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EXHIBIT 4.6
EXECUTION COPY
$205,000,000
SUNSHINE ACQUISITION II, INC.
(a Delaware corporation)
11.75% Senior Subordinated Notes due 2013
PURCHASE AGREEMENT
November 17, 2005
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November 17, 2005
Wachovia Capital Markets, LLC
J.P. Morgan Securities Inc.
Banc of America Securities LLC
c/o Wachovia Capital Markets, LLC
One Wachovia
Center
301 South
College Street
Charlotte, North
Carolina 28288
Ladies and Gentlemen:
SUNSHINE ACQUISITION II, INC., a Delaware corporation
("Sunshine"),
proposes to issue and sell to the several purchasers named in
Schedule I hereto
(the "Initial Purchasers"), for whom Wachovia Capital Markets, LLC
is acting as
a Representative (in such capacity, the "Representative"),
$205,000,000
aggregate principal amount of its 11.75% Senior Subordinated Notes
due 2013 (the
"Notes"). The Notes will be issued pursuant to an Indenture (the
"Indenture")
dated as of the Closing Date (as defined in Section 2) among
Sunshine, the
Company, the Guarantors (as defined below) and Wells Fargo Bank,
National
Association, as Trustee (the "Trustee").
In connection with the consummation of the Transactions (as
defined
herein), Sunshine will merge with and into SS&C Technologies,
Inc. (the
"Company") (the "Merger"), after which the obligations of Sunshine
under this
Agreement, the Registration Rights Agreement (as defined herein)
and the
Indenture will become obligations of the Company. The
representations,
warranties and agreements of the Company and the Guarantors under
this Agreement
shall not become effective until consummation of the Merger and
execution by the
Company and the Guarantors of a joinder agreement to this
Agreement, the form of
which is attached hereto as Exhibit B (the "Joinder Agreement"), at
which time
such representations, warranties and agreements shall become
effective as of the
date hereof pursuant to the terms of the Joinder Agreement and each
of the
Company and the Guarantors shall, without any further action by any
person,
become a party to this Agreement. References to the "Issuer" refer
to Sunshine
before consummation of the Merger and to the Company after
consummation of the
Merger.
The Notes, upon consummation of the Merger, will be guaranteed
(the
"Guarantees") on an unsecured senior subordinated basis by each of
the Company's
subsidiaries named in Schedule II hereto (each individually, a
"Guarantor" and
collectively the "Guarantors").
The
Notes will have the benefit of a registration rights agreement
(the "Registration Rights Agreement"), to be dated as of the
Closing Date (as
defined below), among Sunshine, the Company, the Guarantors and the
Initial
Purchasers, pursuant to which Sunshine and, upon consummation of
the Merger, the
Company and the Guarantors will agree to register under the
Securities Act and
offer to exchange notes with terms identical to the Notes for the
Notes, subject
to the terms and conditions therein specified.
The Notes and the Guarantees are being offered and sold by Sunshine
in
connection with the acquisition (the "Acquisition") of the Company
pursuant to
that certain Agreement
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and Plan of Merger, dated as of July 28, 2005 and subsequently
amended on August
25, 2005, among Sunshine Merger Corporation, Sunshine Acquisition
Corporation
("Holdings") and the Company (together with all schedules and
exhibits thereto,
the "Acquisition Documents"). In connection with the Acquisition,
(i) The
Carlyle Group and certain of its affiliates, William C. Stone and
certain
members of management who may choose to roll over all or a portion
of their
equity interests will make an aggregate investment of not less than
$547.2
million (the "Equity Contribution"), and (ii) the Company will
enter into a new
senior credit facility of up to $350.0 million providing for
revolving and term
loan credit facilities (the "Credit Agreement" and together with
all other
documents related to such facility, the "Credit Documents") with
JPMorgan Chase
Bank, N.A., as administrative agent, and the other agents and the
lenders party
thereto.
This Agreement, the Notes, the Guarantees, the Indenture, the
Registration Rights Agreement, the Exchange Notes and the Exchange
Guarantees
are hereinafter sometimes referred to collectively as the "Note
Documents." The
Note Documents, the Acquisition Documents and the Credit Documents
are
hereinafter sometimes referred to collectively as the "Transaction
Documents."
The issuance and sale of the Notes and the Guarantees, the
Acquisition, the
Merger, the Equity Contribution and the effectiveness of the Credit
Documents
and the initial borrowings thereunder are collectively referred to
as the
"Transactions."
