Exhibit 10.e
EXECUTION COPY
CROWN HOLDINGS,
INC.
ISSUANCE BY
CROWN EUROPEAN HOLDINGS
SA
OF
€350,000,000 6 1 / 4
% First Priority Senior
Secured Notes due 2011
Purchase Agreement
New York, New York
August 11, 2004
Citigroup Global Markets Inc.
Lehman Brothers Inc.
As Representatives of the several
Initial
Purchasers named in Schedule I
hereto
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Crown Holdings, Inc., a Pennsylvania
corporation (“ Holdings ”), and the indirect
parent company of Crown European Holdings SA, a société
anonyme organized under the laws of France (the “
Company ”), proposes that the Company issue and sell
to the several purchasers named in Schedule I hereto (the
“ Initial Purchasers ”), for whom Citigroup
Global Markets Inc. (“ Citigroup ”) and Lehman
Brothers Inc. (the “ Representatives ”) are
acting as representatives, €350,000,000 aggregate principal
amount of its 6 1 / 4
% First Priority Senior
Secured Notes due 2011 (the “ Notes ”). The
Notes will be issued pursuant to an indenture to be dated as of
September 1, 2004 (the “ Indenture ”) among the
Company, Holdings, as guarantor, the other guarantors named in
Schedule II hereto (together with Holdings, the “
Guarantors ” and, together with the Company, the
“ Issuers ”) and Wells Fargo Bank N.A., as
trustee (the “ Trustee ”). The Notes will have
the benefit of the guarantees (the “ Note Guarantees
” and, together with the Notes, the “ Securities
”) provided for in the Indenture. The use of the neuter in
this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in Section 17
hereof.
Holders of the Securities will also
have the benefit of a registration rights agreement to be dated as
of September 1, 2004 (the “ Registration Rights
Agreement ”) among the Issuers and the Initial
Purchasers. Pursuant to the Registration Rights Agreement, the
Issuers will agree to register the Securities under the Act subject
to the terms and conditions therein specified.
Pursuant to the Security Documents
(as defined in the Indenture), which include the Intercreditor
Agreements (as defined in the Indenture), the Securities will be
secured by a first priority lien on 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 (as defined
below); provided that, to the extent applicable French,
German or other applicable law does not recognize the concept of
first, second or third priority liens with respect to the assets
securing the Notes located in France, Germany or any other country,
the Security Documents will provide that holders of Notes and other
creditors secured by a lien over such assets will have pari passu
security interests as a matter of applicable law, the order of
priority among the holders of Notes and such other creditors being
determined pursuant to the Euro Intercreditor Agreement (as defined
in the Indenture). In addition, the Trustee, on behalf of the
holders of the Securities, will enter into the Proceeds Sharing
Agreement (as defined in the Indenture).
The Securities are being issued in
connection with the refinancing plan of Holdings, as described in
the Final Memorandum (the “ Refinancing Plan ”).
In connection with the Refinancing Plan, the Company, Crown
Americas, Inc., a Pennsylvania corporation (“ Crown
Americas ” and, together with the Company, the “
Borrowers ”) and the guarantors party thereto will
either (x) enter into a new credit agreement to be dated as of
September 1, 2004 (the “ New Credit Facility ”)
which will provide for (I) a $125 million term loan B maturing in
2011 and (II) the revolving credit facilities and letter of credit
facility described in the Preliminary Memorandum under the heading
“Description of Other Indebtedness—New Credit
Facilities” or (y) amend and restate its existing senior
secured credit facilities to repay the entire amount of the term
loan borrowings thereunder, incur $125 million of new term loan B
borrowings thereunder maturing in 2011 and to otherwise permit the
transactions (the “ Amended and Restated Credit
Facility ”), in each case, as to be described in the
Final Memorandum. This Agreement, the Securities, the Indenture,
the Registration Rights Agreement, the Security Documents, the
Proceeds Sharing Agreement and the agreements and instruments to
which Holdings or any of its subsidiaries is a signatory relating
to the New Credit Facility or the Amended and Restated Credit
Facility, as applicable, collectively are referred to herein as the
“ Transaction Documents ”.
The sale of the Securities to the
Initial Purchasers will be made without registration of the
Securities under the Act in reliance upon exemptions from the
registration requirements of the Act.
In connection with the sale of the
Securities, the Issuers have prepared a preliminary offering
memorandum dated August 6, 2004 (as amended or supplemented at the
Execution Time, including any and all exhibits thereto and any
information incorporated by reference therein, the “
Preliminary Memorandum ”) and a final offering
memorandum to be dated August 11, 2004 (as amended or supplemented
at the Execution Time, including any and all exhibits thereto and
any information incorporated by reference therein, the “
Final Memorandum ”). Each of the Preliminary
Memorandum and the Final Memorandum sets forth certain information
concerning the Issuers and the Securities. The Issuers hereby
confirm that they have authorized the use of the Preliminary
Memorandum and the Final Memorandum, and
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any amendment or supplement thereto, in
connection with the offer and sale of the Securities by the Initial
Purchasers. Unless stated to the contrary, any references herein to
the terms “amend”, “amendment” or
“supplement” with respect to the Final Memorandum shall
be deemed to refer to and include any information filed under the
Exchange Act which is incorporated by reference therein.
