KRONOS INTERNATIONAL, INC.
(euro)90,000,000
8 7/8% Senior Secured Notes due 2009
PURCHASE AGREEMENT
November 18, 2004
DEUTSCHE BANK AG LONDON
1 Great Winchester Street
London EC2N 2DB, UK
Ladies and Gentlemen:
Kronos International,
Inc., a Delaware
corporation
(the "Company"),
hereby confirms its agreement with you (the
"Initial Purchaser"),
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 Purchaser
(euro)90,000,000 aggregate principal amount of its 8 7/8%
Senior Secured Notes
due 2009, Series A (the "Notes"). The Notes will be part of a series
of notes
issued initially on June 28, 2002 and are
to be issued under the indenture (the
"Indenture") dated as of June 28, 2002 by and between the Company
and The Bank
of New York, as Trustee (the
"Trustee").
The Notes will be offered and sold to the Initial Purchaser without
being registered under the Securities Act of 1933,
as amended (the "Act"), in
reliance on exemptions therefrom.
In connection with the
sale of the Notes, the
Company has prepared an
offering memorandum dated November 18, 2004,
which includes as a
part thereof
the Company's Annual Report on Form 10-K for the year
ended December 31,
2003
and Quarterly Report on Form 10-Q for the
quarter ended September 30, 2004 (the
"Offering Memorandum"), setting forth or
including a description of the terms of
the Notes, the terms of the offering of the
Notes, a description of the Company
and any material developments relating to the Company occurring
after the date
of the most recent historical financial
statements included therein.
The Initial Purchaser
and its direct and indirect transferees of the
Notes will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto
as Exhibit C (the "Registration Rights
Agreement"), pursuant to which the Company has
agreed, among other
things, to
file a registration statement (the
"Registration Statement") with the Securities
and Exchange Commission (the "Commission")
registering the Notes or the Exchange
Notes (as defined in the Registration
Rights Agreement) under the Act.
The Initial Purchaser
and its direct and indirect transferees of the
Notes will also be entitled to the
benefits, and otherwise subject to the terms,
of the Security Documents (as defined in the
Indenture)
pursuant to which
the
Company has, among other things, granted a senior security interest in the
Collateral (as defined in the Indenture), subject to certain exceptions and
otherwise in accordance with the terms of
the Indenture.
2. Representations and Warranties. The Company represents and
warrants
to and agrees with the Initial Purchaser
that:
(a) Neither the
Offering Memorandum nor any amendment or
supplement thereto as
of the date thereof and at all times subsequent
thereto up to the
Closing Date (as defined in Section 3 below)
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 2(a) do not apply to
statements or
omissions made in
reliance upon and in
conformity
with information
relating to the Initial Purchaser furnished to the Company in
writing
by the Initial Purchaser expressly for use in the Offering
Memorandum
or any amendment or supplement thereto.
(b) As of the Closing Date: the Company will have the
authorized, issued
and outstanding capitalization set forth in the
Offering Memorandum;
all of the material
subsidiaries of the
Company
are listed in Schedule 1A 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; all of the outstanding shares of
capital
stock of the Company and of each of the Subsidiaries will be free and
clear of all liens,
encumbrances, equities
and claims or restrictions
on transferability
(other than those imposed by the Act, by the
securities or "Blue Sky" laws of certain jurisdictions, by the
Security
Documents or, with respect to Subsidiaries other than those the
capital
stock of which is pledged pursuant to the Security
Documents,
by the
Credit Agreement (as
defined in the Offering Memorandum)) or voting;
except as set
forth in the Offering 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
the Subsidiaries and the additional
subsidiaries listed on
Schedule 1B attached
hereto or as disclosed in
the Offering 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 formed, validly existing and in good standing under
the
laws of its respective
jurisdiction of
incorporation or formation and
has all requisite
corporate or partnership power and authority to own
its properties
and conduct its business as now conducted and as
described in the
Offering Memorandum; each of the Company and the
Subsidiaries is duly qualified to do business as a foreign
corporation
or partnership,
as applicable, 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 would not, individually or in the
aggregate,
have 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 (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 Notes,
the Exchange Notes and the Private Exchange Notes (as
defined in the Registration Rights 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 and
validly 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 Purchaser in accordance with the terms of this
Agreement, will constitute valid and legally 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 conveyance, moratorium or other similar
laws
now or hereafter in effect relating to creditors' rights generally and
(ii) general
principles
of equity and the discretion of the court
before which any proceeding therefor may be brought.
(e) The Indenture (including provisions that are
incorporated
therein) meets
the requirements for qualification under the Trust
Indenture Act of 1939,
as amended
(the "TIA"). The execution and
delivery of the Indenture have been duly and validly authorized by the
Company and (assuming the due authorization, execution and delivery by
the Trustee) the
Indenture constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in
accordance
with its terms, except
that the enforcement
thereof may be subject to
(i) bankruptcy,
insolvency,
reorganization,
fraudulent
conveyance,
moratorium or other similar laws now or hereafter in effect
relating to
creditors' rights
generally and (ii) general principles of equity and
the discretion of the court before which any proceeding therefor
may be
brought.