The sale of the Notes to the Initial Purchasers will be made
without
registration under the Securities Act of 1933, as amended (the
"Securities
Act"), in reliance on an exemption therefrom provided by Section
4(2) of the
Securities Act. The Notes (and the related Guarantees) will be
offered and sold
by the Initial Purchasers without being registered under the
Securities Act, to
qualified institutional buyers in compliance with the exemption
from
registration provided by Rule 144A under the Securities Act, and in
offshore
transactions in reliance on Regulation S under the Securities Act
("Regulation
S"). The Initial Purchasers have advised the Company that they will
offer and
sell the Notes purchased by them hereunder in accordance with
Section 3 hereof
as soon as the Representative deems advisable.
In connection with the sale of the Notes, the Company has prepared
a
preliminary offering memorandum, dated November 4, 2005 (the
"Preliminary
Memorandum"), and a final offering memorandum, dated the date
hereof (the "Final
Memorandum" and, with the Preliminary Memorandum, each a
"Memorandum"). Each
Memorandum sets forth certain information concerning the Company,
the Notes, the
other Transaction Documents and the Transactions. Each of Sunshine
and 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 Notes by the Initial
Purchasers.
1. Representations and Warranties of Sunshine, the Company and
the
Guarantors. As of the date hereof and at the Closing Date, Sunshine
represents
and warrants, and the Company and the Guarantors jointly and
severally represent
and warrant as of the date hereof and at the Closing Date (upon
execution and
delivery of the Joinder Agreement), in each case, to each Initial
Purchaser (it
being understood that prior to the Closing Date and execution and
delivery of
the Joinder Agreement, all representations and warranties of
Sunshine with
respect to the Company and its subsidiaries are made to the best
knowledge of
Sunshine, after due inquiry) that:
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(a) The Preliminary Memorandum does not contain, and the Final
Memorandum, in the form used by the Initial Purchasers to confirm
sales on
the
Closing Date, and any amendment or supplement thereto does not and
will
not
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;
provided,
however, that the representations or warranties set forth in this
paragraph
shall not apply to statements in or omissions from either
Memorandum made
in
reliance upon and in conformity with information furnished in
writing to
the
Issuer by the Initial Purchasers expressly for use therein, as
specified in Section 11. The statistical and industry data included
in each
Memorandum are based on or derived from sources that the Issuer
believes to
be
reliable and accurate.
(b) Each of Sunshine and the Company has been duly organized and
is
validly existing as a corporation in good standing under the laws
of the
State of Delaware. Each of Sunshine and the Company is duly
qualified to do
business as a foreign corporation and is in good standing under the
laws of
each
jurisdiction in which the conduct of its business or its ownership
or
leasing of property requires such qualification, except where the
failure
to
so qualify or be in good standing would not, individually or in
the
aggregate, have a Material Adverse Effect. "Material Adverse
Effect" shall
mean
a material adverse change in or effect on or any development
that
would be reasonably expected to cause a material adverse change in
or
effect on (i) the business, operations, properties, assets,
liabilities,
prospects, condition (financial or otherwise), results of
operations or
management of the Company and its subsidiaries, taken as a whole,
or (ii)
the
ability of Sunshine, the Company and each Guarantor to perform
its
obligations under the Notes, the Guarantees or the other
Transaction
Documents.
(c) Each of Sunshine, the Company and each Guarantor has full
power
(corporate and other) to own or lease its properties and conduct
its
business as described in each Memorandum; and each of Sunshine, the
Company
and
each Guarantor has full power (corporate and other) to enter into
the
Transaction Documents and to carry out all the terms and provisions
hereof
and
thereof to be carried out by it.
(d) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Final Memorandum. All of the issued
shares
of
capital stock of each of Sunshine and the Company have been
duly
authorized and validly issued and are fully paid and nonassessable;
and
none
of the outstanding shares of capital stock of either Sunshine or
the
Company was issued in violation of the preemptive or other similar
rights
of
any security holder of Sunshine or the Company, as applicable.
