Exhibit 10.5
EXIDE TECHNOLOGIES
$290,000,000
10
1
/ 2 % Senior Secured Notes due
2013
PURCHASE
AGREEMENT
March 15, 2005
DEUTSCHE BANK SECURITIES INC.
CREDIT SUISSE FIRST BOSTON LLC
BANC OF AMERICA SECURITIES LLC
UBS SECURITIES LLC
c/o Deutsche Bank Securities Inc.
60
Wall Street New York,
New
York 10005
Ladies and Gentlemen:
Exide Technologies, a Delaware
corporation (the “ Company ”), hereby confirms
its agreement with you (the “ Initial Purchasers
”), as set forth below.
Section 1. The Securities .
Subject to the terms and conditions herein contained, the Company
proposes to issue and sell to the Initial Purchasers $290,000,000
aggregate principal amount of its 10 1 / 2
% Senior Secured Notes
due 2013 (the “ Notes ”). The Notes are to be
issued under an indenture (the “ Indenture ”) to
be dated as of March 18, 2005 by and between the Company and
SunTrust Bank, as Trustee (the “ Trustee
”).
The Notes will be offered and sold
to the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the “ Act
”), in reliance on exemptions therefrom.
In connection with the sale of the
Notes, the Company has prepared a preliminary offering memorandum
dated March 1, 2005 (the “ Preliminary Memorandum
”) and a final offering memorandum dated March 15, 2005 (the
“ Final Memorandum ”; the Preliminary Memorandum
and the Final Memorandum each herein being referred to as a “
Memorandum ”) setting forth or including a description
of the terms of the Notes, the terms of the offering of the Notes,
a description of the Company and any material developments relating
to the Company occurring after the date of the most recent
historical financial statements included therein.
The Initial Purchasers and their
direct and indirect transferees of the Notes will be entitled to
the benefits, and otherwise subject to the terms, of the Security
Documents (as defined in the Indenture) pursuant to which the
Company has agreed, among other things, to grant to the Trustee for
its benefit and the benefit of the holders of the Notes, a junior
priority security interest in the Collateral (as defined in the
Indenture), subject to certain exceptions and otherwise in
accordance with the terms of the Indenture and the Security
Documents and as described in the Final Memorandum. The agreement
relating to the sharing of the Collateral among the Trustee (on its
own behalf and on behalf of the holders of Notes) and the Agent (as
defined in the Credit Agreement on its own behalf and on behalf of
the Lenders) will be contained in a certain intercreditor agreement
(the “ Intercreditor Agreement ”) dated the
Closing Date among the Company, the Trustee and Deutsche Bank AG
New York Branch, as collateral agent for the Secured Creditors (as
defined in the Credit Agreement).
The Initial Purchasers and their
direct and indirect transferees of the Notes will be entitled to
the benefits of the Registration Rights Agreement dated March 18,
2005 (the “ Registration Rights Agreement ”),
between the Company and the Initial Purchasers, pursuant to which
the Company has agreed, among other things, to file a registration
statement (the “ Registration Statement ”) with
the Securities and Exchange Commission (the “
Commission ”) registering the Notes or the Exchange
Notes (as defined in the Registration Rights Agreement) under the
Act.
Section 2. Representations and
Warranties . The Company represents and warrants to and agrees
with each of the Initial Purchasers as follows:
(a) Neither the Preliminary
Memorandum as of the date thereof nor the Final Memorandum nor any
amendment or supplement thereto as of the date thereof and at all
times subsequent thereto up to the Closing Date (as defined in
Section 3 below) contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section
2(a) do not apply to statements or omissions made in reliance upon
and in conformity with information relating to the Initial
Purchasers furnished to the Company in writing by or on behalf of
the Initial Purchasers expressly for use in the Preliminary
Memorandum, the Final Memorandum or any amendment or supplement
thereto.
