Exhibit 10.2
$125,000,000
BLUE RIDGE PAPER PRODUCTS
INC.
9.5% Senior Secured Notes due
2008
PURCHASE
AGREEMENT
December 10, 2003
JEFFERIES & COMPANY, INC.
11100 Santa Monica Boulevard
10th Floor
Los Angeles, California 90025
Ladies and Gentlemen:
Blue Ridge Paper Products Inc., a
Delaware corporation (the “ Company ”), hereby
agrees with you as follows:
1.
Issuance of
Notes . Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to Jefferies
& Company, Inc. (the “ Initial Purchaser ”)
$125,000,000 aggregate principal amount of 9.5% Senior Secured
Notes due 2008 (each a “ Note ” and,
collectively, the “ Notes ”). The Notes
will be issued pursuant to an indenture (the “
Indenture ”), to be dated as of the Closing Date (as
hereinafter defined), by and among the Company, BRPP, LLC, a North
Carolina limited liability company and wholly-owned subsidiary of
the Company (the “North Carolina LLC Subsidiary
Guarantor”), and U.S. Bank National Association, as trustee
(the “ Trustee ”). Capitalized terms used,
but not defined herein, shall have the meanings set forth in the
Indenture.
The Notes will be offered and sold
to the Initial Purchaser pursuant to an exemption from the
registration requirements under the Securities Act of 1933, as
amended (the “ Act ”). Upon original
issuance thereof, and until such time as the same is no longer
required under the applicable requirements of the Act, the Notes
shall bear the legends set forth in the final offering circular,
dated the date hereof (the “ Final Offering Circular
”). The Company has prepared a preliminary offering
circular, dated December 1, 2003 (the “ Preliminary
Offering Circular ”), and the Final Offering Circular
relating to the offer and sale of the Notes (the “
Offering ”). “Offering Circular”
means, as of any date or time referred to in this Agreement, the
most recent offering circular (whether the Preliminary Offering
Circular or the Final Offering Circular, and any amendment or
supplement to either such document), including exhibits and
schedules thereto.
In connection with the sale of the
Notes, the Company is concurrently entering into a new revolving
credit facility among the Company, the other credit parties
signatory thereto, the lenders signatory from time to time, and
General Electric Capital Corporation, as agent and lender, which
provides for a revolving loan facility in an amount of up to
$45,000,000 (as amended, supplemented, modified, extended or
restated from time to time, the “ Credit Agreement
”).
2.
Terms of
Offering . The
Initial Purchaser has advised the Company, and the Company
understands, that the Initial Purchaser will make offers to sell
(the “ Exempt
Resales ”) some or all of the Notes purchased by
the Initial Purchaser hereunder on the terms set forth in the Final
Offering Circular, as amended or supplemented, to persons (the
“ Subsequent Purchasers ”) whom the Initial
Purchaser (i) reasonably believes to be “qualified
institutional buyers” (“ QIBs ”) as
defined in Rule 144A under the Act, as such may be amended from
time to time, (ii) reasonably believes (based upon written
representations made by such persons to the Initial Purchaser) to
be institutional “accredited investors” (“
Accredited Investors ”) as defined in Rule 501(a)(1),
(2), (3) or (7) under the Act or (iii) reasonably believes to be
non-U.S. persons under Regulation S under the Act.
Pursuant to the Indenture, any and
all Subsidiaries (as defined in the Indenture) of the Company,
jointly and severally, shall fully and unconditionally guarantee,
on a senior secured basis, to each holder of the Notes and the
Trustee, the payment and performance of the Company’s
obligations under the Indenture and the Notes (such Subsidiary
being referred to herein as the North Carolina LLC Subsidiary
Guarantor and such guarantee being referred to herein as a
“ Guarantee ”).
Pursuant to the terms of the
Collateral Agreements (as defined in the Indenture), all of the
obligations under the Notes and the Indenture will be secured by a
first priority lien and security interest in substantially all of
the tangible and intangible assets of the Company and the North
Carolina LLC Subsidiary Guarantor (subject to prior ranking claims
or such assets, including a prior ranking lien on accounts
receivable, inventory and related assets by the lenders under the
Credit Agreement).
