that, in the
light of all the facts and circumstances existing at such time, represents
the amount that can reasonably be expected to become an actual or matured
liability.
(x) The Company has not and, to its knowledge, no one acting on its behalf has,
(i) taken, directly or indirectly, any action designed to cause or to
result in, or that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of any of the Notes, (ii)
sold, bid for, purchased, or paid anyone any compensation for soliciting
purchases of, any of the Notes, or (iii) except as disclosed in the Final
Offering Circular, paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(y) Without limiting any provision herein, no registration under the Act and no
qualification of the Indenture under the TIA is required for the sale of
the Notes to the Initial Purchaser as contemplated hereby or for the Exempt
Resales, assuming (i) that the purchasers in the Exempt Resales are QIBs or
Accredited Investors or non-U.S. persons and (ii) the accuracy of the
Initial Purchaser's representations contained herein.
(z) When issued and delivered pursuant to this Agreement and the Indenture, the
Notes will be eligible for resale pursuant to Rule 144A under the Act and
no other securities of the Company are of the same class (within the
meaning of Rule 144A under the Act) as the Notes and listed on a national
securities exchange registered under Section 6 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), or quoted in a U.S. automated
inter-dealer quotation system. No securities of the Company of the same
class as the Notes have been offered, issued or sold by
9
the Company or any of its Affiliates within the six-month period
immediately prior to the date hereof.
(aa) Neither the Company nor any of its Affiliates or other person acting on
behalf of the Company has offered or sold the Notes by means of any general
solicitation or general advertising within the meaning of Rule 502(c) under
the Act or, with respect to Notes sold outside the United States to
non-U.S. persons (as defined in Rule 902 under the Act), by means of any
directed selling efforts within the meaning of Rule 902 under the Act, and
the Company, each Affiliate of the Company and each other person acting on
behalf of the Company have complied with and will implement the "offering
restrictions" within the meaning of such Rule 902; provided, that no
representation is made in this subsection with respect to the actions of
the Initial Purchaser.
(bb) Each of the Company, its Subsidiaries, and each ERISA Affiliate has
fulfilled its obligations, if any, under the minimum funding standards of
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of
1974, as amended ("ERISA") with respect to each "pension plan" (as defined
in Section 3(2) of ERISA), subject to Section 302 of ERISA which the
Company, its Subsidiaries, or any ERISA Affiliate sponsors or maintains, or
with respect to which it has (or within the last three years had) any
obligation to make contributions, except where the failure to do so would
not lead to a liability to any such pension plan not reflected in all
material respects in the Final Offering Circular, and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code (as defined below). Neither the Company,
its Subsidiaries, nor any ERISA Affiliate has incurred any unpaid liability
to the Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of
ERISA. "ERISA Affiliate" means a corporation, trade or business that is,
along with the Company or any Subsidiary, a member of a controlled group of
corporations or a controlled group of trades or businesses, as described in
Section 414 of the Internal Revenue Code of 1986, as amended (the "Code")
or Section 4001 of ERISA.
(cc) Except as disclosed in the Final Offering Circular, (i) neither the Company
nor any of its Subsidiaries is a party to or bound by any collective
bargaining agreement with any labor organization other than the collective
bargaining agreements listed on Schedule III attached hereto; (ii) there is
no union representation question existing with respect to the employees of
the Company or any of its Subsidiaries, and, to the knowledge of the
Company, no other union organizing activities are taking place; (iii) to
the Company's knowledge, no union organizing or decertification efforts are
underway or threatened against the Company or any of its Subsidiaries; (iv)
no labor strike, work stoppage, slowdown, or other labor dispute is pending
against the Company or any of its Subsidiaries, or, to the knowledge of the
Company, threatened against the Company or any of its Subsidiaries, that
could, individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; (v) there is no worker's compensation
liability, experience or matter that could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect; (vi) to the
knowledge of the Company, there is no threatened or pending liability
against the Company or any of its Subsidiaries pursuant to the Worker
Adjustment Retraining and Notification Act of 1988, as amended ("WARN"), or
any similar state or local law; (vii) there is no employment-related
charge, complaint, grievance, investigation, unfair labor practice claim,
or inquiry of any kind, pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries that could
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; (viii) to the knowledge of the Company, no
employee or agent of the Company or any of its Subsidiaries has committed
any act or omission giving rise to liability for any violation identified
in subsection (vi) and (vii) above, other than such acts or omissions that
would not, individually or in the aggregate, have a Material
Adverse
10
Effect; and (ix) no term or condition of employment exists through
arbitration awards, settlement agreements, or side agreements that is
contrary to the express terms of any applicable collective bargaining
agreement other than such term or condition that would not, individually or
in the aggregate, have a Material Adverse Effect.
(dd) None of the transactions contemplated in the Documents or the application
by the Company or any of its Subsidiaries of the proceeds of the Notes will
violate or result in a violation of Section 7 of the Exchange Act
(including, without limitation, Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of
the Board of Governors of the Federal Reserve System).
(ee) Neither the Company nor any of its Subsidiaries is an open-end investment
company, unit investment trust or face-amount certificate company that is
or is required to be registered under Section 8 of the Investment Company
Act of 1940, as amended (the "Investment Company Act"); and neither the
Company nor any of its Subsidiaries is or, after giving effect to the
Offering and sale of the Notes and the application of the proceeds thereof
as described in the Final Offering Circular, will be an "investment
company" as defined in the Investment Company Act.
