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EXHIBIT 4.16
ERICO INTERNATIONAL CORPORATION
$121,500,000
8 7/8% SENIOR SUBORDINATED NOTES DUE 2012
PURCHASE AGREEMENT
February 12, 2004
DEUTSCHE BANK SECURITIES INC.
J.P. Morgan Securities Inc.
ABN AMRO INCORPORATED
NATCITY INVESTMENTS, INC.
MCDONALD INVESTMENTS INC.
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York
10005
Ladies and Gentlemen:
ERICO International Corporation, an Ohio corporation (the
"Company"), and the Company's subsidiary
listed on the signature pages hereto
(the "Subsidiary Guarantor" and, together
with the Company, the "Issuers")
hereby confirm their agreement with you
(the "Initial Purchasers"), as set forth
below.
1. The
Securities. Subject to the terms and conditions
herein contained, the Company proposes to
issue and sell to the Initial
Purchasers $121,500,000 aggregate principal
amount of its 8 7/8% Senior
Subordinated Notes due 2012, Series A (the
"Notes"). The Notes will be
guaranteed (the "Guarantee") on a senior
subordinated basis by the Guarantor.
The Notes and the Guarantee are
collectively referred to herein as the
"Securities." The Securities are to be
issued under an indenture (the
"Indenture") to be dated as of February 20,
2004 by and among the Company, the
Guarantor and Wells Fargo Bank, N.A., as
Trustee (the "Trustee").
The Notes will be offered and sold to the Initial Purchasers
without being registered under the
Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions
therefrom; provided that the representations
and warranties of the Initial Purchasers
contained in Section 8 hereof are true,
accurate and complete and the offer and
sale of the Securities is conducted in
the manner set forth in the Final
Memorandum.
In connection with the sale of the Securities, the Issuers
have prepared a preliminary offering
memorandum dated February 2, 2004 (the
"Preliminary Memorandum") and a final
offering memorandum dated February 12,
2004 (the "Final Memorandum"; the
Preliminary Memorandum and the Final
Memorandum each herein being referred to as
a "Memorandum")
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setting forth or including, among other
things, a description of the terms of
the Securities, the terms of the offering
of the Securities, and a description
of the Company and the Guarantor.
In connection with the offering of the Securities, the
Company, the Guarantor and certain other
Subsidiaries (as defined below),
LaSalle Bank N.A., as agent and the lenders
thereunder will enter into an
amendment to the Company's existing
revolving credit agreement (the "Credit
Agreement"). Concurrently with the offering
of the Securities, the Company will
sell (the "CVC Sale") $19,400,000 aggregate
principal amount of its 8% Senior
Subordinated Notes due 2012, Series A (the
"CVC Notes"), issued under the
Indenture, to CVC Capital Funding, LLC.
The Initial Purchasers and their direct and indirect
transferees of the Securities will be
entitled to the benefits of the
Registration Rights Agreement to be dated
as of the Closing Date (as defined in
Section 3 below) (the "Registration Rights
Agreement"), pursuant to which the
Issuers will agree, among other things, to
file with the Securities and Exchange
Commission (the "Commission"), under the
circumstances set forth therein, (i) a
registration statement under the Act (the
"Exchange Offer Registration
Statement") relating to the notes (the
"Exchange Notes," which term includes the
related guarantee of the Subsidiary
Guarantor) to be offered in exchange (the
"Exchange Offer") for the Notes and (ii) as
and to the extent required by the
Registration Rights Agreement, to file with
the Commission a shelf registration
statement pursuant to Rule 415 under the
Act (the "Shelf Registration Statement"
and, together with the Exchange Offer
Registration Statement, the "Registration
Statements") relating to the resale by
certain holders of the Notes, and to use
their best efforts to cause such
Registration Statements to be declared
effective in accordance with the provisions
of the Registration Rights
Agreement. This Purchase Agreement (this
"Agreement"), the Notes, the Guarantee,
the Exchange Notes and related guarantee,
the Private Exchange Notes (as defined
in the Registration Rights Agreement) and
related guarantee, the Indenture and
the Registration Rights Agreement are
hereinafter referred to collectively as
the "Operative Documents."
2.
