Exhibit 1.1
INNOPHOS, INC.
THE GUARANTOR LISTED ON SCHEDULE I
HERETO
$190,000,000
8.875% Senior Subordinated Notes due
2014
Purchase Agreement
August 3, 2004
BEAR, STEARNS & CO. INC.
UBS SECURITIES LLC
INNOPHOS, INC.
$190,000,000
8.875% Senior Subordinated Notes due
2014
PURCHASE AGREEMENT
August 3, 2004
New York, New York
BEAR, STEARNS & CO. INC.
UBS SECURITIES LLC
c/o Bear, Stearns & Co.
Inc.
383 Madison Avenue
New York, New York 10179
Ladies & Gentlemen:
Innophos, Inc., a Delaware
corporation (the “ Company ”), proposes
to issue and sell to Bear, Stearns & Co. Inc. and UBS
Securities LLC (each, an “ Initial Purchaser
” and together, the “ Initial Purchasers
”) $190,000,000 in aggregate principal amount of 8.875%
Senior Subordinated Notes due 2014 (the “ Initial
Notes ”), subject to the terms and conditions set
forth herein. The Notes (as defined) will be issued pursuant to an
indenture (the “ Indenture ”), to be
dated the Closing Date (as defined), among the Company, the
Guarantor (as defined) and Wachovia Bank, National Association, as
trustee (the “ Trustee ”). The Notes will
be fully and unconditionally guaranteed (the “
Guarantees ”) as to payment of principal,
interest, premium and liquidated damages, if any, on an unsecured
senior subordinated basis, by the entity listed on Schedule
I hereto (the “ Guarantor
”).
The Initial Notes are being issued
and sold in connection with the acquisition by the Company of
certain assets of Rhodia, Inc., Rhodia Canada Inc., and Rhodia de
Mexico S.A. de C.V. and the outstanding capital stock of certain of
Rhodia, S.A.’s Mexican subsidiaries (the “
Acquisition ”), pursuant to a purchase
agreement dated as of June 10, 2004, and as may be amended in
accordance with Section 14(s) hereof after the date hereof (the
“ Acquisition Agreement ”), among Rhodia
Inc., Rhodia Canada Inc., Rhodia de Mexico S.A. de C.V., Rhodia
Overseas Ltd., Rhodia Consumer Specialties Limited, Rhodia, S.A.
and Phosphates Acquisition, Inc. Upon the consummation of the
Acquisition, all of the Company’s outstanding capital stock
will be owned by Innophos Holdings, Inc. (“
Holdings ”). In order to pay for the
Acquisition and the related fees and expenses, the Company expects
(i) to enter into a new senior credit facility (the “
New Senior Credit Facility ”) pursuant to a
credit agreement among the Company, the Guarantor and the lenders
party thereto (the “ Credit Agreement ”),
(ii) to issue the Initial Notes and (iii) to receive new equity
contributed by Bain Capital, LLC, management and other investors
(the “ Sponsors ”). As used herein, the
term “the Transaction” means collectively (w) the
offering of the Initial Notes, (x) entering into the New Senior
Credit Facility, (y) the infusion of new equity by the Sponsors and
(z) the Acquisition.
1. Issuance of Securities .
The Company proposes, upon the terms and subject to the conditions
set forth herein, to issue and sell to the Initial Purchasers an
aggregate of $190,000,000 in principal amount of the Initial Notes.
The Initial Notes and the Exchange Notes (as defined) issued in
exchange therefor are collectively referred to herein as the
“ Notes .”
Upon original issuance thereof, and
until such time as the same is no longer required under the
applicable requirements of the Securities Act of 1933, as amended
(the “ Act ”), the Initial Notes (and all
securities issued in exchange therefor or in substitution thereof)
shall bear the following legend:
“THE SECURITY (OR ITS
PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE
RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES
FOR THE BENEFIT OF THE ISSUER THAT (A) SUCH SECURITY MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (a) IN
THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (b) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (c) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (d) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” (AS DEFINED IN RULE 501 (a) (1), (2), (3) OR (7) OF
THE SECURITIES ACT (AN “INSTITUTIONAL ACCREDITED
INVESTOR”)) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE)
AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO INNOPHOS, INC. THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF INNOPHOS, INC. SO REQUESTS), (2) TO
INNOPHOS, INC. OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE
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JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE.”