1. Representations and
Warranties . The Issuers, jointly and severally, represent and
warrant to each Initial Purchaser as set forth below in this
Section 1.
(a) The Preliminary Memorandum, at
the date thereof, did not contain any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. At the Execution Time and on
the Closing Date (as defined below), the Final Memorandum did not,
and will not (and any amendment or supplement thereto, at the date
thereof and at the Closing Date, will not), contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
provided , however , that the Issuers make no
representation or warranty as to the information contained in or
omitted from the Preliminary Memorandum or the Final Memorandum, or
any amendment or supplement thereto, in reliance upon and in
conformity with information furnished in writing to the Issuers by
or on behalf of the Initial Purchasers specifically for inclusion
therein.
(b) None of the Issuers or their
respective Affiliates, or any person acting on behalf of any of
them (other than the Initial Purchasers as to which the Issuers
make no representation or warranty), has, directly or indirectly,
made offers or sales of any security, or solicited offers to buy
any security, under circumstances that would require the
registration of the Securities under the Act. Assuming the accuracy
of the representations and warranties of the Initial Purchasers in
Section 4 of this Agreement, it is not necessary in connection with
the offer, sale and delivery of the Securities to the Initial
Purchasers or the initial resale of the Securities by the Initial
Purchasers, in each case, in the manner contemplated by this
Agreement, to register any of the Securities under the Act or to
qualify the Indenture under the Trust Indenture Act.
(c) None of the Issuers or their
respective Affiliates, or any person acting on behalf of any of
them (other than the Initial Purchasers as to which the Issuers
make no representation or warranty), has engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the
Securities in the United States.
(d) The Securities satisfy the
eligibility requirements of Rule 144A(d)(3) under the
Act.
(e) None of the Issuers or their
respective Affiliates, or any person acting on behalf of any of
them (other than the Initial Purchasers as to which the Issuers
make no representation or warranty), has engaged in any
“directed selling efforts” with respect to the
Securities, and each of the Issuers and their respective Affiliates
has complied with the “offering restrictions”
requirement of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
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(f) No securities of any of the
Issuers are of the same class (within the meaning of Rule 144A
under the Act) as any of the Securities 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.
(g) None of the transactions
contemplated by this Agreement (including, without limitation, the
use of the proceeds from the sale of the Securities), will violate
or result in a violation of Section 7 of the Exchange Act, or any
regulation promulgated thereunder, including, without limitation,
Regulations T, U or X of the Board of Governors of the Federal
Reserve System.
(h) Application will be made prior
to the Closing Date to list the Notes on the Luxembourg Stock
Exchange. The Issuers will use their best efforts to have the Notes
approved for trading on the Luxembourg Stock Exchange.
(i) None of the Issuers or their
respective subsidiaries is, and after giving effect to the offering
and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum none of them will be,
required to register as an “investment company” or a
company “controlled by” an “investment
company” within the meaning of the Investment Company
Act.
(j) Holdings is subject to the
reporting requirements of, and has timely filed all material
required to be filed by it pursuant to, Section 13 or Section 15(d)
of the Exchange Act.
(k) None of the Issuers or their
respective Affiliates has paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of
any of them (except as contemplated by this Agreement).
(l) None of the Issuers or their
respective Affiliates has taken, directly or indirectly, any action
designed to cause or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act
or otherwise, in the stabilization or manipulation of the price of
any security of any of them to facilitate the sale or resale of the
Securities.
(m) The information to be provided
by the Issuers pursuant to Section 5(h) hereof will not, at the
date thereof, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(n) The statements set forth or
referenced under the headings “Crown’s
Business—Legal Proceedings”, “Description of
Certain Indebtedness”, “Description of the
Notes”, “Registered Exchange Offer; Registration
Rights” and “Certain Tax Considerations” in the
Final Memorandum fairly summarize the matters therein
described.
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(o) The statistical and
market-related data included in the Final Memorandum are based on
or derived from sources which Holdings believes to be reliable and
accurate in all material respects.