(b) As of the Closing Date, the
Company’s amended and restated certificate of incorporation
authorized the issuance of 62,500,000 shares of capital stock,
including 61,500,000 shares of common stock, par value $0.01 per
share, and 1,000,000 shares of preferred stock, par value $0.01 per
share; the number of outstanding shares of the Company’s
common stock is set forth in the Final Memorandum in the
section
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“Principal Stockholders”
as of the date indicated; the information set forth under the
caption “Capitalization” in the Final Memorandum is
true and correct in all material respects; all of the subsidiaries
of the Company are listed in Schedule 2 attached hereto
(each, a “ Subsidiary ” and collectively, the
“ Subsidiaries ”); except as set forth in the
Final Memorandum, all of the outstanding shares of capital stock or
membership interest, as applicable, of the Company and the
Subsidiaries have been, and as of the Closing Date will be, duly
authorized and validly issued, are fully paid and nonassessable and
were not issued in violation of any preemptive or similar rights;
except as set forth in the Final Memorandum, all of the outstanding
shares of capital stock or membership interest, as applicable, of
the Company and of each of the Subsidiaries will be free and clear
of all liens, encumbrances, equities and claims or restrictions on
transferability (other than those imposed by (1) the Credit
Agreement dated May 5, 2004, among the Company, Deutsche Bank AG
New York Branch, as administrative agent, and the other parties
thereto, as amended (the “ Credit Agreement ”),
(2) the liens, encumbrances and claims under the Indenture, (3) the
Act and (4) the securities or “Blue Sky” laws of
certain jurisdictions) or voting; except as set forth in the Final
Memorandum and except pursuant to the Company’s equity
incentive plan or in connection with the Joint Plan of
Reorganization confirmed as of May 5, 2004, there are no (i)
options, warrants or other rights to purchase, (ii) agreements or
other obligations to issue or (iii) other rights to convert any
obligation into, or exchange any securities for, shares of capital
stock of or ownership interests in the Company or any of the
Subsidiaries outstanding. Except for the Subsidiaries or as
disclosed in the Final Memorandum or Schedule 2 hereto, the
Company does not own, directly or indirectly, any shares of capital
stock or any other equity or long-term debt securities or have any
equity interest in any firm, partnership, joint venture or other
entity.
(c) Each of the Company and the
Subsidiaries is duly incorporated or otherwise organized, validly
existing and in good standing under the laws of its respective
jurisdiction of incorporation or organization and has all requisite
corporate or organizational power and authority to own or lease its
properties and conduct its business as now conducted and as
described in the Final Memorandum; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign
corporation or entity in good standing in all other jurisdictions
where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure
to be so qualified would not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on the
general affairs, management, business, financial condition or
results of operations of the Company and the Subsidiaries, taken as
a whole (any such event, a “ Material Adverse Effect
”).
(d) The Company has all requisite
corporate power and authority to execute, deliver and perform each
of its obligations under the Notes, the Exchange Notes and the
Private Exchange Notes (as defined in the Registration Rights
Agreement).
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The Notes, when issued, will be in
the form contemplated by the Indenture. The Notes, the Exchange
Notes and the Private Exchange Notes have each been duly and
validly authorized by the Company and, when executed by the Company
and authenticated by the Trustee in accordance with the provisions
of the Indenture and, in the case of the Notes, when delivered to
and paid for by the Initial Purchasers in accordance with the terms
of this Agreement, will constitute valid and legally binding
obligations of the Company, entitled to the benefits of the
Indenture, and enforceable against the Company in accordance with
their terms, except that the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally, and (ii) general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(e) The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Indenture. The Indenture meets in all
material respects the requirements for qualification under the
Trust Indenture Act of 1939, as amended (the “ TIA
”). The Indenture has been duly and validly authorized by the
Company and, when executed and delivered by the Company (assuming
the due authorization, execution and delivery by the Trustee), will
constitute a valid and legally binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(f) The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Registration Rights Agreement. The
Registration Rights Agreement has been duly and validly authorized
by the Company and, when executed and delivered by the Company
(assuming the due authorization, execution and delivery by the
Initial Purchasers), will constitute a valid and legally binding
agreement 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,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors’ rights generally,
and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be brought and (B)
any rights to indemnity or contribution thereunder may be limited
by federal and state securities laws and public policy
considerations.
