BELDEN INC.
(a Delaware corporation)
9.25% Senior Subordinated Notes due
2019
Wachovia
Capital Markets, LLC
Banc of America Securities LLC
Citigroup Global Markets Inc.
As Representatives for the several Initial Purchasers
One Wachovia Center
301 South College Street
Charlotte, North Carolina 28288
Belden Inc., a
Delaware corporation (the “ Company ”), proposes
to issue and sell to the several purchasers named in
Schedule I hereto (the “ Initial Purchasers
”), for whom Wachovia Capital Markets, LLC, Banc of America
Securities LLC and Citigroup Global Markets Inc. are acting as
Representatives (in such capacity, the “
Representatives ”), $200,000,000 aggregate principal
amount of its 9.25% Senior Subordinated Notes due 2019 (the “
Notes ”), which will be unconditionally guaranteed on
a senior subordinated basis as to principal, premium, if any, and
interest (the “ Guarantees ”) by the
subsidiaries of the Company named in Schedule II hereto (each
individually, a “ Guarantor ” and collectively,
the “ Guarantors ”). The Notes will be issued
pursuant to an Indenture (the “ Indenture ”)
dated as of the Closing Date (as defined in Section 2) among
the Company, the Guarantors and U.S. Bank National Association, as
Trustee (the “ Trustee ”). This Agreement, the
Registration Rights Agreement, to be dated the Closing Date,
between the Initial Purchasers, the Company and the Guarantors (the
“ Registration Rights Agreement ”) and the
Indenture are hereinafter collectively referred to as the “
Transaction Documents ” and the execution and delivery
of the Transaction Documents and the transactions contemplated
herein and therein are hereinafter referred to as the “
Transactions ”.
The
Notes (and the related Guarantees) will be offered and sold through
the Initial Purchasers without being registered under the
Securities Act of 1933, as amended (the “ Securities
Act ”), to qualified institutional buyers in compliance
with the exemption from registration provided by Rule 144A under
the Securities Act, and in offshore transactions in reliance on
Regulation S under the Securities Act (“
Regulation S ”). The Initial Purchasers have
advised the Company that they will offer and sell the Notes
purchased by them hereunder in accordance with Section 3
hereof as soon as the Representatives deem advisable.
In
connection with the sale of the Notes, the Company has prepared a
preliminary offering memorandum, dated June 23, 2009
(including the information incorporated by reference therein, the
“ Preliminary Memorandum ”), the Offering
Memorandum (as defined below) and a Final Memorandum (as defined
below), dated the date hereof. The Final Memorandum, the
Preliminary Memorandum, and the Offering Memorandum are referred to
herein as a “ Memorandum ”. Each Memorandum sets
forth certain information concerning the Company, the Guarantors,
the Notes, the Transaction Documents and the Transactions. The
Company hereby confirms that it has authorized the use of the
Preliminary Memorandum and the Offering
1
Memorandum, and
any amendment or supplement thereto, in connection with the offer
and sale of the Notes by the Initial Purchasers.
Prior
to the time when the sales of the Notes were first made (the
“ Time of Sale ”), the Company has prepared and
delivered to the Initial Purchasers a pricing supplement (the
“ Pricing Supplement ”) dated June 24,
2009. In connection with the sale of the Notes, the Company has
prepared an electronic road show (the “ Company Additional
Written Information ”). The Pricing Supplement together
with the Preliminary Memorandum is referred to herein as the
“ Offering Memorandum .”
Promptly
after the Time of Sale and in any event no later than the second
Business Day following the Time of Sale, the Company will prepare
and deliver to each Initial Purchaser a Final Offering Memorandum
(including the information incorporated by reference therein, the
“ Final Memorandum ”), which will consist of the
Preliminary Offering Memorandum with such changes therein as are
required to reflect the information contained in the Pricing
Supplement, and from and after the time such Final Memorandum is
delivered to each Initial Purchaser, all references herein to the
Offering Memorandum shall be deemed to be a reference to both the
Offering Memorandum and the Final Memorandum.
1.
