EXECUTION COPY
Exhibit 10.1
$150,000,000
RAYONIER TRS HOLDINGS
INC.
4.50% Senior Exchangeable Notes
due 2015
PURCHASE
AGREEMENT
August 6, 2009
C REDIT S UISSE S ECURITIES (USA) LLC (“Credit
Suisse”),
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
J.P. Morgan Securities Inc.,
As Representatives of the Several
Purchasers,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Rayonier TRS
Holdings Inc., a Delaware corporation (the “ Company
”), agrees with the several initial purchasers named in
Schedule A hereto (the “ Purchasers ”), subject
to the terms and conditions stated herein, to issue and sell to the
several Purchasers U.S.$150,000,000 principal amount of its 4.50%
Senior Exchangeable Notes due 2015 (“ Firm
Securities ”) and also proposes to grant to the
Purchasers an option exercisable from time to time by Credit Suisse
to purchase an aggregate of up to an additional $22,500,000 in
aggregate principal amount (“ Optional Securities
”, and together with the Firm Securities, the “
Securities ”) of its 4.50% Senior Exchangeable Notes
due 2015, each to be issued under an indenture, to be dated as of
August 12, 2009 (the “ Indenture ”),
between the Company, the Guarantor and The Bank of New York Mellon
Trust Company, N.A., as trustee (the “Trustee”
). The Securities will be unconditionally guaranteed as to the
payment of principal and interest by Rayonier Inc., a North
Carolina corporation (the “ Guarantor ” and such
guarantee, the “ Guarantee ”). The Firm
Securities and the Optional Securities which the Purchasers may
elect to purchase pursuant to Section 3, together with the
Guarantee, are herein collectively called the “ Offered
Securities ”.
The Securities will be exchangeable,
subject to certain conditions set forth in the Indenture, at the
option of the holder for shares of common stock, no par value, of
the Guarantor (the “ Common Stock ”), in
accordance with the terms of the Offered Securities.
The holders of the Offered
Securities will be entitled to the benefits of a Registration
Rights Agreement of even date herewith among the Company and the
Purchasers (the “ Registration Rights Agreement
”), pursuant to which the Company agrees to file a
registration statement with the Commission registering the resale
of the Offered Securities and the Underlying Shares, as hereinafter
defined, under the Securities Act.
The Company hereby agrees with the
several Purchasers as follows:
2. Representations and Warranties
of the Company and the Guarantor. Each of the Company and the
Guarantor represents and warrants to, and agrees with, the several
Purchasers that:
(a) Offering Circulars; Certain
Defined Terms . The Company has prepared or will prepare a
Preliminary Offering Circular and a Final Offering
Circular.
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For purposes of this
Agreement:
“ Applicable Time
” means 5:30 p.m. (New York City time) on the date of this
Agreement.
“ Closing Date ”
has the meaning set forth in Section 3 hereof.
“ Commission ”
means the Securities and Exchange Commission.
“ Exchange Act ”
means the United States Securities Exchange Act of 1934.
“ Final Offering
Circular ” means the final offering circular relating to
the Offered Securities to be offered by the Purchasers that
discloses the offering price and other final terms of the Offered
Securities and is dated as of the date of this Agreement (even if
finalized and issued subsequent to the date of this
Agreement).
“ Free Writing
Communication ” means a written communication (as such
term is defined in Rule 405) 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.
“ General Disclosure
Package ” means the Preliminary Offering Circular
together with any Issuer Free Writing Communication existing at the
Applicable Time and the information in which is intended for
general distribution to prospective investors, as evidenced by its
being specified in Schedule B hereto.
“ 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.
“ Preliminary Offering
Circular ” means the preliminary offering circular, dated
August 5, 2009, relating to the Offered Securities to be
offered by the Purchaser.
“ Rules and Regulations
” means the rules and regulations of the
Commission.
“ Securities Act
” means the United States Securities Act of 1933.