Holders of the Notes (including Subsequent
Purchasers) will have the registration rights set forth in the
registration rights agreement applicable to the Notes (the “
Registration Rights Agreement ”), to be executed on
and dated as of the Closing Date. Pursuant to the
Registration Rights Agreement, the Company will agree, among other
things, to file with the Securities and Exchange Commission (the
“ SEC ”) (a) a registration statement under the
Act relating to Senior Secured Notes (the “ Exchange
Notes ”) which shall be identical to the Notes (except
that the Exchange Notes shall have been registered pursuant to such
registration statement and will not be subject to restrictions on
transfer or contain additional interest provisions) to be offered
in exchange for the Notes (such offer to exchange being referred to
as the “ Exchange Offer ”), and/or (b) under
certain circumstances, a shelf registration statement pursuant to
Rule 415 under the Act (the “ Shelf Registration
Statement ”) relating to the resale by certain holders of
the Notes. If required under the Registration Rights Agreement, the
Company will issue Exchange Notes to the Initial Purchaser (the
“ Private Exchange Notes ”). If the Company
fails to satisfy its obligations under the Registration Rights
Agreement, they will be required to pay additional interest to the
holders of the Notes under certain circumstances.
This Agreement, the Indenture, the Collateral
Agreements, the Registration Rights Agreement, the Notes, the
Guarantees, the Exchange Notes and the Private Exchange Notes are
referred to herein as the “ Documents
.”
3.
Purchase, Sale and
Delivery . On the basis of the
representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to the Initial Purchaser, and
the Initial Purchaser agrees to purchase from the Company, the
Notes at a purchase price of 96.55% of the aggregate principal
amount thereof. Delivery to the Initial Purchaser of and
payment for the
Notes shall be made at a closing (the “
Closing ”) to be held at 10:00 a.m., New York time, on
December 17, 2003, at the New York offices of Mayer, Brown,
Rowe & Maw LLP, or such other date, time or place as is
mutually agreed to by the parties (the “ Closing
Date ”).
The Company shall deliver to the Initial
Purchaser one or more certificates representing the Notes in
definitive form, registered in such names and denominations as the
Initial Purchaser may request, against payment by the Initial
Purchaser of the purchase price therefor by immediately available
Federal funds bank wire transfer to such bank account or accounts
as the Company shall designate to the Initial Purchaser at least
two business days prior to the Closing. The certificates
representing the Notes in definitive form shall be made available
to the Initial Purchaser for inspection at the New York offices of
Mayer, Brown, Rowe & Maw LLP (or such other place as shall be
reasonably acceptable to the Initial Purchaser) not later than
10:00 a.m. one business day immediately preceding the Closing
Date. Notes to be represented by one or more definitive
global securities in book-entry form will be deposited on the
Closing Date, by or on behalf of the Company, with The Depository
Trust Company (“ DTC ”) or its designated
custodian, and registered in the name of Cede & Co.
4.
Representations and Warranties
of the Company . The Company represents and warrants to the
Initial Purchaser that, as of the date hereof and as of the Closing
Date:
(a)
Neither the Preliminary Offering
Circular, the Final Offering Circular, nor any amendment or
supplement thereto, as of the date thereof and at all times
subsequent thereto up to the Closing Date, contained or contains
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 4(a) do not apply to statements
or omissions made in reliance upon and in conformity with
information relating to the Initial Purchaser and furnished to the
Company in writing by the Initial Purchaser expressly for use in
the Preliminary Offering Circular or the Final Offering Circular or
any amendment or supplement thereto. No injunction or order
has been issued that either (i) asserts that any of the
transactions contemplated by the Documents is subject to the
registration requirements of the Act or (ii) would prevent or
suspend the issuance or sale of the Notes or the use of the
Preliminary Offering Circular, the Final Offering Circular or any
amendment or supplement thereto, in any jurisdiction. Each of
the Preliminary Offering Circular and the Final Offering Circular,
as of their respective dates, contained, and the Final Offering
Circular, as amended or supplemented as of the Closing Date, will
contain, all the information specified in, and meet the
requirements of, Rule 144A(d)(4) under the Act.
(b)
Each corporation, partnership, or
other entity in which the Company, directly or indirectly through
any of its subsidiaries, owns more than fifty percent (50%) of any
class of equity securities or interests is listed on
Schedule I attached hereto.