Representations and Warranties of the Company and the
Guarantors . The Company and the Guarantors jointly and
severally represent and warrant to, and agree with, each of the
Initial Purchasers that:
(a) The
Preliminary Memorandum does not contain; the Offering Memorandum at
the Time of Sale will not contain; and the Final Memorandum, and
any amendment or supplement thereto, as of its date and as of the
Closing Date will not contain any untrue statement of a material
fact or, in each case, omit to state any material fact necessary to
make the statements therein, in light of the circumstances under
which they were made, not misleading; provided, however, that the
representations or warranties set forth in this paragraph shall not
apply to statements in or omissions from any Memorandum made in
reliance upon and in conformity with information furnished in
writing to the Company by the Initial Purchasers expressly for use
therein, as specified in Section 12. The statistical and
industry data included in each Memorandum are based on or derived
from sources that the Company believes to be reliable and accurate
in all material respects.
(b) The Company
has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware. The Company
is duly qualified to do business as a foreign corporation and is in
good standing under the laws of each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except where the failure to so qualify
or be in good standing would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect. “ Material
Adverse Effect ” shall mean a material adverse change in
or effect on (i) the business, operations, properties, assets,
liabilities, earnings, condition (financial or otherwise), results
of operations or management of the Company and its subsidiaries,
considered as one enterprise, whether or not in the ordinary course
of business, or (ii) the
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ability of the
Company and each Guarantor to perform its obligations under the
Notes or the Transaction Documents.
(c) Each of the
Company and each Guarantor has full power (corporate and other) to
own or lease its properties and conduct its business as described
in each Memorandum; and each of the Company and each Guarantor has
full power (corporate and other) to enter into the Transaction
Documents and to carry out all the terms and provisions hereof and
thereof to be carried out by it.
(d) The
capitalization of the Company is as set forth in the Offering
Memorandum under the caption “Capitalization”. All of
the issued shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable;
and none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights
of any security holder of the Company.
(e) Each
subsidiary of the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Offering Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a
Material Adverse Effect; all of the issued shares of capital stock
of each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable, and are
owned directly or through wholly owned subsidiaries by the Company,
free and clear of all liens, encumbrances, equities or claims,
except as otherwise described in the Offering
Memorandum.
(f) No subsidiary
of the Company is prohibited, directly or indirectly, from paying
any dividends to the Company, from making any other distribution on
such subsidiary’s capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary’s property or assets to
the Company or any other subsidiary of the Company, except as
provided by applicable laws or regulations, by the Indenture or as
disclosed in the Offering Memorandum.
(h) Ernst &
Young LLP, who has certified the historical consolidated financial
statements included in the Offering Memorandum and delivered its
report with respect to the audited historical consolidated
financial statements in the Offering Memorandum, is an independent
public accountant with respect to the Company within the meaning of
the Securities Act and the applicable rules and regulations
thereunder.
(i) The historical
consolidated financial statements (including the notes thereto) of
the Company and its consolidated subsidiaries in the Offering
Memorandum fairly present the financial position, results of
operations, cash flows and changes in stockholders’ equity of
the Company and its consolidated subsidiaries as of the dates
and
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for the periods
specified therein; since the date of the latest of such financial
statements, there has been no change nor any development or event
involving a prospective change which, individually or in the
aggregate, has had or could reasonably be expected to have a
Material Adverse Effect; such financial statements have been
prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved
(except as otherwise expressly disclosed in the notes thereto) and
comply in all material respects as to form with the applicable
accounting requirements of Regulation S-X under the Securities
Act (other than as provided under the heading “Securities and
Exchange Commission Review” in the Offering Memorandum and
the Final Memorandum); the information set forth under the captions
“Offering Memorandum Summary – Summary Historical
Consolidated Financial Information” in the Offering
Memorandum has been fairly extracted from the financial statements
of the Company and its consolidated subsidiaries, fairly presents
the information included therein and has been compiled on a basis
consistent with that of the audited financial statements included
in the Offering Memorandum.
(j) Subsequent to
the respective dates as of which information is given in the
Offering Memorandum, (i) none of the Company and its
subsidiaries have incurred any material liability or obligation,
direct or contingent, or entered into any material transaction in
each case not in the ordinary course of business; (ii) the
Company has not purchased any of its outstanding capital stock,
and, except for regular quarterly dividends on the common stock,
par value $0.01 of the Company in amounts per share that are
consistent with past practice, has not declared, paid or otherwise
made any dividend or distribution of any kind on any class of its
capital stock; and (iii) there has not been any change in the
capital stock, short-term debt or long-term debt of the Company and
its subsidiaries, except as disclosed in the Offering Memorandum or
as would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(k) Each of the
Company and each of its subsidiaries maintains a system of internal
accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted
accounting principles 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 differences.