(e) Each subsidiary of the Company has been duly incorporated
or
formed, as the case may be, is validly existing as a corporation or
limited
liability company, as the case may be, in good standing under the
laws of
the
jurisdiction of its incorporation or formation, as the case may be,
has
the
corporate or organizational power and authority to own its property
and
to
conduct its business as described in the Final Memorandum and is
duly
qualified to transact business and is in good standing in each
jurisdiction
in
which the conduct of its business or its ownership or leasing
of
property requires such qualification, except to the extent that the
failure
to
be so qualified or be in good standing would
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not, individually or
in the aggregate, reasonably be expected to have a
Material Adverse Effect; all of the issued shares of capital stock
or
ownership interests, as the case may be, of each subsidiary of the
Company
have
been duly and validly authorized and issued, are fully paid and
non-assessable, and are owned directly by the Company, free and
clear of
all
liens, encumbrances, equities or claims (other than those imposed
by
the
Securities Act and the securities or "Blue Sky" laws of certain
jurisdictions and those to be imposed by the Credit Agreement).
(f) No subsidiary of the Company is 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 of the Company, except as provided by applicable
laws
or
regulations, by the Indenture or the Credit Agreement or as
otherwise
disclosed in the Final Memorandum.
(g) Except for employee and director stock options or as
otherwise
disclosed in the Final Memorandum or for such stock options that
will be
terminated upon consummation of the Transactions, there are no
outstanding
(i)
securities or obligations of Sunshine or the Company convertible
into
or
exchangeable for any capital stock of Sunshine or the Company,
(ii)
warrants, rights or options to subscribe for or purchase from
Sunshine or
the
Company any such capital stock or any such convertible or
exchangeable
securities or obligations or (iii) obligations of Sunshine or the
Company
to
issue any such capital stock, any such convertible or
exchangeable
securities or obligations, or any such warrants, rights or
options.
(h) PricewaterhouseCoopers LLP, who has certified the audited
financial statements of the Company included in the Final
Memorandum and
delivered its report with respect to the audited financial
statements of
the
Company in the Final Memorandum, is an independent public
accountant
with
respect to the Company within the meaning of the Securities Act
and
the
applicable rules and regulations thereunder.
The financial statements (including the notes thereto) of the
Company
and
its consolidated subsidiaries in the Final Memorandum fairly
present in
all
material respects the financial position, results of operations,
cash
flows and changes in stockholders' equity of the Company and
its
consolidated subsidiaries as of the dates and for the periods
specified
therein; since the date of the latest of such financial statements,
there
has
been no Material Adverse Effect; such financial statements have
been
prepared in all material respects in accordance with generally
accepted
accounting principles consistently applied throughout the periods
involved
(except as otherwise expressly disclosed in the notes thereto) and
comply
as
to form in all material respects with the applicable accounting
requirements of Regulation S-X under the Securities Act; the
information
set
forth under the captions "Offering Memorandum Summary --
Summary
Historical Consolidated Financial Information," "Selected
Historical
Consolidated Financial Information" and "Management's Discussion
and
Analysis of Financial Conditions and Results of Operations" in the
Final
Memorandum has been derived from the financial statements of the
Company
and
its consolidated subsidiaries and fairly presents in all
material
respects the
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information included therein. The material assumptions underlying
the pro
forma financial information included in the Final Memorandum
include all
material assumptions required to give effect to the Transactions
and events
described in the notes thereto, are reasonable and are described in
the
Final Memorandum and the pro forma adjustments give proper effect
to those
assumptions and reflect the proper application of those adjustments
to the
applicable historical financial statements included in the Final
Memorandum
in
all material respects. The pro forma financial information set
forth
under the caption "Unaudited Pro Forma Condensed Consolidated
Financial
Information" and the related notes thereto included in the Final
Memorandum
has
been prepared in accordance with the rules and guidance of the
Securities and Exchange Commission (the "Commission") with respect
to pro
forma financial information.
(i) KPMG LLP, who has certified the audited financial statements
of
Financial Models Company Inc. ("FMC") included in the Final
Memorandum and
delivered its report with respect to the audited financial
statements of
FMC
in the Final Memorandum, is an independent public accountant
with
respect to the Company and FMC within the meaning of the Securities
Act and
the
applicable rules and regulations thereunder.
The financial statements (including the notes thereto) of FMC
and
its
consolidated subsidiaries in the Final Memorandum fairly present in
all
material respects the financial position, results of operations,
cash flows
and
changes in stockholders' equity of FMC and its consolidated
subsidiaries as of the dates and for the periods specified therein;
since
the
date of the latest of such financial statements, there has been
no
Material Adverse Effect; and such financial statements have been
prepared
in
all material respects in accordance with generally accepted
accounting
principles consistently applied throughout the periods involved
(except as
otherwise expressly disclosed in the notes thereto) and comply as
to form
in
all material respects with the applicable accounting requirements
of
Regulation S-X under the Securities Act.