2. The Offering . The Initial
Notes will be offered and sold to the Initial Purchasers pursuant
to an exemption from the registration requirements under the Act.
The Company has prepared a preliminary offering memorandum, dated
July 22, 2004 (the “ Preliminary Offering
Memorandum ”), and a final offering memorandum, dated
August 3, 2004 (the “ OfferingMemorandum
”), relating to the Company and its subsidiaries and the
Notes.
The Initial Purchasers have advised
the Company that the Initial Purchasers will make offers (the
“ Exempt Resales ”) of the Initial Notes
on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to (i) persons whom the Initial Purchasers
reasonably believe to be “qualified institutional
buyers,” as defined in Rule 144A under the Act (“
QIBs ”) and (ii) non-U.S. persons outside the
United States in reliance upon Regulation S (“
Regulation S ”) under the Act (each, a “
Reg S Investor ”). The QIBs and the Reg S
Investors are collectively referred to herein as the “
Eligible Purchasers .” The Initial Purchasers
will offer the Initial Notes to such Eligible Purchasers initially
at a price equal to 100% of the principal amount thereof;
provided , however , the Initial Purchasers will
offer to Sankaty High Yield Partners II, L.P., Sankaty High Yield
Partners III, L.P., Sankaty Credit Opportunities, L.P., and
Prospect Harbor Credit Partners LP Initial Notes in an aggregate
principal amount of up to $15.0 million at a price equal to 97.25%
of the aggregate principal amount thereof. Such price may be
changed at any time without notice.
Holders (including subsequent
transferees) of the Initial Notes will have the registration rights
set forth in the registration rights agreement relating thereto
(the “ Registration Rights Agreement ”),
to be dated as of the Closing Date, for so long as such Initial
Notes constitute “Transfer Restricted Securities” (as
defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company and the Guarantor will
agree 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 Company’s 8.875% Senior Notes due
2014 (the “ Exchange Notes ”) and
Guarantees thereof to be offered in exchange for the Initial Notes
and Guarantees thereof (the “ Exchange Offer
”) and (ii) under certain circumstances, 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 Initial Notes, and to use their
commercially reasonable efforts to cause such Registration
Statements to be declared effective and to consummate the Exchange
Offer. This Agreement, the Notes, the Guarantees, the Indenture,
the Registration Rights Agreement, the Acquisition Agreement and
the Credit Agreement are hereinafter referred to collectively as
the “ Operative Documents .”
3. Purchase, Sale and
Delivery . (a) On the basis of the representations, warranties
and covenants contained in this Agreement, and subject to its terms
and conditions, the Company agrees to issue and sell to each
Initial Purchaser, and each Initial Purchaser agrees, severally and
not jointly, to purchase from the Company, the principal amount of
Initial Notes set forth
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opposite the name of such Initial Purchaser on
Schedule II hereto. The purchase price for the Initial Notes
will be $972.50 per $1,000 principal amount Initial
Note.
(b) Delivery of the Initial Notes
shall be made, against payment of the purchase price therefor, at
the offices of Kirkland & Ellis LLP, New York, New York or such
other location as may be mutually acceptable. Such delivery and
payment shall be made at 9:00 a.m., New York City time, on August
13, 2004 or at such other time as shall be agreed upon by the
Initial Purchasers and the Company. The time and date of such
delivery and payment are herein called the “ Closing
Date .”