(ff) The Company has not engaged any broker, finder, commission agent or other
person (other than the Initial Purchaser) in connection with the Offering
or any of the transactions contemplated in the Documents, and neither the
Company nor any of its Subsidiaries is under any obligation to pay any
broker's fee or commission in connection with such transactions (other than
commissions or fees to the Initial Purchaser).
(gg) Except as disclosed in the Final Offering Circular, the Company and each of
its Subsidiaries (i) is in compliance with all applicable foreign, federal,
state and local laws and regulations relating to the protection of the
environment or hazardous or toxic substances of wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received and is in compliance
with all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct its businesses and (iii) has not
received notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, in each case, except where such
non-compliance with Environmental Laws, failure to receive and comply with
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect, whether
or not arising from transactions in the ordinary course of business. Except
as disclosed in the Final Offering Circular, neither the Company nor any of
the Subsidiaries has been named as a "potentially responsible party" under
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended.
In the ordinary course of its business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and properties
of the Company and its Subsidiaries, in the course of which it identifies
and evaluates associated costs and liabilities (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). On the basis of such review,
the Company has reasonably concluded that such associated costs would not
have a Material Adverse Effect.
(hh) Except as provided in the Credit Agreement, the 2007 Indenture or as
described in the Final Offering Circular, as of the Closing Date, there
will be no contractual encumbrances or restrictions on the ability of any
Restricted Subsidiary of the Company (x) to pay dividends or
11
make other distributions on such Restricted Subsidiary's Capital Stock or
to pay any Indebtedness to the Company or any other Restricted Subsidiary
of the Company, (y) to make loans or advances or pay any Indebtedness to,
or investments in, the Company or any other Restricted Subsidiary of the
Company or (z) to transfer any of its property or assets to the Company or
any other Restricted Subsidiary of the Company.
(ii) (a) Each Collateral Agreement will be effective under the Uniform
Commercial Code as in effect in the State of New York (the "New York
UCC") upon the execution and delivery thereof by the Company and the
Collateral Agent to create in favor of the Collateral Agent for the
benefit of the Secured Parties a valid security interest in all right,
title and interest of the Company in and to all Collateral in which a
security interest can be created under the New York UCC; and
(i) in the case of the Collateral comprised of certificated
securities or instruments, upon the delivery of such Collateral
to the Collateral Agent for the benefit of the Secured Parties in
the State of New York accompanied by transfer instruments duly
endorsed in blank, the Collateral Agent for the benefit of the
Secured Parties will have "control" (as defined in Section 8-106
of the New York UCC) over such certificated securities or
instruments and subject to continued possession and assuming the
Collateral Agent has no notice of any adverse claim to any of
such collateral, the Collateral Agent will have the status of a
"protected purchaser" with respect to such Collateral under (and
as defined in) Section 8-303(a) of the New York UCC;
(ii) in the case of Collateral comprised of any securities account,
following the execution and delivery of a Control Agreement (as
defined in the Security Agreement) by the Company, the Collateral
Agent for the benefit of the Secured Parties and the securities
intermediary at which such securities account is maintained and
the crediting of any financial assets to such securities account,
the Collateral Agent for the benefit of the Secured Parties will
have "control" (as defined in Section 8-106 of the New York UCC)
over such securities account;
(iii) in the case of Collateral comprised of any deposit account with
a depositary and cash, checks, drafts, notes, bills of exchange,
money orders and other like instruments held therein, upon the
execution and delivery of a Control Agreement (as defined in the
Security Agreement) by the Company, the Collateral Agent and the
depositary at which such deposit account is maintained, the
Collateral Agent will for the benefit of the Secured Parties have
"control" (as defined in Section 9-104(a) of the New York UCC)
over such deposit account; and
(iv) in the case of all other Collateral in which a security interest
can be perfected by filing a Uniform Commercial Code financing
statement under the Uniform Commercial Code as in effect in the
State of Delaware (the "Delaware UCC"), upon the filing of an
appropriately completed Uniform Commercial Code Form UCC-1
financing statement (the "Financing Statement") naming the
Company as a debtor and the Collateral Agent as the secured party
in the filing office (the "Filing Office") identified in Schedule
II attached hereto opposite the name of the Company, together
with the payment of the requisite filing fee related thereto, the
security interest of the Collateral Agent in such Collateral will
be a valid and enforceable perfected security interest, which
security interests will be superior
12
to and prior to all Liens (other than all other Permitted Liens
(other than Permitted Liens of the type described in clauses
(ii), (v) and (vi) of the definition thereof (such Permitted
Liens are referred to hereinafter as the "Specified Permitted
Liens"))).
(b) The Escrow Agreement will be effective under the New York UCC upon the
execution and delivery thereof by the Company, the Trustee and the
Escrow Agent to create in favor of the Trustee for the benefit of the
Holders a valid security interest in all right, title and interest of
the Company in and to the Escrow Account and the other Escrow Property
and the Trustee will for the benefit of the Holders have "control" (as
defined in Section 9-106 of the New York UCC) over the Escrow Account
and the other Escrow Property (as each such term is defined in the
Escrow Agreement).
(c) As of the Closing Date, there will be no currently effective financing
statement, security agreement, chattel mortgage, real estate mortgage
or other document filed or recorded with any filing records, registry,
or other public office, that purports to cover, affect or give notice
of any present or possible future Lien on, or security interest in,
any assets or property of the Company or any rights thereunder.
(jj) Each certificate signed by any officer of the Company, or any Subsidiary
thereof, delivered to the Initial Purchaser shall be deemed a
representation and warranty by the Company or any such Subsidiary thereof
(and not individually by such officer) to the Initial Purchaser with
respect to the matters covered thereby.