(p) There are no contracts,
agreements or other documents or pending legal or governmental
proceedings to which any of the Issuers or their respective
subsidiaries is a party or any property of any of the Issuers or
their respective subsidiaries is subject that would be required to
be described in a prospectus under the Act that have not been
described in the Final Memorandum (exclusive of any amendment or
supplement thereto). The contracts, agreements and other documents
so described in the Final Memorandum are in full force and effect
on the date of this Agreement. None of the Issuers or their
respective subsidiaries or, to the knowledge of any Issuer, any
other party is in breach of or default under any such contracts,
agreements or other documents, other than a breach or default that
would not reasonably be expected to have a material adverse effect
on (i) the issue and sale of the Securities or the consummation of
the other transactions contemplated by the Transaction Documents or
of the Refinancing Plan or (ii) the condition (financial or
otherwise), prospects, earnings, business or properties of the
Company, individually, or of Holdings and its subsidiaries, taken
as a whole, whether or not arising from transactions in the
ordinary course of business (“ Material Adverse Effect
”).
(q) Holdings and each of its
subsidiaries has been duly organized and is validly existing as a
corporation or other legal entity in good standing under the laws
of the jurisdiction in which it is organized, with full corporate
or other statutory power and authority to own or lease, as the case
may be, and operate its properties and conduct its business as
described in the Final Memorandum. Holdings and each of its
subsidiaries is duly qualified to do business as a foreign
corporation or other legal entity and is in good standing under the
laws of each jurisdiction which requires such qualification, except
where the failure to do so qualify or be in good standing would not
reasonably be expected to result in a Material Adverse
Effect.
(r) Holdings does not have any
material subsidiaries other than (i) the Company, (ii) the other
Guarantors and (iii) the subsidiaries listed on Schedule III
hereto. All the outstanding shares of capital stock of each
subsidiary of Holdings have been duly and validly authorized and
issued and are fully paid and, where applicable, nonassessable,
and, except as set forth on Schedule III hereto or as
otherwise set forth in the Final Memorandum, all outstanding shares
of capital stock of such subsidiaries are owned by Holdings, either
directly or through wholly owned subsidiaries, free and clear of
any perfected security interest or any other security interests,
claims, liens or encumbrances, except for any such perfected
security interests, or other security interests, claims, liens or
encumbrances described in the Final Memorandum or that would not
reasonably be expected to result in a Material Adverse Effect or an
Event of Default (as defined in the Indenture).
(s) Holdings’ capitalization
is as set forth in the “Actual” column of the table set
forth under the heading “Capitalization” in the Final
Memorandum. On the Closing Date, Holdings’ capitalization
will be consistent in all material respects with the “As
Adjusted” column of the table set forth under the heading
“Capitalization” in the Final Memorandum.
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(t) This Agreement has been duly
authorized, executed and delivered by each of the Issuers and,
assuming the due authorization, execution and delivery thereof by
the Initial Purchasers, constitutes the legal, valid and binding
obligation of each of the Issuers, enforceable against each of the
Issuers in accordance with its terms (except that the enforcement
thereof may be subject to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws of
general applicability affecting creditors’ rights generally
from time to time in effect and to general principles of equity and
the discretion of the court before which any proceeding therefor
may be brought regardless of whether such enforcement is considered
in a proceeding at law or in equity).
(u) The Indenture has been duly
authorized by each of the Issuers and, assuming the due
authorization, execution and delivery thereof by the Trustee, when
executed and delivered by each of the Issuers, will constitute the
legal, valid and binding instrument of each of the Issuers,
enforceable against each of the Issuers in accordance with its
terms (except that the enforcement thereof may be subject to
applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or other laws of general applicability
affecting creditors’ rights generally from time to time in
effect and to general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
regardless of whether such enforcement is considered in a
proceeding at law or in equity). The Indenture meets the
requirements for qualification under the Trust Indenture
Act.
(v) The Notes have been duly
authorized by the Company and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Initial Purchasers in accordance with the terms
hereof, will have been duly executed and delivered by the Company
and will constitute the legal, valid and 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 applicable bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or
other laws of general applicability affecting creditors’
rights generally from time to time in effect and to general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought regardless of whether such
enforcement is considered in a proceeding at law or in
equity).
(w) The Note Guarantees have been
duly authorized by the Guarantors and, when the Notes have been
executed in accordance with the provisions of the Indenture, will
have been duly executed and delivered by the Guarantors and will
constitute legal, valid and binding obligations of the Guarantors,
entitled to the benefits of the Indenture and enforceable against
the Guarantors in accordance with their terms (except that the
enforcement thereof may be subject to applicable bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or
other laws of general applicability affecting creditors’
rights generally from time to time in effect and to general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought regardless of whether such
enforcement is considered in a proceeding at law or in
equity).
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(x) The Registration Rights
Agreement has been duly authorized by each of the Issuers and,
assuming the due authorization, execution and delivery thereof by
the Initial Purchasers, when executed and delivered by each of the
Issuers, will constitute the legal, valid and binding obligation of
each of the Issuers, enforceable against each of the Issuers in
accordance with its terms (except that the enforcement thereof may
be subject to applicable bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other laws of general
applicability affecting creditors’ rights generally from time
to time in effect and to general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought regardless of whether such enforcement is considered in a
proceeding at law or in equity).
