EXHIBIT 10.1
EXECUTION VERSION
$300,000,000
TransDigm Inc.
7¾% Senior Subordinated
Notes due 2014
PURCHASE
AGREEMENT
January 31, 2007
CREDIT SUISSE SECURITIES (USA) LLC
(“ Credit Suisse ”)
LEHMAN BROTHERS INC. (“ Lehman ”)
As representatives of the several initial
purchasers
c/o Credit Suisse Securities (USA)
LLC
Eleven Madison Avenue,
New York, N.Y. 10010-3629
and
c/o Lehman Brothers Inc.
745 Seventh Avenue
New York, N.Y. 10019
Dear Sirs:
1.
TransDigm Inc., a Delaware corporation (the “
Company ”), proposes, subject
to the terms and conditions stated herein, to issue and sell to the
several initial purchasers named in Schedule A hereto
(collectively, the “ Purchasers ”) U.S.$300,000,000
principal amount of its 7¾% Senior Subordinated Notes due 2014
(the “ Offered
Securities ”) to be issued as
additional securities under the indenture dated as of June 23,
2006, among the Company, TransDigm Group Incorporated
(“ TD Group
”), the
subsidiary guarantors from time to time party thereto and The Bank
of New York Trust Company, N.A., as trustee (the “
Trustee ”), as supplemented by
the First Supplemental Indenture thereto, dated as of November 2,
2006 (as so supplemented, the “ Indenture ”). The United
States Securities Act of 1933, as amended, is herein referred to as
the “ Securities
Act .”
As described under the heading
“The Transactions” in the Preliminary Offering Circular
(as defined below) and the Final Offering Circular (as defined
below), the Company intends to acquire (the “
Acquisition ”) all of the equity interests of Aviation
Technologies, Inc., a Delaware corporation (“ ATI
”).
In order to consummate the
Acquisition, the Company has organized Project Coffee Acquisition
Co., a Delaware corporation and a wholly-owned subsidiary of the
Company (“ Merger Sub ”). Pursuant to the
Agreement and Plan of Merger, dated as of January 9, 2007 (the
“ Merger Agreement ”), among the Company, Merger
Sub and ATI, Merger Sub will be merged with and into ATI, with ATI
continuing as the surviving corporation and a wholly-owned
subsidiary of the Company (the “ Merger
”).
In connection with the Acquisition,
the Company will amend its existing credit agreement, dated as of
June 23, 2006 (the “ Existing Credit Agreement
”), to, among other things, (i) provide for an increase in
the revolving credit facility thereunder of $50,000,000, (ii)
provide for an incremental term loan of $130,000,000 (the “
Incremental Term Loan ”) and (iii) make certain other
amendments to the terms
thereof as described more fully in
the Preliminary Offering Circular and the Final Offering Circular
(as so amended, the “ Amended Credit Agreement
”).
The Acquisition, the issuance of the
Offered Securities and the execution of (i) the Amended Credit
Agreement, (ii) this Agreement, (iii) a supplemental indenture to
the Indenture (the “ Supplemental Indenture ”),
which Supplemental Indenture will cause the ATI Guarantors (as
defined below) to guarantee the Offered Securities effective upon
the consummation of the Merger, (iv) the Registration Rights
Agreement (as defined below) and (v) counterparts to this
Agreement and the Registration Rights Agreement by the ATI
Guarantors upon consummation of the Merger and the consummation of
all other related transactions contemplated by the Merger
Agreement, this Agreement or described in the Preliminary Offering
Circular and the Final Offering Circular under the headings
“The Transactions” are referred to herein collectively
as the “ Transactions ”.
The Offered Securities under the
Indenture will be fully and unconditionally, and jointly and
severally, guaranteed on a senior subordinated unsecured basis by
(i) TD Group, (ii) each of the subsidiaries of the Company listed
on Schedule B hereto (the “ Company Guarantors
”) and (iii) effective upon the consummation of the Merger,
ATI and each of its subsidiaries listed on Schedule C hereto
(ATI and the subsidiaries of ATI listed on Schedule C hereto
are sometimes collectively referred to herein as the “ ATI
Guarantors ”). In connection therewith, and
concurrently with the consummation of the Merger, each of the ATI
Guarantors will each execute the Supplemental Indenture and
counterparts to this Agreement and the Registration Rights
Agreement. The guarantees described in this paragraph are
collectively referred to as the “ Guarantees ,”
and TD Group, the Company Guarantors and the ATI Guarantors are
collectively referred to as the “ Guarantors
”.