(c) On the Closing Date, one or more
Initial Notes in definitive global form, registered in the name of
Cede & Co., as nominee of The Depository Trust Company (“
DTC ”), having an aggregate amount
corresponding to the aggregate principal amount of the Initial
Notes (the “ Global Notes ”) sold
pursuant to Exempt Resales to Eligible Purchasers shall be
delivered, or caused to be delivered, by the Company to the Initial
Purchasers (or as the Initial Purchasers direct), against payment
by the Initial Purchasers of the purchase price therefor, by wire
transfer of same day funds, to an account designated by the
Company; provided that the Company shall give at least two
business days’ prior written notice to the Initial Purchasers
of the information required to effect such wire transfer. The
Global Notes shall be made available to the Initial Purchasers for
inspection not later than 5:00 p.m., New York City time, on the
business day immediately preceding the Closing Date.
4. Agreements of the Company and
the Guarantor . Each of the Company and the Guarantor covenants
and agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers
promptly and, if requested by the Initial Purchasers, confirm such
advice in writing (i) of the issuance by any state securities
commission or other regulatory authority of any stop order or order
suspending the qualification or exemption from qualification of any
Notes or the Guarantees thereof for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purpose
by any state securities commission or other regulatory authority
and (ii) of the happening of any event that makes any statement of
a material fact made in the Preliminary Offering Memorandum or the
Offering Memorandum untrue or that requires the making of any
additions to or changes in the Preliminary Offering Memorandum or
the Offering Memorandum in order to make the statements therein, in
the light of the circumstances under which they are made, not
misleading. The Company and the Guarantor shall use their
respective commercially reasonable efforts to prevent the issuance
of any stop order or order suspending the qualification or
exemption from qualification of any Notes or the Guarantees thereof
under any state securities or Blue Sky laws and, if at any time any
state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of any Notes or the Guarantees thereof under any
state securities or Blue Sky laws, the Company and the Guarantor
shall use their respective commercially reasonable efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time.
(b) To furnish the Initial
Purchasers and those persons identified by the Initial Purchasers
to the Company, without charge, as many copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and any amendments
or supplements thereto, as
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the Initial Purchasers may
reasonably request. The Company and the Guarantor consent to the
use of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments and supplements thereto required
pursuant hereto, by the Initial Purchasers in connection with
Exempt Resales.
(c) Not to amend or supplement the
Preliminary Offering Memorandum or the Offering Memorandum during
such period as in the reasonable opinion of counsel for the Initial
Purchasers the Preliminary Offering Memorandum or the Offering
Memorandum is required by law to be delivered in connection with
Exempt Resales and in connection with market-making activities of
the Initial Purchasers for so long as any Initial Notes are
outstanding unless the Initial Purchasers previously have been
advised thereof and have not objected thereto within a reasonable
time after being furnished a copy thereof. The Company and the
Guarantor shall promptly prepare, upon the Initial
Purchasers’ request, any amendment or supplement to the
Preliminary Offering Memorandum or the Offering Memorandum that in
the reasonable opinion of the Initial Purchasers or counsel for the
Initial Purchasers may be necessary or advisable in connection with
such Exempt Resales or such market-making activities.
(d) If, during the period referred
to in 4(c) above, any event occurs as a result of which, in the
judgment of the Company and the Guarantor or in the reasonable
opinion of counsel for the Company and the Guarantor or counsel for
the Initial Purchasers, it becomes necessary or advisable to amend
or supplement the Preliminary Offering Memorandum or the Offering
Memorandum in order to make the statements therein, in the light of
the circumstances when such Preliminary Offering Memorandum or
Offering Memorandum is delivered to an Eligible Purchaser, not
misleading, or if in the reasonable opinion of the Initial
Purchasers or counsel for the Initial Purchasers it is necessary or
advisable to amend or supplement the Preliminary Offering
Memorandum or the Offering Memorandum to comply with applicable
law, (i) to notify the Initial Purchasers and (ii) forthwith to
prepare an appropriate amendment or supplement to such Preliminary
Offering Memorandum or the Offering Memorandum so that the
statements therein as so amended or supplemented will not, in the
light of the circumstances when it is so delivered, be misleading,
or so that such Preliminary Offering Memorandum or the Offering
Memorandum will comply with applicable law.