(y) No holder of securities of any
of the Issuers will be entitled to have such securities registered
under the registration statements required to be filed by the
Issuers pursuant to the Registration Rights Agreement other than as
expressly permitted thereby.
(z) Each of the Intercreditor
Agreements has been duly authorized by the Issuers party thereto
and, assuming the due authorization, execution and delivery thereof
by each of the other parties thereto, when executed and delivered
by each such Issuer, will constitute legal, valid and binding
obligations of each such Issuer, enforceable against each such
Issuer in accordance with its terms (except that the enforcement
thereof may be subject to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws of
general applicability affecting creditors’ rights generally
from time to time in effect and to general principles of equity and
the discretion of the court before which any proceeding therefor
may be brought regardless of whether such enforcement is considered
in a proceeding at law or in equity).
(aa) Each of the other Security
Documents has been duly authorized by the Issuers party thereto
and, assuming the due authorization, execution and delivery thereof
by each of the other parties thereto, when executed and delivered
by each such Issuer, will constitute legal, valid and binding
obligations of each such Issuer, enforceable against each such
Issuer in accordance with its terms (except that the enforcement
thereof may be subject to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws of
general applicability affecting creditors’ rights generally
from time to time in effect and to general principles of equity and
the discretion of the court before which any proceeding therefor
may be brought regardless of whether such enforcement is considered
in a proceeding at law or in equity).
(bb) The Security Documents, once
executed and delivered, will create, in favor of the Trustee for
the benefit of the Trustee and the holders of the Notes, a valid
and enforceable, and upon the filing or recording of the
appropriate financing statements, mortgages, the Security
Documents, any required notices and similar instruments with the
appropriate governmental authorities (and the payment of the
appropriate filing or recording fees and any applicable taxes) and
the delivery of the applicable documents to the Collateral Agent
(as defined in the Indenture) in accordance with the provisions of
the
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Security Documents, a perfected
security interest in all Collateral, superior to and prior to the
Liens (as defined in the Indenture) of all third persons other than
the Liens securing Holdings’ and its subsidiaries obligations
with the New Credit Facility or the Amended and Restated Credit
Facility, as applicable, and pari passu with the Liens securing the
New Credit Facility or the Amended and Restated Credit Facility, as
applicable, and subject to no other Liens other than Permitted
Collateral Liens (as defined in the Indenture), it being understood
that for French, German and other non-U.S. assets secured by a
Lien, the holders of the Notes will have their priority on the
Liens over such assets effectively enforced pursuant to the Euro
Intercreditor Agreement.
(cc) Each other Transaction Document
has been duly authorized by each Issuer a party thereto and,
assuming the due authorization, execution and delivery thereof by
the other parties thereto, when executed and delivered by each such
Issuer will constitute the legal, valid and binding obligation of
each such Issuer, enforceable against each such Issuer in
accordance with its terms (except that the enforcement thereof may
be subject to applicable bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other laws of general
applicability affecting creditors’ rights generally from time
to time in effect and to general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought regardless of whether such enforcement is considered in a
proceeding at law or in equity).
(dd) The documents (or portions
thereof) incorporated by reference in the Final Memorandum, when
they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(ee) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated by any of the Transaction Documents or otherwise in
connection with the Refinancing Plan, except (i) in the case of
compliance with the terms of the Registration Rights Agreement such
as will be obtained under the Act and the Trust Indenture Act, (ii)
such as may be required under the blue sky laws of any state in
connection with the purchase and distribution of the Securities by
the Initial Purchasers in the manner contemplated herein and in the
Final Memorandum and the Registration Rights Agreement and (iii)
such filings and recordings with governmental authorities as may be
required to record or perfect liens under the Security Documents,
and except where the failure to obtain the same would not
reasonably be expected to have a Material Adverse
Effect.
(ff) None of the execution and
delivery by any of the Issuers party thereto of any of the
Transaction Documents, the issue and sale of the Securities, the
consummation of the other transactions contemplated by the
Transaction Documents or of the Refinancing Plan will conflict
with, result in a breach or violation or imposition of any lien,
charge or encumbrance upon any property or assets of any of the
Issuers or their
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respective subsidiaries pursuant to
(i) the organizational documents of Holdings or any of its
subsidiaries; (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
Holdings or any of its subsidiaries is a party or bound or to which
any property or assets of Holdings or any of its subsidiaries is
subject; or (iii) any statute, law, rule, regulation, judgment,
order or decree applicable to Holdings or any of its subsidiaries
or any property or assets of Holdings or any of its subsidiaries of
any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over
Holdings or any of its subsidiaries or property or assets of any of
its subsidiaries, except, in the case of clauses (ii) and (iii)
above, as would not reasonably be expected to have a Material
Adverse Effect or to materially adversely affect the rights of the
holders of the Securities or of the Initial Purchasers under the
Transaction Documents.