“ Securities Laws
” means, collectively, the Sarbanes-Oxley Act of 2002
(“ Sarbanes-Oxley ”), the Securities Act, the
Exchange Act, the Rules and Regulations and the rules of the New
York Stock Exchange (“ Exchange Rules
”).
“ Supplemental Marketing
Material ” means any Issuer Free Writing Communication
other than any Issuer Free Writing Communication specified in
Schedule B hereto. Supplemental Marketing Materials include, but
are not limited to, any Issuer Free Writing Communication listed on
Schedule C hereto.
“ Underlying Shares
” shall mean shares of Common Stock into which the Offered
Securities are exchangeable.
Unless otherwise specified, a
reference to a “rule” is to the indicated rule under
the Act.
(b) Disclosure . As of the
date of this Agreement, the Final Offering Circular does not, and
on and as of each Closing Date, the General Disclosure Package and
the Final Offering Circular will not contain 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, when
considered together with the General Disclosure Package, contained
any untrue statement of a material fact or omitted to
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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 or 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. Except as disclosed
in the General Disclosure Package, on the date of this Agreement,
the Company’s or the Guarantor’s Annual Report on
Form 10-K most recently filed with the Commission and all
subsequent reports through the date of this Agreement
(collectively, the “ Exchange Act Reports ”)
which have been filed by the Company or the Guarantor with the
Commission or sent to shareholders pursuant to the Exchange Act do
not include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to the requirements
of the Exchange Act and the Rules and Regulations.
(c) Good Standing of the Company
and the Guarantor . Each of the Company and the Guarantor has
been duly incorporated and is existing and in good standing under
the laws of the jurisdiction of its organization, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the General Disclosure Package; and
each of the Company and the Guarantor 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 to the
extent the failure to do so would not reasonably be expected to,
individually or in the aggregate, have a material adverse effect or
a prospective material adverse effect on the condition (financial
or otherwise), results of operation, business or properties of the
Company or Guarantor, taken as a whole (a “ Material
Adverse Effect ”).
(d) Subsidiaries . Each
Significant Subsidiary (as defined below), including any
off-balance sheet entity, has been duly organized and is existing
and in good standing under the laws of the jurisdiction of its
organization, with power and authority (corporate, partnership,
limited liability company or other) to own its properties and
conduct its business as described in the General Disclosure
Package; and each Significant Subsidiary 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; all of the
issued and outstanding capital stock, partnership interests or
limited liability company interests, as applicable, of each
Significant Subsidiary has been duly authorized and validly issued
and is (except for general partner interests) fully paid (to the
extent required under such Significant Subsidiary’s
organizational documents) and nonassessable, except as such
non-assessability may be affected by Sections 18-607 and 18-804 of
the Delaware Limited Liability Company Act or Sections 17-303 or
17-607 of the Delaware Revised Uniform Limited Partnership Act, as
applicable; and the capital stock of each Significant Subsidiary
owned by the Company or the Guarantor, directly or through
subsidiaries, is owned free from liens, encumbrances and defects,
other than any liens or encumbrances in favor of the Guarantor or a
Significant Subsidiary. “ Significant Subsidiaries
” means the Company and the entities listed on Schedule D
hereto.
(e) Indenture . The Indenture
has been duly authorized; the Offered Securities have been duly
authorized; and when the Offered Securities are delivered and paid
for pursuant to this Agreement on the Closing Date, the Indenture
will have been duly executed and delivered, such Offered Securities
will have been duly executed, authenticated, issued and delivered
(assuming due authentication of the Offered Securities by the
Trustee), and the Indenture and such Offered Securities will
conform to the information in the General Disclosure Package and
will conform to the description of such Offered Securities
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, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to
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or affecting creditors’ rights
and to general equity principles and implied covenants of good
faith and fair dealing and entitled to the benefits provided by the
Indenture.
