Exhibit 1.1
EXECUTION VERSION
ZIFF DAVIS MEDIA INC.
THE GUARANTORS LISTED ON SCHEDULE I
HERETO
$205,000,000
Senior Secured Floating Rate Notes due
2012
Purchase Agreement
April 18, 2005
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
1
ZIFF DAVIS MEDIA INC.
$205,000,000
Senior Secured Floating Rate Notes due
2012
PURCHASE AGREEMENT
April 18, 2005
New York, New York
BEAR, STEARNS & CO. INC.
LEHMAN BROTHERS INC.
c/o Bear Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Ladies &
Gentlemen:
Ziff Davis Media
Inc., a Delaware corporation (the “ Company
”), proposes to issue and sell to Bear, Stearns & Co.
Inc. (“ Bear Stearns ”) and Lehman
Brothers Inc. (each an “ Initial Purchaser
” and collectively, the “ Initial
Purchasers ”) $205,000,000 in aggregate principal
amount of Senior Secured Floating Rate Notes due 2012 (the “
Initial Notes ”), subject to the terms and
conditions set forth herein. The Notes (as defined) will be issued
pursuant to an indenture (the “ Indenture
”), to be dated as of the Closing Date (as defined), among
the Company, the Guarantors (as defined) and U.S. Bank National
Association, as trustee (the “ Trustee
”). The Notes will be fully and unconditionally guaranteed
(the “ Guarantees ”) as to payment of
principal, interest, premium and liquidated damages, if any, on a
senior secured basis, jointly and severally by each entity listed
on Schedule I hereto (collectively, the “
Guarantors ”).
The
Company and the Guarantors have agreed to secure the Notes and the
Guarantees on a first priority senior secured basis prior to all
other Liens (as defined in the Offering Memorandum (as defined))
except for Permitted Prior Liens (as defined in the Offering
Memorandum). The Liens securing other First Lien Obligations (as
defined in the Offering Memorandum) will be equal and ratable (
pari passu ) with the Liens securing the Notes and the
Guarantees.
1.
Issuance of Securities. The Company proposes, upon the terms
and subject to the conditions set forth herein, to issue and sell
to the Initial Purchasers an aggregate of $205,000,000 in principal
amount of Initial Notes. The Initial Notes and the Exchange Notes
(as defined) issuable in exchange therefor are collectively
referred to herein as the “ Notes
.”
Upon original
issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the Securities Act of
1933, as amended (the “ Act ”), the
Initial Notes (and all securities issued in exchange therefor or in
substitution thereof) shall bear the following legend:
“THE SECURITY (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND THE SECURITY EVIDENCED HEREBY
MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT
THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT. THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF ZIFF DAVIS MEDIA INC.
THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (1) (a) IN THE UNITED STATES TO A PERSON WHO
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (c) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (d) TO AN
INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED IN RULE
501 (a) (1), (2), (3) OR (7) OF THE SECURITIES ACT) THAT,
PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO ZIFF DAVIS MEDIA INC.
THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT OR
(e) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL IF ZIFF DAVIS MEDIA INC. SO REQUESTS), (2) TO ZIFF
DAVIS MEDIA INC. OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET FORTH
IN (A) ABOVE.”
2.
Offering . The Initial Notes will be offered and sold to the
Initial Purchasers pursuant to an exemption from the registration
requirements under the Act. The Company has prepared a preliminary
offering memorandum, dated April 7, 2005 (the “
Preliminary Offering Memorandum ”), and a final
offering memorandum, dated April 18, 2005 (the “
Offering Memorandum ”), relating to the
Company, its subsidiaries and Ziff Davis Holdings (“
Holdings ”) and the Notes.
The
Initial Purchasers have advised the Company that the Initial
Purchasers will make offers (the “ Exempt
Resales ”) of the Initial Notes on the terms set
forth in the Offering Memorandum, as amended or supplemented,
solely to (i) persons whom the Initial Purchasers reasonably
believe to be “qualified institutional buyers,” as
defined in Rule 144A under the Act (“ QIBs
”) and (ii) non-U.S. persons outside the United States
in reliance upon Regulation S
(“
Regulation S ”) under the Act (each, a
“ Reg S Investor ”). The QIBs and the Reg
S Investors are collectively referred to herein as the “
Eligible Purchasers .” The Initial Purchasers
will offer the Initial Notes to such Eligible Purchasers initially
at a price equal to 100% of the principal amount thereof. Such
price may be changed at any time without notice.