(g) The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under the Intercreditor Agreement. The
Intercreditor
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Agreement has been duly and validly
authorized by the Company and, when executed and delivered by the
Company (assuming the due authorization, execution and delivery by
the other Parties thereto), will constitute valid and legally
binding agreements of the Company, enforceable against the Company
in accordance with its terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors’ rights generally
and (ii) general principles of equity and the discretion of the
court before which any proceeding therefor may be
brought.
(h) The Company and its Subsidiaries
party to the Security Documents have all requisite corporate power
and authority to execute, deliver and perform its obligations under
the Security Documents. The Security Documents have been duly and
validly authorized by the Company and such Subsidiaries and, when
executed and delivered by the Company and its Subsidiaries
(assuming the due authorization, execution and delivery by the
other Parties thereto), will constitute valid and legally binding
agreements of the Company and such Subsidiaries, enforceable
against the Company and such Subsidiaries in accordance with its
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights generally and (ii) general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought.
(i) The Company has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and to consummate the transactions
contemplated hereby. This Agreement and the consummation by the
Company of the transactions contemplated hereby have been duly and
validly authorized by the Company. This Agreement has been duly
executed and delivered by the Company.
(j) No consent, approval,
authorization or order of any court or governmental agency or body,
or third party is required for the issuance and sale by the Company
of the Notes to the Initial Purchasers or the consummation by the
Company of the other transactions contemplated hereby, except such
as have been obtained and such as may be required under state
securities or “Blue Sky” laws in connection with the
purchase and resale of the Notes by the Initial Purchasers. None of
the Company or the Subsidiaries is (i) in violation of its
certificate of incorporation, bylaws or limited liability company
agreement (or similar organizational document), (ii) in breach or
violation of any statute, judgment, decree, order, rule or
regulation applicable to any of them or any of their respective
properties or assets, except for any such breach or violation that
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect, or (iii) in breach of or default
under (nor has any
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event occurred that, with notice or
passage of time or both, would constitute a default under) or in
violation of any of the terms or provisions of any indenture,
mortgage, deed of trust, loan agreement (including, without
limitation, the Credit Agreement), note, lease, license, franchise
agreement, permit, certificate, contract or other agreement or
instrument to which any of them is a party or to which any of them
or their respective properties or assets is subject (collectively,
“ Contracts ”), except for any such breach,
default, violation or event that would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(k) The execution, delivery and
performance by the Company, and where applicable the Subsidiaries
or affiliates, of this Agreement, the Indenture, the Security
Documents and the Registration Rights Agreement and the
consummation by the Company of the transactions contemplated hereby
and thereby (including, without limitation, the issuance and sale
of the Notes to the Initial Purchasers) will not conflict with or
constitute or result in a breach of or a default under (or an event
that with notice or passage of time or both would constitute a
default under) or violation of any of (i) the terms or provisions
of any Contract, except for any such conflict, breach, violation,
default or event that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (ii) the
certificate of incorporation, bylaws or limited liability company
agreement (or similar organizational document) of the Company or
any of the Subsidiaries or (iii) (assuming compliance with all
applicable state securities or “Blue Sky” laws and
assuming the accuracy of the representations and warranties of the
Initial Purchasers in Section 9 hereof) any statute, judgment,
decree, order, rule or regulation applicable to the Company or any
of the Subsidiaries or any of their respective properties or
assets, except for any such conflict, breach or violation that
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(l) The audited consolidated
financial statements of the Company and the Subsidiaries included
in the Final Memorandum present fairly in all material respects the
financial position, results of operations and cash flows of the
Company and the Subsidiaries at the dates and for the periods to
which they relate and have been prepared in accordance with
generally accepted accounting principles applied on a consistent
basis, except as otherwise stated therein. The summary and selected
financial and statistical data in the Final Memorandum present
fairly in all material respects the information shown therein and
have been prepared and compiled on a basis consistent with the
audited financial statements included therein, except as otherwise
stated therein. PricewaterhouseCoopers LLP (the “
Independent Accountants ”) is an independent public
accounting firm within the meaning of the Act and the rules and
regulations promulgated thereunder.
