Exhibit 10.1
Constar International Inc.
$220,000,000
Senior Secured Floating Rate Notes due
2012
Amended and Restated Purchase
Agreement
New York, New York
As of February 3, 2005
Citigroup Global Markets Inc.
Credit Suisse First Boston LLC
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Constar International Inc., a
corporation organized under the laws of Delaware (the “
Company ”), proposes to sell to the several initial
purchasers named in Schedule I hereto (the “ Initial
Purchasers ”), for whom you (the “
Representatives ”) are acting as representatives,
$220,000,000 principal amount of its Senior Secured Floating Rate
Notes due 2012 (3 month LIBOR (as defined in the Indenture) plus
3.375%) (the “ Notes ”). The Notes are to be
fully and unconditionally guaranteed jointly and severally on a
senior basis (each such existing guarantee, a “ Subsidiary
Guarantee ,” and collectively, the “ Subsidiary
Guarantees ” and, together with the Notes, the “
Securities ”) initially by all the United States and
United Kingdom restricted subsidiaries of the Company that are
signatories to this Agreement (each such existing guarantor, a
“ Subsidiary Guarantor ,” and collectively, the
“ Subsidiary Guarantors ”). The Securities are
to be issued under an indenture (the “ Indenture
”) to be dated as of February 11, 2005, among the Company,
the Subsidiary Guarantors and The Bank of New York, as trustee (the
“ Trustee ”). This Agreement amends and restates
in its entirety the Purchase Agreement dated February 3, 2005 among
the parties hereto for the purpose of increasing the principal
amount of Notes purchased hereunder from $210,000,000 to
$220,000,000.
To the extent there are no
additional Initial Purchasers listed on Schedule I hereto other
than you, the term Representatives as used herein shall mean you,
as Initial Purchasers, and the terms Representatives and Initial
Purchasers shall mean either the singular or plural as the context
requires. 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 February 11, 2005 (the “ Registration Rights
Agreement ”) among the Company, the Subsidiary Guarantors
and the Initial Purchasers. Pursuant to the Registration Rights
Agreement, the Company will agree to register the Securities under
the Act subject to the terms and conditions therein
specified.
The Securities will be secured by
liens on certain real property of the Company and the Subsidiary
Guarantors as described in the Final Memorandum (each, a “
Mortgaged Property ” and together, the “
Mortgaged Properties ”) and certain other assets of
the Company and the Subsidiary Guarantors as described in the Final
Memorandum (the “ Pledged Collateral ”), and
documented by the mortgages, deeds of trust or deeds to secure debt
(the “ Mortgages ”) evidencing the liens on the
Mortgaged Properties and by such other documents evidencing and/or
relating to the liens on the Pledged Collateral (together with the
Mortgages, the “ Security Documents ”), in each
case, to the extent and in the manner described in the Final
Memorandum, as contemplated by this Agreement and the
Indenture.
This Agreement, the Securities, the
Indenture, the Registration Rights Agreement, the Security
Documents and the agreements and instruments to which the Company
or any of its subsidiaries is a signatory relating to the issuance
of the Securities contemplated hereby, 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 Company has prepared a preliminary offering
memorandum, dated February 2, 2005 (as amended or supplemented at
the date thereof, including any and all exhibits thereto, the
“ Preliminary Memorandum ”), and a final
offering memorandum dated February 3, 2005 (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 Company and the Securities. The Company hereby
confirms that it has authorized the use of the Preliminary
Memorandum and the Final Memorandum, and 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 Preliminary Memorandum or 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 Company and each of the Subsidiary Guarantors,
jointly and severally represent and warrant to, and agree with,
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 Company and the Subsidiary Guarantors make no
representation or warranty as to the information contained in or
omitted from the Preliminary Memorandum or
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the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity
with information furnished in writing to the Company and the
Subsidiary Guarantors by or on behalf of the Initial Purchasers
specifically for inclusion therein.
(b) Neither the Company or its
Affiliates, or any person acting on behalf of any of them (other
than the Initial Purchasers as to which the Company and the
Subsidiary Guarantors 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) Neither the Company or its
Affiliates, or any person acting on behalf of any of them (other
than the Initial Purchasers as to which the Company and the
Subsidiary Guarantors 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) The Company has not paid or
agreed to pay to any person any compensation for soliciting another
to purchase any securities of the Company (except as contemplated
in this Agreement).