Holders (including
subsequent transferees) of the Initial Notes will have the
registration rights set forth in the registration rights agreement
relating thereto (the “ Registration Rights
Agreement ”), to be dated the Closing Date, for so
long as such Initial Notes constitute “Transfer Restricted
Securities.” Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the
Securities and Exchange Commission (the “
Commission ”), under the circumstances set
forth therein, (i) a registration statement under the Act (the
“ Exchange Offer Registration Statement
”) relating to the Company’s Senior Secured Floating
Rate Notes due 2012 (the “ Exchange Notes
”) and Guarantees thereof to be offered in exchange for the
Initial Notes and Guarantees thereof (the “ Exchange
Offer ”) and (ii) under certain circumstances, a
shelf registration statement pursuant to Rule 415 under the
Act (the “ Shelf Registration Statement ”
and, together with the Exchange Offer Registration Statement, the
“ Registration Statements ”) relating to
the resale by certain holders of the Initial Notes, and to use
their commercially reasonable efforts to cause such Registration
Statements to be declared effective and to consummate the Exchange
Offer. This Agreement, the Notes, the Guarantees, the Indenture,
the Registration Rights Agreement and the Security Documents (as
defined in the Offering Memorandum) are hereinafter referred to
collectively as the “ Operative Documents
.”
3.
Purchase, Sale and Delivery (a) . (a) On the basis of
the representations, warranties and covenants contained in this
Agreement, and subject to its terms and conditions, the Company
agrees to issue and sell to the Initial Purchasers, and each
Initial Purchaser agrees, severally and not jointly, to purchase
from the Company, the principal amounts of the Initial Notes set
forth opposite the name of such Initial Purchaser on
Schedule III . The purchase price for the Initial Notes
will be $975 per $1,000 principal amount Initial Note.
(b) Delivery
of the Initial Notes shall be made, against payment of the purchase
price therefor, at the offices of Latham & Watkins LLP, New
York, New York or such other location as may be mutually
acceptable. Such delivery and payment shall be made at 9:00 a.m.,
New York City time, on April 22, 2005 or at such other time as
shall be agreed upon by the Initial Purchasers and the Company. The
time and date of such delivery and payment are herein called the
“ Closing Date .”
(c) On the
Closing Date, one or more Initial Notes in definitive global form,
registered in the name of Cede & Co., as nominee of The
Depository Trust Company (“ DTC ”),
having an aggregate amount corresponding to the aggregate principal
amount of the Initial Notes (the “ Global Notes
”) sold pursuant to Exempt Resales to Eligible Purchasers
shall be delivered by the Company to the Initial Purchasers (or as
the Initial Purchasers direct), against payment by the Initial
Purchasers of the purchase price therefor, by wire transfer of same
day funds, to an account designated by the Company; provided
that the Company shall give at least two business days’ prior
written notice to the Initial Purchasers of the information
required to effect such wire transfer. The Global Notes shall be
made available to the Initial Purchasers for inspection not later
than 5:00 p.m., New York City time, on the business day immediately
preceding the Closing Date.
4.
Agreements of the Company and the Guarantors . Each of the
Company and the Guarantors covenants and agrees with the Initial
Purchasers as follows:
(a) To advise the
Initial Purchasers promptly and, if requested by the Initial
Purchasers, confirm such advice in writing (i) of the issuance
by any state securities commission or other regulatory authority of
any stop order or order suspending the qualification or exemption
from qualification of any Notes or the Guarantees thereof for
offering or sale in any jurisdiction, or the initiation of any
proceeding for such purpose by any state securities commission or
other regulatory authority and (ii) of the happening of any
event that makes any statement of a material fact made in the
Preliminary Offering Memorandum or the Offering Memorandum untrue
or that requires the making of any additions to or changes in the
Preliminary Offering Memorandum or the Offering Memorandum in order
to make the statements therein, in the light of the circumstances
under which they are made, not misleading. The Company and the
Guarantors shall use their respective best efforts to prevent the
issuance of any stop order or order suspending the qualification or
exemption from qualification of any Notes or the Guarantees thereof
under any state securities or Blue Sky laws and, if at any time any
state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of any Notes or the Guarantees thereof under any
state securities or Blue Sky laws, the Company and the Guarantors
shall use their respective reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest possible
time.