Representations and Warranties. The Company
represents and warrants to and agrees with
each of the Initial Purchasers as
follows:
(a) Neither
the Preliminary Memorandum as of the date
thereof nor the Final Memorandum nor any amendment or
supplement
thereto as of the date thereof and at the Closing Date (as defined
in
Section 3 below) (it being understood that references to the
Final
Memorandum herein, to the extent deemed made after the date of
the
Final Memorandum, are to the Final Memorandum, as supplemented as
of
the date of such reference, only) contained or will contain any
untrue
statement of a material fact or omitted or omits to state a
material
fact necessary to make the statements therein, in the light of
the
circumstances under which they were made, not misleading, except
that
the representations and warranties set forth in this Section 2(a)
do
not apply to statements or omissions made in reliance upon and
in
conformity with information relating to either of the Initial
Purchasers furnished to the Company in writing by the Initial
Purchasers expressly for use in the Preliminary Memorandum, the
Final
Memorandum or any amendment or supplement thereto.
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(b) All of the
subsidiaries of the Company are listed in
Schedule 2 attached hereto (each, a "Subsidiary" and collectively,
the
"Subsidiaries"); all of the outstanding shares of capital stock of
the
Company and the Subsidiaries have been, and as of the Closing Date
will
be, duly authorized and validly issued, are fully paid and
nonassessable and were not issued in violation of any preemptive
or
similar rights; except as set forth in the Final Memorandum, there
are
no (i) options, warrants or other rights to purchase, (ii)
agreements
or other obligations to issue or (iii) other rights to convert
any
obligation into, or exchange any securities for, shares of
capital
stock of or ownership interests in the Company or any of the
Subsidiaries outstanding. Except for immaterial holdings of less
than
one percent of such other entities that had an aggregate market
value
as of February 11, 2004, of less than $75,000, and for the
Subsidiaries
or as disclosed in the Final Memorandum, the Company does not
own,
directly or indirectly, any shares of capital stock or any other
equity
or long-term
debt securities or have any equity interest in any firm,
partnership, joint venture or other entity.
(c) Each of
the Company and the Subsidiaries is duly
incorporated or otherwise organized, validly existing and in
good
standing under the laws of its respective jurisdiction of
organization
and has all requisite corporate or other organizational power
and
authority to own or lease its properties and conduct its business
as
now conducted and as described in the Final Memorandum; each of
the
Company and the Subsidiaries is duly qualified to do business as
a
foreign corporation or entity in good standing in all other
jurisdictions where the ownership or leasing of its properties or
the
conduct of its business requires such qualification, except where
the
failure to be so qualified or in good standing could not,
individually
or in the aggregate, reasonably be expected to result in a
material
adverse effect on the business, condition (financial or otherwise),
or
results of operations of the Company and the Subsidiaries, taken as
a
whole, whether or not arising in the ordinary course of business
(any
such event, a "Material Adverse Effect").
(d) The
Company has all requisite corporate power and
authority to execute, deliver and perform each of its obligations
under
the Operative Documents to which it is a party and to consummate
the
transactions contemplated hereby and thereby, including,
without
limitation, the power and authority to issue, sell and deliver
the
Securities as contemplated by this Agreement. The Notes, when
issued,
will be in the form contemplated by the Indenture. The Notes,
the
Exchange Notes and the Private Exchange Notes have each been
duly
authorized by the Company and, when executed by the Company and
authenticated by the Trustee in accordance with the provisions of
the
Indenture and, in the case of the Notes, when delivered to and paid
for
by the Initial Purchasers in accordance with the terms of this
Agreement, will constitute valid and binding obligations of the
Company, entitled to the benefits of the Indenture, and
enforceable
against the Company in accordance with their terms, except that
the
enforcement thereof may be subject to (i) bankruptcy,
insolvency,
reorganization, fraudulent transfer, conveyance, voidable
preference,
moratorium or other similar laws, regulations or judicial opinions
of
general applicability now or hereafter in effect relating to or
affecting creditors' rights and remedies generally, and (ii)
general
principles of equity (whether such principals are consid-
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ered in a proceeding at law or equity) and the discretion of the
court
before which any proceeding therefor may be brought.
(e) The
Guarantor has all requisite corporate power and
authority to execute, deliver and perform each of its obligations
under
the Operative Documents to which it is a party and to consummate
the
transactions contemplated hereby and thereby, including,
without
limitation, the power and authority to issue, sell and deliver
the
Guarantee as contemplated by this Agreement. The Guarantee,
when
issued, will be in the form contemplated by the Indenture. The
Guarantee and the guarantees of the Exchange Notes and the
Private
Exchange Notes have each been duly authorized by the Guarantor
and,
when executed by the Guarantor and authenticated by the Trustee
in
accordance with the provisions of the Indenture and, in the case of
the
Guarantee, when delivered to and paid for by the Initial Purchasers
in
accordance with the terms of this Agreement, will constitute valid
and
binding obligations of the Guarantor, entitled to the benefits of
the
Indenture, and enforceable against the Guarantor in accordance
with
their terms, except that the enforcement thereof may be subject to
(i)
bankruptcy, insolvency, reorganization, fraudulent transfer,
conveyance, voidable preference, moratorium or other similar
laws,
regulations or judicial opinions of general applicability now
or
hereafter in effect relating to or affecting creditors' rights
and
remedies generally, and (ii) general principles of equity (whether
such
principals are considered in a proceeding at law or equity) and
the
discretion of the court before which any proceeding therefor may
be
brought.