(f) Neither the Company or its
Affiliates, or any person acting on behalf of any of them (other
than the Initial Purchasers as to which the Company and the
Subsidiary Guarantors makes no representation or warranty), has
engaged in any “directed selling efforts” with respect
to the Securities, and the Company and its Affiliates have complied
with the “offering restrictions” requirement of
Regulation S. Terms used in this paragraph have the meanings given
to them by Regulation S.
(g) No securities of the Company 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.
(h) 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.
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(i) Each of the Company, its
Subsidiaries and the Subsidiary Guarantors has been duly
incorporated and is validly existing as a corporation (or if not a
corporation, has been duly formed and is validly existing) under
the laws of the jurisdiction in which it is chartered, incorporated
or organized and, with respect to the Company and any such
Subsidiary Guarantor or Subsidiary incorporated in the United
States, is a corporation in good standing under such laws and, in
all cases, has corporate power and authority to own or lease, as
the case may be, and to operate its properties and conduct its
business as described in the Final Memorandum, and is duly
qualified to do business as a foreign corporation and validly
existing under the laws of each jurisdiction which requires such
qualification, except where the failure to so qualify or be validly
existing would not have a Material Adverse Effect.
(j) All the outstanding shares of
capital stock of each Subsidiary and Subsidiary Guarantor have been
duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Final
Memorandum and assuming consummation of the transactions described
in the Final Memorandum, all outstanding shares of capital stock of
the Subsidiaries and the Subsidiary Guarantors are owned by the
Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest or any other security
interests (other than Permitted Liens (as defined in the
Mortgage)), claims, liens or encumbrances (other than Permitted
Liens), except for any such perfected security interests or other
security interests, claims, liens or encumbrances that would not
have a Material Adverse Effect, except as set forth in the Final
Memorandum.
(k) The Company’s
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, the Company’s 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.
(l) The information to be provided
by the Initial Purchasers 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 light of the circumstances under which they
were made, not misleading.
(m) There is no franchise, contract
or other document of a character required to be described in a
prospectus under the Act, which is not described in the Final
Memorandum; and the statements in the Final Memorandum under the
headings “Material United States Federal Income Tax
Consequences,” “Our Business — Intellectual
Property” and “Our Business — Legal
Proceedings” fairly summarize the matters therein
described.
(n) This Agreement has been duly
authorized, executed and delivered by each of the Company and the
Subsidiary Guarantors and constitutes a valid and binding
obligation of each of the Company and the Subsidiary Guarantors
enforceable in accordance with its terms.
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(o) The Indenture has been duly
authorized, executed and delivered by the Company and the
Subsidiary Guarantors, has been duly qualified under the Trust
Indenture Act, and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a legal, valid and
binding instrument enforceable against each of the Company and the
Subsidiary Guarantors in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors’
rights generally from time to time in effect and to general
principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing,
regardless of whether considered in a proceeding in equity or at
law).
(p) The Notes have been duly
authorized and, when executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers pursuant to this Agreement, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture (subject, as to enforcement of remedies,
to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors’ rights generally from time to
time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a
proceeding in equity or at law).
(q) The Subsidiary Guarantees have
been duly authorized by each Subsidiary Guarantor and, when the
Notes are executed and authenticated in accordance with provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be
valid and binding obligations of each Subsidiary Guarantor,
enforceable in accordance with their terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors’ rights generally from time to time in
effect, and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether considered in a proceeding in
equity or at law), and will be entitled to the benefits of the
Indenture.
(r) The Registration Rights
Agreement has been duly authorized by the Company and, assuming the
due authorization, execution and delivery thereof by the Initial
Purchasers, when executed and delivered by the Company, will
constitute the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and
to general principles of equity, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity
or at law).
(s) No holder of securities of the
Company 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.