(kk) Each of the Company and each of its Subsidiaries is insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged. All policies of insurance insuring the Company or any of its
Subsidiaries or their respective businesses, assets, employees, officers
and directors are in full force and effect. The Company and its
Subsidiaries are in compliance with the terms of such policies and
instruments in all material respects, and there are no claims by the
Company or any of its Subsidiaries under any such policy or instrument as
to which any insurance company is denying liability or defending under a
reservation of rights clause. Neither the Company nor any such Subsidiary
has been refused any insurance coverage sought or applied for, and neither
the Company nor any such Subsidiary has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not,
individually or in the aggregate, have a Material Adverse Effect.
5. COVENANTS OF THE COMPANY. The Company hereby agrees:
(a) To (i) advise the Initial Purchaser promptly after obtaining knowledge
(and, if requested by the Initial Purchaser, confirm such advice in
writing) of (A) the issuance by any state securities commission of any stop
order suspending the qualification or exemption from qualification of any
of the Notes for offer or sale in any jurisdiction, or the initiation of
any proceeding for such purpose by any state securities commission or other
regulatory authority, or (B) the happening of any event that makes any
statement of a material fact made in the Final Offering Circular untrue or
that requires the making of any additions to or changes in the Final
Offering Circular in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (ii) use its
commercially reasonable efforts to prevent the issuance of any stop order
or order suspending the qualification or exemption from qualification of
any of the Notes under any state securities or Blue Sky laws, and (iii) if
at any time any state securities commission or
13
other regulatory authority shall issue an order suspending the
qualification or exemption from qualification of any of the Notes under any
such laws, use its commercially reasonable efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To (i) furnish the Initial Purchaser, without charge, as many copies of the
Final Offering Circular, and any amendments or supplements thereto, as the
Initial Purchaser may reasonably request, and (ii) promptly prepare, upon
the Initial Purchaser's reasonable request, any amendment or supplement to
the Final Offering Circular that the Initial Purchaser, upon advice of
legal counsel, determines may be necessary in connection with Exempt
Resales (and the Company hereby consents to the use of the Preliminary
Offering Circular and the Final Offering Circular, and any amendments and
supplements thereto, by the Initial Purchaser in connection with Exempt
Resales).
(c) Not to amend or supplement the Final Offering Circular prior to the Closing
Date or at any time prior to the completion of the resale by the Initial
Purchaser of all of the Notes purchased by the Initial Purchaser, unless
the Initial Purchaser shall previously have been advised thereof and shall
have provided its written consent thereto (which consent shall not be
unreasonably withheld or delayed).
(d) At any time prior to the completion of the resale of the Notes by the
Initial Purchaser, (i) if any event shall occur as a result of which, in
the reasonable judgment of the Company or the Initial Purchaser, it becomes
necessary or advisable to amend or supplement the Final Offering Circular
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if it is necessary to amend
or supplement the Final Offering Circular to comply with Applicable Law, to
notify the Initial Purchaser of any such event and to prepare, at the
expense of the Company, an appropriate amendment or supplement to the Final
Offering Circular (in form and substance reasonably satisfactory to the
Initial Purchaser) so that (A) as so amended or supplemented, the Final
Offering Circular will not include an untrue statement of material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, and (B) the Final Offering Circular will comply with Applicable
Law and (ii) if in the reasonable judgment of the Company or the Initial
Purchaser it becomes necessary or advisable to amend or supplement the
Final Offering Circular so that the Final Offering Circular will contain
all of the information specified in, and meet the requirements of, Rule
144A(d)(4) of the Act, to prepare an appropriate amendment or supplement to
the Final Offering Circular (in form and substance reasonably satisfactory
to the Initial Purchaser) so that the Final Offering Circular, as so
amended or supplemented, will contain the information specified in, and
meet the requirements of, such Rule.
(e) To cooperate with the Initial Purchaser and the Initial Purchaser's counsel
in connection with the qualification of the Notes under the securities or
Blue Sky laws of such jurisdictions as the Initial Purchaser may request
and continue such qualification in effect so long as reasonably required
for Exempt Resales; provided that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities (or otherwise subject itself to
taxation) in any jurisdiction in which it is not otherwise so subject.
(f) Whether or not any of the Offering or the transactions contemplated under
the Documents are consummated or this Agreement is terminated, to pay (i)
all costs, expenses, fees and taxes incidental to and in connection with:
(A) the preparation, printing and distribution of the Preliminary Offering
Circular and the Final Offering Circular and all amendments and supplements
thereto (including, without limitation, financial statements and exhibits),
and all other agreements, memoranda, correspondence and other documents
prepared and delivered in
14
connection herewith, (B) the negotiation, printing, processing and
distribution (including, without limitation, word processing and
duplication costs) and delivery of, each of the Documents, (C) the
preparation, issuance and delivery of the Notes, (D) the qualification of
the Notes for offer and sale under the securities or Blue Sky laws of the
several states (including, without limitation, the reasonable fees and
disbursements of the Initial Purchaser's counsel relating to such
registration or qualification), (E) furnishing such copies of the
Preliminary Offering Circular and the Final Offering Circular, and all
amendments and supplements thereto, as may reasonably be requested for use
by the Initial Purchaser and (F) the performance of the Company's
obligations under the Registration Rights Agreement, including but not
limited to the Exchange Offer, the Exchange Offer Registration Statement
and any Shelf Registration Statement, (ii) all fees and expenses of the
counsel, accountants and any other experts or advisors retained by the
Company, (iii) all expenses and listing fees in connection with the
application for quotation of the Notes and, if applicable, the Notes on the
Private Offerings, Resales and Trading Automated Linkages ("PORTAL")
market, (iv) all fees and expenses (including, without limitation, fees and
expenses of counsel) of the Company in connection with approval of the
Notes by DTC for "book-entry" transfer, (v) all fees charged by rating
agencies in connection with the rating of the Notes, (vi) all fees and
expenses (including, without limitation, reasonable fees and expenses of
counsel) of the Trustee, the Collateral Agent and all sub-collateral
agents, (vii) all fees and expenses incurred in connection with the
creation and perfection of the security interests under each Collateral
Agreement and the Escrow Agreement (including, without limitation, filing
and recording fees, search fees, and taxes) and (viii) all fees,
disbursements and out-of-pocket expenses incurred by the Initial Purchaser
in connection with its services to be rendered hereunder including, without
limitation, the fees and disbursements of Mayer, Brown, Xxxx & Maw LLP,
special New York counsel to the Initial Purchaser, travel and lodging
expenses, word processing charges, messenger and duplicating services,
facsimile expenses and other customary expenditures.