(j) Subsequent to the respective dates as of which information
is
given in the Final Memorandum or as otherwise disclosed therein,
(i) none
of
Sunshine or the Company and its subsidiaries have incurred any
material
liability or obligation, direct or contingent, or entered into any
material
transaction in each case not in the ordinary course of business;
(ii)
neither Sunshine nor the Company has purchased any of its
outstanding
capital stock, and has declared, paid or otherwise made any
dividend or
distribution of any kind on any class of its capital stock, except
as may
be
necessary to apply the proceeds from the sale of the Notes as
contemplated under the caption "Use of Proceeds" in the Final
Memorandum;
and
(iii) there has not been any material change in the capital
stock,
short-term debt or long-term debt of the Company and its
subsidiaries,
except as disclosed in the Final Memorandum.
(k) The Company and each of its subsidiaries (and, with respect
to
clause (i), Sunshine) maintains a system of internal accounting
controls
sufficient to provide reasonable assurances 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
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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.
(l) This Agreement has been duly authorized, executed and delivered
by
Sunshine and, at the Closing Date, will have been authorized by the
Company
and
each Guarantor.
(m) The Indenture and the Registration Rights Agreement have been
duly
authorized by Sunshine, and as of the Closing Date, will have been
duly
authorized by the Company and each Guarantor and, on the Closing
Date, will
have
been duly executed and delivered by Sunshine, the Company and
each
Guarantor and, assuming due authorization, execution and delivery
by the
Trustee or the Initial Purchasers respectively, will constitute the
legal,
valid and binding obligations of the Company and each
Guarantor,
enforceable against the Company and each Guarantor in accordance
with their
respective terms, except that the enforcement thereof may be
subject to (i)
bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium
or
other similar laws now or hereafter in effect relating to
creditors'
rights generally, (ii) general principles of equity and the
discretion of
the
court before which any proceeding therefor may be brought, (iii)
an
implied covenant of good faith and fair dealing and (iv) as to
rights of
indemnification and contribution, federal and state laws and
principles of
public policy; and the Indenture and the Registration Rights
Agreement will
conform in all material respects to the description thereof in the
Final
Memorandum.
(n) The Indenture conforms in all material respects to the
requirements of the Trust Indenture Act of 1939, as amended (the
"Trust
Indenture Act"), and to the rules and regulations of the
Commission
applicable to an indenture that is qualified thereunder.
(o) The Notes have been duly authorized by Sunshine and, when
executed
and
authenticated in the manner provided for in the Indenture and
delivered
to
and paid for by the Initial Purchasers as provided in this
Agreement,
immediately prior to the consummation of the Acquisition, will
constitute
the
legal, valid and binding obligations of Sunshine, enforceable
against
Sunshine in accordance with their terms, and immediately following
the
consummation of the Acquisition, will constitute the legal, valid
and
binding obligations of the Company, enforceable against the Company
in
accordance with their terms except that, in each case, the
enforcement
thereof may be subject to (i) bankruptcy, insolvency,
reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in
effect relating to creditors' rights generally and (ii) general
principles
of
equity and the discretion of the court before which any
proceeding
therefor may be brought, (iii) implied covenant of good faith and
fair
dealing and (iv) as to rights of indemnification and contribution,
federal
and
state laws and principles of public policy, and will be entitled to
the
benefits of the Indenture and the Registration Rights Agreement;
the
Guarantees, as of the Closing Date, will have been duly authorized
by each
Guarantor and upon the due issuance and delivery of the related
Notes and
the
due endorsement of the Guarantees thereon, will have been duly
executed, endorsed and delivered and will constitute valid and
legally
binding obligations of each of the Guarantors, and will be entitled
to the
benefits of the Indenture; the Exchange Notes (as
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defined in the Registration Rights Agreement) have been duly
authorized by
Sunshine and as of the Closing Date, will have been duly authorized
by the
Company and, when executed and authenticated in the manner provided
for in
the
Registration Rights Agreement and the Indenture, will constitute
the
legal, valid and binding obligations of the Company, enforceable
against
the
Company, in accordance with their terms, except that the
enforcement
thereof may be subject to (i) bankruptcy, insolvency,
reorganization,
fraudulent conveyance, moratorium or other similar laws now or
hereafter in
effect relating to creditors' rights generally, (ii) general
principles of
equity and the discretion of the court before which any proceeding
therefor
may
be brought, (iii) an implied covenant of good faith and fair
dealing
and
(iv) as to rights of indemnification and contribution, federal
and
state laws and principles of public policy, and will be entitled to
the
benefits of the Indenture; the Guarantees of the Exchange Notes, as
of the
Closing Date, will have been duly authorized by each Guarantor and
upon the
due
issuance and delivery of the related Exchange Notes and the due
endorsement of the Guarantees thereon, will have been duly
executed,
endorsed and delivered and will constitute valid and legally
binding
obligations of each of the Guarantors, and will be entitled to the
benefits
of
the Indenture; and the Notes and the Exchange Notes will conform in
all
material respects to the descriptions thereof in the Final
Memorandum.
