ANIXTER INTERNATIONAL
INC.
$275,000,000 1.00% Senior
Convertible Notes due 2013
ANIXTER INTERNATIONAL
INC.
$275,000,000
Senior Convertible Notes due 2013
MERRILL LYNCH
& CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Banc of America Securities LLC
J.P. Morgan Securities Inc.
Wachovia Capital Markets, LLC
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
4 World Financial Center
New York, New York 10080
Anixter
International Inc., a Delaware corporation (the
“Company”), confirms its agreement with Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
(“Merrill Lynch”) and each of the other Initial
Purchasers named in Schedule A hereto (collectively, the
“Initial Purchasers,” which term shall also include any
initial purchaser substituted as provided in Section 11 hereof),
for whom Merrill Lynch is acting as representative, with respect to
(i) the issue and sale by the Company and the purchase by the
Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of
$275,000,000 aggregate principal amount of the Company’s
Senior Convertible Notes due 2013 (the “Initial
Securities”) and (ii) the grant by the Company to the
Initial Purchasers of the option described in Section 2(b) hereof
to purchase all or any part of an additional $25,000,000 aggregate
principal amount of the Company’s Senior Convertible Notes
due 2013 to cover overallotments, if any (the “Option
Securities” and, together with the Initial Securities, the
“Securities”). The Securities are to be issued pursuant
to an indenture to be dated as of February 16, 2007 (the
“Indenture”) between the Company and The Bank of New
York Trust Company, N.A., as trustee (the
“Trustee”).
The Securities are
convertible, subject to certain conditions as described in the
Final Offering Memorandum (as described below), prior to maturity
(unless previously redeemed or otherwise purchased) into cash and
shares of common stock, par value $1.00 per share, of the Company
(the “Common Stock”) in accordance with the terms of
the Securities and the Indenture, at the initial conversion rate of
15.7530 shares of Common Stock per $1,000 principal amount of
Securities. Securities issued in book-entry form will be issued to
Cede & Co. as nominee of The Depository Trust Company
(“DTC”).
The Company
understands that the Initial Purchasers propose to make an offering
of the Securities on the terms and in the manner set forth herein
and agrees that the Initial Purchasers may resell, subject to the
conditions set forth herein, all or a portion of the Securities to
purchasers (“Subsequent Purchasers”) at any time after
this Agreement has been executed and delivered. The Securities are
to be offered and resold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the
“1933 Act”), in reliance upon exemptions therefrom.
Pursuant to the terms of the Securities and the Indenture,
investors that acquire Securities and any shares of Common Stock
acquired in connection with any conversion of Securities (solely
for purposes of this paragraph, “Securities”) may only
resell or otherwise transfer such Securities if such Securities are
hereafter registered under the 1933 Act or if an exemption from the
registration requirements of the 1933 Act is available (including
the exemption afforded by Rule 144A
(“Rule 144A”) of the rules and regulations
promulgated under the 1933 Act by the Securities and Exchange
Commission (the “Commission”). On or prior to the
Initial Closing Time, the Company will enter into a registration
rights agreement with the Initial Purchasers (the
“Registration Rights Agreement”) pursuant to which the
Company will be required to file and use reasonable best efforts to
cause to become effective a registration statement under the 1933
Act to register resales of the Securities.
The Company has
(a) prepared and delivered to each Initial Purchaser copies of
(i) a preliminary offering memorandum dated February 12,
2007 and (ii) a pricing term sheet dated February 12,
2007, attached hereto as Schedule B, which includes the
pricing terms and other information with respect to the Securities
and other matters not included in the Preliminary Offering
Memorandum (as defined below) (the “Pricing Term
Sheet”) and (b) has prepared and will deliver to each
Initial Purchaser, as promptly as practicable prior to the Initial
Closing Time, copies of a final offering memorandum dated
February 12, 2007 (the “Final Offering
Memorandum”), each for use by such Initial Purchaser in
connection with its solicitation of purchases of, or offering of,
the Securities. “Offering Memorandum” means, with
respect to any date or time referred to in this Agreement, the most
recent offering memorandum (whether the Preliminary Offering
Memorandum or the Final Offering Memorandum, or any amendment or
supplement to either such document), including exhibits thereto and
any documents incorporated therein by reference, which has been
prepared and delivered by the Company to the Initial Purchasers in
connection with their solicitation of purchases of, or offering of,
the Securities.