(f) Underlying Shares . The
Underlying Shares initially issuable upon exchange of such
Securities have been duly authorized and reserved for issuance upon
such exchange and will conform, in all material respects, to the
information in the General Disclosure Package and to the
description of such Underlying Shares contained in the Final
Offering Circular; the authorized equity capitalization of the
Guarantor is as set forth in the General Disclosure Package; all
outstanding shares of capital stock of the Guarantor are, and when
issued upon exchange the Underlying Shares will be, validly issued,
fully paid and nonassessable; and the stockholders of the Guarantor
have no preemptive rights with respect to the Underlying Shares,
and none of the outstanding shares of capital stock of the
Guarantor have been issued in violation of any preemptive or
similar rights of any security holder.
(g) No Finder’s Fee .
Except as disclosed in the General Disclosure Package, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Purchaser for a brokerage commission, finder’s fee or
other like payment.
(h) Registration Rights
Agreement . The Registration Rights Agreement has been duly
authorized by the Company and the Guarantor; and, when the Offered
Securities are delivered and paid for pursuant to this Agreement on
the Closing Date, the Registration Rights Agreement will have been
duly executed and delivered and will be a valid and legally binding
obligation of the Company and the Guarantor, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles and implied covenants of
good faith and fair dealing and except as rights to indemnification
and contribution under the Registration Rights Agreement may be
limited under applicable law.
(i) Guarantee . The Guarantee
to be endorsed on the Offered Securities by the Guarantor has been
duly authorized by such Guarantor; and, when the Offered Securities
are delivered and paid for pursuant to this Agreement on the
Closing Date and issued, executed and authenticated in accordance
with the terms of the Indenture, the Guarantee of the Guarantor
endorsed thereon will have been duly executed and delivered by the
Guarantor, will conform to the description thereof contained in
General Disclosure Package and the Final Offering Circular and will
constitute a valid and legally binding obligation of such
Guarantor, enforceable in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles
and implied covenants of good faith and fair dealing.
(j) No Registration Rights .
Except pursuant to the Registration Rights Agreement, there are no
contracts, agreements or understandings between the Company or the
Guarantor and any person granting such person the right to require
the Company or such Guarantor to file a registration statement
under the Securities Act with respect to any securities of the
Company or such Guarantor or to require the Company or such
Guarantor to include such securities with the Securities and
Guarantee registered pursuant to any Registration
Statement.
(k) Absence of Further
Requirements . No consent, approval, authorization, or order
of, or filing or registration with, any person (including any
governmental agency or body or any court) is required for the
consummation of the transactions contemplated by this Agreement,
the Indenture and the Registration Rights Agreement in connection
with the offering, issuance and sale of the Offered Securities and
the Guarantee by the Company and the Guarantor except for the order
of the Commission declaring effective the Shelf Registration
Statement (as defined in the Registration Rights Agreement) and for
such as may be required under state securities or “blue
sky” laws.
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(l) Title to Property .
Except as disclosed in the General Disclosure Package, the Company,
the Guarantor and the Significant Subsidiaries have good and
marketable title to all real properties and title to all other
properties and assets owned by them, in each case free from liens,
charges, encumbrances and defects that would reasonably be expected
to, individually or in the aggregate, have a Material Adverse
Effect; and except as disclosed in the General Disclosure Package,
the Company, the Guarantor and the Significant Subsidiaries hold
their leased real or personal property under valid and enforceable
leases, except where the failure to do so would not reasonably be
expected to, individually or in the aggregate, have a Material
Adverse Effect.
(m) Absence of Defaults and
Conflicts Resulting from Transaction . The execution, delivery
and performance of the Indenture, this Agreement and the
Registration Rights Agreement, and the issuance and sale of the
Offered Securities and Guarantee and compliance with the terms and
provisions thereof will not result in a breach or violation of any
of the terms and provisions of, or constitute a default or a Debt
Repayment Triggering Event (as defined below) under, or result in
the imposition of any lien, charge or encumbrance upon any property
or assets of the Company, the Guarantor or any of their respective
subsidiaries pursuant to (i) the charter or by-laws of the
Company, the Guarantor or any of their respective subsidiaries,
(ii) any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company, the Guarantor or any of their
respective subsidiaries or any of their properties or
(iii) any agreement or instrument to which the Company, the
Guarantor or any of their respective subsidiaries is a party or by
which the Company, the Guarantor or any of their respective
subsidiaries is bound or to which any of the properties of the
Company, the Guarantor or any of their respective subsidiaries is
subject, except, with respect to clauses (ii) and (iii), where
the failure to do so would not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect; a
“ Debt Repayment Triggering Event ” means any
event or condition that gives, or with the giving of notice or
lapse of time would give, 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, the Guarantor or any of their respective
subsidiaries.