(e) To cooperate with the Initial
Purchasers and counsel for the Initial Purchasers in connection
with the qualification or registration of the Initial Notes and the
Guarantees thereof under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may reasonably request and
to continue such qualification in effect so long as required for
the Exempt Resales; provided , however , that neither
the Company nor any Guarantor shall be required in connection
therewith to register or qualify as a foreign corporation or a
foreign limited liability company where it is not now so qualified
or to take any action that would subject it to service of process
in suits or taxation, in each case, other than as to matters and
transactions relating to the Preliminary Offering Memorandum, the
Offering Memorandum or Exempt Resales, in any jurisdiction where it
is not now so subject.
(f) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement
becomes effective or is terminated, to pay all costs, expenses,
fees and taxes incident to the performance of the obligations of
the Company and the Guarantor hereunder, including in connection
with: (i) the preparation, printing, filing and distribution
of
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the Preliminary Offering Memorandum
and the Offering Memorandum (including, without limitation,
financial statements) and all amendments and supplements thereto
required pursuant hereto, (ii) the preparation (including, without
limitation, duplication costs) and delivery of all agreements,
correspondence and all other documents prepared and delivered in
connection herewith and with the Exempt Resales, (iii) the
issuance, transfer and delivery of the Initial Notes and the
Guarantees thereof to the Initial Purchasers, (iv) the
qualification or registration of the Notes and the Guarantees
thereof for offer and sale under the securities or Blue Sky laws of
the several states (including, without limitation, the cost of
printing and mailing a preliminary and final Blue Sky memorandum
and the reasonable fees and disbursements of counsel for the
Initial Purchasers relating thereto in an amount not to exceed
$7,000), (v) the furnishing of such copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and all amendments
and supplements thereto, as may be requested for use in connection
with Exempt Resales, (vi) the preparation of certificates for the
Notes (including, without limitation, printing and engraving
thereof), (vii) the fees, disbursements and expenses of the
Company’s and the Guarantor’s counsel and accountants,
(viii) all fees and expenses (including fees and expenses of
counsel) of the Company and the Guarantor in connection with the
approval of the Notes by DTC for “book-entry” transfer,
(ix) the rating of the Notes by rating agencies, (x) the reasonable
fees and expenses of the Trustee and its counsel, (xi) the
performance by the Company and the Guarantor of their other
obligations under this Agreement and the other Operative Documents
and (xii) 50% of the cost of aircraft charter relating to
“roadshow” travel, and other “roadshow”
travel and related expenses reasonably incurred in connection with
the marketing and sale of the Notes. Except as provided in this
Section 4(f), the Initial Purchasers shall pay their own expenses,
including the fees and disbursements of their counsel and 50% of
the cost of aircraft charter relating to “roadshow”
travel.
(g) To use the proceeds from the
sale of the Initial Notes in the manner described in the Offering
Memorandum under the caption “Use of Proceeds” and to
provide the Initial Purchasers with evidence of any application of
such proceeds on the date of each such application.
(h) To use its reasonably commercial
efforts to consummate the Acquisition, on substantially the same
terms described in the Offering Memorandum.
(i) Not to voluntarily claim, and to
resist actively any attempts to claim, the benefit of any usury
laws against the holders of any Notes.
(j) Not to sell, offer for sale or
solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Act) that would be integrated with the
sale of the Initial Notes in a manner that would require the
registration under the Act of the sale to the Initial Purchasers or
the Eligible Purchasers of the Initial Notes or to take any other
action that would result in the Exempt Resales not being exempt
from registration under the Act.
(k) For so long as any of the Notes
remain outstanding and during any period in which the Company and
the Guarantor are not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act ”), to make available to any
holder or beneficial owner of Initial Notes in connection with any
sale thereof and any prospective
6
purchaser of such Initial Notes from
such holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act.
(l) To cause the Exchange Offer to
be made in the appropriate form to permit registered Exchange Notes
and the Guarantees thereof to be offered in exchange for the
Initial Notes and the Guarantees thereof and to comply with all
applicable federal and state securities laws in connection with the
Exchange Offer.