(b) To furnish the
Initial Purchasers and those persons identified by the Initial
Purchasers to the Company, without charge, as many copies of the
Preliminary Offering Memorandum and the Offering Memorandum, and
any amendments or supplements thereto, as the Initial Purchasers
may reasonably request. The Company and the Guarantors consent to
the use of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) Not to amend
or supplement the Preliminary Offering Memorandum or the Offering
Memorandum during such period as in the opinion of counsel for the
Initial Purchasers the Preliminary Offering Memorandum or the
Offering Memorandum is required by law to be delivered in
connection with Exempt Resales and in connection with market-making
activities of the Initial Purchasers for so long as any Initial
Notes are outstanding unless the Initial Purchaser previously has
been advised thereof and has not objected thereto within a
reasonable time after being furnished a copy thereof. The Company
and the Guarantors shall promptly prepare, upon the Initial
Purchasers’ request, any amendment or supplement to the
Preliminary Offering Memorandum or the Offering Memorandum that may
be reasonably necessary or advisable in connection with such Exempt
Resales or such market-making activities.
(d) If, during the
period referred to in 4(c) above, any event occurs as a result of
which, in the judgment of the Company and the Guarantors or in the
reasonable opinion of counsel for the Company and the Guarantors or
counsel for the Initial Purchaser, it becomes necessary or
advisable to amend or supplement the Preliminary Offering
Memorandum or the Offering Memorandum in order to make the
statements therein, in the light of the circumstances when such
Preliminary Offering Memorandum or Offering Memorandum is delivered
to an Eligible Purchaser, not misleading, or if it is necessary or
advisable to amend or supplement the Preliminary Offering
Memorandum or the Offering Memorandum to comply with applicable
law, (i) to notify the Initial Purchasers and
(ii) forthwith to prepare an appropriate amendment or
supplement to such
Preliminary Offering Memorandum or the Offering
Memorandum so that the statements therein as so amended or
supplemented will not, in the light of the circumstances when it is
so delivered, be misleading, or so that such Preliminary Offering
Memorandum or the Offering Memorandum will comply with applicable
law.
(e) To cooperate
with the Initial Purchasers and counsel for the Initial Purchaser
in connection with the qualification or registration of the Initial
Notes and the Guarantees thereof under the securities or Blue Sky
laws of such jurisdictions as the Initial Purchasers may reasonably
request and to continue such qualification in effect so long as
required for the Exempt Resales; provided, however , that
neither the Company nor any Guarantor shall be required in
connection therewith to register or qualify as a foreign
corporation or a foreign limited liability company where it is not
now so qualified or to take any action that would subject it to
service of process in suits or taxation, in each case, other than
as to matters and transactions relating to the Preliminary Offering
Memorandum, the Offering Memorandum or Exempt Resales, in any
jurisdiction where it is not now so subject.