(f) The
Issuers have all requisite corporate power and
authority to execute, deliver and perform their obligations under
the
Indenture. The Indenture meets the requirements for qualification
under
the Trust Indenture Act of 1939, as amended (the "TIA"). The
Indenture
has been duly authorized by the Issuers and, when executed and
delivered by the Issuers (assuming the due authorization, execution
and
delivery by the Trustee), will constitute a valid and binding
agreement
of the Issuers, enforceable against the Issuers in accordance with
its
terms, except that the enforcement thereof may be subject to
(i)
bankruptcy, insolvency, reorganization, fraudulent transfer,
conveyance, voidable preference, moratorium or other similar
laws,
regulations or judicial opinions of general applicability now
or
hereafter in effect relating to or affecting creditors' rights
and
remedies generally, and (ii) general principles of equity (whether
such
principals are considered in a proceeding at law or equity) and
the
discretion of the court before which any proceeding therefor may
be
brought.
(g) The
Issuers have all requisite corporate power and
authority to execute, deliver and perform their obligations under
the
Registration Rights Agreement. The Registration Rights Agreement
has
been duly authorized by the Issuers and, when executed and
delivered by
the Issuers (assuming the due authorization, execution and delivery
by
the Initial Purchasers), will constitute a valid and binding
agreement
of the Issuers, enforceable against the Issuers in accordance with
its
terms, except that (A) the enforcement thereof may be subject to
(i)
bankruptcy, insolvency, reorganization, fraudulent transfer,
conveyance, voidable preference, moratorium or other similar
laws,
regulations or judicial opinions of general applicability now
or
hereafter in effect relating to or af-
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fecting creditors' rights and remedies generally, and (ii)
general
principles of equity (whether such principals are considered in
a
proceeding at law or equity) and the discretion of the court
before
which any proceeding therefor may be brought and (B) any rights
to
indemnity or contribution thereunder may be limited by federal
and
state securities laws and public policy considerations.
(h) The
Issuers have all requisite corporate power and
authority to execute, deliver and perform their obligations under
this
Agreement and to consummate the transactions contemplated hereby.
This
Agreement and the consummation by the Issuers of the
transactions
contemplated hereby have been duly authorized by the Issuers.
This
Agreement has been duly executed and delivered by the Issuers.
(i) The Credit
Agreement, substantially in the form most
recently delivered to the Initial Purchasers prior to the date of
this
Agreement, has been duly authorized by the Company, the Guarantor
and
the other Subsidiaries party thereto and, when duly executed
and
delivered by the Company, the Guarantor and the other
Subsidiaries
party thereto, will be the valid and binding obligation of the
Company,
the Guarantors and other Subsidiaries party thereto,
enforceable
against each of them in accordance with its terms, except that
the
enforcement thereof may be subject to (i) bankruptcy,
insolvency,
reorganization, 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.