(l) This Agreement
has been duly authorized, executed and delivered by the Company and
each Guarantor.
(m) The Indenture
and the Registration Rights Agreement have been duly authorized by
the Company and each Guarantor and, on the Closing Date, will have
been duly executed and delivered by the Company and each Guarantor,
and will constitute the legal, valid and binding obligations of the
Company and each Guarantor, enforceable against the Company and
each Guarantor in accordance with their respective
terms,
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except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors’ rights generally and except as enforcement thereof
is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law); and
the Indenture and the Registration Rights Agreement will conform in
all material respects to the description thereof in the Offering
Memorandum.
(n) On the Closing
Date, the Indenture will conform to the requirements of the Trust
Indenture Act of 1939, as amended (the “ Trust Indenture
Act ”), and to the rules and regulations of the
Securities and Exchange Commission (the “ Commission
”) applicable to an indenture that is qualified
thereunder.
(o) The Notes have
been duly authorized and, on the Closing Date, when executed and
authenticated in the manner provided for in the Indenture and
delivered to and paid for by the Initial Purchasers as provided in
this Agreement, will constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law), and will be
entitled to the benefits of the Indenture and the Registration
Rights Agreement; the Guarantees have been duly authorized and, on
the Closing Date, upon the due issuance and delivery of the related
Notes and the due endorsement of the Guarantees thereon, will have
been duly executed, endorsed and delivered and will constitute
valid and legally binding obligations of each of the Guarantors,
and will be entitled to the benefits of the Indenture; the Exchange
Notes (as defined in the Registration Rights Agreement) have been
duly authorized and, when executed and authenticated in the manner
provided for in the Registration Rights Agreement and the
Indenture, will constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforcement of creditors’ rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law), and will be entitled to the
benefits of the Indenture and the Registration Rights Agreement;
and the Notes and the Exchange Notes will conform in all material
respects to the descriptions thereof in the Offering
Memorandum.
(p) The execution,
delivery and performance by the Company and each Guarantor of this
Agreement and the other Transaction Documents, the issuance and
sale of the Notes and the compliance by the Company and each
Guarantor with all of the provisions of the Notes, the Indenture,
the Registration Rights Agreement and this Agreement and the
consummation of the transactions contemplated hereby and thereby
will not: (i) violate or conflict with the certificate of
incorporation or by-laws of the Company or any of its subsidiaries;
(ii) conflict with, result in a breach or violation of, or
constitute a default under, any indenture, mortgage, deed of trust
or loan agreement, stockholders’ agreement or any other
agreement or instrument to which the Company or any of
its
5
subsidiaries is
a party or by which the Company or any of its subsidiaries is bound
or any of their respective properties are subject, or any statute,
rule or regulation or any judgment, order or decree of any
governmental authority or court or any arbitrator applicable to the
Company or any of its subsidiaries, except in the case of this
clause (ii) for such conflicts, breaches, violations or defaults
that would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect; or (iii) (assuming, as
to matters of fact, the accuracy of the representations and
warranties of the Initial Purchasers contained herein) require the
consent, approval, authorization, order, registration or filing or
qualification with, any governmental authority or court, or body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries, except (x) such as may be required by the securities
or Blue Sky laws of the various states in connection with the offer
or sale of the Notes and by Federal and state securities laws with
respect to the obligations of the Company and the Guarantors under
the Registration Rights Agreement or (y) where the failure to
obtain such consents, approvals, authorizations, orders,
registrations, filings or qualifications would not, in the
aggregate, reasonably be expected to have a Material Adverse
Effect.
(q) No legal or
governmental proceedings or investigations are pending or, to the
Company’s knowledge, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject, other than
proceedings accurately described in the Preliminary Memorandum and
the Offering Memorandum and such proceedings or investigations that
would not, singly or in the aggregate, result in a Material Adverse
Effect.
(r) There are no
relationships, direct or indirect, between or among the Company or
any of its subsidiaries, on the one hand, and the respective
directors, officers, stockholders, customers or suppliers of the
Company or any of its subsidiaries, on the other hand, that would
be required by the Securities Act to be disclosed in a prospectus
were the Notes being issued and sold in a public offering
registered on Form S-1 under the Securities Act that are not so
disclosed in the Offering Memorandum; and there are no contracts or
other documents that would be required by the Securities Act to be
disclosed in a prospectus were the Notes being issued and sold in a
public offering registered on Form S-1 under the Securities Act
that are not so disclosed in the Offering Memorandum.