(f) Whether or not
the transactions contemplated by this Agreement are consummated or
this Agreement becomes effective or is terminated, to pay all
costs, expenses, fees and taxes incident to the performance of the
obligations of the Company and the Guarantors hereunder, including
in connection with: (i) the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum and the
Offering Memorandum (including, without limitation, financial
statements) and all amendments and supplements thereto required
pursuant hereto, (ii) the issuance, transfer and delivery of
the Initial Notes and the Guarantees thereof to the Initial
Purchasers, (iii) the qualification or registration of the
Notes and the Guarantees thereof for offer and sale under the
securities or Blue Sky laws of the several states (including,
without limitation, the cost of printing and mailing a preliminary
and final Blue Sky memorandum and the reasonable fees and
disbursements of counsel for the Initial Purchaser relating
thereto, which fees and disbursements shall be limited to $7,500),
(iv) the furnishing of such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be requested for use in connection with
Exempt Resales, (v) the preparation of certificates for the
Notes (including, without limitation, printing and engraving
thereof), (vi) the fees, disbursements and expenses of the
Company’s and the Guarantors’ counsel and accountants,
(vii) all fees and expenses (including fees and expenses of
counsel) of the Company and the Guarantors in connection with the
approval of the Notes by DTC for “book-entry” transfer,
(viii) the rating of the Notes by rating agencies,
(ix) the reasonable fees and expenses of the Trustee and its
counsel, (x) the performance by the Company and the Guarantors
of their other obligations under this Agreement and the other
Operative Documents and (xi) “roadshow” travel and
other expenses incurred by Company personnel (including expenses
incurred in chartering a plane) in connection with the marketing
and sale of the Notes. It is understood that the Initial Purchasers
will bear their own expenses (other than expenses incurred in
chartering a plane) in connection with this offering, including
fees and disbursements of counsel and travel expenses whether
associated with the “roadshow” or otherwise.
(g) To use the
proceeds from the sale of the Initial Notes in the manner described
in the Offering Memorandum under the caption “Use of
Proceeds.”
(h) Not to
voluntarily claim, and to resist actively any attempts to claim,
the benefit of any usury laws against the holders of any
Notes.
(i) Not to sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Act) that would be
integrated with the sale of the Initial Notes in a manner that
would require the registration under the Act of the sale to the
Initial Purchasers or the Eligible Purchasers of the Initial Notes
or to take any other action that would result in the Exempt Resales
not being exempt from registration under the Act.
(j) For so long as
any of the Notes remain outstanding and during any period in which
the Company and the Guarantors are not subject to Section 13
or 15(d) of the Securities Exchange Act of 1934, as amended (the
“ Exchange Act ”), to make available to
any holder or beneficial owner of Initial Notes in connection with
any sale thereof and any prospective purchaser of such Initial
Notes from such holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act.
(k) To cause the
Exchange Offer to be made in the appropriate form to permit
registered Exchange Notes and the Guarantees thereof to be offered
in exchange for the Initial Notes and the Guarantees thereof and to
comply with all applicable federal and state securities laws in
connection with the Exchange Offer.
(l) To comply with
all of its agreements set forth in the representation letters to
DTC relating to the approval of the Notes by DTC for
“book-entry” transfer.
(m) To effect the
inclusion of the Notes in The PORTAL SM Market (“ PORTAL ”)
and to obtain approval of the Initial Notes by DTC for
“book-entry” transfer.
(n) To the extent
not publicly available through electronic means, during a period of
five years following the Closing Date, to deliver without charge to
the Initial Purchasers, as they may reasonably request, promptly
upon their becoming available, copies of (i) all reports or
other publicly available information that the Company and the
Guarantors mail or otherwise make available to their
securityholders and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the
Commission or any national securities exchange and such other
publicly available information concerning the Company or any of its
subsidiaries, including without limitation, press
releases.
(o) Prior to, but
not after, the Closing Date, to furnish to the Initial Purchasers,
as soon as they have been prepared in the ordinary course by the
Company, copies of any unaudited interim financial statements for
any period subsequent to the periods covered by the financial
statements in the Offering Memorandum.
(p) Not to take,
directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or
manipulation of the price of any security of the Company to
facilitate the sale or resale of the Notes. Except as permitted by
the Act, neither the Company nor any Guarantor will distribute any
(i) preliminary offering memorandum, including, without limitation,
the Preliminary Offering Memorandum, (ii) offering memorandum,
including, without limitation, the
Offering Memorandum, or (iii) other
offering material in connection with the offering and sale of the
Notes.
(q) Prior to the
Closing Date, not to issue any press release or other
communications directly or indirectly or hold any press conference
with respect to the issuance of the Initial Notes, the Company or
any of its subsidiaries, the properties, business, results of
operations, condition (financial or otherwise), affairs or
prospects of the Company or any of its subsidiaries, without the
prior consent of the Initial Purchasers, such consent not to be
unreasonably withheld or delayed.