The holders of the Offered
Securities will be entitled to the benefits of a Registration
Rights Agreement to be entered into on the Closing Date (as defined
below) among the Company, the Guarantors and Credit Suisse and
Lehman, as representatives of the several Purchasers (the “
Registration Rights Agreement ”), pursuant to which,
and subject to the terms and conditions set forth therein, the
Company shall agree to file a registration statement with the
Securities and Exchange Commission (the “ Commission
”) registering the resale of the Offered Securities under the
Securities Act; provided , however , that the
undertakings of the ATI Guarantors as set forth in the Registration
Rights Agreement will not become effective until such Guarantors
execute their respective counterparts to the Registration Rights
Agreement.
This Agreement (including the
counterparts to be executed concurrently with the consummation of
the Merger by the ATI Guarantors), the Indenture, the Supplemental
Indenture (to be executed concurrently with the consummation of the
Merger by the ATI Guarantors), the Offered Securities and the
Registration Rights Agreement (including the counterparts to be
executed concurrently with the consummation of the Merger by the
ATI Guarantors) are referred to in this Agreement collectively as
the “ Operative Documents .” The Merger
Agreement, the Amended Credit Agreement and the Operative Documents
are referred to in this Agreement collectively as the “
Transaction Documents ”.
References in this Agreement to the
subsidiaries of the Company or any Guarantor shall include all
direct and indirect subsidiaries of the Company or such Guarantor,
both on the date of this Agreement and after the consummation of
the Merger, and the representations and warranties in this
Agreement with respect to the Company or any Guarantor and their
respective subsidiaries shall be deemed to be representations and
warranties with respect to the Company and the Guarantors and their
respective subsidiaries both prior to and after the consummation of
the Merger.
The Company and the Guarantors
hereby agree with the Purchasers as follows:
2.
Representations and Warranties of the Company and the
Guarantors. The Company and the Guarantors, jointly and
severally, represent and warrant to, and agree with, the Purchasers
that:
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(a) A
preliminary offering circular (the “ Preliminary Offering Circular
”) relating
to the Offered Securities to be offered by the Purchasers and a
final offering circular (the “ Final Offering Circular ”)disclosing the
offering price and other final terms of the Offered Securities and
dated as of the date of this Agreement (even if finalized and
issued subsequent to the date of this Agreement) have been or will
be prepared by the Company. “ General Disclosure Package ” means the Preliminary
Offering Circular, together with any Issuer Free Writing
Communication (as hereinafter defined) existing at the Applicable
Time (as hereinafter defined), including the Confidential Offering
Circular Supplement, dated January 30, 2007 (the “
Supplement ”), and the information
which is intended for general distribution to prospective
investors, as evidenced by its being specified in Schedule D
to this Agreement (including the term sheet listing the final
terms of the Offered Securities and their offering, included in
Schedule E to this Agreement, which is referred to as the
“ Terms
Communication ”).
“ Applicable
Time ” means 10:55 a.m.
(New York City time) on the date of this Agreement. As of the
date of this Agreement, the Final Offering Circular does not and,
as of the Closing Date, the Final Offering Circular will not
include any untrue statement of a material fact or omit 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. At the Applicable Time, neither (i) the
General Disclosure Package, nor (ii) any individual Supplemental
Marketing Material (as hereinafter defined), when considered
together with the General Disclosure Package, included, or will as
of the Closing Date include, any untrue statement of a material
fact or omitted, or will as of the Closing Date omit, 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. The preceding two sentences do not apply to
statements in or omissions from the Preliminary Offering Circular,
the Final Offering Circular, the General Disclosure Package or any
Supplemental Marketing Material based upon written information
furnished to the Company by any Purchaser through Credit Suisse
specifically for use therein, it being understood and agreed that
the only such information is that described as such in Section 8(b)
hereof.
“ Free Writing
Communication ” means a written communication (as such
term is defined in Rule 405 under the Securities Act) that
constitutes an offer to sell or a solicitation of an offer to buy
the Offered Securities and is made by means other than the
Preliminary Offering Circular or the Final Offering Circular.