(s) Each of the
Company and each Guarantor is not now nor after giving effect to
the issuance of the Notes and the execution, delivery and
performance of the Transaction Documents and the consummation of
the transactions contemplated thereby or described in the
Preliminary Memorandum or the Offering Memorandum, will be (in each
case on a consolidated basis) (i) insolvent, (ii) left
with unreasonably small capital with which to engage in its
anticipated business or (iii) incurring debts or other
obligations beyond its ability to pay such debts or obligations as
they become due.
(t) The Company
and its Affiliates (as defined in Rule 501(b) of
Regulation D under the Securities Act (“
Regulation D ”)) have not distributed and, prior
to the later of (i) the Closing Date and (ii) the
completion of the distribution of the Notes, will not
6
distribute any
offering material in connection with the offering and sale of the
Notes other than the Preliminary Memorandum, the Offering
Memorandum or any amendment or supplement thereto.
(u) The Company
and its subsidiaries have not sustained, since the date of the
latest audited historical consolidated financial statements
included in the Offering Memorandum (exclusive of any amendment or
supplement thereto), any loss or interference with its business or
properties from fire, explosion, flood, accident or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree (whether domestic or
foreign) otherwise than as set forth in the Offering Memorandum
(exclusive of any amendment or supplement thereto) or, in each
case, as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(v) The statements
set forth in the Offering Memorandum under the caption
“Description of Notes”, insofar as they purport to
constitute a summary of the terms of the Notes, and under the
captions “Description of Certain Indebtedness”,
“Certain United States Federal Income Tax
Considerations”, and “Exchange Offer; Registration
Rights”, insofar as they purport to summarize the provisions
of the laws and documents referred to therein, fairly and
accurately summarize the subject matter thereof in all material
respects.
(w) The Company
and its subsidiaries have good and marketable title in fee simple
to all items of real property and good and marketable title to all
personal property owned by each of them, free and clear of any
pledge, lien, encumbrance, security interest or other defect or
claim of any third party, except as (x) set forth in the
Offering Memorandum or (y) to the extent the failure to have
such title or the existence of such pledges, liens, encumbrances,
security interests or other defects or claims would not, in the
aggregate, reasonably be expected to have a Material Adverse Effect
and would not materially interfere with the use thereof by the
Company and its subsidiaries. Any property leased by the Company
and its subsidiaries is held under valid, subsisting and
enforceable leases, and there is no default under any such lease or
any other event that with notice or lapse of time or both would
constitute a default thereunder, except as would not, individually
or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(x) No
“prohibited transaction” (as defined in
Section 406 of the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published
interpretations thereunder (“ ERISA ”), or
Section 4975 of the Internal Revenue Code of 1986, as amended
from time to time (the “ Code ”)) or
“accumulated funding deficiency” (as defined in
Section 302 of ERISA) or any of the events set forth in
Section 4043(c) of ERISA (other than events with respect to which
the 30-day notice requirement under Section 4043 of ERISA has
been waived) has occurred, exists or is reasonably expected to
occur with respect to any employee benefit plan (as defined in
Section 3(3) of ERISA) which the Company or any of its
subsidiaries maintains, contributes to or has any obligation to
contribute to, or with respect to which the Company or any of its
subsidiaries has any liability, direct or indirect, contingent or
otherwise (a “ Plan ”), except in
7
each case as
would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect; each Plan is in compliance in
all material respects with applicable law, including ERISA and the
Code; none of the Company or any of its subsidiaries has incurred
or expects to incur liability under Title IV of ERISA with respect
to the termination of, or withdrawal from, any Plan; and each Plan
that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred,
whether by action or failure to act, which could reasonably be
expected to cause the loss of such qualification.
(y) Except as
disclosed in each Memorandum, no labor dispute with the employees
of the Company or any of its subsidiaries exists or, to the
Company’s knowledge, is imminent or is threatened which,
individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
(z) No proceedings
for a merger, consolidation, liquidation or dissolution of the
Company or any Guarantor or a sale of all or a material part of the
assets of the Company and its subsidiaries; and, other than as
disclosed in the Offering Memorandum, no probable material
acquisition by the Company or any Guarantor is pending or
contemplated.