(r) To comply with
the agreements in the Indenture, the Registration Rights Agreements
and each other Operative Document.
(s) To use its
reasonable best efforts to do and perform all things necessary to
perfect a first priority security interest in the Collateral that
can be perfected by the filing of a mortgage, UCC financing
statement or a United States intellectual property
filing.
(t) To use its
reasonable best efforts to do and perform all things required or
necessary to be done to cause Ziff Davis Publishing Inc. to
promptly be duly qualified and in good standing as a foreign
corporation authorized to do business in the States of Illinois,
Massachusetts, Florida and Washington to the extent the nature of
Ziff Davis Publishing Inc.’s business or its ownership or
leasing of property requires such qualification.
(u) To use its
reasonable best efforts to do and perform all things required or
necessary to be done and performed under this Agreement and the
other Operative Documents prior to or after the Closing Date and to
satisfy all conditions precedent on its part to the delivery of the
Initial Notes and the Guarantees thereof.
5.
Representations and Warranties . (a) (a) As of the date
hereof and the Closing Date, the Company and the Guarantors,
jointly and severally, represent and warrant to the Initial
Purchaser that:
(i) The
Preliminary Offering Memorandum as of its date did not, and the
Offering Memorandum as of its date did not, and as of the Closing
Date will not, and any supplement or amendment to them will not,
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that the representations and warranties contained in this paragraph
shall not apply to statements in or omissions from the Preliminary
Offering Memorandum and the Offering Memorandum (or any supplement
or amendment thereto) made in reliance upon and in conformity with
information relating to the Initial Purchaser furnished to the
Company and the Guarantors in writing by the Initial Purchaser
expressly for use therein. No stop order preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any
amendment or supplement thereto, or any order asserting that any of
the transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(ii) Each of the
Company and the Guarantors, (A) has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of
the
State of Delaware, (B) has all requisite corporate power and
authority to carry on its business as it is currently being
conducted and as described in the Offering Memorandum and to own,
lease and operate its properties, and (C) is duly qualified
and is in good standing as a foreign corporation authorized to do
business in each jurisdiction in which the nature of its business
or its ownership or leasing of property requires such qualification
(other than the States of Illinois, Massachusetts, Florida and
Washington), except where the failure to be so qualified could not
reasonably be expected to (1) result, individually or in the
aggregate, in a material adverse effect on the properties,
business, results of operations, condition (financial or
otherwise), or prospects of the Company and the Guarantors, taken
as a whole, (2) materially interfere with or adversely affect
the issuance or marketability of the Notes or (3) draw into
question, in any material respect, the validity of this Agreement
or any other Operative Document or the transactions described in
the Offering Memorandum under the caption “Use of
Proceeds” (any of the events set forth in clauses (1),
(2) or (3), a “ Material Adverse Effect
”).
(iii) As of the
date hereof, the Company has no subsidiaries other than the
entities listed on Schedule II hereto.
(iv) All the
outstanding shares of capital stock of each subsidiary of the
Company are owned, directly or indirectly, by the Company except as
set forth on Schedule IV hereto, free and clear of any
security interest, claim, lien, limitation on voting rights or
encumbrance (subject to Permitted Prior Liens); and all such
securities have been duly authorized, validly issued and are fully
paid and nonassessable and were not issued in violation of any
preemptive or similar rights.
(v) There are not
currently any outstanding subscriptions, rights, warrants, calls,
commitments of sale or options to acquire, or instruments
convertible into or exchangeable for, any capital stock or other
equity interest of the Company or any of the Guarantors (other than
Holdings).
(vi) When the
Initial Notes and the Guarantees thereof are issued and delivered
pursuant to this Agreement, no Initial Note or Guarantee thereof
will be of the same class (within the meaning of Rule 144A
under the Act) as securities of the Company or any Guarantor that
are listed on a national securities exchange registered under
Section 6 of the Exchange Act or that are quoted in a United
States automated inter-dealer quotation system.