(g) To use the proceeds of the Offering in the manner described in the Final
Offering Circular under the caption "Use of Proceeds."
(h) To do and perform all things required to be done or performed, both prior
to and after the Closing Date, by the Company under the Documents to which
it is a party.
(i) Not to, and to ensure that no "affiliate" (as defined in Rule 501(b) of the
Act) of the Company will, sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any "security" (as defined in the Act)
that would be integrated with the sale of the Notes in a manner that would
require the registration under the Act of the sale to the Initial Purchaser
or to the Subsequent Purchasers of the Notes.
(j) For so long as any of the Notes remain outstanding, during any period in
which the Company is not subject to Section 13 or 15(d) of the Exchange
Act, to make available, upon request and without cost, to any owner of the
Notes in connection with any sale thereof and any prospective Subsequent
Purchasers of such Notes from such owner, the information required by Rule
144A(d)(4) under the Act.
(k) To comply with the representation letter of the Company to DTC relating to
the approval of the Notes by DTC for "book entry" transfer.
(l) To use its reasonable best efforts to effect the inclusion of the Notes in
PORTAL and to use its reasonable best efforts to maintain the listing of
the Notes on PORTAL for so long as the Notes are outstanding.
15
(m) For so long as any of the Notes remain outstanding, the Company will
furnish to the Initial Purchaser copies of all reports and other
communications (financial or otherwise) furnished by the Company to the
Trustee or to the holders of the Notes and, as soon as available, copies of
any reports or financial statements furnished to or filed by the Company
with the SEC or any national securities exchange on which any class of
securities of the Company may be listed.
(n) Except in connection with the Exchange Offer or the filing of the Shelf
Registration Statement, not to, and not to authorize or permit any person
acting on its behalf to, (i) distribute any offering material in connection
with the offer and sale of the Notes other than the Preliminary Offering
Circular and the Final Offering Circular and any amendments and supplements
to the Final Offering Circular prepared in compliance with this Agreement,
or (ii) solicit any offer to buy or offer to sell the Notes by means of any
form of general solicitation or general advertising (including, without
limitation, as such terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of
the Act.
(o) During the two year period after the Closing Date (or such shorter period
as may be provided for in Rule 144(k) under the Act, as the same may be in
effect from time to time), to not, and to not permit any current or future
Subsidiaries of the Company or any other "affiliates" (as defined in Rule
144A under the Act) controlled by the Company to, resell any of the Notes
which constitute "restricted securities" under Rule 144 that have been
reacquired by the Company, any current or future Subsidiaries of the
Company or any other "affiliates" (as defined in Rule 144A under the Act)
controlled by the Company, except pursuant to an effective registration
statement under the Act.
(p) To pay all stamp, documentary and transfer taxes (other than federal, state
and local income taxes of the Initial Purchaser) and other duties, if any,
which may be imposed by the United States or any political subdivision
thereof or taxing authority thereof or therein with respect to the issuance
of the Notes or the sale thereof to the Initial Purchaser.
6. REPRESENTATIONS AND WARRANTIES OF THE INITIAL PURCHASER. The
Initial Purchaser represents and warrants that:
(a) It is a QIB and it will offer the Notes for resale only upon and subject to
the selling restrictions, terms and conditions set forth in this Agreement
and in the Final Offering Circular.
(b) It is not acquiring the Notes with a view to any distribution thereof that
would violate the Act or the securities laws of any state of the United
States or any other applicable jurisdiction. In connection with the Exempt
Resales, it will solicit offers to buy the Notes only from, and will offer
and sell the Notes only to, (A) persons reasonably believed by the Initial
Purchaser to be QIBs or (B) persons reasonably believed by the Initial
Purchaser to be Accredited Investors or (C) non-U.S. persons reasonably
believed by the Initial Purchaser to be a purchaser referred to in
Regulation S under the Act; provided, however, that in purchasing such
Notes, such persons are deemed to have represented and agreed as provided
under the caption "Notice to Investors" contained in the Final Offering
Circular.
(c) No form of general solicitation or general advertising in violation of the
Act has been or will be used nor will any offers in any manner involving a
public offering within the meaning of Section 4(2) of the Act or, with
respect to Notes to be sold in reliance on Regulation S, by means of any
directed selling efforts, be made by the Initial Purchaser or any of its
representatives in connection with the offer and sale of any of the Notes.
16
(d) It will deliver to each Subsequent Purchaser of the Notes, in connection
with its original distribution of the Notes, a copy of the Final Offering
Circular, as amended and supplemented at the date of such delivery.