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(t) Each of the Security Documents
has been duly authorized, executed and delivered by the Company and
such Subsidiary Guarantor party thereto and assuming the due
authorization, execution and delivery thereof by the other parties
thereto, when executed and delivered by the Company and such
Subsidiary Guarantor, will constitute legal, valid and binding
obligations of the Company and such Subsidiary Guarantor, in each
case enforceable against the Company and such Subsidiary Guarantor
in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws affecting creditors’ rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law).
(u) The Mortgages, once executed and
delivered in connection with the sale of the Notes and when
properly recorded and indexed with the proper governmental
authorities (together with payment of the appropriate filing or
recording fees and any applicable taxes) and the fixture filings
when delivered and filed as required by law to perfect a security
interest with respect to fixtures in the real property subject to
each such Mortgage, will create, in favor of the Trustee (or its
representative in the United Kingdom) for the benefit of the
Secured Parties (as defined in the Security Documents), including
the Trustee on behalf of the holders of the Notes, (i) valid and
enforceable mortgage liens on such real property (except that the
enforcement thereof may be subject to (a) bankruptcy, insolvency,
reorganization, fraudulent transfer, conveyance, voidable
preference, moratorium or other similar laws, regulations or
judicial opinions of general applicability now or hereafter in
effect relating to or affecting creditors’ rights and
remedies generally, and (b) general principles of equity (whether
such principles are considered in a proceeding at law or equity)
and the discretion of the court before which any proceeding
therefor may be brought) and (ii) perfected security interests in
such fixtures or other personal property superior to and prior to
the Liens of all third persons other than the holders of Prior
Liens (as defined in the applicable Mortgage) and subject only to
the Permitted Liens. The other Security Documents, once executed
and delivered in connection with the sale of the Notes, will create
in favor of the Trustee (or its representative in the United
Kingdom) for the benefit of the Secured Parties, including the
Trustee on behalf of the holders of the Notes, valid and
enforceable security interests in the rights of the Company in the
personal property pursuant to which a security interest is to be
granted under the Security Documents and, upon the filing of
appropriate Uniform Commercial Code financing statements and the
taking of the other actions described in the Security Documents,
the security interests in the rights of the Company in the personal
property will be perfected superior to and prior to the Liens of
all third persons other than the holders of Liens on such
Collateral as permitted by the Security Agreement and subject only
to Liens on such Collateral permitted by the Indenture.
(v) Each other Transaction Document
has been duly authorized by the Company and such Subsidiary
Guarantor party thereto and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, when
executed and delivered by the Company will constitute the legal,
valid and binding obligation of the Company and such Subsidiary
Guarantor, enforceable against the Company and such
Subsidiary
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Guarantor in accordance with its
terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors’ rights generally from time to time in
effect and to general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing, regardless of whether considered in a proceeding in
equity or at law).
(w) 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.
(x) None of the Company or any
Subsidiary Guarantor 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 the Company
or any Subsidiary Guarantor will be an “ investment
company ” as defined in the Investment Company Act of
1940, as amended.
(y) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required for the consummation by the Company and
the Subsidiary Guarantors of the transactions contemplated herein,
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 jurisdiction 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 (iii) except where the failure to obtain such
consent, approval, authorization, filing or order would not have a
material adverse effect on the issuance and sale of the Securities
or the consummation of any of the other transactions contemplated
herein.
(z) Neither the issuance and sale of
the Securities nor the consummation of any other of the
transactions contemplated herein nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company, any Subsidiary or any Subsidiary Guarantor
pursuant to (i) the charter, by-laws or other similar
organizational document of the Company, any Subsidiary or any
Subsidiary Guarantor, (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 the Company, any Subsidiary or any Subsidiary Guarantor is a
party or bound or to which its or their property is subject or
(iii) any statute, law, rule, regulation, judgment, order or decree
applicable to the Company, any Subsidiary or any Subsidiary
Guarantor of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having
jurisdiction over the Company, any Subsidiary or any Subsidiary
Guarantor or any of its or their properties, except, in the case of
clauses (ii) and (iii) above for such conflict, breach, violation
or imposition that would not have a material adverse effect on the
issuance
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and sale of the securities or the
consummation of any of the other transactions contemplated
herein.