“ Issuer Free Writing Communication ” means a
Free Writing Communication prepared by or on behalf of the Company,
used or referred to by the Company or containing a description of
the final terms of the Offered Securities or of their offering, in
the form retained in the Company’s records. “
Supplemental Marketing Material ” means any Issuer
Free Writing Communication other than any Issuer Free Writing
Communication specified in Schedule D to this
Agreement.
(b) Each of
the Company and TD Group has been duly incorporated and is an
existing corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own
its properties and conduct its business as described in the General
Disclosure Package; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where
the failure to be so qualified or in good standing would not,
individually or in the aggregate, reasonably be expected to have a
material adverse effect on the condition (financial or otherwise),
business, properties or results of operations of TD Group and its
subsidiaries, taken as a whole (“ Material Adverse Effect ”).
(c) Each
subsidiary of the Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the General Disclosure Package; and each
subsidiary of the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except where the
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failure to be so
qualified or in good standing would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect; all of the issued and outstanding capital stock of each
subsidiary of the Company has been duly authorized and validly
issued and is fully paid and nonassessable; and the capital stock
of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects,
except for liens, encumbrances or defects on the capital stock of
the subsidiaries (direct and indirect) of the Company granted in
favor of the lenders under or related to the Amended Credit
Agreement; provided, however, that the foregoing representations
and warranties as to the liens, encumbrances and defects on the
capital stock of the subsidiaries of the Company shall only be made
with respect to the ATI Guarantors on the Closing Date after giving
effect to the repayment of ATI’s existing indebtedness as
further described in the General Disclosure Package.
(d) The
Indenture has been duly authorized, executed and delivered by the
Company, TD Group and the Company Guarantors; the Offered
Securities have been duly authorized by the Company, and when the
Offered Securities are delivered and paid for pursuant to this
letter agreement (this “ Agreement ”) on the Closing Date
(as defined below), such Offered Securities will have been duly
executed, authenticated, issued and delivered, will be consistent
in all material respects with the information in the General
Disclosure Package and will conform in all material respects to the
description thereof contained in the Final Offering Circular,and
the Indenture and such Offered Securities will constitute valid and
legally binding obligations of the Company, enforceable in
accordance with their terms, except that the enforcement thereof
may be limited by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
(ii) general equity principles and the discretion of the court
before which any proceeding therefor may be brought, whether at law
or in equity.
(e) Upon
the consummation of the Merger, the Supplemental Indenture and the
Guarantee of the Offered Securities by the ATI Guarantors will be
duly authorized, executed and delivered by each of the ATI
Guarantors and will be consistent in all material respects with the
information in the General Disclosure Package and will conform to
the description thereof contained in the Final Offering Circular.
When the Offered Securities and the Guarantees have been issued,
executed and authenticated in accordance with the terms of this
Agreement, the Indenture and the Supplemental Indenture, each
Guarantee of each ATI Guarantor with respect to such Offered
Securities will constitute a valid and legally binding obligation
of such ATI Guarantor, enforceable in accordance with its terms,
except that the enforcement thereof may be limited by
(i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
(ii) general equity principles and the discretion of the court
before which any proceeding therefor may be brought, whether at law
or in equity.
(f) On the
Closing Date, the Indenture, as supplemented by the Supplemental
Indenture, will conform in all material respects to the
requirements of the United States Trust Indenture Act of 1939, as
amended (the “ Trust
Indenture Act ”), and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder.
(g) The
Exchange Securities (as defined in the Registration Rights
Agreement) have been, or as of the Registered Exchange Offer (as
defined in the Registration Rights Agreement) will be, duly and
validly authorized by the Company and, when duly executed by the
Company in accordance with the terms of the Indenture upon exchange
for the Initial Securities (as defined in the Registration Rights
Agreement), will be validly issued and delivered, and will
constitute valid and binding obligations of the Company entitled to
the benefits of the Indenture, enforceable in accordance with their
terms, except that the enforcement thereof may be limited by
(1) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
(2) general equity principles and
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the discretion of
the court before which any proceeding therefor may be brought,
whether at law or in equity.