(p) The execution, delivery and performance by Sunshine, the
Company
and
each Guarantor of the Transaction Documents, the issuance and sale
of
the
Notes, the issuance of the Guarantees and the compliance by
Sunshine,
the
Company and each Guarantor with all of the provisions of the Notes,
the
Indenture, the Registration Rights Agreement, the Joinder Agreement
and
this
Agreement and the consummation of the transactions contemplated
hereby
and
thereby will not (i) conflict with, result in a breach or violation
of,
or
constitute a default under, any indenture, mortgage, deed of trust
or
loan
agreement, stockholders' agreement or any other agreement or
instrument to which Sunshine, the Company or any of its
subsidiaries is a
party or by which Sunshine, the Company or any of its subsidiaries
is bound
or
any of their respective properties are subject (except such as will
not
individually or in the aggregate have a Material Adverse Effect),
or with
the
certificate of incorporation or by-laws of Sunshine, the Company or
any
of
its subsidiaries, or any statute, rule or regulation or any
judgment,
order or decree of any governmental authority or court or any
arbitrator
applicable to
Sunshine, the Company or any of its subsidiaries, or (ii)
require the consent, approval, authorization, order, registration
or filing
or
qualification with, any governmental authority or court, or body
or
arbitrator having jurisdiction over Sunshine, the Company or any of
its
subsidiaries (other than those consents, approvals, authorizations,
orders,
registrations or filings or qualifications that have been obtained
prior to
delivery of the Notes or which, if not obtained, would not have a
Material
Adverse Effect), except such as may be required by the securities
or Blue
Sky
laws of the various states in connection with the offer or sale of
the
Notes and by Federal and state securities laws with respect to
the
obligations of Sunshine, the Company and the Guarantors under
the
Registration Rights Agreement.
(q) No legal or governmental proceeding or investigation is
pending
or,
to the knowledge of Sunshine and, as of the Closing Date, the
Company,
threatened to which Sunshine, the Company or any of its
subsidiaries is a
party or to which any of the properties of Sunshine, the Company or
any of
its
subsidiaries is subject, other than proceedings
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described in the Final Memorandum that, if determined adversely
to
Sunshine, the Company or any of its subsidiaries, would not, singly
or when
aggregated with other proceedings based on the same facts, result
in a
Material Adverse Effect.
(r) Each of the Company and each Guarantor is not now nor after
giving
effect to the issuance of the Notes and the execution, delivery
and
performance of the Transaction Documents and the consummation of
the
transactions contemplated thereby or described in the
Preliminary
Memorandum or the Final Memorandum will be (in each case on a
consolidated
basis) (i) insolvent, (ii) left with unreasonably small capital
with which
to
engage in its anticipated business or (iii) incurring debts or
other
obligations beyond its ability to pay such debts or obligations as
they
become due.
(s) None of Sunshine, the Company and its Affiliates (as defined
in
Rule
501(b) of Regulation D under the Securities Act ("Regulation D"))
have
distributed or, prior to the later of (i) the Closing Date and (ii)
the
completion of the distribution of the Notes, will distribute any
offering
material in connection with the offering and sale of the Notes
other than
the
Preliminary Memorandum, the Final Memorandum or any amendment
or
supplement thereto.
(t) The statements set forth in the Final Memorandum under the
caption
"Description of Notes," insofar as they purport to constitute a
summary of
the
terms of the Notes, the Guarantees and the Indenture, and under
the
captions "Description of New Senior Credit Facilities," "Exchange
Offer;
Registration Rights" and "Material United States Federal Income
Tax
Considerations," 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.