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(m) The pro forma financial
information included in the Final Memorandum (i) complies as to
form in all material respects with the applicable requirements of
Regulation S-X promulgated under the Securities Exchange Act of
1934, as amended (the “ Exchange Act ”), (ii)
has been prepared in accordance with the Commission’s rules
and guidelines with respect to pro forma financial information and
(iii) has been properly computed on the bases described therein;
the assumptions used in the preparation of the pro forma financial
information included in the Final Memorandum are reasonable and the
adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein.
(n) Except as set forth in the Final
Memorandum, there is not pending or, to the knowledge of the
Company, threatened any action, suit, proceeding, inquiry or
investigation to which the Company or any of the Subsidiaries is a
party, or to which the property or assets of the Company or any of
the Subsidiaries are subject, before or brought by any court,
arbitrator or governmental agency or body that, if determined
adversely to the Company or any of the Subsidiaries, would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or that seeks to restrain, enjoin, prevent
the consummation of or otherwise challenge the issuance or sale of
the Notes to be sold hereunder, the performance of material
obligations under the Indenture or any Security Document or the
consummation of the other transactions described in the Final
Memorandum.
(o) Each of the Company and the
Subsidiaries possesses all licenses, permits, certificates,
consents, orders, approvals and other authorizations from, and has
made all necessary declarations and filings with, all federal,
state, foreign, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
presently required or necessary to own or lease, as the case may
be, and to operate its respective properties and to carry on its
respective businesses as now or proposed to be conducted as set
forth in the Final Memorandum (“ Permits ”),
except where the failure to obtain such Permits would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; each of the Company and the Subsidiaries
has fulfilled and performed all of its obligations with respect to
such Permits and no event has occurred that 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; and none of the Company or the
Subsidiaries has received any written notice of any proceeding
relating to revocation or modification of any such Permit, except
as described in the Final Memorandum and except where such
revocation or modification would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(p) Since the date of the most
recent financial statements appearing in the Final Memorandum,
except as described therein, (i) none of the Company or the
Subsidiaries
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has incurred any liabilities or
obligations, direct or contingent, or entered into or agreed to
enter into any transactions or contracts (written or oral) not in
the ordinary course of business, which liabilities, obligations,
transactions or contracts would, individually or in the aggregate,
be material to the general affairs, management, business, condition
(financial or otherwise), prospects or results of operations of the
Companies and its Subsidiaries, taken as a whole, (ii) none of the
Company or the Subsidiaries has purchased any of its outstanding
capital stock or membership interest, nor declared, paid or
otherwise made any dividend or distribution of any kind on its
capital stock or membership interest (other than with respect to
any of such Subsidiaries, the purchase of, or dividend or
distribution on, capital stock owned by the Company) and (iii)
there shall not have been any material change in the capital stock,
membership interest or long-term indebtedness of the Company or the
Subsidiaries.
(q) Each of the Company and the
Subsidiaries has filed all necessary federal, state and foreign
income and franchise tax returns that are required to be filed,
except where the failure to so file such returns would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and has paid all taxes shown as due
thereon to the extent such taxes become due and payable; and other
than tax deficiencies that the Company or any Subsidiary is
contesting in good faith and for which the Company or such
Subsidiary has provided adequate reserves, there is no tax
deficiency that has been asserted against the Company or any of the
Subsidiaries that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse
Effect.