(m) To comply with all of its
agreements set forth in the Registration Rights Agreement and all
of its agreements set forth in the representation letters to DTC
relating to the approval of the Notes by DTC for
“book-entry” transfer.
(n) To effect the inclusion of the
Notes in The PORTAL SM Market (“
PORTAL ”) and to obtain approval of the Initial
Notes by DTC for “book-entry” transfer.
(o) During a period of five years
following the Closing Date, to deliver without charge to the
Initial Purchasers, as they may reasonably request, promptly upon
their becoming available, copies of (i) all reports or other
publicly available information that the Company and the Guarantor
mail or otherwise make available to their securityholders and (ii)
all reports, financial statements and proxy or information
statements filed by the Company with the Commission or any national
securities exchange and such other publicly available information
concerning the Company or any of its subsidiaries, including
without limitation, press releases.
(p) Prior to the Closing Date, to
furnish to the Initial Purchasers, as soon as they have been
prepared in the ordinary course by the Company, copies of any
unaudited interim financial statements for any period subsequent to
the periods covered by the financial statements in the Offering
Memorandum.
(q) Not to take, directly or
indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or
resale of the Notes. Except as permitted by the Act, neither the
Company nor any Guarantor will distribute any (i) preliminary
offering memorandum, including, without limitation, the Preliminary
Offering Memorandum, (ii) offering memorandum, including, without
limitation, the Offering Memorandum, or (iii) other offering
material in connection with the offering and sale of the
Notes.
(r) Prior to the Closing Date, not
to issue any press release or other communications directly or
indirectly or hold any press conference with respect to the
issuance of the Initial Notes, the Company or any of its
subsidiaries, the properties, business, results of operations,
condition (financial or otherwise), affairs or prospects of the
Company or any of its subsidiaries, without the prior consent of
the Initial Purchasers, such consent not to be unreasonably
withheld or delayed.
(s) Prior to the Closing Date, not
to amend the Acquisition Agreement or the Credit Agreement unless
any such amendment is in a form satisfactory to the Initial
Purchasers.
(t) To use its commercially
reasonable efforts to do and perform all things required or
necessary to be done and performed under this Agreement and the
other Operative
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Documents prior to or after the
Closing Date and to satisfy all conditions precedent on their part
to the delivery of the Initial Notes and the Guarantees
thereof.
5. Representations and
Warranties . (a) The Company and the Guarantor, jointly and
severally, represent and warrant to the Initial Purchasers
that:
(i) The Preliminary Offering
Memorandum as of its date did not, and the Offering Memorandum as
of its date did not, and as of the Closing Date will not, and any
supplement or amendment thereto will not, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties contained in this paragraph shall not apply to
statements in or omissions from the Preliminary Offering Memorandum
and the Offering Memorandum (or any supplement or amendment
thereto) made in reliance upon and in conformity with information
relating to the Initial Purchasers furnished to the Company and the
Guarantor in writing by the Initial Purchasers expressly for use
therein. No stop order preventing the use of the Preliminary
Offering Memorandum or the Offering Memorandum, or any amendment or
supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the
registration requirements of the Act, has been issued.
(ii) Each of the Company and each of
its subsidiaries and Holdings (A) has been duly incorporated or
formed and is validly existing as a corporation or limited
liability company in good standing under the laws of its
jurisdiction of incorporation, formation or otherwise, (B) has all
requisite corporate or limited liability company power and
authority to carry on its business as it is currently being
conducted and as described in the Offering Memorandum and to own,
lease and operate its properties, and (C) is duly qualified and is
in good standing as a foreign corporation or limited liability
company authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified could not reasonably be expected to (1) result,
individually or in the aggregate, in a material adverse effect on
the properties, business, results of operations, condition
(financial or other) or prospects of the Company and its
subsidiaries, taken as a whole, (2) interfere with or adversely
affect the issuance or marketability of the Notes or (3) in any
manner draw into question the validity of this Agreement or any
other Operative Document or the transactions described in the
Offering Memorandum under the caption “Use of Proceeds”
(any of the events set forth in clauses (1), (2) or (3), a “
Material Adverse Effect ”).