(aa) The combined historical
financial statements of the Company 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 the Company as of the dates and for the periods
indicated, comply as to form with the applicable accounting
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 financial data set forth under the caption
“Selected Historical Financial Data” in the Final
Memorandum fairly present, on the basis stated in the Final
Memorandum, the information included therein. The summary
historical financial data set forth under the caption
“Summary — Summary Historical and Pro Forma Combined
and Consolidated Financial Data” in the Final Memorandum
fairly present, on the basis stated in the Final Memorandum, the
information included therein. The pro forma financial information
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 financial
statement amounts in the pro forma financial statements included in
the Final Memorandum. The adjustments contained in the pro forma
financial information included in the Final Memorandum have been
properly applied to the historical amounts in the compilation of
such information. The unaudited guarantor and non-guarantor
financial information set forth on pages C-1 through C-10 in the
Final Memorandum fairly present, on the basis stated in the Final
Memorandum, the information included therein.
(bb) 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 the Company, any Subsidiary or any Subsidiary Guarantor
or its or their property is, to the knowledge of the Company,
threatened that (i) could reasonably be expected to have a material
adverse effect on the performance of this Agreement or the
consummation of any of the transactions contemplated hereby or (ii)
would have a Material Adverse Effect.
(cc) Each of the Company and each of
the Subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted,
except where the failure to own or lease such properties would not
have a Material Adverse Effect. All material properties and assets
of the Company and its Subsidiaries are at closing free and clear
of all liens, charges, encumbrances or restrictions, except
Permitted Liens. Each of the Company and its Subsidiaries has good
and marketable title to all personal property it purports to own
(including, without limitation, all Collateral), except Permitted
Liens.
(dd) The Company has not received
any written notice, or has any knowledge, of any existing or
contemplated condemnation proceeding affecting all or any portion
of
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the Mortgaged Property that remains
unresolved, or of any sale or disposition thereof in lieu of
condemnation.
(ee) Neither the Company nor any
Subsidiary is in violation or default of (i) any provision of its
charter, bylaws or other similar organizational document, (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 is subject, or (iii) any statute, law,
rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company
or such Subsidiary or any of its properties, as applicable which is
in full force and effect, except, in the case of clause (ii) or
(iii), for any such violation or default that would not have a
Material Adverse Effect.
(ff) PricewaterhouseCoopers LLP, who
have certified certain financial statements of the Company and its
consolidated subsidiaries and delivered their report with respect
to the audited combined financial statements included in the Final
Memorandum, are independent public accountants with respect to the
Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(gg) There are no transfer taxes or
other similar fees or charges under federal law or the laws of any
state, or any political subdivision thereof, required to be paid by
the Company or any Subsidiary under the Securities, or on account
of the issue and sale by the Company 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.
(hh) None of the Company or any
Subsidiary Guarantor or any of their property or assets has any
immunity from jurisdiction of any court of from any legal
process.
(ii) The Company 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 have a Material Adverse Effect) and has paid all taxes required
to be paid by it 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
currently being contested in good faith or as would not have a
Material Adverse Effect.
(jj) No labor problem or dispute
with the employees of the Company or any of its Subsidiaries exists
or, to the Company’s knowledge, is threatened or imminent,
and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its
Subsidiaries’ principal suppliers, contractors or customers,
that could have a Material Adverse Effect.
(kk) The Company and each Subsidiary
are 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
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fidelity or surety bonds insuring
the Company or any Subsidiary or their respective businesses,
assets, employees, officers and directors are in full force and
effect; the Company and the Subsidiaries are in compliance with the
terms of such policies and instruments in all material respects;
and there are no claims by the Company or any Subsidiary under any
such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause
that would have a Material Adverse Effect; neither the Company nor
any Subsidiary has been refused any insurance coverage sought or
applied for; and neither the Company nor any Subsidiary has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material
Adverse Effect.
(ll) No Subsidiary is currently
prohibited, directly or indirectly, from paying any dividends to
the Company, from making any other distribution on such
Subsidiary’s capital stock, from repaying to the Company any
loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary’s property or assets to
the Company or any other Subsidiary, except as described in or
contemplated by the Final Memorandum.
(mm) The Company and each of the
Subsidiaries possess all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective
businesses, except where the failure to possess such licenses,
certificates, permits or other authorizations would not have a
Material Adverse Effect, and neither the Company nor any such
Subsidiary 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 have a Material
Adverse Effect.