(j) No
consent, approval, authorization or order of any
court or governmental agency or body, or third party is required
for
(i) the issuance and sale by the Company of the Notes to the
Initial
Purchasers or the consummation by the Company of the other
transactions
contemplated hereby or by any of the other Operative Documents or
(ii)
the issuance by the Guarantor of the Guarantee or the consummation
by
the Guarantor of the other transactions contemplated hereby or by
any
of the Operative Documents, except with respect to both (i) and
(ii)
(a) such as may be required under state securities or "Blue Sky"
laws
in connection
with the purchase and resale of the Notes and Guarantee
by the Initial Purchasers in the manner contemplated herein and in
the
Final Memorandum and in the Registration Rights Agreement, (b)
with
respect to the registration of the Notes or Exchange Notes under
the
Act pursuant to the Registration Rights Agreement (including any
order
by the Commission declaring any Registration Statement under
the
Registration Rights Agreement effective), (c) the qualification of
the
Indenture under the Trust Indenture Act of 1939, as amended (the
"TIA")
and (d) for the failure to receive any consent, approval,
authorization
or order, which failure could not, individually or in the
aggregate,
reasonably be expected to result in a Material Adverse Effect. None
of
the Company or the Guarantor is (i) in violation of its certificate
of
incorporation or bylaws (or similar organizational document), (ii)
in
breach or violation of any statute, judgment, decree, order, rule
or
regulation applicable to any of them or any of their respective
properties or assets, except for any such breach or violation
that
would not, individually or in the aggregate, have a Material
Adverse
Effect, or (iii) in breach of or default under (nor has any
event
occurred that, with notice or passage of time or both, would
constitute
a de-
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fault under) or in violation of any of the terms or provisions of
any
indenture, mortgage, deed of trust, loan agreement, note,
lease,
license, franchise agreement, permit, certificate, contract or
other
agreement or instrument to which any of them is a party or to which
any
of them or their respective properties or assets is subject
(collectively, "Contracts"), except for any such breach,
default,
violation or event that would not, individually or in the
aggregate,
have a Material Adverse Effect.
(k) The
execution, delivery and performance by each of
the Issuers of this Agreement and each of the other Operative
Documents
(to the extent such Issuer is a party thereto) and the consummation
by
each of the Issuers of the transactions contemplated hereby and
thereby
(including, without limitation, the issuance and sale of the
Securities
to the Initial Purchasers and the issuance of the Exchange Notes
or
Private Exchange Notes in the Exchange Offer or the Private
Exchange,
as the case may be) will not conflict with or constitute or result
in a
breach of or a default under (or an event that with notice or
passage
of time or both would constitute a default under) or violation of
any
of (i) the terms or provisions of any Contracts, except for any
such
conflict, breach, default, violation or event that could not,
individually or in the aggregate, reasonably be expected to result
in a
Material Adverse Effect, (ii) the articles of incorporation or code
of
regulations (or similar organizational document) of the Company or
any
of the Subsidiaries or (iii) (assuming compliance with all
applicable
state securities or "Blue Sky" laws and assuming the accuracy of
the
representations and warranties of the Initial Purchasers in Section
8
hereof) any statute, judgment, decree, order, rule or
regulation
applicable to the Company or any of the Subsidiaries or any of
their
respective properties or assets, except for any such conflict,
breach
or violation that could not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
(l) The
audited consolidated financial statements of
ERICO Global Company included in the Final Memorandum present
fairly in
all material respects the financial position, results of operations
and
cash flows of ERICO Global Company at the dates and for the periods
to
which they relate and have been prepared in accordance with
generally
accepted accounting principles applied on a consistent basis,
except as
otherwise stated therein. The summary and selected financial
and
statistical data in the Final Memorandum present fairly in all
material
respects the information shown therein and have been prepared
and
compiled on a basis consistent with the audited financial
statements
included therein, except as otherwise stated therein. Ernst &
Young LLP
(the "Independent Accountants") is an independent public
accounting
firm within the meaning of the Act and the rules and
regulations
promulgated thereunder.
(m) Except as
set forth in the Final Memorandum, there is
not pending or, to the knowledge of the Company or the
Guarantor,
threatened any action, suit, proceeding, inquiry or investigation
to
which the Company or any of the Subsidiaries is a party, or to
which
the property or assets of the Company or any of the Subsidiaries
are
subject, before or brought by any court, arbitrator or
governmental
agency or body that, if determined adversely to the Company or any
of
the Subsidiaries, could, individually or in the aggregate,
reasonably
be expected to result in a Material Adverse Effect or that seeks
to
re-
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strain, enjoin, prevent the consummation of or otherwise challenge
the
issuance or sale of the Securities to be sold hereunder or the
consummation of the transactions described in the Final
Memorandum.
(n) Each of
the Company and the Subsidiaries possesses
all licenses, permits, certificates, consents, orders, approvals
and
other authorizations from, and has made all declarations and
filings
with, all federal, state, local and other governmental authorities,
and
all courts and other tribunals, presently required or necessary to
own
or lease, as the case may be, and to operate its respective
properties
and to carry on its respective businesses as now or proposed to
be
conducted as set forth in the Final Memorandum ("Permits"),
except
where the failure to possess such Permits could not reasonably
be
expected, individually or in the aggregate, to result in a
Material
Adverse Effect; each of the Company and the Subsidiaries has
fulfilled
and performed all of its obligations with respect to such Permits
and
no event has occurred that allows, or after notice or lapse of
time
would allow, revocation, termination or termination thereof or
results
in any other material impairment of the rights of the holder of
any
such Permit and none of the Company or the Subsidiaries has
received
any notice of any proceeding relating to revocation or modification
of
any such Permit, except as described in the Final Memorandum and
except
where such failure to perform, revocation or modification could
not,
individually or in the aggregate, reasonably be expected to result
in a
Material Adverse Effect.