All references in
this Agreement to financial statements and schedules and other
information which is “contained,”
“included,” “stated” or described in the
Offering Memorandum (or other references of like import) shall be
deemed to mean and include all such financial statements and
schedules and other information which are incorporated by reference
in the Offering Memorandum; and all references in this Agreement to
amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the
Securities Exchange Act of 1934, as amended (the “1934
Act”), that is incorporated by reference in the Offering
Memorandum.
The preliminary
offering memorandum dated February 12, 2007, as amended and
supplemented immediately prior to the Applicable Time (as defined
below), including any documents filed under the 1934 Act prior to
the Applicable Time and incorporated by reference therein, is
referred to herein as the “Preliminary Offering
Memorandum,” and the Preliminary Offering Memorandum together
with the Pricing Term Sheet are collectively referred to herein as
the “Disclosure Package.” “Applicable Time”
means 5:00 P.M. (Eastern Time) on February 12, 2007 or such
other time as agreed by the Company and Merrill Lynch.
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SECTION 1.
Representations and Warranties by the Company .
(a)
Representations and Warranties . The Company represents and
warrants to each Initial Purchaser as of the Applicable Time and as
of the Closing Time referred to in Section 2(c) hereof, and agrees
with each Initial Purchaser, as follows:
(i) Disclosure
Package and Final Offering Memorandum . As of the Applicable
Time, neither (x) the Disclosure Package nor (y) any
individual Supplemental Offering Materials (as defined below), when
considered together with the Disclosure Package, included any
untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
“Supplemental
Offering Materials” means any “written
communication” (within the meaning of the 1933 Act
Regulations (as defined below)) prepared by or on behalf of the
Company, or used or referred to by the Company, that constitutes an
offer to sell or a solicitation of an offer to buy the Securities
other than the Offering Memorandum or amendments or supplements
thereto (including the Pricing Term Sheet), including, without
limitation, any road show materials relating to the Securities that
constitutes such a written communication.
As of its issue
date and as of the Closing Time, the Final Offering Memorandum will
not include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
The representation
and warranties in this subsection shall not apply to statements in
or omissions from the Disclosure Package or the Final Offering
Memorandum made in reliance upon and in conformity with written
information furnished to the Company by any Initial Purchaser
through Merrill Lynch expressly for use therein. The Company has
not distributed, and the Company will not distribute, prior to the
later of the Closing Time and the completion of the Initial
Purchasers’ distribution of the Securities, which shall be
deemed to be no later than the Closing Time unless the Company
otherwise receives notice from Merrill Lynch, any offering material
in connection with the offering and sale of the Securities other
than the Disclosure Package and the Final Offering
Memorandum.
(ii)
Incorporated Documents . The Offering Memorandum as
delivered from time to time shall incorporate by reference the most
recent Annual Report of the Company on Form 10-K filed with the
Commission and each Quarterly Report of the Company on Form 10-Q
and each Current Report of the Company on Form 8-K filed with the
Commission since the end of the fiscal year to which such Annual
Report relates. The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum at the time
they were or hereafter are filed with the Commission complied and
will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder
(the “1934 Act Regulations”), and, when read together,
at the Applicable Time with the other information in the Disclosure
Package, and at the Closing Time with the Disclosure Package and
the Final Offering Memorandum, did not and will not include an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(iii)
Independent Accountants . The accountants who certified the
financial statements and supporting schedules included in the
Disclosure Package and the Final Offering Memorandum are
independent registered public accountants with respect to the
Company and its
3
subsidiaries
within the meaning of the 1933 Act and the rules and regulations
thereunder (the “1933 Act Regulations”).
(iv) Financial
Statements . The financial statements, together with the
related schedules and notes, included in the Disclosure Package and
the Final Offering Memorandum present fairly the financial position
of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders’
equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements
have been prepared in conformity with generally accepted accounting
principles (“GAAP”) applied on a consistent basis
throughout the periods involved, except as stated therein. The
supporting schedules included in the Disclosure Package and the
Final Offering Memorandum present fairly in accordance with GAAP
the information required to be stated therein. The selected
financial data and any summary financial information included in
the Disclosure Package and the Final Offering Memorandum present
fairly the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
included in the Disclosure Package and the Final Offering
Memorandum.
(v) No Material
Adverse Change in Business . Since the respective dates as of
which information is given in the Disclosure Package and the Final
Offering Memorandum, except as otherwise stated therein,
(A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a “Material Adverse
Effect”), (B) there have been no transactions entered
into by the Company or any of its subsidiaries, other than those in
the ordinary course of business, which are material with respect to
the Company and its subsidiaries considered as one enterprise, and
(C) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(vi) Good
Standing of the Company . The Company has been duly organized
and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority
to own, lease and operate its properties and to conduct its
business as described in the Disclosure Package and the Final
Offering Memorandum and to enter into and perform its obligations
under, or as contemplated by, this Agreement. The Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in
a Material Adverse Effect.