(f) The Company has all requisite corporate power and
authority to execute,
deliver and perform
its obligations
under the
Registration Rights
Agreement. The
Registration Rights
Agreement has
been duly and validly
authorized by the Company and, when executed and
delivered by the Company (assuming the due authorization, execution
and
delivery by the Initial Purchaser), will constitute a valid and
legally
binding agreement 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, fraudulent
conveyance, moratorium or other similar laws now or hereafter in
effect
relating to creditors' rights generally and (ii) general
principles of
equity and the
discretion of the
court before
which any proceeding
therefor may be brought and (B) any rights to indemnity or
contribution
thereunder may be
limited by federal
and state securities laws and
public policy considerations.
(g) The Company has all requisite corporate power and
authority to execute,
deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This
Agreement and the
consummation
by the Company of the transactions
contemplated hereby
have been duly and validly authorized by the
Company. This
Agreement has been duly executed and delivered by the
Company.
(h) Each of the
Security Documents
constitutes
a valid and
legally binding
obligation
of the Company,
enforceable
against the
Company in accordance
with its terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization,
fraudulent conveyance,
moratorium
or other similar laws now or
hereafter in effect
relating to creditor's
rights generally and
(ii)
general principles
of equity and the
discretion
of the court
before
which any proceeding therefore may be brought. On the Closing Date,
the
Collateral will
conform in all
material respects to
the description
thereof contained in the Offering Memorandum.
(i) The Security Documents, create in favor of the
Collateral
Agent (as defined in the Indenture) for the benefit of the
Trustee and
the holders of the
Notes, a valid and
enforceable
perfected senior
security interest in and Lien upon (in each case in accordance with
the
provisions of the relevant Security Document) all of the Collateral,
superior to and prior to the rights of all third persons and
subject to
no other Liens except
for Liens expressly
permitted to exist on
such
Collateral by
the terms of the applicable Security Document.
(j) No consent, approval, authorization or order of any
court
or governmental
agency or body,
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
foreign and state
securities or "Blue
Sky" laws in
connection with the
purchase and resale of the Notes by the
Initial
Purchaser. None of the
Company or the Subsidiaries 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,
reasonably be expected to 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 default
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, reasonably be
expected to have a Material Adverse Effect.
(k) The execution,
delivery and performance by the Company of
this Agreement, the
Indenture, the
Registration Rights
Agreement and
the Security
Documents and the consummation by the Company of the
transactions
contemplated hereby
and thereby to be
consummated by it
(including, without
limitation, the
issuance and sale of the Notes to
the Initial Purchaser)
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 (i) any of the terms or provisions of any Contract, except for any
such conflict,
breach, violation, default or event that would not,
individually or in the
aggregate,
reasonably
be expected to have a
Material Adverse
Effect, (ii) the certificate of incorporation or
bylaws (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 Purchaser 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,
violation, default or
event that would
not, individually or in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(l) The audited consolidated financial statements of the
Company and
its subsidiaries included in the Offering Memorandum
present fairly in all material respects the financial position,
results
of operations and cash flows of the Company and its subsidiaries at
the
dates and for the periods to which they relate and have been prepared
in accordance with
accounting
principles
generally accepted in the
United States of
America applied
on a consistent basis, except as
otherwise stated therein. The interim unaudited consolidated financial
statements of the Company and its subsidiaries included in the
Offering
Memorandum present
fairly in all material respects the financial
position, results of
operations and cash
flows of the Company and its
subsidiaries at the
dates and for the
periods to which they
relate,
except for the absence of footnotes and normal audit adjustments, and
have been prepared in accordance with accounting principles generally
accepted in the United States of America applied on a consistent
basis,
except as otherwise stated therein. The selected financial and
statistical data in
the Offering
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.
PricewaterhouseCoopers, LLP (the "Independent Accountants") is an
independent registered public accounting firm within the meaning of
the
Act and the rules and regulations promulgated thereunder.
(m) Except as disclosed in the Offering Memorandum, there is
not pending or, to the knowledge of the Company, 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,
would,
individually or in the
aggregate,
reasonably
be expected to have a
Material Adverse Effect or that seeks to restrain, enjoin, prevent the
consummation of or
otherwise challenge the issuance or sale of the
Notes to be sold hereunder or the consummation of the other
transactions to be
consummated by the Company or any of its Affiliates
and described in the Offering 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, all
self-regulatory
organizations 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
conducted as set forth
in the Offering
Memorandum
("Permits"), except where the failure to obtain such Permits would
not,
individually or in the
aggregate,
reasonably
be expected to have 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 or
termination thereof or
results in
any other impairment
of the rights of the
holder of any such
Permit,
except where
any such absence of fulfillment or performance, or
revocation or
termination, would not
reasonably be expected to have a
Material Adverse
Effect; 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 Offering
Memorandum and except where such revocation or modification
would not,
individually or in the
aggregate,
reasonably
be expected to have a
Material Adverse Effect.