7. CONDITIONS. The obligations of the Initial Purchaser to purchase
the Notes under this Agreement are subject to the satisfaction of each of the
following conditions or waiver thereof by the Initial Purchaser:
(a) All the representations and warranties of the Company and its Subsidiaries
contained in this Agreement and in each of the Documents and the Perfection
Certificate, dated the date hereof, of the Company shall be true and
correct as of the date hereof and at the Closing Date. On or prior to the
Closing Date, the Company and each other party to the Documents (other than
the Initial Purchaser) shall have performed or complied with all of the
agreements and satisfied all conditions on their respective parts to be
performed, complied with or satisfied pursuant to the Documents (other than
conditions to be satisfied by such other parties, which the failure to so
satisfy would not, individually or in the aggregate, have a Material
Adverse Effect).
(b) No injunction, restraining order or order of any nature by a Governmental
Authority shall have been issued as of the Closing Date that would prevent
or materially interfere with the consummation of the Offering or any of the
transactions contemplated under the Documents; and no stop order suspending
the qualification or exemption from qualification of any of the Notes in
any jurisdiction shall have been issued and no Proceeding for that purpose
shall have been commenced or, to the knowledge of the Company, be pending
or contemplated as of the Closing Date.
(c) No action shall have been taken and no Applicable Law shall have been
enacted, adopted or issued that would, as of the Closing Date, prevent the
consummation of the Offering or any of the transactions contemplated under
the Documents. No Proceeding shall be pending or, to the knowledge of the
Company, threatened other than Proceedings that (A) if adversely determined
would not, individually or in the aggregate, adversely affect the issuance
or marketability of the Notes, and (B) would not, individually or in the
aggregate, have a Material Adverse Effect.
(d) Subsequent to the respective dates as of which data and information is
given in the Final Offering Circular, there shall not have been any
Material Adverse Change.
(e) The Notes shall have been designated PORTAL securities in accordance with
the rules and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL market.
(f) On or after the date hereof, (i) there shall not have occurred any
downgrading, suspension or withdrawal of, nor shall any notice have been
given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a
possible change that does not indicate the direction of the possible change
in, any rating of the Company or any securities of the Company (including,
without limitation, the placing of any of the foregoing ratings on credit
watch with negative or developing implications or under review with an
uncertain direction) by any "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under
the Act, (ii) there shall not have occurred any change, nor shall any
notice have been given of any potential or intended change, in the outlook
for any rating of the Company or any securities of the Company by any such
rating
17
organization and (iii) no such rating organization shall have given notice
that it has assigned (or is considering assigning) a lower rating to the
Notes than that on which the Notes were marketed.
(g) The Initial Purchaser shall have received on the Closing Date:
(i) certificates dated the Closing Date, signed on behalf of the Company
by (1) the Chief Executive Officer and (2) the principal financial or
accounting officer of the Company, on behalf of the Company, to the
effect that (a) the representations and warranties set forth in
Section 4 hereof are true and correct in all material respects with
the same force and effect as though expressly made at and as of the
Closing Date, (b) the Company has complied with all Documents and
satisfied all conditions in all material respects on its part to be
performed or satisfied at or prior to the Closing Date, (c) at the
Closing Date, since the date hereof or since the date of the most
recent financial statements in the Final Offering Circular (exclusive
of any amendment or supplement thereto after the date hereof) no event
or events have occurred, no information has become known to the
Company nor does any condition exist that, individually or in the
aggregate, would have a Material Adverse Effect, (d) since the date of
the most recent financial statements in the Final Offering Circular
(exclusive of any amendment or supplement thereto after the date
hereof), other than as described in the Final Offering Circular or
contemplated hereby or thereby, neither the Company nor any Subsidiary
of the Company has incurred any liabilities or obligations, direct or
contingent, not in the ordinary course of business, that are material
to the Company and its Subsidiaries, taken as a whole, or entered into
any transactions not in the ordinary course of business that are
material to the business, condition (financial or otherwise) or
results of operations or prospects of the Company and its
Subsidiaries, taken as a whole, and there has not been any change in
the Capital Stock or long-term Indebtedness of the Company or any
Subsidiary of the Company that is material to the business, condition
(financial or otherwise) or results of operations or prospects of the
Company and its Subsidiaries, taken as a whole, and (e) the sale of
the Notes has not been enjoined (temporarily or permanently);
(ii) a certificate, dated the Closing Date, executed on behalf of the
Company by the Secretary of the Company, certifying such matters as
the Initial Purchaser may reasonably request;
(iii) a certificate of solvency, dated the Closing Date, executed on behalf
of the Company by the principal financial or accounting officer of the
Company substantially in the form previously approved by the Initial
Purchaser;
(iv) the opinion of Golenbock Xxxxxxx Xxxxx Xxxx & Xxxxxx LLP, special New
York counsel to the Company, dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchaser; and
(v) the opinion of Mayer, Brown, Xxxx & Maw LLP, special New York counsel
to the Initial Purchaser, dated the Closing Date, in form and
substance reasonably satisfactory to the Initial Purchaser.
(h) The Initial Purchaser shall have received from PricewaterhouseCoopers LLP,
independent auditors, with respect to the Company, (A) a customary comfort
letter, dated the date of the Final Offering Circular, in form and
substance reasonably satisfactory to the Initial Purchaser, with respect to
the financial statements and certain financial information contained in the
Final Offering Circular, and (B) a customary "bring down" comfort letter,
dated the Closing Date, in form and substance reasonably satisfactory to
the Initial Purchaser, to the effect that
18
PricewaterhouseCoopers LLP reaffirms the statements made in its letter
furnished pursuant to clause (A) above.