(vii) Good
Standing of Subsidiaries . Each “significant
subsidiary” of the Company (as such term is defined in
Rule 1-02 of Regulation S-X) (each a “Designated
Subsidiary” and, collectively, the “Designated
Subsidiaries”) has been duly organized and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Disclosure Package and the Final
Offering Memorandum and is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction
in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; except as otherwise disclosed
in the Disclosure Package and the Final Offering Memorandum, all of
the issued and outstanding capital stock of each Designated
Subsidiary has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or
through subsidiaries, free and clear of any
4
security
interest, mortgage, pledge, lien, encumbrance, claim or equity;
none of the outstanding shares of capital stock of any Designated
Subsidiary was issued in violation of any preemptive or similar
rights of any securityholder of such Designated Subsidiary. The
other subsidiaries of the Company other than Designated
Subsidiaries, considered in the aggregate as a single subsidiary,
do not constitute a “significant subsidiary” as defined
in Rule 1-02 of Regulation S-X.
(viii)
Capitalization . The authorized, issued and outstanding
capital stock of the Company is as set forth in the financial
statements, including the schedules and notes, included in the
Disclosure Package and the Final Offering Memorandum (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant
to reservations, agreements, employee benefit plans referred to in
the Disclosure Package and the Final Offering Memorandum or
pursuant to the exercise of convertible securities or options
referred to in the Disclosure Package and the Final Offering
Memorandum). The
shares
of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Corporate
Power . The Company has full right, power and authority to
execute and deliver this Agreement, the Securities, the Indenture,
the Registration Rights Agreement, the OTC Convertible Note Hedge
and the OTC Warrant Transaction (collectively, the
“Transaction Documents”) and to perform its obligations
hereunder and thereunder; and all action required to be taken for
the due and proper authorization, execution and delivery of each of
the Transaction Documents and the consummation of the transactions
contemplated thereby has been duly and validly taken.
(x)
Authorization of Agreement . This Agreement has been duly
authorized, executed and delivered by the Company.
(xi)
Authorization and Description of the Indenture . The
Indenture has been duly authorized by the Company and, when
executed and delivered by the Company and the Trustee, will
constitute a valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Indenture will conform in all
material respects to the statements relating thereto contained in
the Disclosure Package and the Final Offering
Memorandum.
(xii)
Authorization and Description of the Registration Rights
Agreement . The Registration Rights Agreement has been duly
authorized by the Company and, when duly executed and delivered by
the Company and the Initial Purchasers, will constitute a valid and
binding agreement of the Company, enforceable against the Company
in accordance with its terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws relating to or
affecting enforcement of creditors’ rights generally, by
general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and by public
policy limitations affecting the enforceability of indemnification
or contribution rights in connection with securities transactions,
to the extent applicable. The Registration Rights Agreement will
conform in all material respects to the statements relating thereto
contained in the Disclosure Package and the Final Offering
Memorandum.
5
(xiii)
Authorization and Description of the Securities . The
Securities have been duly authorized and, at the Closing Time, will
have been duly executed by the Company and, when authenticated,
issued and delivered in the manner provided for in the Indenture
and delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers)
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits
of, the Indenture. The Securities will conform in all material
respects to the statements relating thereto contained in the
Disclosure Package and the Final Offering Memorandum.
(xiv)
Authorization and Description of Common Stock . The Common
Stock conforms to all statements relating thereto included in the
Disclosure Package and the Final Offering Memorandum and such
description conforms to the rights set forth in the instruments
defining the same. Upon issuance and delivery of the Securities in
accordance with this Agreement and the Indenture, the Securities
will be convertible at the option of the holder thereof and the
Company will have the option to pay a portion of the conversion
value in shares of Common Stock in accordance with the terms of the
Securities and the Indenture; the shares of Common Stock issuable
upon conversion of the Securities have been duly authorized and
reserved for issuance upon such conversion by all necessary
corporate action and such shares, when issued upon such conversion,
will be validly issued and will be fully paid and non-assessable;
no holder of such shares will be subject to personal liability by
reason of being such a holder; and the issuance of such shares upon
such conversion will not be subject to the preemptive or other
similar rights of any securityholder of the Company.