(r) The statistical and
market-related data included in the Final Memorandum are based on
or derived from sources that the Company believes to be reliable
and accurate.
(s) None of the Company, the
Subsidiaries or any agent acting on their behalf has taken or will
take any action that might cause this Agreement or the sale of the
Notes to violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect, or as the
same may hereafter be in effect, on the Closing Date.
(t) Each of the Company and the
Subsidiaries has good and marketable title to all real property,
including, without limitation, all real property included in the
Collateral, and good title to all personal property, including,
without limitation, all personal property included in the
Collateral and valid leasehold interests in all leasehold estates
in real and personal property, including without limitation, all
leasehold estates in real and personal property included in the
Collateral, in each case as described in the Final Memorandum as
being owned or leased by it, in each case free and clear of all
liens, charges, encumbrances or restrictions, except as described
in the Final Memorandum or to the extent the failure to have
such
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title or the existence of such
liens, charges, encumbrances or restrictions would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. All leases, contracts and agreements to
which the Company or any of the Subsidiaries is a party or by which
any of them is bound are valid and enforceable against the Company
or such Subsidiary, 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,
reasonably be expected to have a Material Adverse Effect. The
Company and the Subsidiaries own or possess adequate licenses or
other rights to use all patents, trademarks, service marks, trade
names, copyrights and know-how necessary to conduct the businesses
now or proposed to be operated by them as described in the Final
Memorandum except those that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect,
and none of the Company or the Subsidiaries has received any
written notice of infringement of or conflict with (or knows of any
such infringement of or conflict with) asserted rights of others
with respect to any patents, trademarks, service marks, trade
names, copyrights or know-how that, if such assertion of
infringement or conflict were sustained, would reasonably be
expected to have a Material Adverse Effect.
(u) Subject to Section 8 hereof, the
Security Documents, once executed and delivered, will create, in
favor of the Collateral Agent for the benefit of the Trustee and
the holders of the Notes, a valid and enforceable, and upon filing
or recording of the appropriate financing statements, mortgages and
similar instruments with the appropriate governmental authorities
(and the payment of the appropriate filing or recording fee and any
applicable taxes) and delivery of the applicable documents to the
Trustee in accordance with the provisions of the Security Documents
(or in the case of Collateral for which actions other than filing,
recording or delivering is required to perfect the security
interest, upon the taking of such actions), perfected junior
priority security interest in and lien upon all of the Collateral,
superior to and prior to the rights of all third persons other than
the lenders under the Credit Agreement and such other entities
entitled to have priority liens pursuant to the terms of the
Indenture and the Security Documents, and subject to no other liens
except for liens expressly permitted to exist on such Collateral by
the Indenture and the terms of the applicable Security
Documents.
(v) There are no legal or
governmental proceedings involving or affecting the Company or any
Subsidiary or any of their respective properties or assets that
would be required to be described in a prospectus pursuant to the
Act that are not described in the Final Memorandum, nor are there
any material contracts or other documents that would be required to
be described in a prospectus pursuant to the Act that are not
described in the Final Memorandum.