(aa) The Company
and each of its subsidiaries owns or otherwise possesses adequate
rights to use all material patents, trademarks, service marks,
trade names and copyrights, all applications and registrations for
each of the foregoing, and all other material proprietary rights
and confidential information necessary to conduct their respective
businesses as currently conducted; none of the Company or any of
its subsidiaries has received any notice, or is otherwise aware, of
any infringement of or conflict with the rights of any third party
with respect to any of the foregoing, which infringement or
conflict, if the subject of an unfavorable decision, would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect or materially interfere with the use by the
Company and its subsidiaries thereof.
(bb) The Company
and each of its subsidiaries is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts
and with such deductibles as are prudent in the business in which
it is engaged; and none of the Company or any of its
subsidiaries has any reason
to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue
their respective businesses at a cost that would not have a
Material Adverse Effect.
(cc) Each of the
Company and each of its subsidiaries has complied with all laws,
ordinances, regulations and orders applicable to the Company and
its subsidiaries, and their respective businesses, and none of the
Company or any of its subsidiaries has received any notice to the
contrary; and each of the Company and its subsidiaries possesses
all certificates, authorizations, permits, licenses, approvals,
orders and franchises (collectively, “ Licenses
”) necessary to conduct their respective businesses in the
manner and to the full extent now operated or proposed to be
operated as described in the Offering Memorandum, in each case
issued by the appropriate federal, state, local or
foreign
8
governmental or
regulatory authorities (collectively, the “ Agencies
”), except where the failure to so comply or to possess such
Licenses would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Licenses are in
full force and effect and no proceeding has been instituted or, to
the Company’s knowledge, is threatened or contemplated which
in any manner affects or calls into question the validity or
effectiveness thereof, except where such invalidity or
ineffectiveness thereof would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect. The Licenses contain no
restrictions, except for restrictions applicable to the cable and
connectivity products industry generally, that are materially
burdensome to the Company.
(dd) The operation
of the business of the Company and its subsidiaries in the manner
and to the full extent now operated or proposed to be operated as
described in the Offering Memorandum is in accordance with the
Licenses, and all orders, rules and regulations of the Agencies,
and no event has occurred which permits (nor has an event occurred
which with notice or lapse of time or both would permit) the
revocation or termination of any necessary Licenses or which might
result in any other impairment of the rights of the Company therein
or thereunder, and each of the Company and each of its subsidiaries
is in compliance with all statutes, orders, rules and regulations
of the Agencies relating to or affecting its operations, except
where the failure to so comply or the revocation or termination
would not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ee) There is and
has been no failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such,
to comply in all material respects with any provision of the
Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “ Sarbanes Oxley
Act ”), including Section 402 related to loans and
Sections 302 and 906 related to certifications.
(ff) (i) Each
of the Company and each of its subsidiaries is and has been in
compliance with all applicable laws, statutes, ordinances, rules,
regulations, orders, judgments, decisions, decrees, standards, and
requirements relating to: human health and safety; pollution;
management, disposal or release of any chemical substance, product
or waste; and protection, cleanup, remediation or corrective action
relating to the environment or natural resources (“
Environmental Law ”);
(ii) Each of the
Company and each of its subsidiaries has obtained and is in
compliance with the conditions of all permits, authorizations,
licenses, approvals and variances necessary under any Environmental
Law for the continued conduct in the manner now conducted of their
respective businesses (“ Environmental Permits
”);
(iii) There are no
past or present conditions or circumstances, including but not
limited to pending changes in any Environmental Law or
Environmental Permits, that are likely to interfere with the
conduct of the business of the Company and its subsidiaries in the
manner now conducted or which would interfere with compliance with
any Environmental Law or Environmental Permits; and
9
(iv) There are no
past or present conditions or circumstances at, or arising out of,
their respective businesses, assets and properties of the Company
and each of its subsidiaries or any business, assets or properties
formerly leased, operated or owned by the Company or any of its
subsidiaries, including but not limited to on-site or off-site
disposal or release of any chemical substance, product or waste,
which may give rise to: (i) liabilities or obligations for any
cleanup, remediation or corrective action under any Environmental
Law; (ii) claims arising under any Environmental Law for
personal injury, property damage, or damage to natural resources;
(iii) liabilities or obligations incurred by the Company or
its subsidiaries to comply with any Environmental Law; or
(iv) fines or penalties arising under any Environmental
Law;
except in each
case for any noncompliance or conditions or circumstances that,
singly or in the aggregate, would not result in a Material Adverse
Effect or as disclosed in the Offering Memorandum.