(gg) The consolidated historical
financial statements and schedules of Holdings and its consolidated
subsidiaries included in the Final Memorandum present fairly in all
material respects the financial condition, results of operations
and cash flows of Holdings and its consolidated subsidiaries as of
the dates and for the periods indicated, comply as to form in all
material respects with the applicable requirements of the Act and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved (except as otherwise noted therein). The selected
historical financial data set forth under the caption
“Selected Historical Financial Data” in the Final
Memorandum comply as to form in all material respects with the
applicable requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as
otherwise noted therein). The summary historical financial data set
forth under the caption “Summary—Summary Historical and
Pro Forma Consolidated Condensed Financial Data” in the Final
Memorandum fairly present, on the basis stated in the Final
Memorandum, the information included therein. The pro forma
financial data included in the Final Memorandum include assumptions
that provide a reasonable basis for presenting the significant
effects directly attributable to the transactions and events
described therein, the related pro forma adjustments give
appropriate effect to those assumptions, and the pro forma
adjustments reflect the proper application of those adjustments to
the historical amounts in the pro forma financial data included in
the Final Memorandum. The pro forma adjustments have been properly
applied to the historical amounts in the compilation of such
data.
(hh) Other than as set forth in the
Final Memorandum, no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving Holdings or any of its subsidiaries or any property or
assets of Holdings or any of its subsidiaries is pending or, to the
knowledge of Holdings, threatened that would reasonably be expected
to have a Material Adverse Effect.
(ii) Holdings and each of its
subsidiaries owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted. Holdings and
each of its subsidiaries has good and marketable title to, or valid
leasehold interests in, or easements or other limited property
interests in, or is licensed to use, all its material
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properties and assets, except for
minor defects that do not interfere with its ability to conduct its
business as currently conducted or utilize such properties and
assets for their intended purposes, and except where failure to
have such title, leasehold interests, easements or other limited
property interests or licenses to use, in the aggregate, would not
reasonably be expected to have a Material Adverse Effect. All
material properties and assets of Holdings and its subsidiaries are
free and clear of all liens, charges, encumbrances or restrictions,
except (i) in the case of any such material properties and assets
that constitute Collateral, Permitted Collateral Liens (as defined
in the Indenture) and (ii) in the case of any such material
properties and assets that do not constitute Collateral, Permitted
Liens (as defined in the Indenture). Each of the Issuers and their
respective subsidiaries has good and marketable title to all
personal property it purports to own (including, without
limitation, all Collateral), except (i) in the case of any such
material personal property that constitutes Collateral, Permitted
Collateral Liens and (ii) in the case of any such material personal
property that does not constitute Collateral, Permitted Liens. None
of Holdings or its subsidiaries has any real property, personal
property or other assets that would constitute Collateral under the
Security Documents that will not constitute Collateral under the
Security Documents as of the Closing Date.
(jj) None of the Issuers has
received any written notice, or has any knowledge, of any existing
or contemplated condemnation proceeding affecting all or any
portion of the material real property, material fixtures and
leasehold estates in real property or fixtures that constitutes
Collateral under the Security Documents (the “Mortgaged
Property ”) that remains unresolved, or of any sale or
disposition thereof in lieu of condemnation.
(kk) Neither Holdings nor any of its
subsidiaries is in violation or default of (i) any provision of its
organizational documents; (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property
or assets is subject; or (iii) any statute, law, rule, regulation,
judgment, order or decree applicable to it or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over it or any such subsidiaries or any of their
respective property or assets, except, in the case of clauses (ii)
and (iii) above, for any such violation or default which would not
reasonably be expected to have a Material Adverse
Effect.
(ll) PricewaterhouseCoopers LLP, who
have certified certain financial statements of Holdings and its
consolidated subsidiaries and delivered their report with respect
to the audited consolidated financial statements and schedules
included in the Final Memorandum, are independent public
accountants with respect to Holdings within the meaning of the Act
and the Exchange Act and the related published rules and
regulations thereunder.
(mm) Holdings and each of its
subsidiaries has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would
not reasonably be expected to have a Material Adverse Effect).
Holdings and each of its subsidiaries has paid all taxes
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required to be paid by it as shown
in such return and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
being contested in good faith or as would not reasonably be
expected to have a Material Adverse Effect.
(nn) No labor problem or dispute
with the employees of Holdings or any of its subsidiaries exists or
is threatened or imminent, and there is no existing or imminent
labor disturbance or collective bargaining activities by the
employees of Holdings or any of its subsidiaries or, to the
knowledge of any of the Issuers, by the employees of any of the
principal suppliers, contractors or customers of Holdings or any of
its subsidiaries, in each case, that would have a Material Adverse
Effect.