(o) Since the
date of the most recent historical
financial statements appearing in the Final Memorandum, except
as
described therein or contemplated thereby (including the $25.0
million
dividend described therein), (i) none of the Company or the
Subsidiaries has incurred any liabilities or obligations, direct
or
contingent, or entered into or agreed to enter into any
transactions or
contracts (written or oral) not in the ordinary course of
business,
which liabilities, obligations, transactions or contracts
would,
individually or in the aggregate, be material to the business,
condition (financial or otherwise), or results of operations of
the
Company and its Subsidiaries, taken as a whole, (ii) none of
the
Company or the Subsidiaries has purchased any of its
outstanding
capital stock, nor declared, paid or otherwise made any dividend
or
distribution of any kind on its capital stock (other than with
respect
to any of such Subsidiaries, the purchase of, or dividend or
distribution on, capital stock owned by the Company); (iii) there
shall
not have been any material change in the capital stock or
long-term
indebtedness of the Company or the Subsidiaries; and (iv) there has
not
been any material adverse change, or any development involving
a
prospective material adverse change, in or affecting the
financial
position, stockholders' equity or results of operations of the
Company
and its subsidiaries, otherwise than as set forth in the
Offering
Memorandum..
(p) Each of
the Company and the Subsidiaries has filed
all necessary federal, state and foreign income and franchise
tax
returns, except where the failure to so file such returns could
not
reasonably be expected to result in a Material Adverse Effect, and
has
paid all taxes shown as due thereon, other than taxes that the
Company
or any Subsidiary is contesting in good faith and for which the
Company
or such Subsidiary has provided adequate reserves, to the knowledge
of
the Company and the subsidiaries, no tax defi-
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ciency has been asserted against the Company or any of the
Subsidiaries
that could reasonably be expected to result in a Material
Adverse
Effect.
(q) The
statistical and market-related data included in
the Final Memorandum are based on or derived from sources that
the
Company and the Subsidiaries believe to be reliable and accurate
or
represent the Company's good faith estimates that are made on the
basis
of data derived from such sources.
(r) None of
the Company, the Subsidiaries or any agent
acting on their behalf has taken or will take any action that
might
cause this Agreement or the sale of the Securities to violate
Regulation T, U or X of the Board of Governors of the Federal
Reserve
System, in each case as in effect, or as the same may hereafter be
in
effect, on the Closing Date.
(s) Each of
the Company and the Subsidiaries has good and
marketable title to all real property and rights in all
personal
property described in the Final Memorandum as being owned by it
and
good and marketable title to a leasehold estate in the real
property
described in the Final Memorandum as being leased by it free and
clear
of all liens, charges, encumbrances or restrictions, except (i)
for
liens, charges, encumbrances or restrictions under the
Company's
existing and amended senior credit facilities as described in the
Final
Memorandum, (ii) as would be permitted by the Indenture, (iii)
as
described in the Final Memorandum or (iv) to the extent the failure
to
have such title or rights or the existence of such liens,
charges,
encumbrances or restrictions could not reasonably be expected to
result
in, individually or in the aggregate, a Material Adverse Effect.
The
Company and the Subsidiaries own or possess adequate licenses or
other
rights to use all patents, trademarks, service marks, trade
names,
copyrights and know-how necessary to conduct the businesses now
or
proposed to be operated by them as described in the Final
Memorandum,
and none of the Company or the Subsidiaries has received any notice
of
infringement of or conflict with (or knows of any such infringement
of
or conflict with) asserted rights of others with respect to any
patents, trademarks, service marks, trade names, copyrights or
know-how
that, if such assertion of infringement or conflict were
sustained,
could reasonably be expected to result in a Material Adverse
Effect.
(t) There are
no legal or governmental proceedings
involving or affecting the Company or any Subsidiary or any of
their
respective properties or assets that would be required to be
described
in a prospectus pursuant to the Act that are not described in the
Final
Memorandum.