(vii) Each of the
Company and the Guarantors has all requisite corporate power and
authority to execute, deliver and perform its obligations under
this Agreement and each of the other Operative Documents to which
it is a party and to consummate the transactions contemplated
hereby and thereby, including, without limitation, the corporate
power and authority to issue, sell and deliver the Notes and to
issue and deliver the Guarantees thereof, as the case may be, as
provided herein and therein.
(viii) This
Agreement has been duly and validly authorized, executed and
delivered by the Company and each Guarantor and (assuming due
execution by the Initial Purchasers) is the legal, valid and
binding agreement of the Company and each Guarantor, enforceable
against each of them in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting the rights
and remedies of creditors generally and subject to
general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding in equity or at law) and except as to rights of
indemnification and contribution hereunder may be limited by
Federal or state securities laws or principles of public
policy.
(ix) The Indenture
has been duly and validly authorized by the Company and each
Guarantor and, when duly executed (assuming due execution by the
Trustee) and delivered by the Company and each Guarantor, will be
the legal, valid and binding agreement of the Company and each
Guarantor, enforceable against each of them in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally and subject to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding in equity or at law) and
except as to rights of indemnification and contribution hereunder
may be limited by Federal or state securities laws or principles of
public policy. On the Closing Date, the Indenture will conform in
all material respects to the requirements of the Trust Indenture
Act of 1939, as amended (the “ Trust Indenture
Act ”), and the rules and regulations of the
Commission applicable to an indenture that is qualified
thereunder.
(x) The
Registration Rights Agreement has been duly and validly authorized
by the Company and each Guarantor and, when duly executed (assuming
due execution by the Initial Purchasers) and delivered by the
Company and each Guarantor, will be the legal, valid and binding
obligation of the Company and each Guarantor, enforceable against
each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the rights and remedies of
creditors generally and subject to general principles of equity,
including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a
proceeding in equity or at law) and except as to rights of
indemnification and contribution hereunder may be limited by
Federal or state securities laws or principles of public
policy.
(xi) The Initial
Notes have been duly and validly authorized by the Company for
issuance and sale to the Initial Purchasers pursuant to this
Agreement and, when issued and authenticated in accordance with the
terms of the Indenture and delivered against payment therefor in
accordance with the terms hereof and thereof, will be the legal,
valid and binding obligations of the Company, enforceable against
it in accordance with their terms and entitled to the benefits of
the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally and
subject to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding in equity or at
law) and except as to rights of indemnification and contribution
hereunder may be limited by Federal or state securities laws or
principles of public policy.
(xii) The
Guarantees of the Initial Notes have been duly and validly
authorized by each of the Guarantors and, when executed and
delivered in accordance with the terms of the Indenture and when
the Initial Notes have been issued and authenticated in accordance
with the terms of the Indenture and delivered against payment
therefor in accordance with the terms hereof and thereof, will be
the legal, valid
and
binding obligations of each of the Guarantors, enforceable against
each of them in accordance with their terms and entitled to the
benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the rights and remedies of creditors
generally and subject to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding in equity or at law) and except as to rights of
indemnification and contribution hereunder may be limited by
Federal or state securities laws or principles of public
policy.
(xiii) The
Exchange Notes have been duly and validly authorized for issuance
by the Company and, when issued and authenticated in accordance
with the terms of the Exchange Offer, the Registration Rights
Agreement and the Indenture, will be the legal, valid and binding
obligations of the Company, enforceable against it in accordance
with their terms and entitled to the benefits of the Indenture,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
the rights and remedies of creditors generally and subject to
general principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding in equity or at law) and
except as to rights of indemnification and contribution hereunder
may be limited by Federal or state securities laws or principles of
public policy.
(xiv) The
Guarantees of the Exchange Notes have been duly and validly
authorized by each of the Guarantors and, when executed and
delivered in accordance with the terms of the Indenture and when
the Exchange Notes have been issued and authenticated in accordance
with the terms of the Exchange Offer, the Registration Rights
Agreement and the Indenture, will be the legal, valid and binding
obligations of each of the Guarantors, enforceable against each of
them in accordance with their terms and entitled to the benefits of
the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting the rights and remedies of creditors generally and
subject to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding in equity or at
law) and except as to rights of indemnification and contribution
hereunder may be limited by Federal or state securities laws or
principles of public policy.