(c)
Each of the Company and the North
Carolina LLC Subsidiary Guarantor (i) has been duly organized, is
validly existing and is in good standing under the laws of its
jurisdiction of organization, (ii) has all requisite power and
authority to carry on its business and to own, lease and operate
its properties and assets, and (iii) is duly qualified
or licensed to do business and is in
good standing as a foreign corporation, partnership or other entity
as the case may be, authorized to do business in each jurisdiction
in which the nature of such businesses or the ownership or leasing
of such properties requires such qualification, except where the
failure to be so qualified would not, individually or in the
aggregate, have a material adverse effect on (A) the properties,
business, prospects, operations, earnings, assets, liabilities or
condition (financial or otherwise) of the Company and the North
Carolina LLC Subsidiary Guarantor, taken as a whole, (B) the
ability of the Company to perform its obligations in all material
respects under any Document or (C) the validity of any of the
Documents or the consummation of any of the transactions
contemplated therein (each, a “ Material Adverse
Effect ”).
(d)
All of the issued and outstanding
shares of capital stock of the Company have been duly authorized
and validly issued, are fully paid and nonassessable, and were not
issued in violation of, and are not subject to, any preemptive or
similar rights. The table under the caption “
Capitalization ” in the Final Offering Circular
(including the footnotes thereto) sets forth, as of its date, the
capitalization of the Company. All of the outstanding equity
interests of the North Carolina LLC Subsidiary Guarantor are owned
directly by the Company, free and clear of all liens, security
interests, mortgages, pledges, charges, equities, claims or
restrictions on transferability or encumbrances of any kind
(collectively, “ Liens ), other than those imposed by
the Act and the securities or “Blue Sky” laws of
certain domestic or foreign jurisdictions. There are no
outstanding (A) options, warrants or other rights to purchase from
the Company or the North Carolina LLC Subsidiary Guarantor, (B)
agreements, contracts, arrangements or other obligations of the
Company or the North Carolina LLC Subsidiary Guarantor to issue or
(C) other rights to convert any obligation into or exchange any
securities for, in the case of each of clauses (A) through (C),
shares of capital stock of or other ownership or equity interests
in the Company or the North Carolina LLC Subsidiary
Guarantor.
(e)
No holder of securities of the
Company or the North Carolina LLC Subsidiary Guarantor will be
entitled to have such securities registered under the registration
statements required to be filed by the Company with respect to the
Notes pursuant to the Registration Rights Agreement.
(f)
The Company has all requisite
corporate power and authority, and the North Carolina LLC
Subsidiary Guarantor has all the requisite partnership or other
power and authority, to execute, deliver and perform their
obligations under the Documents to which they are a party and to
consummate the transactions contemplated thereby.
(g)
This Agreement has been duly and
validly authorized, executed and delivered by the Company.
Each of the Indenture and the Collateral Agreements has been duly
and validly authorized by the Company and the North Carolina LLC
Subsidiary Guarantor. Each of the Indenture and the
Collateral Agreements, when executed and delivered by the Company
and the North Carolina LLC Subsidiary Guarantor, will constitute a
legal, valid and binding obligation of each of the Company and the
North Carolina LLC Subsidiary Guarantor, enforceable against each
of the Company and the North Carolina LLC Subsidiary Guarantor in
accordance with its terms, except that the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to or
affecting the rights and remedies of
creditors generally and (ii) general principles of equity (whether
applied by a court of law or equity) and the discretion of the
court before which any proceeding therefor may be
brought.
(h)
The Registration Rights Agreement
has been duly and validly authorized by the Company. The
Registration Rights Agreement, when executed and delivered by the
Company, will constitute a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms, except that (A) the enforcement thereof may be subject to
(i) bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent conveyance or other similar laws now or
hereafter in effect relating to creditors’ rights generally
and (ii) general principles of equity (whether applied by a court
of law or equity) and the discretion of the court before which any
proceeding therefore 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.