(i) Each of the Documents shall have been executed and delivered by all parties
thereto, and the Initial Purchaser shall have received a fully executed
original of each Document.
(j) The Initial Purchaser shall have received copies in form and substance
reasonably satisfactory to it of all opinions, certificates, letters and
other documents delivered or required to be delivered under or in
connection with the Offering or any transaction contemplated in the
Documents.
(k) The Initial Purchaser shall have received the Final Offering Circular, and
the terms of each Document shall conform in all material respects to the
description thereof in the Final Offering Circular.
(l) None of the parties to any of the Documents shall be in breach or default
of any of their respective obligations in any material respect.
(m) On the Closing Date, the Company shall have paid or caused to have been
paid in cash the fees and expenses of Mayer, Brown, Xxxx & Maw LLP, special
New York counsel to the Initial Purchaser.
(n) The Collateral Agent shall have received for the benefit of the Secured
Parties:
(i) certificates (in the case of Capital Securities (as defined in the
Security Agreement)) evidencing all of the issued and outstanding
Capital Securities of each direct Subsidiary of the Company, which
certificates, in each case, shall be accompanied by undated
instruments of transfer duly executed in blank, or, if any Capital
Securities (in the case of Capital Securities that are securities (as
defined in Section 8-102(a)(15) of the New York UCC)) are
uncertificated Capital Securities, confirmation and evidence
satisfactory to the Collateral Agent that the security interest
therein has been transferred to and perfected by the Collateral Agent
for the benefit of the Secured Parties in accordance with Articles 8
and 9 of the New York UCC and all laws otherwise applicable to the
perfection of the pledge of such Capital Securities;
(ii) the Financing Statement naming the Company as debtor and the
Collateral Agent as secured party in appropriate form for filing in
the Filing Office opposite the name of the Company on Schedule II
attached hereto;
(iii) copies of proper Uniform Commercial Code Form UCC-3 termination
statements, if any, necessary to release all Liens and other rights of
any Person (other than Permitted Liens) in any collateral previously
granted to any Person;
(iv) certified copies of Uniform Commercial Code Requests for Information
or Copies (Form UCC-11), or a similar search report certified by a
party acceptable to the Collateral Agent, dated a date reasonably near
to the Closing Date, listing all effective financing statements which
name the Company (under its present name and any previous names) as
the debtor, together with copies of such financing statements (none of
which shall cover any assets of the Company (other than any Uniform
Commercial Code financing statement evidencing a Permitted Lien)); and
19
(v) such other approvals, opinions, or documents as the Collateral Agent
may reasonably request in form and substance reasonably satisfactory
to the Collateral Agent.
(o) The Initial Purchaser shall be satisfied that (i) the Lien granted to the
Collateral Agent, for the benefit of the Secured Parties, in the Collateral
is a valid and enforceable Lien (subject in priority only to Specified
Permitted Liens); and (ii) no Lien exists on any of the Collateral other
than the Lien created in favor of the Collateral Agent, for the benefit of
the Secured Parties, pursuant to a Collateral Agreement, or Permitted
Liens.
(p) The Company shall have deposited into the Escrow Account sufficient cash
which, together with the gross proceeds to be received from the Offering,
would yield the Escrow Redemption Price, plus accrued but unpaid interest
to, but excluding, the Escrow Redemption Date (both as defined in the
Offering Circular) for all of the Notes and shall have provided to the
Initial Purchaser evidence thereof reasonably satisfactory to the Initial
Purchaser.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless the Initial Purchaser,
and each person, if any, who controls the Initial Purchaser within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, against
any losses, claims, damages or liabilities of any kind to which the Initial
Purchaser or such controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as any such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of any material fact
contained in any Offering Circular or any amendment or supplement
thereto; or
(ii) the omission or alleged omission to state, in any Offering Circular or
any amendment or supplement thereto, a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading;
and, subject to the provisions hereof, will reimburse promptly upon demand,
the Initial Purchaser and each such controlling person for any legal or
other expenses reasonably incurred by the Initial Purchaser or such
controlling person in connection with investigating, defending against or
appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action in respect thereof; provided, however, the
Company will not be liable in any such case to the extent (but only to the
extent) that any such loss, claim, damage or liability is finally
judicially determined by a court of competent jurisdiction in a final,
unappealable judgment, to have resulted solely from any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Offering Circular or any amendment or supplement thereto in reliance upon
and in conformity with written information concerning the Initial Purchaser
furnished to the Company by the Initial Purchaser specifically for use
therein. This indemnity agreement will be in addition to any liability that
the Company may otherwise have to the indemnified parties. The Company
shall not be liable under this Section 8 for any settlement of any claim or
action effected without its prior written consent, which shall not be
unreasonably withheld. This indemnity, as to the Preliminary Offering
Circular, shall not inure to the benefit of the Initial Purchaser (or any
person controlling such Initial Purchaser) on account of any loss, claim,
damage or liability arising from the sale of Notes to any person by such
Initial Purchaser if such Initial Purchaser failed to send or give a copy
of the Final Offering Circular (as the same may be supplemented or amended)
to such person at or prior to the written confirmation of the sale of the
20
Notes to such person, and the untrue statement or alleged untrue statement
or omission or alleged omission of a material fact in such Preliminary
Offering Circular was corrected in the Final Offering Circular, unless such
failure resulted from noncompliance by the Company with Section 5(b).