(h) The
Guarantee of the Exchange Securities by each of the Guarantors
(each, an “ Exchange
Security Guarantee ” and together, the
“ Exchange Security
Guarantees ”) will be, as of the
Closing Date or as of the Registered Exchange Offer, duly
authorized by each of the Guarantors. When the Exchange
Security Guarantees have been issued, executed and authenticated in
accordance with the terms of the Registered Exchange Offer, the
Indenture and the Supplemental Indenture, the Exchange Security
Guarantee of each Guarantor will constitute a valid and legally
binding obligation of such Guarantor, enforceable in accordance
with its terms, except that the enforcement thereof may be limited
by (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors’ rights and
(ii) general equity principles and the discretion of the court
before which any proceeding therefor may be brought, whether at law
or in equity.
(i) Except
as disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company or the
Guarantors, on the one hand, and any person, on the other hand,
that would give rise to a valid claim against the Company, any
Guarantor or any Purchaser for a brokerage commission,
finder’s fee or other like payment in connection with the
transactions contemplated by this Agreement.
(j) No
consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for (i) the
consummation by the Company or the Guarantors of the transactions
contemplated by this Agreement or the Registration Rights Agreement
in connection with the issuance and sale of the Offered Securities
or the Exchange Securities by the Company and the issuance of the
Guarantees or the Exchange Security Guarantees by the Guarantors or
(ii) the consummation of the other transactions contemplated by the
Transaction Documents, in any such case except for (A) the filing
with the Secretary of State of the State of Delaware of the merger
certificate effectuating the Merger, (B) as have been obtained or
will be obtained prior to the Closing Date, (C) as may be required
under state securities or “Blue Sky” laws in connection
with the purchase and distribution of the Offered Securities by the
Purchasers, (D) the order of the Commission declaring
effective the Exchange Offer Registration Statement or, if
required, the Shelf Registration Statement (each as defined in the
Registration Rights Agreement) and (E) in the case of clause (ii)
immediately above only, as set forth on Schedule 4.2(b) of the
Merger Agreement (the failure of which to obtain would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect).
(k) The
execution, delivery and performance by each of the Company and the
Guarantors of the Transaction Documents will not result in a breach
or violation of any of the terms and provisions of, or constitute a
default under, (i) any statute or any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign,
having jurisdiction over those parties or any of their properties,
(ii) assuming that the Amended Credit Agreement has become
effective, any agreement or instrument to which any of those
parties is a party or by which any of those parties is bound or to
which any of the properties of those parties is subject, or (iii)
the charter or by-laws of any of those parties, except in the case
of clauses (i) and (ii) above, for breaches, violations and
defaults that would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. The
Company has full power and authority to authorize, issue and sell
the Offered Securities as contemplated by this Agreement and the
Guarantors have full power and authority to authorize and issue
their respective Guarantees as contemplated by this
Agreement.
(l) This
Agreement has been duly authorized, executed and delivered by the
Company and the Company Guarantors; and on the Closing Date the
counterpart to this Agreement will be duly authorized, executed and
delivered by the ATI Guarantors.
5
(m) The
Registration Rights Agreement has been duly authorized by the
Company and the Company Guarantors and on the Closing Date will be
duly authorized by the ATI Guarantors; on the Closing Date, the
Registration Rights Agreement will be duly executed and delivered
by the Company and the Guarantors and will be enforceable against
the Company and the Guarantors in accordance with its terms, except
that (i) the enforcement thereof may be limited by (A) bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and (B) general equity principles and the
discretion of the court before which any proceeding therefor may be
brought, whether at law or in equity and (ii) any rights to
indemnity or contribution thereunder may be limited by federal and
state securities laws and public policy considerations.
(n) Except
as disclosed in the General Disclosure Package, the Company, TD
Group and their subsidiaries have good and marketable title to all
material real properties and all other material properties and
material assets owned by them, in each case, and except as
disclosed in the General Disclosure Package, free from liens,
encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by them; provided, however, that the foregoing
representations and warranties shall only be made with respect to
the ATI Guarantors on the Closing Date after giving effect to the
repayment of ATI’s existing indebtedness as further described
in the General Disclosure Package and except as disclosed in the
General Disclosure Package, the Company, TD Group and their
subsidiaries hold any material leased real or personal property
under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by
them.