(iii) As of the date hereof, the
Company has no subsidiaries other than the entities listed on
Schedule III hereto. Upon consummation of the Acquisition,
the Company will have no subsidiaries other than the entities
listed on Schedule IV hereto.
(iv) All of the outstanding equity
interests of each subsidiary of the Company are owned, directly or
indirectly, by the Company, free and clear of any security
interest, claim, lien, limitation on voting rights or encumbrance,
except for any such security interest, claim, lien, limitation on
voting rights or encumbrance pursuant to
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the Credit Agreement; and all such
securities have been duly authorized and in the case of shares of
capital stock of the Company, are validly issued and are fully paid
and nonassessable, and were not issued in violation of any
preemptive or similar rights.
(v) Immediately upon the
consummation of the Acquisition, all of the outstanding shares of
capital stock of the Company will be directly owned by
Holdings.
(vi) Except as disclosed in the
Offering Memorandum, there are not currently any outstanding
subscriptions, rights, warrants, calls, commitments of sale or
options to acquire, or instruments convertible into or exchangeable
for, any capital stock or other equity interest of the Company or
any of its subsidiaries.
(vii) When the Initial Notes and the
Guarantees thereof are issued and delivered pursuant to this
Agreement, no Initial Note or Guarantee thereof will be of the same
class (within the meaning of Rule 144A under the Act) as securities
of the Company or any Guarantor that are listed on a national
securities exchange registered under Section 6 of the Exchange Act
or that are quoted in a United States automated inter-dealer
quotation system.
(viii) Each of the Company and the
Guarantor has all requisite corporate or limited liability company
power and authority to execute, deliver and perform its obligations
under this Agreement and each of the other Operative Documents to
which it is a party and to consummate the transactions contemplated
hereby and thereby, including, without limitation, the corporate or
limited liability company power and authority to issue, sell and
deliver the Notes and to issue and deliver the Guarantees thereof
as provided herein and therein.
(ix) This Agreement has been duly
and validly authorized, executed and delivered by the Company and
the Guarantor and is the legally valid and binding agreement of the
Company and the Guarantor, enforceable against each of them in
accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting the rights of creditors generally and
subject to general principles of equity.
(x) The Indenture has been duly and
validly authorized by the Company and the Guarantor and, at the
Closing Date, will have been duly executed and delivered by the
Company and the Guarantor and, assuming due authorization,
execution and delivery thereof by the Trustee, will be the legally
valid and binding agreement of the Company and the Guarantor,
enforceable against each of them in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
the rights of creditors generally and subject to general principles
of equity. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of
1939, as amended (the “ Trust Indenture Act
”), and the rules and regulations of the Commission
applicable to an indenture that is qualified thereunder. The
Offering Memorandum contains a summary of the terms of the
Indenture, which summary is accurate in all material
respects.
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(xi) The Registration Rights
Agreement has been duly and validly authorized by the Company and
the Guarantor and, at the Closing Date, will have been duly
executed and delivered by the Company and the Guarantor and,
assuming due authorization, execution and delivery thereof by the
Initial Purchasers, will be the legally valid and binding
obligation of the Company and the Guarantor, enforceable against
each of them in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the rights of creditors
generally and subject to general principles of equity. The Offering
Memorandum contains a summary of the terms of the Registration
Rights Agreement, which summary is accurate in all material
respects.
(xii) The Initial Notes have been
duly and validly authorized by the Company for issuance and sale to
the Initial Purchasers pursuant to this Agreement and, when issued
and authenticated in accordance with the terms of the Indenture and
delivered against payment of the purchase price therefor in
accordance with the terms hereof and thereof, will be the legally
valid and binding obligations of the Company, enforceable against
it in accordance with their terms and entitled to the benefits of
the Indenture, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting the rights of creditors generally and subject to general
principles of equity. The Offering Memorandum contains a summary of
the terms of the Notes, which summary is accurate in all material
respects.