(n) Absence of Existing Defaults
and Conflicts . None of the Company, the Guarantor or their
respective subsidiaries (i) is in violation of its respective
charter or by-laws or (ii) in default (or with the giving of
notice or lapse of time would be in default) under any existing
obligation agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or
instrument to which any of them is a party or by which any of them
is bound or to which any of the properties of any of them is
subject, except, with respect to clause (ii), for such violation or
default that would not reasonably be expected to, individually or
in the aggregate, result in a Material Adverse Effect.
(o) Authorization of
Agreement. This Agreement has been duly authorized, executed
and delivered by the Company and the Guarantor.
(p) Possession of Licenses and
Permits . The Company, the Guarantor and their respective
subsidiaries possess, and are in compliance with the terms of, all
adequate certificates, authorizations, franchises, licenses and
permits (“ Licenses ”) necessary or material to
the conduct of the business now conducted or proposed in the
General Disclosure Package to be conducted by them and have not
received any notice of proceedings relating to the revocation or
modification of any Licenses that would reasonably be expected to,
individually or in the aggregate, have a Material Adverse
Effect.
(q) Absence of Labor Dispute
. No labor dispute with the employees of the Company, the Guarantor
or any of their respective subsidiaries exists or, to the knowledge
of the Company or the Guarantor, is imminent that would reasonably
be expected to, individually or in the aggregate, have a Material
Adverse Effect.
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(r) Possession of Intellectual
Property . The Company, the Guarantor and their respective
subsidiaries own, possess 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 notice of infringement of or conflict with asserted
rights of others with respect to any intellectual property rights
that would reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect.
(s) Environmental Laws .
Except as disclosed in the General Disclosure Package, none of the
Company, the Guarantor or their respective subsidiaries is in
violation of any statute, any 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 ”), owns or
operates any real property contaminated with any substance that is
subject to regulation under any environmental laws, is liable for
any off site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would reasonably be expected to, individually or in the
aggregate, have a Material Adverse Effect; and the Company is not
aware of any pending investigation which might lead to such a
claim, which individually or in the aggregate would reasonably be
expected to have a Material Adverse Effect.
(t) Accurate Disclosure . The
statements in the General Disclosure Package and the Final Offering
Circular under the headings “Description of the Notes”
and “Certain United States Federal Income Tax
Considerations”, insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein,
are accurate and fair summaries, in all material respects, of such
legal matters, agreements, documents or proceedings.
(u) Absence of Manipulation.
None of the Company, the Guarantor and their respective affiliates
has, either alone or with one or more other persons, bid for or
purchased for any account in which it or any of its affiliates had
a beneficial interest any Offered Securities or attempt to induce
any person to purchase any Offered Securities.
(v) Statistical and
Market-Related Data . Any third-party statistical and
market-related data included in the Preliminary Offering Circular,
the Final Offering Circular, or any Issuer Free Writing
Communication are based on or derived from sources that the Company
and the Guarantor believe to be reliable and accurate.