(u) The Company and its subsidiaries have good and marketable title
in
fee
simple to all items of real property and good and marketable title
to
all
personal property owned by each of them free and clear of any
pledge,
lien, encumbrance, security interest or other defect or claim of
any third
party, except as described in the Final Memorandum or incurred
under the
Credit Agreement or to the extent the failure to have such title or
the
existence of such pledges, liens, encumbrances, security interests,
defects
or
claims would not, individually or in the aggregate, reasonably
be
expected to have a Material Adverse Effect. Any property leased by
the
Company and its subsidiaries is held under valid, subsisting
and
enforceable leases, and there is no default under any such lease or
any
other event that with notice or lapse of time or both would
constitute a
default thereunder, except as described in the Final Memorandum and
except
as
there is no Material Adverse Effect.
(v) No "prohibited transaction" (as defined in Section 406 of
the
Employee Retirement Income Security Act of 1974, as amended,
including the
regulations and published interpretations thereunder ("ERISA"), or
Section
4975
of the Internal Revenue Code of 1986, as amended from time to
time
(the
"Code")) or "accumulated funding deficiency" (as defined in
Section
302
of ERISA) or any of the events set forth in Section 4043(c) of
ERISA
(other than events with respect to which the 30-day notice
requirement
under Section 4043 of ERISA has been waived) has occurred, exists
or is
reasonably expected
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to
occur with respect to any employee benefit plan (as defined in
Section
3(3)
of ERISA) which the Company or any of its subsidiaries
maintains,
contributes to or has any obligation to contribute to, or with
respect to
which the Company or any of its subsidiaries has any liability,
direct or
indirect, contingent or otherwise (a "Plan"); each Plan is in
compliance
with
its terms and applicable law, including ERISA and the Code
(except
where the failure to comply could not have a Material Adverse
Effect); none
of
the Company or any of its subsidiaries has incurred or expects to
incur
liability under Title IV of ERISA with respect to the termination
of, or
withdrawal from, any Plan; and each Plan that is intended to be
qualified
under Section 401(a) of the Code is so qualified and has received
a
favorable determination letter and, to the Company's knowledge,
nothing has
occurred, whether by action or failure to act, which could
reasonably be
expected to cause the loss of such qualification.
(w) Except as disclosed in each Memorandum, no labor dispute with
the
employees of the Company or any of its subsidiaries exists, is
imminent or,
to
the Company's knowledge, is threatened that could reasonably be
expected
to
result in a Material Adverse Effect.
(x) The Company and each of its subsidiaries owns or otherwise
possesses adequate rights to use all material patents, trademarks,
service
marks, trade names and copyrights, all applications and
registrations for
each
of the foregoing, and all other material proprietary rights and
confidential information necessary to conduct their respective
businesses
as
currently conducted; none of the Company or any of its subsidiaries
has
received any written notice, or is otherwise aware, of any
infringement of
or
conflict with the rights of any third party with respect to any of
the
foregoing.
(y) Each of the Company and its subsidiaries carries insurance in
such
amounts and covering such risks as it believes to be consistent
with
industry practice to protect the Company and its Subsidiaries and
their
respective businesses.
(z) Except as would not, individually or in the aggregate, have
a
Material Adverse Effect, the Company and each of its subsidiaries
has
complied with all laws, ordinances, regulations and orders
applicable to
the
Company and its subsidiaries and their respective businesses, and
none
of
the Company or any of its subsidiaries has received any written
notice
to
the contrary; and each of the Company and its subsidiaries
possesses all
certificates, authorizations, permits, licenses, approvals, orders
and
franchises necessary to conduct their respective businesses
(collectively,
"Licenses") in the manner and to the full extent now operated or
proposed
to
be operated as described in the Final Memorandum, in each case
issued by
the
appropriate federal, state, local or foreign governmental or
regulatory
authorities (collectively, the "Agencies"), and each other federal,
state
and
local agency the regulations of which are applicable to the
businesses
or
products of the Company and its subsidiaries. The Licenses are in
full
force and effect and no proceeding has been instituted or
threatened in
writing which in any manner affects or calls into question the
validity or
effectiveness thereof.
-9-
<PAGE>
(aa) The Company is in compliance in all material respects with
the
provisions of the Sarbanes-Oxley Act of 2002 (the "Sarbanes-Oxley
Act"), to
the
extent currently applicable.