(b) The Initial Purchaser agrees to indemnify and hold harmless the Company,
its directors, officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act against any losses, claims, damages or liabilities of any kind to which
the Company or any such director, officer or controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) are
finally judicially determined by a court of competent jurisdiction in a
final, unappealable judgment, to have resulted solely from (i) any untrue
statement or alleged untrue statement of any material fact contained in any
Offering Circular or any amendment or supplement thereto or (ii) the
omission or the alleged omission to state, in any Offering Circular or any
amendment or supplement thereto, a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent (but only to the extent) that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information concerning such
Initial Purchaser, furnished to the Company or its agents by the Initial
Purchaser specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse, promptly upon
demand, any legal or other expenses incurred by the Company or any such
director, officer or controlling person in connection with any such loss,
claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that the Initial Purchaser
may otherwise have to the indemnified parties.
(c) As promptly as reasonably practical after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action for which
such indemnified party is entitled to indemnification under this Section 8,
such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party of the commencement thereof in writing; but the omission
to so notify the indemnifying party (i) will not relieve such indemnifying
party from any liability under paragraph (a) or (b) above unless and only
to the extent it is materially prejudiced as a result thereof and (ii) will
not, in any event, relieve the indemnifying party from any obligations to
any indemnified party other than the indemnification obligation provided in
paragraphs (a) and (b) above. In case any such action is brought against
any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may determine, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest under applicable standards of
professional responsibility, (ii) the defendants in any such action include
both the indemnified party and the indemnifying party, and the indemnified
party shall have been advised by counsel in writing that there may be one
or more legal defenses available to it and/or other indemnified parties
that are different from or additional to those available to the
indemnifying party, or (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after receipt by the
indemnifying party of notice of the institution of such action, then, in
each such case, the indemnifying party shall not have the right to direct
the defense of such action on behalf of such indemnified party or parties
and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party
or parties at the expense of the indemnifying party. After notice from the
indemnifying party to such indemnified
21
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall
have employed separate counsel in accordance with the proviso to the
immediately preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for
the expenses of more than one separate counsel (in addition to local
counsel) in any one action or separate but substantially similar actions in
the same jurisdiction arising out of the same general allegations or
circumstances, designated by the Initial Purchaser in the case of paragraph
(a) of this Section 8 or the Company in the case of paragraph (b) of this
Section 8, representing the indemnified parties under such paragraph (a) or
paragraph (b), as the case may be, who are parties to such action or
actions) or (ii) the indemnifying party has authorized in writing the
employment of counsel for the indemnified party at the expense of the
indemnifying party. After such notice from the indemnifying party to such
indemnified party, the indemnifying party will not be liable for the costs
and expenses of any settlement of such action effected by such indemnified
party without the prior written consent of the indemnifying party (which
consent shall not be unreasonably withheld), unless such indemnified party
waived in writing its rights under this Section 8, in which case the
indemnified party may effect such a settlement without such consent.
(d) No indemnifying party shall be liable under this Section 8 for any
settlement of any claim or action (or threatened claim or action) effected
without its written consent, which shall not be unreasonably withheld, but
if a claim or action settled with its written consent, or if there be a
final judgment for the plaintiff with respect to any such claim or action,
each indemnifying party jointly and severally agrees, subject to the
exceptions and limitations set forth above, to indemnify and hold harmless
each indemnified party from and against any and all losses, claims, damages
or liabilities (and reasonable legal and other expenses as set forth above)
incurred by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld), effect any settlement or
compromise of any pending or threatened proceeding in respect of which the
indemnified party is or could have been a party, or indemnity could have
been sought hereunder by the indemnified party, unless such settlement (A)
includes an unconditional written release of the indemnified party, in form
and substance satisfactory to the indemnified party, from all liability on
claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure
to act by or on behalf of the indemnified party.
(e) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 8 is unavailable to, or insufficient
to hold harmless, an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying
party, in order to provide for just and equitable contributions, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i) the
relative benefits received by the indemnifying party or parties, on the one
hand, and the indemnified party, on the other, from the Offering or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault
of the indemnifying party or parties, on the one hand, and the indemnified
party, on the other, in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof). The relative
benefits received by the Company, on the one hand, and the Initial
Purchaser, on the other, shall be deemed to be in the same proportion as
the total proceeds from the Offering (before deducting
22
expenses) received by the Company bear to the total discounts and
commissions received by the Initial Purchaser. The relative fault of the
parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company, on the one hand, or the Initial Purchaser, on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or alleged
statement or omissions, and any other equitable considerations appropriate
in the circumstances.
(f) The Company and the Initial Purchaser agree that it would not be equitable
if the amount of such contribution determined pursuant to the immediately
preceding paragraph (e) were determined by pro rata or per capita
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of
the immediately preceding paragraph (e). Notwithstanding any other
provision of this Section 8, the Initial Purchaser shall not be obligated
to make contributions hereunder that in the aggregate exceed the total
discounts, commissions and other compensation received by such Initial
Purchaser under this Agreement, less the aggregate amount of any damages
that such Initial Purchaser has otherwise been required to pay by reason of
the untrue or alleged untrue statements or the omissions or alleged
omissions to state a material fact. 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 the immediately preceding
paragraph (e), each person, if any, who controls the Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act shall have the same rights to contribution as the Initial Purchaser,
and each director of the Company, each officer of the Company and each
person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company..