(i)
The Notes, when issued, will be in
the form contemplated by the Indenture. The Indenture meets
the requirements for qualification under the Trust Indenture Act of
1939, as amended (the “ TIA ”). The Notes,
Exchange Notes and Private Exchange Notes have each been duly and
validly authorized by the Company and, in the case of the Notes,
when delivered to and paid for by the Initial Purchaser in
accordance with the terms of this Agreement and the Indenture, will
have been duly executed, issued and delivered and will be legal,
valid and binding obligations of the Company, entitled to the
benefit of the Indenture, the Collateral Agreements and the
Registration Rights Agreement, and enforceable against the Company
in accordance with their terms, except that the enforcement thereof
may be subject to (i) bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors generally and (ii) general principles of
equity (whether applied by a court of law or equity) and the
discretion of the court before which any proceeding therefor may be
brought.
(j)
The Guarantee has been duly and
validly authorized by the North Carolina LLC Subsidiary Guarantor
and, when executed by the North Carolina LLC Subsidiary Guarantor,
will have been duly executed, issued and delivered and will be the
legal, valid and binding obligation of the North Carolina LLC
Subsidiary Guarantor, entitled to the benefit of the Indenture, the
Collateral Agreements and the Registration Rights Agreement, and
enforceable against the North Carolina LLC Subsidiary Guarantor in
accordance with its terms, except that the enforcement thereof may
be subject to (i) bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to or affecting the rights
and remedies of creditors generally and (ii) general principles of
equity (whether applied by a court of law or equity) and the
discretion of the court before which any proceeding therefor may be
brought.
(k)
Neither the Company nor the North
Carolina LLC Subsidiary Guarantor is in violation of its
certificate of incorporation, by-laws or other organizational
documents (the “ Charter Documents ”).
Neither the Company nor the North Carolina LLC Subsidiary Guarantor
is (i) in violation of any applicable statute, law or ordinance, or
any judgment, decree, rule,
regulation or order (collectively,
“ Applicable Law ”) of any federal, state, local
and other governmental authority, governmental or regulatory agency
or body, court, arbitrator or self-regulatory organization (each, a
“ Governmental Authority ”), except for any such
violation that would not, individually or in the aggregate, have a
Material Adverse Effect or (ii) in breach of or default under any
bond, debenture, note or other evidence of indebtedness, indenture,
mortgage, deed of trust, lease or any other agreement or instrument
to which any of them is a party or by which any of them or their
respective property is bound (collectively, “ Applicable
Agreements ”), other than as disclosed in the Final
Offering Circular, except for any such breach or default that would
not, individually or in the aggregate, have a Material Adverse
Effect. There exists no condition that, with the passage of
time or otherwise, would constitute (a) a violation of such Charter
Documents or Applicable Laws, (b) a breach of or default under any
Applicable Agreement or (c) result in the imposition of any penalty
or the acceleration of any indebtedness, except for any such
violations, breaches, penalties or accelerations that would not,
individually or in the aggregate, have a Material Adverse
Effect.
(l)
Neither the execution, delivery or
performance of the Documents nor the consummation of any
transactions contemplated therein will conflict with, violate,
constitute a breach of or a default (with the passage of time or
otherwise) under, require the consent of any person (other than
consents already obtained) under, result in the imposition of a
Lien on any assets of the Company or the North Carolina LLC
Subsidiary Guarantor (except pursuant to the Documents), except for
any such conflict, violation, breach, default or event that would
not, individually or in the aggregate, have a Material Adverse
Effect, or result in an acceleration of indebtedness under or
pursuant to (i) the Charter Documents, (ii) any Applicable
Agreement, or (iii) any Applicable Law. After consummation of
the Offering and transactions contemplated in the Documents
(including application of the proceeds as set forth under the
caption “Use of Proceeds” in the Final Offering
Circular), no Default or Event of Default (each, as defined in the
Indenture) will exist.
(m)
When executed and delivered, the
Documents will conform in all material respects to the descriptions
thereof in the Final Offering Circular.
(n)
No consent, approval, authorization
or order of any Governmental Authority, or third party is required
for the issuance and sale by the Company of the Notes to the
Initial Purchaser or the consummation by the Company of the other
transactions contemplated hereby, except such as have been obtained
and such as may be required under state securities or “Blue
Sky” laws in connection with the purchase and resale of the
Notes by the Initial Purchaser.