(w) Internal Controls and
Compliance with the Sarbanes-Oxley Act . Except as set forth in
the General Disclosure Package, the Guarantor and its Board of
Directors (the “ Board ”) are in compliance, in
all material respects, with Sarbanes-Oxley and all applicable
Exchange Rules. The Company and the Guarantor maintain a system of
internal controls, including, but not limited to, disclosure
controls and procedures, internal controls over accounting matters
and financial reporting, an internal audit function, and legal and
regulatory compliance controls (collectively, “ Internal
Controls ”), that comply with the Securities Laws and are
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 in the United States and to maintain
accountability for assets, (iii) access to assets is permitted
only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(x) Litigation . Except as
disclosed in the General Disclosure Package, there are no pending
actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body,
domestic or foreign) against or affecting the Company,
the
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Guarantor, any of their respective
subsidiaries or any of their respective properties which would
reasonably be expected to, individually or in the aggregate, have a
Material Adverse Effect, or would materially and adversely affect
the ability of the Company or the Guarantor to perform their
obligations under the Indenture, this Agreement, or the
Registration Rights Agreement, or which are otherwise material in
the context of the sale of the Offered Securities and the
Guarantee; and no such actions, suits or proceedings (including any
inquiries or investigations by any court or governmental agency or
body, domestic or foreign) are threatened.
(y) Financial Statements .
The financial statements included in the General Disclosure Package
present fairly the financial position of the Company, the Guarantor
and their respective consolidated subsidiaries 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, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis.
(z) No Material Adverse Change in
Business . Except as disclosed in the General Disclosure
Package, since the end of the period covered by the latest audited
financial statements included in the General Disclosure Package
(i) there has been no change, nor any development or event
involving a prospective change, in the condition (financial or
otherwise), results of operations, business, properties or
prospects of the Company, the Guarantor and their respective
subsidiaries, taken as a whole, that has had a Material Adverse
Effect; (ii) 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 the Company or
the Guarantor on any class of their capital stock, except for
dividend distributions from the Company to the Guarantor and
(iii) except as disclosed in or contemplated by the General
Disclosure Package, there has been no material adverse change in
the capital stock, short-term indebtedness, long-term indebtedness,
net current assets or net assets of the Company, the Guarantor and
their respective subsidiaries.
(aa) Investment Company Act .
Neither the Company nor the Guarantor is 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 (the “
Investment Company Act ”); and neither the Company nor
the Guarantor is and, after giving effect to the offering and sale
of the Offered Securities and the application of the proceeds
thereof as described in the General Disclosure Package, will be an
“investment company” as defined in the Investment
Company Act.
(bb) Regulations T, U, X .
Neither the Company nor the Guarantor nor any of their respective
subsidiaries nor any agent thereof acting on their behalf has
taken, and none of them will take, any action that might cause this
Agreement or the issuance or sale of the Offered Securities to
violate Regulation T, Regulation U or Regulation X of the Board of
Governors of the Federal Reserve System.
(cc) Ratings . No
“nationally recognized statistical rating organization”
as such term is defined for purposes of Rule 436(g)(2)
(i) has imposed (or has informed the Company or the Guarantor
that it is considering imposing) any condition (financial or
otherwise) on the Company’s or the Guarantor’s
retaining any rating assigned to the Company or the Guarantor or
any securities of the Company or the Guarantor or (ii) has
indicated to the Company or the Guarantor that it is considering
any of the actions described in Section 7(b)(ii)
hereof.
(dd) Class of Securities Not
Listed . No securities of the same class (within the meaning of
Rule 144A(d)(3)) 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.
(ee) No Registration . The
offer and sale of the Offered Securities in the manner contemplated
by this Agreement will be exempt from the registration requirements
of the
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Securities Act by reason of
Section 4(2) thereof and Regulation D thereunder; and it
is not necessary to qualify an indenture in respect of the Offered
Securities under the United States Trust Indenture Act of 1939, as
amended (the “ Trust Indenture Act
”).
(ff) No General Solicitation; No
Directed Selling Efforts . Neither the Company nor the
Guarantor has entered, and neither the Company nor the Guarantor
will enter, into any contractual arrangement with respect to the
distribution of the Offered Securities except for this
Agreement.
(gg) Reporting Status . The
Company and the Guarantor are subject to Section 13 or 15(d)
of the Exchange Act.