(oo) Holdings and each of its
subsidiaries, except as disclosed in the Final Memorandum, or to
the extent it would not reasonably be expected to have a Material
Adverse Effect, 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 and fidelity or surety bonds
insuring Holdings or any of its subsidiaries or the businesses,
assets, employees, officers and directors of Holdings or any of its
subsidiaries are in full force and effect. Holdings and each of its
subsidiaries is in compliance with the terms of such policies and
instruments in all material respects. There are no claims by
Holdings 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, except for such
claims which, if successfully denied, would not reasonably be
expected to have a Material Adverse Effect. Neither Holdings nor
any of its subsidiaries has been refused any insurance coverage
sought or applied for. Neither Holdings nor any of its subsidiaries
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 reasonably be
expected to have a Material Adverse Effect.
(pp) No subsidiary of Holdings is
prohibited, directly or indirectly, from paying any dividends on
such subsidiary’s capital stock, from making any other
distribution on such subsidiary’s capital stock, from
repaying to Holdings or any other subsidiary of Holdings any loans
or advances to such subsidiary from Holdings or such other
subsidiary or from transferring any of such subsidiary’s
property or assets to Holdings or any other subsidiary of Holdings,
except as described in or contemplated by the Final Memorandum
(exclusive of any amendment or supplement thereto).
(qq) Holdings and each of its
subsidiaries owns or possesses adequate licenses or other rights to
use all patents, trademarks, service marks, trade names, copyrights
and know-how that are necessary to conduct their respective
businesses as described in the Final Memorandum, except where the
failure to own or possess such licenses or other rights to use such
patents, trademarks, service marks, trade names, copyrights and
know-how would not reasonably be expected to have a Material
Adverse Effect. Neither Holdings nor any of its subsidiaries has
received any notice of infringement of or conflict with (or knows
of any such infringement of or conflict with) asserted rights of
others with
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respect to any patents, trademarks,
service marks, trade names, copyrights or know-how that, if such
assertion of infringement or conflict were sustained, could have a
Material Adverse Effect.
(rr) Holdings and each of its
subsidiaries possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their
respective businesses as currently conducted, except where the
failure to possess such licenses, certificates, permits or other
authorizations would not reasonably be expected to have a Material
Adverse Effect, and neither Holdings nor any of its subsidiaries
has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to have a
Material Adverse Effect.
(ss) Holdings and each of its
subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or
specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(tt) (i) Holdings and each of its
subsidiaries is in compliance in all material respects with any and
all applicable foreign, federal, state and local laws and
regulations and rules of common law relating to pollution or the
protection of the environment, natural resources or occupational
health and safety, including without limitation those relating to
the release or threat of release of Hazardous Materials (“
Environmental Laws ”); (ii) Holdings and each of its
subsidiaries has received and is in compliance in all material
respects with all permits, licenses or other approvals required of
it under applicable Environmental Laws to conduct its businesses as
currently conducted; (iii) neither Holdings nor any of its
subsidiaries has received written notice of any actual or potential
liability for the investigation or remediation of any Hazardous
Materials; (iv) 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 any of the Issuers,
threatened against Holdings or any of its subsidiaries under any
Environmental Law; (v) 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 Holdings or any of its subsidiaries; (vi) neither Holdings nor
any of its subsidiaries is subject to any order, decree, consent,
settlement or agreement requiring, or is otherwise obligated or
required to perform, any response or corrective action relating to
any Hazardous Materials; (vii) neither Holdings nor any of its
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 or foreign law; (viii) no property or facility of
Holdings or any of its
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subsidiaries is (x) listed or, to
the knowledge of the Issuers, proposed for listing on the National
Priorities List under CERCLA or (y) listed in the Comprehensive
Environmental Response, Compensation and Liability Information
System List promulgated pursuant to CERCLA, or on any comparable
list maintained by any governmental authority; and (ix) there are
no past or present actions, events, operations or activities which
would reasonably be expected to prevent or interfere with
compliance by Holdings or any of its subsidiaries with any
applicable Environmental Law or result in liability (including,
without limitation, fines or penalties) under any applicable
Environmental Law, except, in the case of each of clauses (i)
through (ix) above, as (A) described in the Final Memorandum
(exclusive of any amendment or supplement thereto) or (B) would not
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect. “ Hazardous Materials ”
means any hazardous or toxic substance, chemical, material,
pollutant, waste, contaminant or constituent, which is subject to
regulation under or could give rise to liability under any
Environmental Law.
(uu) In the ordinary course of its
business, Holdings periodically reviews the effect of Environmental
Laws on the business, operations and properties of Holdings and its
subsidiaries, in the course of which it seeks to identify and
evaluate associated costs and liabilities. On the basis of such
review, and except as described in the Final Memorandum, Holdings
does not reasonably expect that such associated costs and
liabilities would, singly or in the aggregate, have a Material
Adverse Effect.