(xiii) The Guarantees of the Initial
Notes have been duly and validly authorized by the Guarantor and,
when executed and delivered in accordance with the terms of the
Indenture and when the Initial Notes have been issued and
authenticated in accordance with the terms of the Indenture and
delivered against payment therefor in accordance with the terms
hereof and thereof, will be the legally valid and binding
obligations of the Guarantor, enforceable against it in accordance
with their terms and entitled to the benefits of the Indenture,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
the rights of creditors generally and subject to general principles
of equity. The Offering Memorandum contains a summary of the terms
of the Guarantees, which summary is accurate in all material
respects.
(xiv) The Exchange Notes have been
duly and validly authorized for issuance by the Company and, when
issued and authenticated in accordance with the terms of the
Exchange Offer, the Registration Rights Agreement and the
Indenture, will be the legally valid and binding obligations of the
Company, enforceable against it in accordance with their terms and
entitled to the benefits of the Indenture, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting the rights of creditors
generally and subject to general principles of equity.
(xv) The Guarantees of the Exchange
Notes have been duly and validly authorized by the Guarantor and,
when executed and delivered in accordance with the terms of the
Indenture and when the Exchange Notes have been issued and
authenticated in accordance with the terms of the Exchange Offer
and the Indenture, will be the legally
10
valid and binding obligations of the
Guarantor, enforceable against it in accordance with their terms
and entitled to the benefits of the Indenture, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting the rights of
creditors generally and subject to general principles of
equity.
(xvi) The Acquisition has been duly
authorized by all necessary corporate action of the Company
including, to the extent required by applicable law, all necessary
action by its board of directors and stockholders. The Acquisition
Agreement has been duly authorized, executed and delivered by the
Company and is the legally valid and binding obligation of the
Company, enforceable against it in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting
the rights of creditors generally and subject to general principles
of equity.
(xvii) The Credit Agreement has been
duly authorized by the Company and is the legally valid and binding
obligation of the Company, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws
affecting the rights of creditors generally and subject to general
principles of equity.
(xviii) Each of the Company and its
subsidiaries and Holdings is not (A) in violation of its charter or
bylaws or other organizational documents, (B) in default in the
performance of any bond, debenture, note, indenture, mortgage, deed
of trust or other agreement or instrument to which it is a party or
by which it is bound or to which any of its properties is subject
that, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or (C) in violation of
any local, state, federal or foreign law, statute, ordinance, rule,
regulation, requirement, judgment or court decree (including,
without limitation, environmental laws, statutes, ordinances,
rules, regulations, requirements, judgments or court decrees)
applicable to it or any of its assets or properties (whether owned
or leased) that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect. To the knowledge of
the Company and the Guarantor, there exists no condition that, with
notice, the passage of time or otherwise, would constitute a
default under any such document or instrument.