(o)
There is no action, claim, suit,
demand, hearing, notice of violation or deficiency, or proceeding,
domestic or foreign (collectively, “ Proceedings
”), pending or, to the knowledge of the Company, threatened,
that either (i) seeks to restrain, enjoin, prevent the consummation
of, or otherwise challenge any of the Documents or any of the
transactions contemplated therein, or (ii) would, individually or
in the aggregate, have a Material Adverse Effect. The Company
is not subject to any judgment, order, decree, rule or regulation
of any Governmental Authority that would, individually or in the
aggregate, have a Material Adverse Effect.
(p)
Each of the Company and the North
Carolina LLC Subsidiary Guarantor possess all licenses, permits,
certificates, consents, orders, approvals and other authorizations
from, and has made all declarations and filings with, all
Governmental Authorities, presently required or necessary to own or
lease, as the case may be, and to operate their respective
properties and to carry on their respective businesses as now or
proposed to be conducted as set forth in the Final Offering
Circular (“ Permits ”), except where the failure
to obtain such Permits would not, individually or in the aggregate,
have a Material Adverse Effect; each of the Company and the North
Carolina LLC Subsidiary Guarantor has fulfilled and performed all
of its obligations with respect to such Permits and no event has
occurred which allows, or after notice or lapse of time would
allow, revocation 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 North Carolina LLC Subsidiary
Guarantor has received any notice of any proceeding relating to
revocation or modification of any such Permit, except as described
in the Final Offering Circular or except where such revocation or
modification would not, individually or in the aggregate, have a
Material Adverse Effect.
(q)
Each of the Company and the North
Carolina LLC Subsidiary Guarantor has good and marketable title to
all real property owned by it and good title to all personal
property owned by it and good and indefeasible title to all
leasehold estates in real and personal property being leased by it
and, as of the Closing Date, will be free and clear of all Liens
(other than Permitted Liens (as defined in the Indenture)), except
for such defects in title or lack of possession that, individually
or in the aggregate, would not have a Material Adverse
Effect. All Applicable Agreements to which the Company or the
North Carolina LLC Subsidiary Guarantor is a party or by which any
of them is bound are valid and enforceable against each of the
Company or such Subsidiary, as applicable, and are valid and
enforceable against the other party or parties thereto and are in
full force and effect with only such exceptions as would not,
individually or in the aggregate, have a Material Adverse
Effect.
(r)
All Tax returns required to be filed
by the Company and the North Carolina LLC Subsidiary Guarantor have
been filed and all such returns are true, complete, and correct in
all material respects, except where the failure to so duly and
timely file correct and complete returns would not, individually or
in the aggregate, have a Material Adverse Effect. All
material Taxes that are due from the Company and the North Carolina
LLC Subsidiary Guarantor have been paid other than those (i)
currently payable without penalty or interest, (ii) being
contested in good faith and by appropriate proceedings and for
which adequate reserves have been established in accordance with
generally accepted accounting principles of the United States,
consistently applied (“ GAAP ”) or (iii) the
failure to pay would not have a Material Adverse Effect. To the
knowledge of the Company, after reasonable inquiry, there are no
proposed Tax assessments against the Company or the North Carolina
LLC Subsidiary Guarantor that would, individually or in the
aggregate, have a Material Adverse Effect. The accruals and
reserves on the books and records of the Company and the North
Carolina LLC Subsidiary Guarantor in respect of any material Tax
liability for any period not finally determined are adequate to
meet any assessments of Tax for any such period. For purposes
of this Agreement, the term “Tax” and
“Taxes” shall mean all Federal, state, local and
foreign taxes, and other
assessments of a similar nature
(whether imposed directly or through withholding), including any
interest, additions to tax, or penalties applicable
thereto.
(s)
The Company and the North Carolina
LLC Subsidiary Guarantor own, or are licensed under, and have the
right to use, all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
(collectively, “ Intellectual Property ”)
necessary for the conduct of their businesses and, as of the
Closing Date, will be free and clear of all Liens, other than
Permitted Liens (as defined in the Indenture). No claims or
notices of any potential claim have been asserted by any person
challenging the use of any such Intellectual Property by the
Company or the North Carolina LLC Subsidiary Guarantor or
questioning the validity or effectiveness of the Intellectual
Property or any license or agreement related thereto (other than
any claims that, if successful, would not, individually or in the
aggregate, have a Material Adverse Effect). The use of such
Intellectual Property by the Company or any of its Subsidiaries
will not infringe on the Intellectual Property rights of any other
person.