(vv) Holdings and each of its
subsidiaries has fulfilled its obligations, if any, under the
minimum funding standards of Section 302 of the United States
Employee Retirement Income Security Act of 1974, as amended
(“ ERISA ”), and the regulations and published
interpretations thereunder with respect to each “plan”
(as defined in Section 3(3) of ERISA and such regulations and
published interpretations) in which employees of any of the Issuers
or their respective subsidiaries are eligible to participate, and
each such plan is, and on the Closing Date will be, in compliance
in all material respects with the presently applicable provisions
of ERISA and such regulations and published interpretations.
Neither Holdings nor any of its subsidiaries has incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other
than for the payment of premiums in the ordinary course) under
Title IV of ERISA.
(ww) None of the Issuers or any of
their respective Affiliates or any director, officer, agent or
employee of any of the Issuers or their respective Affiliates has
(i) used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate
funds; (iii) violated any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(xx) Except as disclosed in the
Final Memorandum, no income, stamp or other taxes or levies,
imposts, deductions, charges, compulsory loans or withholdings
whatsoever are or will be, under applicable law in France, the
United States or any other jurisdiction of incorporation,
organization or formation, as the case may be, or tax residency of
any of the Issuers, imposed, assessed, levied or collected by any
Federal,
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state, local or foreign governmental
taxing authority on or in respect of principal, interest, premiums
and penalties or other amounts payable under the Securities, or on
account of the issue and sale by the Issuers of the Securities or
the execution, delivery or performance of this Agreement, the
Indenture, the Security Documents or the Registration Rights
Agreement or any payments hereunder or thereunder.
(yy) None of the Issuers or any
property or assets of any of the Issuers has any immunity from
jurisdiction of any court or from any legal process.
(zz) After giving effect to savings
clauses in the Transaction Documents that limit the liability of
Issuers in certain cases, the fair value and present fair saleable
value of the assets of each of the Issuers and their respective
subsidiaries exceeds, and immediately after the consummation of the
issue and sale of the Securities and the consummation of the other
transactions contemplated by the Transaction Documents will exceed,
the sum of its stated liabilities and identified contingent
liabilities. After giving effect to savings clauses in the
Transaction Documents that limit the liability of Issuers in
certain cases, none of the Issuers or their respective subsidiaries
is, and immediately after the consummation of the issue and sale of
the Securities and the consummation of the other transactions
contemplated by the Transaction Documents:
(i) none of them will be, (x) left
with unreasonably small capital with which to carry on its business
as it is proposed to be conducted, (y) unable to pay its debts
(contingent or otherwise) as they mature or (z) otherwise
insolvent; and
(ii) neither Holdings nor any of its
subsidiaries:
(A) is or will be subject to any
proceedings for its administration ( redressement judiciaire
), is or will be subject to a plan for the transfer of the whole or
part of its business, or is or will be subject to liquidation (
liquidation judiciaire ) and no claim has been requesting
implementation of such proceedings;
(B) is or will be subject to the
administration of a court appointed mediator ( conciliateur
), judicial condition, compulsory manager, receiver (
administrateur judiciaire ), administrator, liquidator (
liquidateur judiciaire ) or other similar office (
mandataire ad hoc ), and no request has been filed and no
negotiations are envisaged for the rehabilitation, administration,
custodianship, liquidation, winding-up or dissolution of Holdings
or any subsidiary;
(C) is or will be unable to settle
its debts (contingent or otherwise) ( passif exigible ) with
realizable assets ( en état de cessation des paiements
) within the meaning of article L 621-1 of the French Commercial
Code or admits in writing its inability to pay its debts as they
fall due;
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(D) is or will be subject to
amicable arrangement proceedings ( procédure de
règlement amiable ), within the meaning of article L.
611-3 of the French Commercial Code; and
(E) has or will commence
negotiations with any of its creditors with a view to the general
readjustment or rescheduling of any of its indebtedness or has made
a general assignment for the benefit of any of its creditors and/or
has entered into any settlement agreement or amicable arrangement
with any of its creditors ( transactions, accord ou
réglement amiable ), or stops, suspends payment of all or
substantially all of its debts or announces an intention to do so,
or a moratorium is declared in respect of any of its
indebtedness.
(aaa) None of the Issuers or their
respective Affiliates, or any person acting on behalf of any of
them (other than the Initial Purchasers as to which the Issuers
make no representation or warranty), has offered or sold or will
offer or sell, directly or indirectly, any Notes to the public in
the Republic of France or has distributed or caused to be
distributed or will distribute or cause to be distributed to the
public in the Republic of France the Preliminary Memorandum, the
Final Memorandum or any other offering material relating to the
Notes, and such offers, sales and distributions will be made in
France only to qualified investors ( investisseurs
qualifiés ) as defined in and in accordance with Articles
L.411-1 and L.411-2 of the French Code Monétaire et
Financier and Decree no. 98-880 dated 1 October
1998.