(u) Except as
could not reasonably be expected to result
in, individually or in the aggregate, a Material Adverse Effect
(A)
each of the Company and the Subsidiaries is in compliance with and
not
subject to liability under applicable Environmental Laws (as
defined
below), (B) each of the Company and the Subsidiaries has made
all
filings and provided all notices required under any applicable
Environmental Law, and has and is in compliance with all
Permits
required under any applicable Environmental Laws and each of them
is in
full force and effect, (C) except as described in the Final
Memorandum,
there is no unresolved civil, criminal or administrative action,
suit,
demand, claim, hear-
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ing, notice of violation, investigation, proceeding, notice or
demand
letter or request for information pending or, to the knowledge of
the
Company or any of the Subsidiaries, threatened against the Company
or
any of the Subsidiaries under any Environmental Law, (D) no
lien,
charge, encumbrance or restriction (which would limit industrial
or
present uses) has been recorded under any Environmental Law
with
respect to any assets, facility or property owned, operated, leased
or
controlled by the Company or any of the Subsidiaries, (E) none of
the
Company or the Subsidiaries has received notice that it has
been
identified as a potentially responsible party under the
Comprehensive
Environmental Response, Compensation and Liability Act of 1980,
as
amended ("CERCLA"), or any comparable state law and (F) no property
or
facility of the Company or any of the Subsidiaries is (i) listed
or
proposed for listing on the National Priorities List under CERCLA
or
(ii) listed in the Comprehensive Environmental Response,
Compensation,
Liability Information System List promulgated pursuant to CERCLA,
or on
any comparable list maintained by any state or local
governmental
authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or
regulations, codes, orders, decrees, judgments or injunctions
issued,
promulgated, approved or entered thereunder, relating to pollution
or
protection of public or employee health and safety or the
environment,
including,
without limitation, laws relating to (i) emissions,
discharges, releases or threatened releases of hazardous materials
into
the environment (including, without limitation, ambient air,
surface
water, groundwater, land surface or subsurface strata), (ii)
the
manufacture, processing, distribution, use, generation,
treatment,
storage, disposal, transport or handling of hazardous materials,
and
(iii) underground and aboveground storage tanks and related piping,
and
emissions, discharges, releases or threatened releases
therefrom.
(v) There is
no strike, labor dispute, slowdown or work
stoppage with the employees of the Company or any of the
Subsidiaries
that is pending or, to the knowledge of the Company or any of
the
Subsidiaries, threatened that could reasonably be expected to
result in
a Material Adverse Effect.
(w) Each of
the Company and the Subsidiaries carries
insurance in such amounts and covering such risks as it
reasonably
believes is adequate for the conduct of its business and the value
of
its properties.
(x) Except for
the $6.3 million liability related to the
termination of a pension plan as described in the Offering
Memorandum,
none of the Company or the Subsidiaries has any liability for
any
prohibited transaction or funding deficiency or any complete or
partial
withdrawal liability with respect to any pension, profit sharing
or
other plan that is subject to the Employee Retirement Income
Security
Act of 1974, as amended ("ERISA"), to which the Company or any of
the
Subsidiaries makes or ever has made a contribution and in which
any
employee of the Company or of any Subsidiary is or has ever been
a
participant except as could not be reasonably expected to result in
a
Material Adverse Effect. With respect to such plans, the Company
and
each Subsidiary is in compliance in all material respects with
all
applicable provisions of ERISA.
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(y) Each of
the Company and the Subsidiaries (i) makes
and keeps accurate books and records and (ii) maintains
internal
accounting controls that provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to
permit
preparation of its financial statements and to maintain
accountability
for its assets, (C) access to its assets is permitted only in
accordance with management's authorization and (D) the reported
accountability for its assets is compared with existing assets
at
reasonable intervals.
(z) None of
the Company or the Subsidiaries will be an
"investment company" or "promoter" or "principal underwriter" for
an
"investment company," as such terms are defined in the
Investment
Company Act of 1940, as amended, and the rules and regulations
thereunder.
(aa)
The Notes, the Guarantee, the Indenture, the
Registration Rights Agreement and this Agreement will conform in
all
material respects to the descriptions thereof in the Final
Memorandum.
(bb)
No holder of securities of the Company or any
Subsidiary will be
entitled to have such securities registered under
the registration statements required to be filed by the Company
pursuant to the Registration Rights Agreement other than as
expressly
permitted thereby.
(cc)
Immediately after the consummation of the
transactions contemplated by this Agreement and the Indenture, the
fair
value and present fair saleable value of the assets of each of
the
Company and the Guarantor (each on a consolidated basis) will
exceed
the sum of its stated liabilities and identified contingent
liabilities; none of the Com