(xv) Absence of
Defaults and Conflicts . Neither the Company nor any of the
Designated Subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which or any of them may be
bound, or to which any of the property or assets of the Company or
any of its Designated Subsidiaries is subject (collectively,
“Agreements and Instruments”) except for such defaults
that would not, singly or in the aggregate, result in a Material
Adverse Effect; and the execution, delivery and performance of the
Transaction Documents and any other agreement or instrument entered
into or issued or to be entered into or issued by the Company in
connection with the transactions contemplated hereby or thereby or
in the Disclosure Package and the Final Offering Memorandum and the
consummation of the transactions contemplated herein and in the
Disclosure Package and the Final Offering Memorandum (including the
issuance and sale of the Securities and the use of the proceeds
from the sale of the Securities as described in the Disclosure
Package and the Final Offering Memorandum under the caption
“Use of Proceeds” and the issuance of the shares of
Common Stock issuable upon conversion of the Securities) and
compliance by the Company with its obligations hereunder do not and
will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in
the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or any of the Designated
Subsidiaries pursuant to, the Agreements and Instruments (except
for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not, singly or in the aggregate, result in
a Material Adverse Effect), nor will such action result in any
violation of the provisions
6
of the charter
or by-laws of the Company or any of the Designated Subsidiaries or
any applicable law, statute, rule, regulation, judgment, order,
writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their assets, properties or
operations. As used herein, a “Repayment Event” means
any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of the Designated Subsidiaries.
(xvi) Absence
of Labor Dispute . No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of
the Company, is imminent.
(xvii) Absence
of Proceedings . There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries which is required to be
disclosed in the Disclosure Package or the Final Offering
Memorandum (other than as disclosed therein), or which might
reasonably be expected to result in a Material Adverse Effect, or
which might reasonably be expected to materially and adversely
affect the properties or assets of the Company or any of its
subsidiaries or the consummation of the transactions contemplated
by this Agreement or the performance by the Company of its
obligations hereunder. The aggregate of all pending legal or
governmental proceedings to which the Company or any of its
subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the
Disclosure Package and the Final Offering Memorandum, including
ordinary routine litigation incidental to the business, could not
reasonably be expected to result in a Material Adverse
Effect.
(xviii)
Accuracy of Exhibits . All of the descriptions of contracts
or other documents included in the Disclosure Package or the Final
Offering Memorandum are accurate and complete descriptions of such
contracts or other documents. There are no contracts or documents
which are required to be described in the documents incorporated by
reference in the Disclosure Package or Final Offering Memorandum or
to be filed as exhibits thereto which have not been so described
and filed as required.
(xix)
Possession of Intellectual Property . The Company and its
subsidiaries own or possess, or can acquire on reasonable terms,
adequate patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other
intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by
them, and neither the Company nor any of its subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse
Effect.
(xx) Absence of
Further Requirements . No filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is
necessary or required for the performance by the Company of its
obligations under the Transaction Documents, in connection with the
offering, issuance or sale of the Securities hereunder, the
issuance of shares of Common Stock upon conversion of
Securities
7
or the
consummation of the transactions contemplated by the Transaction
Documents or for the due execution, delivery or performance of the
Transaction Documents by the Company, except (A) such as have
been already obtained, (B) as may be required under 1933 Act
or the 1933 Act Regulations in connection with the transactions
contemplated by the Registration Rights Agreement or state
securities laws and (C) for the qualification of the Indenture
under the Trust Indenture Act of 1939, as amended (the “1939
Act”).
(xxi)
Possession of Licenses and Permits . The Company and the
Designated Subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate
federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them; the Company
and the Designated Subsidiaries are in compliance with the terms
and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, result
in a Material Adverse Effect; all of the Governmental Licenses are
valid and in full force and effect, except where the invalidity of
such Governmental Licenses or the failure of such Governmental
Licenses to be in full force and effect would not have a Material
Adverse Effect; and neither the Company nor any of the Designated
Subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in a Material Adverse
Effect.
(xxii) Title to
Property . The Company and its subsidiaries have good and
marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them,
in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any
kind except such as (a) are described in the Disclosure
Package and the Final Offering Memorandum or (b) do not, singly or
in the aggregate, materially affect the value of such property and
do not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries; and all of the
leases and subleases of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of
its subsidiaries holds properties described in the Disclosure
Package and the Final Offering Memorandum, are in full force and
effect, and neither the Company nor any of its subsidiaries has any
notice of any claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any of its subsidiaries
under any of the leases or subleases mentioned above, or affecting
or questioning the rights of the Company or any such subsidiary to
the continued possession of the leased or subleased premises under
any such lease or sublease, except where the failure of a lease or
sublease to be in full force and effect or the existence of any
such claim would not, singly or in the aggregate, result in a
Material Adverse Effect.