(xv) Each of the
Security Documents has been duly authorized by the Company and the
Guarantors and, when duly executed and delivered by the Company and
the Guarantors, will be the legal, valid and binding agreement of
the Company and the Guarantors, enforceable against the Company and
such Guarantor in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent transfer, fraudulent conveyance,
reorganization, moratorium and similar laws affecting the rights
and remedies of creditors generally and subject to general
principles of equity, including principles of commercial
reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding in equity or at law) and
except as to rights of indemnification and contribution hereunder
may be limited by Federal or state securities laws or principles of
public policy.
(xvi) Upon the:
(1) execution and delivery to the Collateral Trustee (as
defined in the Offering Memorandum) and the Trustee of each of the
Security Documents and (2) filing of the UCC-1 financing
statements as contemplated by the Security
Documents, the Collateral Trustee for the
benefit of the holders of the Notes will have a valid, duly
perfected, first priority security interest (subject to Permitted
Liens (as defined in the Offering Memorandum)) in all of the
Collateral (as defined in the Offering Memorandum) other than items
that cannot be perfected by the filing of a UCC financing
statement, a mortgage filing or a United States intellectual
property filing , subject to any filings required for or
Intellectual Property (as defined herein), if applicable, Liens
permitted by the Security Documents, as security for the payment of
the obligations of the Company and the Guarantors under the
Operative Documents.
(xvii) Each of the
Company and the Guarantors is not (A) in violation of its
charter or bylaws or other organizational documents, (B) in
default in the performance of any bond, debenture, note, indenture,
mortgage, deed of trust or other agreement or instrument to which
it is a party or by which it is bound or to which any of its
properties is subject that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect or
(C) in violation of any law, rule, regulation, ordinance,
directive, judgment, decree or order of any judicial, regulatory,
administrative or other legal or governmental agency or body,
foreign or domestic that, individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect. To the
best knowledge of the Company and the Guarantors, there exists no
condition that, with notice, the passage of time or otherwise,
would constitute a default under any such document or instrument,
law, rule regulation or order.
(xviii) None of
(A) the execution, delivery or performance by the Company or
any Guarantor of this Agreement or any of the other Operative
Documents to which it is a party, (B) the issuance and sale of
the Notes and the issuance of the Guarantees or (C) the
consummation by the Company of the transactions described in the
Offering Memorandum under the caption “Use of
Proceeds,” violates, conflicts with or constitutes a breach
of any of the terms or provisions of, or will violate, conflict
with or constitute a breach of any of the terms or provisions of,
or a default under (or an event that with notice or the lapse of
time, or both, would constitute a default under), or require
consent under, or result in the imposition of a lien or encumbrance
on any properties of the Company or any of the Guarantors, or an
acceleration of any indebtedness of the Company or any of the
Guarantors pursuant to, (1) the charter or bylaws or other
organizational documents of the Company or any of the Guarantors,
(2) any bond, debenture, note, indenture, mortgage, deed of
trust or other agreement or instrument to which the Company or any
of the Guarantors is a party or by which any of them is bound or to
which any of their properties are subject, (3) any statute,
rule or regulation applicable to the Company or any of the
Guarantors or any of their assets or properties or (4) any
law, rule, resolution, ordinance, judgment, order or decree of any
court or governmental agency, body or authority or administrative
agency having jurisdiction over the Company or any of the
Guarantors or any of their assets or properties except in the cases
of clauses (2), (3) and (4) for such violations,
conflicts, breaches or defaults that, individually or in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect.
(xix) No consent,
approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, (A) any court or
governmental agency, body or authority or administrative agency or
(B) any other person is required for (1) the execution,
delivery and performance by each of the Company and the Guarantors
of this Agreement or any of the other Operative Documents to which
it is a party or (2) the
issuance and sale of the
Notes, the issuance of the Guarantees and the transactions
contemplated hereby and thereby except (x) such as have been
or will be obtained and made on or prior to the Closing Date or
(y) in the case of the Registration Rights Agreement, will be
obtained and made under the Act, the Trust Indenture Act, and state
securities or Blue Sky laws and regulations.