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(w) Except as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect and except as described in or contemplated
by the Final Memorandum, (A) each of the Company and the
Subsidiaries is in compliance with and not subject to liability
under applicable Environmental Law (as defined below), (B) each of
the Company and the Subsidiaries has made all filings and provided
all notices required under any applicable Environmental Law, and
has and is in compliance with all Permits required under any
applicable Environmental Laws and each of them is in full force and
effect, (C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation,
proceeding, notice or demand letter or request for information
pending or, to the knowledge of the Company or any of the
Subsidiaries, threatened against the Company or any of the
Subsidiaries under any Environmental Law, (D) no lien, charge,
encumbrance or restriction has been recorded under any
Environmental Law with respect to any assets, facility or property
owned, operated, leased or controlled by the Company or any of the
Subsidiaries, (E) none of the Company or the Subsidiaries has
received written notice that it has been identified as a
potentially responsible party under the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended
(“ CERCLA ”), or any comparable state law, (F)
no property or facility of the Company or any of the Subsidiaries
is (i) listed or proposed for listing on the National Priorities
List under CERCLA or is (ii) listed in the Comprehensive
Environmental Response, Compensation and Liability Information
System List promulgated pursuant to CERCLA, or on any comparable
list maintained by any state or local governmental authority, (G)
neither the Company nor any of its Subsidiaries is conducting or
financing an investigation, or response, corrective or other action
pursuant to Environmental Law at any site of facility, nor is any
of them subject to or party to any order, judgment, decree,
contract or agreement which obligates it to conduct or finance any
such action nor has any of them assumed by contract or agreement
any obligation or liability under Environmental Law, and (H) there
are no past or present events, activities, operations, occurrences
or conditions which could reasonably be expected to prevent or
interfere with compliance by the Company of any of its Subsidiaries
with, or result in liability of any of them under, Environmental
Law (including, without limitation, any capital or operating
expenditures required for cleanup, closure or compliance with the
Environmental Law, any constraints on operating activities and any
potential liability to third parties).
For purposes of this Agreement,
“ Environmental Law ” means the common law and
all applicable foreign, federal, provincial, state and local laws
or regulations, codes, ordinances, orders, decrees, judgments or
injunctions issued, promulgated, approved or entered thereunder,
relating to pollution or protection of public or employee health
and safety, the environment or natural resource damages including,
without limitation, those relating to (i) emissions, discharges,
releases or threatened releases of Hazardous Material in or into
the environment (including, without
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limitation, ambient air, surface
water, groundwater, drinking water, land surface or subsurface
strata, and natural resources such as wetlands, flora and fauna) or
exposure thereto, (ii) the manufacture, processing, distribution,
use, generation, treatment storage, disposal, transport, handling
or recycling of Hazardous Material, (iii) zoning, facility siting,
financial assurance, environmental impact assessment or review,
reclamation or land use and (iv) underground or aboveground storage
tanks and related piping, and emissions, discharges, releases or
threatened releases therefrom. “ Hazardous Material
” means any substance, material pollutant, contaminant,
chemical, constituent or waste, including without limitation,
petroleum and petroleum products, subject to regulation under or
which could give rise to liability under Environmental
Law.
(x) Except as set forth in the Final
Memorandum, there is no strike, labor dispute, slowdown or work
stoppage with the employees of the Company or any of the
Subsidiaries that is pending or, to the knowledge of the Company or
any of the Subsidiaries, threatened.
(y) Each of the Company and the
Subsidiaries carries insurance in such amounts and covering such
risks as is reasonable for the conduct of its business and the
value of its properties.
(z) None of the Company or the
Subsidiaries has any material liability for any prohibited
transaction or funding deficiency or any complete or partial
withdrawal liability with respect to any pension, profit sharing or
other plan that is subject to the Employee Retirement Income
Security Act of 1974, as amended (“ ERISA ”), to
which the Company or any of the Subsidiaries makes or ever has made
a contribution and in which any employee of the Company or of any
Subsidiary is or has ever been a participant, except as described
in the Final Memorandum and except where such liability would not
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect. With respect to such plans, the Company
and each Subsidiary is in compliance in all material respects with
all applicable provisions of ERISA.
(aa) Each of the Company and the
Subsidiaries (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls that provide reasonable
assurance that (A) transactions are executed in accordance with
management’s authorization, (B) transactions are recorded as
necessary to permit preparation of its financial statements and to
maintain accountability for its assets, (C) access to its assets is
permitted only in accordance with management’s authorization
and (D) the reported accountability for its assets is compared with
existing assets at reasonable intervals.
(bb) None of the Company or the
Subsidiaries will be an “investment company” or
“promoter” or “principal underwriter” for
an “investment company,” as such
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terms are defined in the Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder.