Any certificate signed by any
officer of any of the Issuers and delivered to the Initial
Purchasers or counsel for the Initial Purchasers pursuant to this
Agreement shall be deemed a representation and warranty by such
Issuer, as to matters covered thereby, to each Initial
Purchaser.
2. Purchase and Sale .
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees
to sell to each Initial Purchaser, and each Initial Purchaser
agrees, severally and not jointly, to purchase from the Company, at
a purchase price equal to 98.5% of the principal amount thereof,
plus accrued interest, if any, from September 1, 2004 to the
Closing Date, the principal amount of Securities set forth opposite
such Initial Purchaser’s name in Schedule I
hereto.
3. Delivery and Payment .
Delivery of and payment for the Securities shall be made at 10:00
A.M., New York City time, on September 1, 2004, or at such time on
such later date (not later than September 9, 2004) as the Initial
Purchasers shall designate, which date and time may be postponed by
agreement between the Initial Purchasers and the Company or as
provided in Section 9 hereof (such date and time of delivery and
payment for the Securities being herein called the “
Closing Date ”). Delivery of the Securities shall be
made to the Initial Purchasers for the respective accounts of the
several Initial Purchasers against payment by the several Initial
Purchasers of the purchase price thereof to or upon the order of
the Company by wire transfer payable in same-day funds to the
account specified by the Company. Delivery of the Securities shall
be made through the facilities of Euroclear Bank S.A./N.V., as
operator of the Euroclear System (“ Euroclear
”), and Clearstream Banking S.A. (“ Clearstream,
Luxembourg ”), or their designated custodian, unless the
Initial Purchasers shall otherwise instruct.
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4. Offering by Initial
Purchasers . Each Initial Purchaser, severally and not jointly,
represents and warrants to and agrees with the Company
that:
(a) It has not offered or sold, and
will not offer or sell, any Securities except (i) to those it
reasonably believes to be qualified institutional buyers (as
defined in Rule 144A under the Act) and that, in connection with
each such sale, it has taken or will take reasonable steps to
ensure that the purchaser of such Securities is aware that such
sale is being made in reliance on Rule 144A or (ii) in accordance
with the restrictions set forth in Exhibit A
hereto.
(b) Neither it nor any person acting
on its behalf has made or will make offers or sales of the
Securities in the United States by means of any form of general
solicitation or general advertising (within the meaning of
Regulation D) in the United States.
(c) The Securities to be purchased
by it on the Closing Date are subject to the terms of the Proceeds
Sharing Agreement.
5. Agreements . The Issuers,
jointly and severally, agree with each Initial Purchaser
that:
(a) The Issuers will furnish to each
Initial Purchaser and to counsel for the Initial Purchasers,
without charge, during the period referred to in paragraph (c)
below, as many copies of the Final Memorandum and any amendments
and supplements thereto as they may reasonably request and the
Final Memorandum as so delivered shall be in form and substance
reasonably satisfactory to Citigroup.
(b) The Issuers will not amend or
supplement the Final Memorandum, other than by filing documents
under the Exchange Act that are incorporated by reference therein,
without the prior written consent of each Initial Purchaser;
provided , however , that prior to the completion of
the distribution of the Securities by the Initial Purchasers (as
determined by the Initial Purchasers), the Issuers will not file
any document under the Exchange Act that is incorporated by
reference in the Final Memorandum unless, prior to such proposed
filing, the Issuers have furnished the Initial Purchasers with a
copy of such document for their review and the Initial Purchasers
have not reasonably objected to the filing of such document. The
Issuers will promptly advise the Initial Purchasers when any
document filed under the Exchange Act that is incorporated by
reference in the Final Memorandum shall have been filed with the
Commission.
(c) If at any time prior to the
completion of the sale of the Securities by the Initial Purchasers
(as determined by the Initial Purchasers), any event occurs as a
result of which the Final Memorandum, as then amended or
supplemented, would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it should be necessary to amend or
supplement the Final Memorandum to comply with applicable law, the
Issuers promptly (i) will notify the Initial Purchasers
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of any such event; (ii) subject to
the requirements of paragraph (b) of this Section 5, will prepare
an amendment or supplement that will correct such statement or
omission or effect such compliance; and (iii) will supply any
supplemented or amended Final Memorandum to the several Initial
Purchasers and counsel for the Initial Purchasers without charge in
such quantities as they may reasonably request.
(d) To the extent an Issuer may do
so under applicable law, the Issuers will arrange, if necessary,
for the qualification of the Securities for sale by the Initial
Purchasers under th