(hh) Each of the Company and
the Guarantor represents and warrants on behalf of such entity and
their respective subsidiaries, affiliates and any of their
respective officers, directors, supervisors, managers, agents or
employees, that it has instituted and maintains policies and
procedures designed to ensure continued compliance with the laws
referenced herein at subparagraphs (a) through (c) and
that, except to the extent that any such violation would not cause
or result in a Material Adverse Effect, it has not violated, and
its participation in the offering will not violate each of the
following laws: (a) anti-bribery laws, including but not
limited to, any applicable law, rule or regulation of any locality
in which the foregoing entities or individuals do business on
behalf of the Company, the Guarantor or its subsidiaries, including
the U.S. Foreign Corrupt Practices Act of 1977, as amended, or any
other applicable law, rule or regulation of similar purpose and
scope, (b) anti-money laundering laws, including but not
limited to, applicable federal, state, international, foreign or
other laws, regulations or government guidance regarding anti-money
laundering, including, without limitation, Title 18 U.S. Code
section 1956 and 1957, the Patriot Act, the Bank Secrecy Act and
international anti-money laundering principals or procedures by an
intergovernmental group or organization, such as the Financial
Action Task Force on Money Laundering, of which the United States
is a member and with which designation the United States
representative to the group or organization continues to concur,
all as amended, and any Executive order, directive, or regulation
pursuant to the authority of any of the foregoing or any orders or
licenses issued thereunder or (c) laws and regulations
imposing U.S. economic sanctions measures, including but not
limited to, the International Emergency Economic Powers Act, the
Trading with the Enemy Act, the United Nations Participation Act
and the Syria Accountability and Lebanese Sovereignty Act, all as
amended, and any Executive Order, directive, or regulation pursuant
to the authority of any of the foregoing, including the regulations
of the United States Treasury Department set forth under 31 CFR,
Subtitle B, Chapter V, as amended, or any orders or licenses issued
thereunder.
(ii) Taxes. The Company, the
Guarantor and their respective subsidiaries have filed all federal,
state, local and non-U.S. tax returns that are required to be filed
or have requested extensions thereof (except in any case in which
the failure so to file would not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect);
and, except as set forth in the General Disclosure Package, the
Company, the Guarantor and their respective subsidiaries have paid
all taxes (including any assessments, fines or penalties) required
to be paid by them, except for any such taxes, assessments, fines
or penalties currently being contested in good faith or as would
not reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect.
(jj) Insurance. The
Company, the Guarantor and their respective subsidiaries are
insured by insurers with appropriately rated claims-paying
abilities against such losses and risks and in such amounts as are
prudent and customary for the businesses in which they are engaged;
all material policies of insurance and fidelity or surety bonds
insuring the Company, the Guarantor or any of their respective
subsidiaries or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Company,
the Guarantor and their respective subsidiaries are in compliance
with the terms of such policies and instruments in all material
respects.
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, the Company agrees to sell to the several
Purchasers, and each of the Purchasers agrees, severally and not
jointly, to purchase from the Company, at a purchase price of
97.50% of the principal amount thereof plus accrued interest
from
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August 12, 2009 to the First Closing
Date (as hereinafter defined), U.S. $150,000,000 principal amount
of the Firm Securities.
The Company will deliver against
payment of the purchase price the Firm Securities to be purchased
by the several Purchasers hereunder and to be offered and sold by
the Purchasers in reliance on Rule 144A (the “ Firm 144A
Securities ”) in the form of one permanent global
security in definitive form without interest coupons (the “
Firm Restricted Global Securities ”) deposited with
the Trustee as custodian for DTC and registered in the name of
Cede & Co., as nominee for DTC. The Firm Restricted Global
Securities shall be assigned separate CUSIP numbers. The Firm
Restricted Global Securities shall include the legend regarding
restrictions on transfer set forth under “Transfer
Restrictions” in the Final Offering Circular. Interests in
any permanent global Securities will be held only in book-entry
form through Euroclear, Clearstream, Luxembourg or DTC, as the case
may be, except in the limited circumstances described in the Final
Offering Circular.