(o) Since the date of
the most recent
financial statements
appearing in the
Offering Memorandum, except as described in the
Offering Memorandum,
(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 materially adverse to the business, condition
(financial or
otherwise) or results of operations of the Companies 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 or a wholly
owned Subsidiary) and (iii)
there has not
been any material change in the capital stock or
long-term indebtedness of the Company or the Subsidiaries.
(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 would not,
individually or in the
aggregate,
reasonably
be expected to have a
Material Adverse
Effect, and has paid
all taxes shown as due thereon;
and, other than tax deficiencies that the Company or any Subsidiary
is
contesting in good
faith and for which the Company or such Subsidiary
has provided adequate
reserves, there is no tax deficiency
that has
been expressly
asserted to the
Company against the
Company or any of
the Subsidiaries
that would reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
(q) The statistical
and market-related
data included in
the
Offering Memorandum
are based on or
derived from sources that the
Company and the
Subsidiaries believe
to be reliable and accurate with
respect to such data.
(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 Notes 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 title to
all real property and good title to all personal property
described in
the Offering
Memorandum
as being owned by it free and clear of all
liens, charges,
encumbrances or
restrictions, except
as described in
the Offering
Memorandum or pursuant to the Credit Agreement or to the
extent the failure to have such title or the existence of such liens,
charges, encumbrances or restrictions would not, individually or in
the
aggregate, reasonably
be expected to have a Material Adverse Effect.
All leases, contracts and agreements to which the Company or any of
the
Subsidiaries is a
party or by which any of them is bound are valid and
enforceable against
the Company or such
Subsidiary, to the
Company's
knowledge, 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,
reasonably
be expected
to have 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 operated by them
as
described in the Offering Memorandum, except where the failure to
own
or possess the foregoing would not, individually or in the
aggregate,
reasonably be expected to have a Material Adverse Effect. None of the
Company or the
Subsidiaries has
received any written (or, to the
Company's knowledge,
oral) notice of
infringement of or conflict with
(or knows of any such
infringement
of or conflict with) expressly
asserted (in
writing) 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, would
reasonably be expected to have 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 are of such materiality that such
proceedings
would be required to be described in a prospectus pursuant to the Act
and that are not
described in the Offering Memorandum, nor are there
any material contracts
or agreements that are of such materiality that
the same would be required to be described in a prospectus
pursuant to
the Act (but excluding, for the avoidance of doubt,
any contract that
need not be so described in a registration statement filed under the
Act, and containing such prospectus, other than by the filing of
such
contract as an exhibit
to such registration
statement)
that are not
described in the Offering Memorandum.
(u) Except as would
not, individually
or in the aggregate,
reasonably be expected to have 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 disclosed in the Offering Memorandum, there
is no
civil, criminal or administrative action, suit, demand, claim,
hearing,
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 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 and 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, organized labor dispute, labor
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
which, individually or in the
aggregate, would
reasonably
be expected
to have a Material
Adverse
Effect.
(w) Each of the Company and the Subsidiaries carries insurance
in such amounts and covering such risks as are reasonably believed by
it to be adequate,
in all material
respects, for the conduct of its
business and the value of its properties.
(x) Except as
disclosed in the
Offering Memorandum,
none of
the Company or the
Subsidiaries has any
material 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"), or analogous foreign plans
governed
by analogous
foreign regulation, to which the Company or any of
the
Subsidiaries makes
or, within the prior six years has made, a
contribution and
in which any employee of the Company or of any
Subsidiary is or has
ever been a
participant. With
respect to such
plans, the Company and each Subsidiary is in compliance in all
material
respects with all applicable provisions of ERISA.
(y) Each of the
Company and the
Subsidiaries
(i) makes and
keeps accurate books and records within the meaning of Section
13(b)(2)
of the Exchange Act and (ii) maintains internal accounting controls
that provide reasonable assurance that (A) transactions are
executed in
accordance with
management's general
or specific
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
general or specific
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 is or as a result
of the transactions
contemplated
hereby will
become 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 will,
and the Indenture and
the Registration
Rights Agreement
do, conform in all material respects to the
descriptions thereof in the Offering 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,
the fair value and present fair
saleable value of the assets of the Company and its subsidiaries (on a
consolidated basis,
considered as a single
enterprise for purposes of
this paragraph)
will exceed the sum of its stated liabilities and
identified contingent liabilities; the Company and its subsidiaries
(on
a consolidated
basis)
are not, nor will the Company and its
subsidiaries (on a
consolidated basis)
be, after giving effect to the
execution,
delivery and
performance
of this Agreement, and the
consummation of the
transactions
contemplated hereby,
(a) left with
unreasonably small
capital with which to carry on their business as it
is proposed to be conducted, (b) unable to pay their debts
(contingent
or otherwise) as they mature or (c) otherwise insolvent.
(dd) None of the
Company, the
Subsidiaries
or any of their
respective Affiliates
(as defined in Rule 501(b) of Regulation D under
the Act) has directly,
or through
any agent,
(i) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of
any
"security" (as defined in the Act) that is or could be integrated
with
the sale of the Notes in a manner that would require the registration
under the Act of the
Notes or (ii)
engaged in any form of general
solicitation or
general advertising (as those terms are used in
Regulation D u