(t)
The Company maintains a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) material transactions are executed in accordance
with management’s general or specific authorization, (ii)
material transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP, and to
maintain asset accountability, (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 material
differences.
(u)
The audited and unaudited
consolidated financial statements and related notes of the Company
contained in the Final Offering Circular (the “ Financial
Statements ”) present fairly the financial position,
results of operations and cash flows of the Company and its
consolidated Subsidiaries, as of the respective dates and for the
respective periods to which they apply and have been prepared in
accordance with GAAP and the requirements of Regulation S-X of the
Act. The financial data set forth under “Summary
Consolidated Historical and Pro Forma Financial Data” and
“Selected Historical Consolidated Financial Data”
included in the Final Offering Circular has been prepared on a
basis consistent with that of the Financial Statements and present
fairly the financial position and results of operations of the
Company and its consolidated Subsidiaries as of the respective
dates and for the respective periods indicated. All other
financial, statistical, and market and industry-related data
included in the Final Offering Circular are fairly and accurately
presented and are based on or derived from sources that the Company
believes to be reliable and accurate.
(v)
Subsequent to the respective dates
as of which information is given in the Final Offering Circular,
except as disclosed in the Final Offering Circular, (i) neither the
Company nor the North Carolina LLC Subsidiary Guarantor has
incurred any liabilities, direct or contingent, that are material,
individually or in the aggregate, to the Company, or has entered
into any transactions not in the ordinary course of business, (ii)
there has not been any material decrease in the capital stock or
any material increase in long-term
indebtedness or any material
increase in short-term indebtedness of the Company, or any payment
of or declaration to pay any dividends or any other distribution
with respect to the Company, and (iii) there has not been any
material adverse change in the properties, business, prospects,
operations, earnings, assets, liabilities or condition (financial
or otherwise) of the Company and the North Carolina LLC Subsidiary
Guarantor in the aggregate (each of clauses (i), (ii) and (iii), a
“ Material Adverse Change ”). To the
knowledge of the Company, there is no event that is reasonably
likely to occur, which if it were to occur, would, individually or
in the aggregate, have a Material Adverse Effect, except as
disclosed in the Final Offering Circular.
(w)
No “nationally recognized
statistical rating organization” (as such term is defined for
purposes of Rule 436(g)(2) under the Act) (i) has imposed (or has
informed the Company that it is considering imposing) any condition
(financial or otherwise) on the Company retaining any rating
assigned to the Company or any of its Subsidiaries or to any
securities of the Company or any of its Subsidiaries, or (ii) has
indicated to the Company that it is considering (A) the
downgrading, suspension, or withdrawal of, or any review for a
possible change that does not indicate the direction of the
possible change in, any rating so assigned, or (B) any change in
the outlook for any rating of the Company or the North Carolina LLC
Subsidiary Guarantor or any securities of the Company or the North
Carolina LLC Subsidiary Guarantor.
(x)
All indebtedness represented by the
Notes is being incurred for proper purposes and in good
faith. On the Closing Date, after giving pro forma effect to
the consummation of the Offering and the application of the
proceeds therefrom, the Company (i) will be solvent, (ii) will have
sufficient capital for carrying on its business and (iii) will be
able to pay its debts as they mature.
(y)
The Company has not and, to its
knowledge, no one acting on its behalf has, (i) taken, directly or
indirectly, any action designed to cause or to result in, or that
has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of
the Notes, (ii) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, any of the Notes, or
(iii) except as disclosed in the Final Offering Circular, paid or
agreed to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
(z)
Without limiting any provision
herein, no registration under the Act and no qualification of the
Indenture under the TIA is required for the sale of the Notes to
the Initial Purchaser as contemplated hereby or for the Exempt
Resales, assuming (i) that the purchasers in the Exempt Resales are
QIBs or Accredited Investors or non-U.S. persons complying with
Regulation S of the Act and (ii) the accuracy of the Initial
Purchaser’s representations contained herein regarding the
absence of general solicitation in connection with the sale of the
Notes to the Initial Purchaser and in the Exempt
Resales.