Payment for the Firm 144A Securities
shall be made by the Purchasers in Federal (same day) funds by wire
transfer to an account at a bank acceptable to Credit Suisse drawn
to the order of the Company at the office of Cravath,
Swaine & Moore LLP, 825 Eighth Avenue, New York, NY 10019,
at 10:00 a.m., (New York City time), on August 12, 2009,
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 “ First Closing Date
”, against delivery to the Trustee as custodian for DTC of
the Firm Restricted Global Securities representing all of the Firm
144A Securities. The Firm Restricted Global Securities will be made
available for checking at the above office of Cravath,
Swaine & Moore LLP at least 24 hours prior to the First
Closing Date.
In addition, upon written notice
from the Representatives given to the Company from time to time not
more than 13 days subsequent to the date of this Agreement, the
Purchasers may purchase all or less than all of the Optional
Securities at the purchase price per principal amount of Offered
Securities (plus any accrued interest thereon to the related
Optional Closing Date) to be paid for the Firm Securities. The
Company agrees to sell to the several Purchasers the principal
amount of Optional Securities specified in such notice, and the
Purchasers agree to purchase such Optional Securities. No Optional
Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered.
The right to purchase the Optional Securities or any portion
thereof may be exercised from time to time and to the extent not
previously exercised may be surrendered and terminated at any time
upon notice by the Representatives to the Company.
Each time for the delivery of and
payment for the Optional Securities, being herein referred to as
the “ Optional Closing Date ”, which may be the
First Closing Date (the First Closing Date and each Optional
Closing Date, if any, being sometimes referred to as a “
Closing Date ”), shall be determined by Credit Suisse
on behalf of the several Purchasers but shall not be later than
seven full business days after written notice of election to
purchase Optional Securities is given; provided that any
Optional Closing Date shall occur within the thirteen-day period
beginning on, and including the First Closing Date. Payment for the
Optional Securities being purchased on such Optional Closing Date
by the Purchasers hereunder and to be offered and sold by the
Purchasers in reliance on Rule 144A (“ Optional 144A
Securities ”) shall be made by the Purchasers in Federal
(same day) funds by wire transfer to an account at a bank
acceptable to Credit Suisse drawn to the order of the Company at
the above office of Cravath, Swaine & Moore LLP, against
delivery to the Trustee of a restricted global security
representing all of the Optional 144A Securities being purchased on
such Optional 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.
(b) Each Purchaser agrees that it
and each of its affiliates has not entered and will not enter into
any contractual arrangement with respect to the distribution of the
Offered Securities except with the prior written consent of the
Company.
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(c) Each Purchaser agrees that it
and each of its affiliates will not offer or sell the Offered
Securities in the United States by means of any form of general
solicitation or general advertising within the meaning of Rule
502(c), including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or radio or
(ii) any seminar or meeting whose attendees have been invited
by any general solicitation or general advertising. Each Purchaser
agrees, with respect to resales made in reliance on Rule 144A of
any of the Offered Securities, to deliver either with the
confirmation of such resale or otherwise prior to settlement of
such resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule
144A.
5. Certain Agreements of the
Company and the Guarantor. The Company and the Guarantor agree
with the several Purchasers that:
(a) Amendments and Supplements to
Offering Circulars . The Company and the Guarantor will
promptly advise Credit Suisse of any proposal to amend or
supplement the Preliminary or Final Offering Circular and will not
effect such amendment or supplementation without Credit
Suisse’s consent. If, at any time prior to the completion of
the resale of the Offered Securities by the Purchasers, there
occurs an event or development as a result of which any document
included in the Preliminary or Final Offering Circular, the General
Disclosure Package or any Supplemental Marketing Material, if
republished immediately following such event or development,
included or would include an untrue statement of a material fact or
omitted or would 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, or if it is necessary
at any such time to amend or supplement the Preliminary or Final
Offering Circular, the General Disclosure Package or any
Supplemental Marketing Material to comply with any applicable law,
the Company and the Guarantor promptly will notify Credit Suisse of
such event and prom