(bb) Neither Sunshine, the Company nor any of its subsidiaries is
in
violation of its certificate of incorporation or its bylaws; and no
default
or
breach exists, and, to the knowledge of the Company, no event
has
occurred that, with notice or lapse of time or both, would
constitute a
default in the due performance and observation of any term,
covenant or
condition of any indenture, mortgage, deed of trust, lease, loan
agreement,
stockholders' agreement or any other agreement or instrument
("Contracts")
to
which the Company or any of its subsidiaries is a party or by which
the
Company or any of its
subsidiaries is bound or to which any of their
respective properties are subject except such default or breach in
the due
performance and observation of the terms of Contracts that, singly
or in
the
aggregate, would not result in a Material Adverse Effect.
(cc) Except as otherwise set forth in the Final Memorandum and
except
as
would not result in a Material Adverse Effect, 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
and
has paid all taxes required to be paid by it and any other
assessment,
fine
or penalty relating to taxes 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 and for
which
the
Company and its subsidiaries retain adequate reserves in
accordance
with
generally accepted accounting principles.
(dd) Except as disclosed in the Final Memorandum, there are no
contracts, agreements or understandings between Sunshine, the
Company or
any
of its subsidiaries and any person granting such person the right
to
require Sunshine, the Company or any of its subsidiaries to file
a
registration statement under the Securities Act or to require
Sunshine or
the
Company to include any securities held by any person in any
registration statement filed by Sunshine or the Company under
the
Securities Act.
(ee) Neither Sunshine, the Company nor any Guarantor is, nor
after
giving effect to the offering and sale of the Notes and the
application of
the
proceeds thereof as described in the Final Memorandum under the
caption
"Use
of Proceeds" will be, an "investment company" within the meaning
of
the
Investment Company Act of 1940, as amended (the "Investment
Company
Act").
(ff) Within the preceding six months, none of Sunshine, the Company
or
any
of its Affiliates has, directly or through any agent, made offers
or
sales of any security of the Company, or solicited offers to buy,
any
securities of the Company of the same or a similar class as the
Notes,
other than the Notes offered or sold to the Initial Purchasers
hereunder.
(gg) None of Sunshine, the Company or any of its Affiliates
has,
directly or through any person acting on its or their behalf (other
than
the
Initial Purchasers, as to which no statement is made), offered,
solicited offers to buy or sold the Notes by any form of
general
solicitation or general advertising (within the meaning of
Regulation D)
-10-
<PAGE>
or
in any manner involving a public offering within the meaning of
Section
4(2)
of the Securities Act.
(hh) None of Sunshine, the Company, any of its Affiliates, nor
any
person acting on its or their behalf (other than the Initial
Purchasers, as
to
which no statement is made), has engaged in any directed selling
efforts
with
respect to the Notes, and each of them has complied with the
offering
restrictions requirement of Regulation S. Terms used in this
paragraph have
the
meanings given to them by Regulation S.
(ii) None of Sunshine, the Company or any of its Affiliates has
taken,
directly or indirectly, any action designed to cause or result in,
or which
has
constituted or which 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; nor has the
Company
or
any of its Affiliates paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of
the
Company (except as contemplated by this Agreement and disclosed in
the
Final Memorandum).
(jj) The Notes satisfy the eligibility requirements of Rule
144A(d)(3)
under the Securities Act.
(kk) Assuming the accuracy of the representations and warranties
of
the
Initial Purchasers in Section 3 hereof and compliance by the
Initial
Purchasers with the procedures set forth in Section 3 hereof, it is
not
necessary in connection with the offer, sale and delivery of the
Notes to
the
Initial Purchasers in the manner contemplated by this Agreement
and
disclosed in the Preliminary Memorandum and the Final Memorandum
to
register the Notes or the related Guarantees under the Securities
Act or to
qualify the Indenture under the Trust Indenture Act.
(ll) None of the Transactions (including, without limitation, the
use
of
proceeds from the sale of the Notes) will violate or result in
a
violation of Section 7 of the Securities Exchange Act of 1934, as
amended
(the
"Exchange Act"), or any regulation promulgated thereunder,
including,
without limitation, Regulations T, U and X of the Board of
Governors of the
Federal Reserve System.
(mm) Except as disclosed in the Final Memorandum, there are no
agreements, arrangements or understandings that will require the
payment of
any
commissions, fees or other remuneration to any investment
banker,
broker, finder or intermediary in connection with the
transactions
contemplated by this Agreement.
(nn) Prior to the Closing Date, Sunshine has no assets, liabilities
or
operations other than its obligations hereunder and under the
Acquisition
Documents.