(xx) There is
(A) no action, suit, investigation or proceeding before or by
any court, arbitrator or governmental agency, body or authority or
administrative agency, domestic or foreign, now pending or, to the
best knowledge of the Company and the Guarantors, threatened or
contemplated to which the Company or any of the Guarantors is or
may be a party or to which the assets or property of the Company or
any of the Guarantors, is or may be subject, (B) no statute,
rule, regulation or order that has been enacted, adopted or issued
by any governmental agency, body or authority or administrative
agency or that has been proposed by any governmental agency, body
or authority or administrative agency and (C) no injunction,
restraining order or order of any nature by a federal or state
court or foreign court of competent jurisdiction to which the
Company or any of the Guarantors is or may be subject or to which
the business, assets or property of the Company or any of the
Guarantors is or may be subject, that, in the case of clauses (A),
(B) and (C) above, (1) is required to be disclosed
in the Preliminary Offering Memorandum and the Offering Memorandum
and that is not so disclosed pursuant to Regulation S-K under
the Act if the Preliminary Offering Memorandum and the Offering
Memorandum were a prospectus included in a registration statement
on Form S-1 filed with the Commission or (2) would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(xxi) To the
knowledge of the Company and the Guarantors (after reasonable
investigation), no action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any
governmental agency that prevents the issuance of the Notes or the
Guarantees or prevents or suspends the use of the Offering
Memorandum; no injunction, restraining order or order of any nature
by a federal or state court of competent jurisdiction has been
issued that prevents the issuance of the Notes or the Guarantees or
prevents or suspends the sale of the Notes or the Guarantees in any
jurisdiction referred to in Section 4(e) hereof; and every request
of any securities authority or agency of any jurisdiction for
additional information has been complied with in all material
respects.
(xxii) The
statements set forth in the Offering Memorandum under the captions
“Description of Notes”, “Certain Relationships
and Related Transactions,” “Security,”
“Description of Other Obligations,” “Certain
United States Federal Income Tax Considerations” and
“Plan of Distribution” insofar as they purport to
constitute a summary of the terms of the Notes, and insofar as they
purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair in all
material respects.
(xxiii) There is
(A) no significant unfair labor practice complaint pending
against the Company or any of its subsidiaries nor, to the best
knowledge of the Company and the Guarantors, threatened against any
of them, before the National Labor Relations Board, any state or
local labor relations board or any foreign labor relations board,
and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is so
pending against the Company or any of the
Guarantors or, to the best knowledge of the
Company and the Guarantors, threatened against any of them,
(B) no significant strike, labor dispute, slowdown or stoppage
pending against the Company or any of the Guarantors nor, to the
best knowledge of the Company and the Guarantors, threatened
against any of them and (C) to the best knowledge of the
Company and the Guarantors, no union representation question
existing with respect to the employees of the Company or any of the
Guarantors. To the best knowledge of the Company and the
Guarantors, no collective bargaining organizing activities are
taking place with respect to the Company or any of the Guarantors.
Neither the Company nor any of the Guarantors has violated (A) any
federal, state or local law or foreign law relating to
discrimination in hiring, promotion or pay of employees,
(B) any applicable wage or hour laws or (C) any provision
of the Employee Retirement Income Security Act of 1974, as amended
(“ ERISA ”), or the rules and regulations
thereunder, except those violations that would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(xxiv) Neither the
Company nor any of the Guarantors has violated, or is in violation
of, any foreign, federal, state or local law or regulation relating
to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “ Environmental Laws ”),
which violations would, individually or in the aggregate,
reasonably be expected to have a Material Adverse
Effect.
(xxv) There is no
alleged liability, or to the knowledge of the Company and the
Guarantors, potential liability (including, without limitation,
alleged or potential liability or investigatory costs, cleanup
costs, governmental response costs, natural resource damages,
property damages, personal injuries or penalties) of the Company or
any of the Guarantors arising out of, based on or resulting from
(A) the presence or release into the environment of any
Hazardous Material (as defined) at any location, whether or not
owned by the Company or such Guarantor, as the case may be, or
(B) any violation or allege
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