(o) The
Company, TD Group and their subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them and have not received any written notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that, if determined adversely to
the Company, TD Group or any of their subsidiaries, would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(p) No
labor dispute with the employees of the Company, TD Group or any
subsidiary thereof exists or, to the knowledge of the Company, is
imminent that would, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(q) The
Company, TD Group and their subsidiaries own, possess (including by
license or other agreement) or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, “ Intellectual Property Rights ”) necessary to conduct
the business now operated by them, or presently employed by them,
and have not received any written notice of infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property Rights that, if determined adversely to the
Company, TD Group or any of their subsidiaries, would individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(r) Except
as disclosed in the General Disclosure Package, neither the
Company, TD Group nor any of their subsidiaries (i) is in violation
of any statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, “ Environmental Laws ”), (ii) owns or
operates any real property contaminated with any substance that is
subject to any Environmental Laws, (iii) is liable for any off-site
disposal or contamination pursuant to any Environmental Laws, or
(iv) is subject to any claim relating to any Environmental Laws,
which violation, contamination, liability or claim would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and to the Company’s knowledge,
there are no pending investigations which could reasonably be
expected to lead to such a claim.
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(s) Except
as disclosed in the General Disclosure Package, there are no
pending actions, suits or proceedings against or affecting the
Company, TD Group, any of their subsidiaries or any of their
respective properties that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company or any
of the Guarantors to perform their respective obligations under the
Operative Documents, or which are otherwise material in the context
of the sale of the Offered Securities; to the Company’s
knowledge, no such actions, suits or proceedings are threatened
against the Company, TD Group, any of their respective subsidiaries
or any of their respective properties.
(t) The
financial statements included in the General Disclosure Package and
the Final Offering Circular present fairly in all material respects
the financial position of (1) TD Group (or, if applicable,
TransDigm Holding Company) and its consolidated subsidiaries and
(2) ATI and its consolidated subsidiaries, in each case as of the
dates shown and their results of operations and cash flows for the
periods shown, and, except as otherwise disclosed in the General
Disclosure Package and the Final Offering Circular, such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States (“
GAAP ”) applied on a
consistent basis, and the assumptions used in preparing the pro
forma financial statements included in the General Disclosure
Packageand the Final Offering Circular provide a reasonable basis
for presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma
adjustments give appropriate effect to those assumptions, and the
pro forma columns therein reflect the proper application of those
adjustments to the corresponding historical financial statement
amounts.
(u) Except
as disclosed in the General Disclosure Package, since the date of
the latest audited financial statements of TD Group included in the
General Disclosure Package there has been no material adverse
change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of TD Group and its
subsidiaries taken as a whole, and, except as disclosed in or
contemplated by the General Disclosure Package, there has been no
dividend or distribution of any kind declared, paid or made by TD
Group on any class of its capital stock.
(v) TD
Group is subject to the reporting requirements of either Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as amended
(the “ Exchange
Act ”), and files reports
with the Commission on the Electronic Data Gathering, Analysis, and
Retrieval (EDGAR) system.
(w)
Neither the Company, TD Group nor any Guarantor is, and after
giving effect to the Transactions none of them will be, an open-end
investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940,
as amended (the “ Investment Company Act ”); and neither the
Company, TD Group nor any Guarantor is, and after giving effect to
the Transactions, none of them will be, an “investment
company” as defined in the Investment Company
Act.
(x) TD
Group maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) under the Exchange Act) that comply in
all material respects with the requirements of the Exchange Act;
such disclosure controls and procedures have been designed to
ensure that material information relating to TD Group and its
subsidiaries is made known to TD Group’s principal executive
officer and principal financial officer by others within those
entities.
(y) No
securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered
Securities are listed on any national securities exchange
registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system.
7
(z) The
offer and sale of the Offered Securities in the manner contemplated
by this Agreement will be exempt from the registration requirements
of the Securities Act by reason of Section 4(2)
thereof, Regulation D thereunder and Regulation S
thereunder; and it is not necessary to qualify an indenture in
respect of the Offered Securities under the Trust Indenture
Act.