9. TERMINATION. The Initial Purchaser may terminate this Agreement at
any time prior to the Closing Date by written notice to the Company if any of
the following has occurred:
(a) since the date hereof, any Material Adverse Effect or development involving
or reasonably expected to result in a prospective Material Adverse Effect
that could, in the Initial Purchaser's reasonable judgment, be expected to
(i) make it impracticable or inadvisable to proceed with the offering or
delivery of the Notes on the terms and in the manner contemplated in the
Final Offering Circular, or (ii) materially impair the investment quality
of any of the Notes;
(b) the failure of the Company to satisfy the conditions contained in Section
7(a) hereof on or prior to the Closing Date;
(c) any outbreak or escalation of hostilities or other national or
international calamity or crisis, including, without limitation, acts of
terrorism, or material adverse change or disruption in economic conditions
in, or in the financial markets of, the United States (it being understood
that any such change or disruption shall be relative to such conditions and
markets as in effect on the date hereof), if the effect of such outbreak,
escalation, calamity, crisis, act or material adverse change in the
economic conditions in, or in the financial markets of, the United States
could be reasonably expected to make it, in the Initial Purchaser's sole
judgment, impracticable or inadvisable to market or proceed with the
offering or delivery of the Notes on the terms and in the manner
contemplated in the Final Offering Circular or to enforce contracts for the
sale of any of the Notes;
23
(d) the suspension or limitation of trading generally in securities on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ National
Market or any setting of limitations on prices for securities on any such
exchange or NASDAQ National Market;
(e) the enactment, publication, decree or other promulgation after the date
hereof of any Applicable Law that in the Initial Purchaser's counsel's
reasonable opinion materially and adversely affects, or could be reasonably
expected to materially and adversely affect, the properties, business,
prospects, operations, earnings, assets, liabilities or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a
whole;
(f) any securities of the Company or any of its Subsidiaries shall have been
downgraded or placed on any "watch list" for possible downgrading by any
"nationally recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Act; or
(g) the declaration of a banking moratorium by any Governmental Authority; or
the taking of any action by any Governmental Authority after the date
hereof in respect of its monetary or fiscal affairs that in the Initial
Purchaser's opinion could reasonably be expected to have a material adverse
effect on the financial markets in the United States or elsewhere.
10. SURVIVAL OF REPRESENTATIONS AND INDEMNITIES. The representations
and warranties, covenants, indemnities and contribution and expense
reimbursement provisions and other agreements, representations and warranties of
the Company 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 or on behalf of the Initial Purchaser, (ii) acceptance
of the Notes, and payment for them hereunder, and (iii) any termination of this
Agreement.
11. DEFAULT BY THE INITIAL PURCHASER. If the Initial Purchaser shall
breach its obligations to purchase the Notes that it has agreed to purchase
hereunder on the Closing Date and arrangements satisfactory to the Company for
the purchase of such Notes are not made within 36 hours after such default, this
Agreement shall terminate with respect to such Initial Purchaser without
liability on the part of the Company. Nothing herein shall relieve the Initial
Purchaser from liability for its default.
12. INFORMATION SUPPLIED BY THE INITIAL PURCHASER. The statements set
forth on the cover page with respect to price and in the first and second
sentences of the third paragraph, the fourth paragraph, the sixth paragraph and
the first and second sentences of the seventh paragraph under the heading "Plan
of Distribution" in the Offering Circular (to the extent such statements relate
to the Initial Purchaser) constitute the only information furnished by the
Initial Purchaser to the Company or its Subsidiaries for the purposes of
Sections 4(a) and 8 hereof.
13. MISCELLANEOUS.
(a) Notices given pursuant to any provision of this Agreement shall be
addressed as follows: (i) if to the Company, to the Company c/o Phibro
Animal Health Corporation, 00 Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx, XX 00000,
Attention: Corporate Legal Department with a copy to: Golenbock Xxxxxxx
Xxxxx Xxxx & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxxxxxx X. Xxxx, Esq.; and (ii) if to the Initial Purchaser, to Xxxxxxxxx
& Company, Inc., 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx X. Xxxxxx, Esq. with a copy to: Mayer, Brown, Xxxx & Maw
LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-
24
5820, Attention: Xxxxxx X. Xxxxx, Esq. (or in any case to such other
address as the person to be notified may have requested in writing).
(b) This Agreement has been and is made solely for the benefit of and shall be
binding upon the Company, the Initial Purchaser and, to the extent provided
in Section 8 hereof, the controlling persons, officers, directors,
partners, employees, representatives and agents referred to in Section 8,
and their respective heirs, executors, administrators, 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 Purchaser merely because of such
purchase. Notwithstanding the foregoing, it is expressly understood and
agreed that each purchaser who purchases Notes from the Initial Purchaser
is intended to be a beneficiary of the Company's covenants contained in the
Registration Rights Agreement to the same extent as if the Notes were sold
and those covenants were made directly to such purchaser by the Company,
and each such purchaser shall have the right to take action against the
Company to enforce, and obtain damages for any breach of, those covenants.
(c) THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND
CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
(d) THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY (I) SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY; AND (II) WAIVES (A) ITS RIGHT TO A TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE TRANSACTIONS
CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE INITIAL PURCHASER
AND FOR ANY COUNTERCLAIM RELATED TO ANY OF THE FOREGOING AND (B) ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(e) The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
(f) If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means
to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated
and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
25
(g) This Agreement may be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may be given, provided
that the same are in writing and signed by all of the signatories hereto.
26
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Initial Purchaser.
Very truly yours,
PAHC HOLDINGS CORPORATION
By: /s/ Xxxx X. Xxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxx
Title President
Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By: /s/ M. Xxxxx Xxxxxxx
---------------------------------
Name: M. Xxxxx Xxxxxxx
Title: Executive Vice President