(aa)
The Notes are eligible for resale
pursuant to Rule 144A under the Act and no other securities of the
Company are of the same class (within the meaning of Rule 144A
under the Act) as the Notes and listed on a national securities
exchange registered under Section 6 of the Securities Exchange
Act of 1934, as amended (the “ Exchange Act ”),
or quoted in
a U.S. automated inter-dealer
quotation system. No securities of the Company of the same
class as the Notes have been offered, issued or sold by the Company
or any of its respective Affiliates within the six-month period
immediately prior to the date hereof.
(bb)
Neither of the Company nor any of
its respective Affiliates or other person acting on behalf of the
Company has offered or sold the Notes by means of any general
solicitation or general advertising within the meaning of Rule
502(c) under the Act or, with respect to Notes sold outside the
United States to non-U.S. persons (as defined in Rule 902 under the
Act), by means of any directed selling efforts within the meaning
of Rule 902 under the Act, and the Company, any affiliate of the
Company and any person acting on behalf of the Company have
complied with and will implement the “offering
restrictions” within the meaning of such Rule 902;
provided , that no representation is made in this
subsection with respect to the actions of the Initial
Purchaser.
(cc)
Each of the Company, the North
Carolina LLC Subsidiary Guarantor, and each ERISA Affiliate has
fulfilled its obligations, if any, under the minimum funding
standards of Section 302 of the U.S. Employee Retirement
Income Security Act of 1974, as amended (“ ERISA
”) with respect to each “pension plan” (as
defined in Section 3(2) of ERISA), subject to Section 302
of ERISA which the Company, the North Carolina LLC Subsidiary
Guarantor, or any ERISA Affiliate sponsors or maintains, or with
respect to which it has (or within the last three years had) any
obligation to make contributions, and each such plan is in
compliance in all material respects with the presently applicable
provisions of ERISA and the Code. Neither the Company, the
North Carolina LLC Subsidiary Guarantor, nor any ERISA Affiliate
has incurred any unpaid liability to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA. “
ERISA Affiliate ” means a corporation, trade or
business that is, along with the Company or the North Carolina LLC
Subsidiary Guarantor, a member of a controlled group of
corporations or a controlled group of trades or businesses, as
described in Section 414 of the Code or Section 4001 of
ERISA.
(dd)
(i) Neither the Company nor the
North Carolina LLC Subsidiary Guarantor is party to or bound by any
collective bargaining agreement with any labor organization, except
as disclosed in the Offering Circular; (ii) to the knowledge of the
Company, there is no union representation question existing with
respect to the employees of the Company or the Subsidiary
Guarantors, and, no union organizing activities are taking place
that, could, individually or in the aggregate, have a Material
Adverse Effect; (iii) to the Company’s knowledge, no union
organizing or decertification efforts are underway or threatened
against the Company or the North Carolina LLC Subsidiary Guarantor;
(iv) no labor strike, work stoppage, slowdown, or other material
labor dispute is pending against the Company or the North Carolina
LLC Subsidiary Guarantor, or, to the knowledge of the Company,
threatened against the Company or the North Carolina LLC Subsidiary
Guarantor; (iv) there is no worker’s compensation liability,
experience or matter that could be reasonably expected to have a
Material Adverse Effect; (v) to the knowledge of the Company, there
is no threatened or pending liability against the Company or the
North Carolina LLC Subsidiary Guarantor pursuant to the Worker
Adjustment Retraining and Notification Act of 1988, as amended
(“ WARN ”), or any similar state or local law;
(vi) there is no employment-related charge, complaint, grievance,
investigation, unfair
labor practice claim, or inquiry of
any kind, pending against the Company or the North Carolina LLC
Subsidiary Guarantor that could, individually or in the aggregate,
have a Material Adverse Effect; (vii) to the knowledge of the
Company, no employee or agent of the Company or the North Carolina
LLC Subsidiary Guarantor has committed any act or omission giving
rise to liability for any violation identified in
subsection (v) and (vi) above, other than such acts or
omissions that would not, individually or in the aggregate, have a
Material Adverse Effect; and (viii) no term or condition of
employment exists through arbitration awards, settlement
agreements, or side agreement that is contrary to the express terms
of any applicable collective bargaining agreement.
(ee)
None of the transactions
contemplated in the Documents will violate or result in a violation
of Section 7 of the Exchange Act, (including, without
limitation, Regulation T (12 C.F.R. Part 220), Regula