(aa)
Except in connection with the consummation of the transactions
contemplated by this Agreement, neither the Company nor any of its
subsidiaries or affiliates, nor any person acting on its or their
behalf (i) has, within the six-month period prior to the date
hereof, offered or sold in the United States or to any U.S. person
(as such terms are defined in Regulation S under the
Securities Act (“ Regulation S ”)) the Offered
Securities or any security of the same class or series as the
Offered Securities, except for the issuance and sale by the Company
of its registered 7¾% Senior Subordinated Notes in the
exchange offer that was consummated on December 11, 2006 pursuant
to the terms of that certain Registration Rights Agreement, dated
as of June 23, 2006, by and among the Company and the other parties
named therein, or (ii) has offered or will offer or sell the
Offered Securities (A) in the United States by means of any
form of general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act or (B) with
respect to any such securities sold in reliance on Rule 903 of
Regulation S, by means of any directed selling efforts within the
meaning of Rule 902(c) of Regulation S. The Company, its affiliates
and any person acting on its or their behalf have complied in all
material respects and will comply in all material respects with the
offering restriction requirements of Regulation S with respect to
the offering and sale of the Offered Securities. The Company has
not entered into and will not enter into any contractual
arrangement with respect to the distribution of the Offered
Securities, except for this Agreement. Notwithstanding
anything contained herein to the contrary, neither the Company nor
any Guarantor makes any representation or warranty pursuant to this
clause (aa) with respect to any actions taken by the Purchasers in
connection with the transactions contemplated by this
Agreement.
3.
Purchase, Sale and Delivery of Offered Securities. On
the basis of the representations, warranties and agreements and
subject to the terms and conditions set forth herein, on the
Closing Date, the Company agrees to sell to the several Purchasers,
and each such Purchaser agrees, severally and not jointly, to
purchase from the Company, at a purchase price of 98.25% of the
gross proceeds of the Offered Securities, plus accrued interest
from January 15, 2007 to the Closing Date, the principal amount of
Offered Securities set forth opposite the name of such Purchaser in
Schedule A hereto, it being understood and agreed that the
obligation of the Company to sell to the several Purchasers the
principal amount of Offered Securities set forth herein is
conditioned upon the consummation of the Merger.
The Company will deliver against
payment of the purchase price the Offered Securities in the form of
one or more permanent global certificates in definitive form (the
“ Global Securities ”) deposited with the
Trustee as custodian for The Depository Trust Company (“
DTC ”) and registered in the name of Cede & Co.,
as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the
limited circumstances described in the Final Offering
Circular. Payment for the Offered Securities shall be made by
the Purchasers in Federal (same day) funds by wire transfer to an
account specified by the Company in writing to Credit Suisse, with
such payment being made on February 7, 2007, or at such other time
not later than seven full business days thereafter as Credit Suisse
and the Company determine, such time being herein referred to as
the “ Closing Date ”, against delivery to the
Trustee as custodian for DTC of the Global Securities representing
all of the Offered Securities purchased pursuant to the terms
hereof. The Global Securities will be made available for checking
at the office of Cravath, Swaine & Moore LLP, New York, New
York at least 24 hours prior to the Closing Date.
4.
Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the
Company that it is an “accredited investor” within the
meaning of Regulation D under the Securities Act.
8
(b) Each
Purchaser severally acknowledges that the Offered Securities have
not been registered under the Securities Act and may not be offered
or sold within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with Regulation S or
pursuant to an exemption from the registration requirements of the
Securities Act. Each Purchaser severally represents and agrees that
it has offered and sold the Offered Securities, and will offer and
sell the Offered Securities (i) as part of its distribution at any
time and (ii) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in
accordance with Rule 903 or Rule 144A under the Securities Act
(“ Rule 144A
”).
Accordingly, neither such Purchaser nor its affiliates, nor any
persons acting on its or their behalf, have engaged or will engage
in any directed selling efforts with respect to the Offered
Securities, and such Purchaser, its affiliates and all persons
acting on its or their behalf have complied and will comply with
the offering restriction requirements of Regulation S. Each
Purchaser severally agrees that, at or prior to confirmation of
sale of the Offered Securities, other than a sale pursuant to Rule
144A, such Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration
that purchases the Offered Securities from it during the restricted
period a confirmation or notice to substantially the following
effect:
“The Securities covered hereby
have not been registered under the U.S. Securities Act of 1933, as
amended (the “ Securities Act ”), 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
date of the commencement of the offering and the closing date,
except in either case in accordance with Regulation S (or Rule 144A
if available) under the Securities Act. Terms used above have the
meanings given to them by Regulation S.”
Terms used in this subsection (b)
have the meanings given to them by Regulation S.
(c) Each
Purchaser severally agrees that it and each of its
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