(xxiii)
Environmental Laws . Except as described in the Disclosure
Package and the Final Offering Memorandum and except such matters
as would not, singly or in the aggregate, result in a Material
Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively,
“Hazardous Materials”) or to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials (collectively,
“Environmental Laws”), (B) the Company and its
subsidiaries have all permits, authorizations
8
and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending
or threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigation or proceedings relating
to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that
would reasonably be expected to form the basis of an order for
clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting
the Company or any of its subsidiaries relating to Hazardous
Materials or Environmental Laws or the violation of any
Environmental Laws.
(xxiv)
Accounting Controls and Disclosure Controls . The Company
and each of its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with
management’s general or specific authorization;
(B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to
maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general or
specific authorization; and (D) the recorded accountability
for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences. Except as described in the Disclosure Package and
Final Offering Memorandum, since the end of the Company’s
most recent audited fiscal year, there has been (1) no
material weakness in the Company’s internal control over
financial reporting (whether or not remediated) and (2) no
change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over
financial reporting. The Company and its consolidated subsidiaries
employ disclosure controls and procedures that are designed to
ensure that information required to be disclosed by the Company in
the reports that it files or submits under the 1934 Act is
recorded, processed, summarized and reported, within the time
periods specified in the Commission’s rules and forms, and is
accumulated and communicated to the Company’s management,
including its principal executive officer or officers and principal
financial officer or officers, as appropriate, to allow timely
decisions regarding disclosure.
(xxv)
Compliance with the Sarbanes-Oxley Act. There is and has
been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(xxvi)
Statistical and Market-Related Data . Any statistical and
market-related data included in the Disclosure Package and the
Final Offering Memorandum are based on or derived from sources that
the Company believes to be reliable and accurate in all material
respects or represent the Company’s good faith estimates that
are made on the basis of data derived from such sources.
(xxvii)
Investment Company Act . The Company is not required, and
upon the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in
the Disclosure Package and the Final Offering Memorandum will not
be required, to register as an “investment company”
under the Investment Company Act of 1940, as amended (the
“1940 Act”).
(xxviii)
Similar Offerings . Neither the Company nor any of its
affiliates, as such term is defined in Rule 501(b) under the 1933
Act (each, an “Affiliate”), has, directly or
indirectly,
9
solicited any
offer to buy, sold or offered to sell or otherwise negotiated in
respect of, or will solicit any offer to buy, sell or offer to sell
or otherwise negotiate in respect of, in the United States or to
any United States citizen or resident, any security which is or
would be integrated with the sale of the Securities in a manner
that would require the offered Securities to be registered under
the 1933 Act.
(xxix)
Rule 144A Eligibility . The Securities are eligible for
resale pursuant to Rule 144A and will not be, at the Closing
Time, of the same class as securities listed on a national
securities exchange registered under Section 6 of the 1934
Act, or quoted in a U.S. automated interdealer quotation
system.
(xxx) No
General Solicitation . None of the Company, its Affiliates or
any person acting on its or any of their behalf (other than the
Initial Purchasers and their Affiliates, as to whom the Company
makes no representation) has engaged or will engage, in connection
with the offering of the Securities, in any form of general
solicitation or general advertising within the meaning of Rule
502(c) under the 1933 Act.
(xxxi) No
Registration Required . Subject to compliance by the Initial
Purchasers with their representations and warranties set forth in
Section 6 hereof and the procedures set forth in
Section 6 hereof, the compliance of the Initial Purchasers
with the offering and transfer procedures and restrictions
described in the Disclosure Package and Final Offering Memorandum
and the accuracy of the representations and warranties made in
accordance with this Agreement and the Final Offering Memorandum by
purchasers to whom the Initial Purchasers initially resell
Securities, it is not necessary in connection with the offer, sale
and delivery of the Securities to the Initial Purchasers and to
each Subsequent Purchaser in the manner contemplated by this
Agreement and the Final Offering Memorandum to register the
Securities under the 1933 Act or to qualify the Indenture under the
1939 Act.
(xxxii) Foreign
Corrupt Practices Act . Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee,
Affiliate or other person acting on behalf of the Company or any of
its subsidiaries is aware of or has taken any action, directly or
indirectly, that would result in a
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