(gg)
(i) Neither the Company nor any Guarantor is in violation of
its certificate of incorporation or its bylaws, and (ii) no
default or breach exists, and no event has occurred that, with
notice or lapse of time or both, would constitute a default in the
due performance and observation of any term, covenant or condition
of any indenture, mortgage, deed of trust, lease, loan agreement,
stockholders’ agreement or any other agreement or instrument
to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which
any of their respective properties are subject, except in the case
of clause (ii) would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
(hh) Each of the
Company and each of its subsidiaries has filed all foreign,
federal, state and local tax returns that are required to be filed
or has requested extensions thereof and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith and for which the Company
and its subsidiaries retains adequate reserves or as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(ii) Except as
disclosed in the Offering Memorandum, there are no contracts,
agreements or understandings between the Company or any of its
subsidiaries and any person granting such person the right to
require the Company or any of its subsidiaries to file a
registration statement under the Securities Act or to require the
Company to include any securities held by any person in any
registration statement filed by the Company under the Securities
Act.
(jj) Neither the
Company nor any Guarantor is, nor after giving effect to the
offering and sale of the Notes and the application of the proceeds
thereof as described in the Offering Memorandum will be, an
“investment company”, or a company
“controlled” by an “investment company”,
within the meaning of the Investment Company Act of 1940, as
amended (the “ Investment Company Act
”).
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(kk) Within the
preceding six months, none of the Company or any of its Affiliates
has, directly or through any agent, made offers or sales of any
security of the Company, or solicited offers to buy or otherwise
negotiated in respect of any securities of the Company of the same
or a similar class as the Notes, other than the Notes offered or
sold to the Initial Purchasers hereunder.
(ll) None of the
Company or any of its Affiliates has, directly or through any
person acting on its or their behalf (other than the Initial
Purchasers, as to which no statement is made), offered, solicited
offers to buy or sold the Notes by any form of general solicitation
or general advertising (within the meaning of Regulation D) or
in any manner involving a public offering within the meaning of
Section 4(2) of the Securities Act.
(mm) None of the
Company, any of its Affiliates, nor any person acting on its or
their behalf (other than the Initial Purchasers, as to which no
statement is made), has engaged in any directed selling efforts
with respect to the Notes, and each of them has complied with the
offering restrictions requirement of Regulation S under the
Securities Act (“ Regulation S ”). Terms used in
this paragraph have the meanings given to them by
Regulation S.
(nn) None of the
Company or any of its Affiliates has taken, directly or indirectly,
any action designed to cause or result in, or which has constituted
or which 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; nor has the
Company or any of its Affiliates paid or agreed to pay to any
person any compensation for soliciting another to purchase any
securities of the Company (except as contemplated by this
Agreement).
(oo) The Notes
satisfy the eligibility requirements of Rule 144A(d)(3) under
the Securities Act.
(pp) Assuming the
accuracy of the representations and warranties of the Initial
Purchasers in Section 3 hereof and compliance by the Initial
Purchasers with the procedures set forth in Section 3 hereof,
it is not necessary in connection with the offer, sale and delivery
of the Notes to the Initial Purchasers in the manner contemplated
by this Agreement and disclosed in each Memorandum to register the
Notes or the related Guarantees under the Securities Act or to
qualify the Indenture under the Trust Indenture Act.
(qq) None of the
Transactions (including, without limitation, the use of proceeds
from the sale of the Notes) will violate or result in a violation
of Section 7 of the Exchange Act or any regulation promulgated
thereunder, including, without limitation, Regulations T, U and X
of the Board of Governors of the Federal Reserve System.
(rr) There are,
and during the last 12 months there have been, no material
disputes between the Company and any of its ten largest suppliers
(as measured by dollar volume of goods purchased by the Company)
(“ Material Suppliers ”) or ten largest
customers (as measured by dollar volume of goods sold by the
Company) (“ Material Customers ”). The
Company’s relations with its Material Suppliers and Material
Customers
11
are, in the
Company’s reasonable belief, good; and the Company has
received no notice, and is not otherwise aware, of any anticipated
material dispute with any of its Material Suppliers and Material
Customers, or that (i) any Material Supplier intends to cease
or materially reduce its supply to the Company or (ii) any
Material Customer intends to cease or materially reduce its
purchases from the Company.
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