(cc) The Notes, the Indenture, the
Registration Rights Agreement, Agreement, the Intercreditor
Agreement and the Security Documents will conform in all material
respects to the descriptions thereof in the Final
Memorandum.
(dd) No holder of securities of the
Company or any Subsidiary will be entitled to have such securities
registered under the registration statements required to be filed
by the Company pursuant to the Registration Rights Agreement other
than as expressly permitted thereby.
(ee) Immediately after the
consummation of the transactions contemplated by this Agreement,
the fair value and present fair saleable value of the assets of the
Company and the Subsidiaries on a consolidated basis will exceed
the sum of their stated liabilities and identified contingent
liabilities on a consolidated basis; the Company and the
Subsidiaries on a consolidated basis will not be, after giving
effect to the execution, delivery and performance of this
Agreement, and the consummation of the transactions contemplated
hereby, (i) left with unreasonably small capital with which to
carry on their business as it is proposed to be conducted, (ii)
unable to pay their debts (contingent or otherwise) as they mature
or (iii) otherwise insolvent.
(ff) None of the Company, the
Subsidiaries or any of their respective Affiliates (as defined in
Rule 501(b) of Regulation D under the Act) has directly, or through
any agent, (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any “security” (as
defined in the Act) that is or could be integrated with the sale of
the Notes in a manner that would require the registration under the
Act of the Notes or (ii) engaged in any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the
Notes or in any manner involving a public offering within the
meaning of Section 4(2) of the Act. Assuming the accuracy of the
representations and warranties of the Initial Purchasers in Section
9 hereof, it is not necessary in connection with the offer, sale
and delivery of the Notes to the Initial Purchasers in the manner
contemplated by this Agreement to register any of the Notes under
the Act or to qualify the Indenture under the TIA.
(gg) No securities of the Company or
any Subsidiary 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 Exchange Act,
or quoted in a U.S. automated inter-dealer quotation
system.
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(hh) None of the Company or the
Subsidiaries has taken, nor will any of them take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of
the price of the Notes.
(ii) None of the Company, the
Subsidiaries, any of their respective Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers)
has engaged in any directed selling efforts (as that term is
defined in Regulation S under the Act (“ Regulation S
”)) with respect to the Notes; the Company, the Subsidiaries
and their respective Affiliates and any person acting on its or
their behalf (other than the Initial Purchasers) have complied with
the offering restrictions requirement of Regulation S.
(jj) Neither the Company nor its
Subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or Affiliate of the Company or any of its
Subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a material violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended,
and the rules and regulations thereunder (the “ FCPA
”), including, without limitation, making use of the mails or
any means or instrumentality of interstate commerce corruptly in
furtherance of an offer, payment, promise to pay or authorization
of the payment of any money, or other property, gift, promise to
give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the
FCPA) or any foreign political party or official thereof or any
candidate for foreign political office, in contravention of the
FCPA; and the Company, its Subsidiaries and, to the knowledge of
the Company, its Affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies
and procedures designed to ensure, and which are reasonably
expected to continue to ensure, continued compliance
therewith.
(kk) The operations of the Company
and its Subsidiaries are and have been conducted at all times in
compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act
of 1970, as amended, the money laundering statutes of all
jurisdictions, the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “
Money Laundering Laws ”) and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
Subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(ll) To the best of the
Company’s knowledge, there is and has been no failure on the
part of the Company and any of the Company’s directors or
officers, in their capacities as such, to comply with any
applicable and effective provision of the Sarbanes-Oxley Act of
2002 and the rules and regulations promulgated in
connection
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therewith (the “
Sarbanes-Oxley Act ”), including Section 402 related
to loans and Sections 302 and 906 related to certifications, except
where any such failure to comply would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(mm) Neither the Company, any of its
Subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or Affiliate of the Company or any of its
Subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury (“ OFAC ”); and the
Company will not directly or indirectly use the proceeds of the
offering of the Notes hereunder, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joi