(nn) Other than as set forth in the
Final Memorandum, the Company, each Subsidiary and each Subsidiary
Guarantor maintain 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.
(oo) The Company has not taken,
directly or indirectly, any action that has constituted or that was
designed to, or might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation
of the price of any security of the Company to facilitate the sale
or resale of the Securities.
(pp) Except as set forth in the
Final Memorandum, the Company and the Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants
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(“ Environmental Laws
”), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under
applicable Environmental Laws which are necessary to conduct their
respective businesses and (iii) have not received notice of any
actual or potential liability for the investigation or remediation
of any disposal or release of hazardous or toxic substances or
wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive or
comply with required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a
Material Adverse Effect. Except as set forth in the Final
Memorandum, neither the Company nor any of the Subsidiaries has
been named as a “potentially responsible party” under
the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(qq) In the ordinary course of its
business, the Company periodically reviews the effect of
Environmental Laws on the business, operations and properties of
the Company and the Subsidiaries, in the course of which it seeks
to identify and evaluate associated material costs and liabilities
(including, without limitation, any material capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect.
(rr) Each of the Company and the
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 (“
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 the Company
and the Subsidiaries are eligible to participate and each such plan
is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and the Subsidiaries have not incurred
any unpaid liability to the Pension Benefit Guaranty Corporation
(other than for the payment of premiums in the ordinary course) or
to any such plan under Title IV of ERISA.
(ss) As of the Closing Date, the
subsidiaries listed on Exhibit A attached hereto will be the
only significant subsidiaries of the Company as defined by Rule
1-02 of Regulation S-X (the “ Subsidiaries
”).
(tt) None of the Company, its
Subsidiaries or, 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 violation by such Persons of
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
-11-
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.
(uu) The Company or the Subsidiaries
own, possess, license or have other rights to use, all patents,
patent applications, trade and service marks, trade and service
mark registrations, trade names, copyrights, inventions, trade
secrets, technology, know-how and other intellectual property
(collectively, the “ Intellectual Property ”)
necessary for the conduct of their respective businesses as now
conducted or as proposed in the Final Memorandum to be conducted,
except where the failure to own, possess, license or have other
such rights would not have a Material Adverse Effect. Except as set
forth in the Final Memorandum, (i) there are no rights of third
parties to any such Intellectual Property, except for commercial
shrink-wrap software; (ii) there is no pending or, to the knowledge
of the Company, threatened action, suit, proceeding or claim by any
third party challenging the Company’s or the
Subsidiaries’ rights in or to any such Intellectual Property
that would have a Material Adverse Effect, and the Company is
unaware of any facts which would form a reasonable basis for any
such claim; (iii) there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or claim by any third
party challenging the validity or scope of any such Intellectual
Property that would have a Material Adverse Effect, and the Company
is unaware of any facts which would form a reasonable basis for any
such claim; (iv) there is no pending or, to the knowledge of the
Company, threatened action, suit, proceeding or claim by any third
party that the Company or any Subsidiary infringes or otherwise
violates any patent, trademark, copyright, trade secret or other
proprietary rights of others that would have a Material Adverse
Effect, and the Company is unaware of any other fact which would
form a reasonable basis for any such claim; (v) to the knowledge of
the Company, there is no valid and subsisting U.S. patent or
published U.S. patent application that would preclude the Company
from practicing any material Intellectual Property that is owned by
or licensed to the Company or any Subsidiary; and (vi) to the
knowledge of the Company, all material patents owned by the Company
or the Subsidiaries are valid and enforceable.
(vv) The statements contained in the
Final Memorandum under the captions “Risk Factors — We
enjoy only limited protection for our intellectual property,”
“Risk Factors — Liabilities pursuant to current or
future lawsuits and claims could adversely affect our results of
operations and financial position,” and “Business
— Intellectual Property,” insofar as such statements
summarize legal matters, agreements, documents, or proceedings
discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings.
Any certificate signed by any
officer of the Company or any Subsidiary Guarantor and delivered to
the Representatives or counsel for the Initial
Purchasers