2. Purchase, Sale and Delivery of the Notes. On the basis of
the
representations, warranties, agreements and covenants herein
contained and
subject to the terms and conditions herein set forth, Sunshine
agrees to issue
and sell $205,000,000 aggregate principal amount of Notes, and each
of the
Initial Purchasers, severally and not jointly, agree to purchase
from Sunshine
the principal amount of Notes set forth opposite the name of such
Initial
Purchaser in Schedule I hereto at a purchase price equal to 97.75%
of the
principal amount thereof (the "Purchase
-11-
<PAGE>
Price"). One or more certificates in definitive form or global
form, as
instructed by the Representative, for the Notes that the Initial
Purchasers have
severally agreed to purchase hereunder, and in such denomination
or
denominations and registered in such name or names as the
Representative
requests upon notice to Sunshine not later than two full business
days prior to
the Closing Date (as defined below), shall be delivered by or on
behalf of
Sunshine to the Representative for the respective accounts of the
Initial
Purchasers against payment by or on behalf of the Initial
Purchasers of the
Purchase Price therefor by wire transfer in Federal or other funds
immediately
available to the account of Sunshine. Such delivery of and payment
for the Notes
shall be made at the offices of Latham & Watkins LLP ("Counsel
for the
Company"), 885 Third Avenue, New York, New York at 9:00 A.M., New
York City
time, on November 23, 2005, or at such other place, time or date as
the
Representative and Sunshine may agree upon, such time and date of
delivery
against payment being herein referred to as the "Closing Date."
Sunshine will
make such certificate or certificates for the Notes available for
examination by
the Initial Purchasers at the New York, New York offices of Counsel
for the
Company not later than 9:00 A.M., New York City time on the
business day prior
to the Closing Date.
3. Offering of the Notes and the Initial Purchasers'
Representations
and Warranties. Each of the Initial Purchasers, severally and not
jointly,
represent and warrant to and agree with Sunshine, prior to the
Closing Date, and
the Company and the Guarantors, on the Closing Date, that:
(a) It is a qualified institutional buyer as defined in Rule
144A
under the Securities Act (a "QIB").
(b) It will solicit offers for such Notes only from, and will
offer
such Notes only to,
persons that it reasonably believes to be (A) in the
case
of offers inside the United States, QIBs or (B) in the case of
offers
outside the United States, to persons other than U.S. persons
("foreign
purchasers," which term shall include dealers or other
professional
fiduciaries in the United States acting on a discretionary basis
for
foreign beneficial owners (other than an estate or trust)) in
reliance upon
Regulation S under the Securities Act that, in each case, in
purchasing
such
Notes are deemed to have represented and agreed as provided in
the
Final Memorandum under the caption "Notice to Investors."
(c) It will not offer or sell the Notes using any form of
general
solicitation or general advertising (within the meaning of
Regulation D) or
in
any manner involving a public offering within the meaning of
Section
4(2)
under the Securities Act.
(d) With respect to offers and sales outside the United States:
(i) at or prior to the confirmation of any sale of any Notes
sold
in reliance on Regulation S, it will have sent to each
distributor,
dealer or other person receiving a selling concession, fee or
other
remuneration that purchases Notes from it during the
distribution
compliance period (as defined in Regulation S) a confirmation
or
notice substantially to the following effect:
"The Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"),
-12-
<PAGE>
and may not be offered or sold within the United States or to,
or
for the account or benefit of, U.S. persons, (i) as part of
their
distribution at any time; or (ii) otherwise until 40 days after
the later of the commencement of the offering, except in either
case in accordance with Regulation S or Rule 144A under the
Securities Act. Terms used above have the meanings given to
them
by Regulation S"; and
(ii) such Initial Purchaser has offered the Notes and will
offer
and sell the Notes (A) as part of its distribution at any time and
(B)
otherwise until 40 days after the later of the commencement of
the
offering and the Closing Date, only in accordance with Rule 903
of
Regulation S or as otherwise permitted in Section 3(b);
accordingly,
such Initial Purchaser has not engaged nor will engage in any
directed
selling efforts (within the meaning of Regulation S) with respect
to
the Notes, and such Initial Purchasers has complied and will
comply
with the offering restrictions requirements of Regulation S.
Terms used in this Section 3(d) have the meanings given to them
by
Regulation S.
(e) In relation to each Member State of the European Economic
Area
that
has implemented the Prospectus Directive (each, a "Relevant
Member
State"), with effect from and including the date on which
Directive
2003/71/EC (i