(xix) None of (A) the execution,
delivery or performance by the Company or any Guarantor of this
Agreement or any of the other Operative Documents to which it is a
party, (B) the issuance and sale of the Notes and the issuance of
the Guarantees or (C) the consummation by the Company and Holdings
of the transactions described in the Offering Memorandum under the
caption “Use of Proceeds,” violates, conflicts with or
constitutes a breach of any of the terms or provisions of, or will
violate, conflict with or constitute a breach of any of the terms
or provisions of, or a default under (or an event that with notice
or the lapse of time, or both, would constitute a default under),
or require consent under, or result in the imposition of a lien or
encumbrance on any properties of the Company or any of its
subsidiaries or Holdings, or an acceleration of any indebtedness of
the Company or any of its subsidiaries or Holdings pursuant to, (1)
the charter or bylaws or other organizational documents of the
Company or any of its subsidiaries or Holdings, (2) any bond,
debenture, note, indenture, mortgage, deed of
11
trust or other agreement or
instrument to which the Company or any of its subsidiaries or
Holdings is a party or by which any of them is bound or to which
any of their properties are subject, (3) any statute, rule or
regulation applicable to the Company or any of its subsidiaries or
Holdings or any of their assets or properties or (4) any judgment,
order or decree of any court or governmental agency, body or
authority or administrative agency having jurisdiction over the
Company or any of its subsidiaries or Holdings or any of their
assets or properties. No consent, approval, authorization or order
of, or filing, registration, qualification, license or permit of or
with, (A) any court or governmental agency, body or authority or
administrative agency or (B) any other person is required for (1)
the execution, delivery and performance by each of the Company and
the Guarantor of this Agreement or any of the other Operative
Documents to which it is a party or (2) the issuance and sale of
the Notes, the issuance of the Guarantees and the transactions
contemplated hereby and thereby, except such as have been or will
be obtained and made on or prior to the Closing Date (or, in the
case of the Registration Rights Agreement, will be obtained and
made under the Act, the Trust Indenture Act, and state securities
or Blue Sky laws and regulations).
(xx) There is (A) no action, suit,
investigation or proceeding before or by any court, arbitrator or
governmental agency, body or authority or administrative agency,
domestic or foreign, now pending or, to the knowledge of the
Company and the Guarantor, threatened or contemplated to which the
Company or any of its subsidiaries or Holdings is or may be a party
or to which the assets or property of the Company or any of its
subsidiaries or Holdings, is or may be subject, (B) no statute,
rule, regulation or order that has been enacted, adopted or issued
by any governmental agency, body or authority or administrative
agency or that has been proposed by any governmental agency, body
or authority or administrative agency and (C) no injunction,
restraining order or order of any nature by a federal or state
court or foreign court of competent jurisdiction to which the
Company or any of its subsidiaries or Holdings is or may be subject
or to which the business, assets or property of the Company or any
of its subsidiaries or Holdings is or may be subject, that, in the
case of clauses (A), (B) and (C) above, (1) is required to be
disclosed in the Preliminary Offering Memorandum and the Offering
Memorandum and that is not so disclosed or (2) could, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(xxi) No action has been taken and
no statute, rule, regulation or order has been enacted, adopted or
issued by any governmental agency that prevents the issuance of the
Notes or the Guarantees or prevents or suspends the use of the
Offering Memorandum; no injunction, restraining order or order of
any nature by a federal or state court of competent jurisdiction
has been issued that prevents the issuance of the Notes or the
Guarantees or prevents or suspends the sale of the Notes or the
Guarantees in any jurisdiction referred to in Section 4(e) hereof;
and every request of any securities authority or agency of any
jurisdiction for additional information has been complied with in
all material respects.
(xxii) Except as disclosed in the
Offering Memorandum, there is (A) no material unfair labor practice
complaint pending against the Company or any of its subsidiaries or
Holdings nor, to the best knowledge of the Company and the
Guarantor,
12
threatened against any of them,
before the National Labor Relations Board, any state or local labor
relations board or any foreign labor relations board, and no
material grievance or material arbitration proceeding arising out
of or under any collective bargaining agreement is so pending
against the Company or any of its subsidiaries or Holdings or, to
the best knowledge of the Company and the Guarantor, threatened
against any of them, (B) no significant strike, labor dispute,
slowdown or stoppage pending against the Company or any of its
subsidiaries nor, to the best knowledge of the Company and the
Guarantor, threatened against any of them and (C) to the best
knowledge of the Company and the Guarantor, no union representation
question existing with respect to the employees of the Company or
any of its subsidiaries. To the best knowledge of the Company and
the Guarantor, no collective bargaining organizing activities are
taking place with respect to the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries has
violated (A) any federal, state or local law or foreign law
relating to discrimination in hiring, promotion or pay of
employees, (B) any applicable wage or hour laws or (C) any
provision of the Employee Retirement Income Security Act of 1974,
as amended (“ ERISA ”), or the rules and
regulations thereunder, except
