Exhibit 10.1
CROWN HOLDINGS,
INC.
ISSUANCE BY
CROWN AMERICAS,
LLC
and
CROWN AMERICAS CAPITAL
CORP. II
OF
$400,000,000
7 5 / 8 % Senior Notes due
2017
Purchase Agreement
New York, New York
May 5, 2009
Deutsche Bank Securities
Inc.
As Representative of the
several Initial
Purchasers named in
Schedule I hereto
c/o Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
Ladies and Gentlemen:
Crown Holdings,
Inc., a Pennsylvania corporation (“ Holdings ”),
and the indirect parent company of Crown Americas, LLC, a
Pennsylvania limited liability company (the “ Company
”) and Crown Americas Capital Corp. II, a Delaware
Corporation (“ Crown Americas Capital II
”), proposes that the Company and Crown Americas
Capital II issue and sell to the several purchasers named in
Schedule I hereto (the “ Initial Purchasers
”), for whom Deutsche Bank Securities Inc. (the “
Representative ”) is acting as representative,
$400,000,000 aggregate principal amount of their 7
5 / 8 % Senior Notes due 2017 (the
“ Notes ”). The Notes will be issued pursuant to
an indenture to be dated as of May 8, 2009 (the “
Indenture ”) among the Company, Crown Americas
Capital II, Holdings, as guarantor, the other guarantors named
in Schedule II hereto (together with Holdings, the
“ Guarantors ” and, together with the Company
and Crown Americas Capital II, the “ Issuers
”) and The Bank of New York Mellon Trust Company, N.A., as
trustee (the “ Trustee ”). The Notes will have
the benefit of the guarantees (the “ Guarantees
” and, together with the Notes, the “ Securities
”) provided for in the Indenture. The use of the neuter in
this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in
Section 18 hereof.
Holders of the Securities will also
have the benefit of a registration rights agreement to be dated as
of May 8, 2009 (the “ Registration Rights
Agreement ”) among the Issuers and the Representative.
Pursuant to the Registration Rights Agreement, the Issuers will
agree to register the Securities under the Act subject to the terms
and conditions therein specified.
This Agreement, the Securities, the
Indenture, the Registration Rights Agreement, and the agreements
and instruments to which Holdings or any of its subsidiaries is a
signatory relating to the issuance of the Securities contemplated
hereby, collectively are referred to herein as the “
Transaction Documents ”.
The sale of the Securities to the
Initial Purchasers will be made without registration of the
Securities under the Act in reliance upon exemptions from the
registration requirements of the Act.
In connection with the sale of the
Securities, the Issuers have prepared a preliminary offering
memorandum dated May 5, 2009 (including the information
incorporated by reference therein, the “ Preliminary
Memorandum ”), setting forth or including a description
of the terms of the Securities, the terms of the offering of the
Securities, a description of the Issuers and any material
developments relating to the Issuers occurring after the date of
the most recent historical financial statements included therein.
As used herein, “ Pricing Disclosure Package ”
shall mean the Preliminary Memorandum, as supplemented or amended
by the written communications listed on Annex A hereto in
the most recent form that has been prepared and delivered by the
Issuers to the Initial Purchasers in connection with their
solicitation of offers to purchase Securities prior to the time
when sales of the Securities were first made (the “ Time
of Execution ”). Promptly after the Time of Execution and
in any event no later than the second Business Day following the
Time of Execution, the Issuers will prepare and deliver to the
Initial Purchasers a final offering memorandum (including the
information incorporated by reference therein, the “ Final
Memorandum ”), which will consist of the Preliminary
Memorandum with such changes therein as are required to reflect the
information contained in the amendments or supplements listed on
Annex A hereto. The Issuers hereby confirm that they have
authorized the use of the Pricing Disclosure Package, the Final
Memorandum and the Recorded Road Show (defined below) in connection
with the offer and sale of the Securities by the Initial
Purchasers.
1. Representations and
Warranties . As of the Time of Execution and at the Closing
Date (as defined in Section 3 below), the Issuers, jointly and
severally, represent and warrant to and agree with each of the
Initial Purchasers as follows (references in this Section 1 to
the “ Offering Memorandum ” are to (i) the
Pricing Disclosure Package in the case of representations and
warranties made as of the Time of Execution and (ii) both the
Pricing Disclosure Package and the Final Memorandum in the case of
representations and warranties made at the Closing
Date):
(a) The Preliminary Memorandum, at
the date thereof, did not contain any untrue statement of a
material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. At the Time of Execution, the
Pricing Disclosure Package does not, and on the Closing Date, will
not, and the Final Memorandum as of its date and on the Closing
Date will not, contain any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided , however , that the
Issuers make no
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representation or warranty as to the
information contained in or omitted from the Pricing Disclosure
Package and Final Memorandum, in reliance upon and in conformity
with information furnished in writing to the Issuers by or on
behalf of the Initial Purchasers specifically for inclusion
therein. The Issuers have not distributed or referred to and will
not distribute or refer to any written communications (as defined
in Rule 405 of the Act) that constitutes an offer to sell or
solicitation of an offer to buy the Securities (each such
communication by the Issuers or their agents and representatives
(other than the Pricing Disclosure Package and Final Memorandum) an
“ Issuer Written Communication ”) other than the
Pricing Disclosure Package, the Final Memorandum and the recorded
electronic road show made available to investors (the “
Recorded Road Show ”). Any information in an Issuer
Written Communication that is not otherwise included in the Pricing
Disclosure Package and the Final Memorandum does not conflict with
the Pricing Disclosure Package or the Final Memorandum, and each
Issuer Written Communication, when taken together with the Pricing
Disclosure Package, does not at the Time of Execution and, when
taken together with the Final Memorandum at the Closing Date, will
not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(b) None of the Issuers or their
respective Affiliates, or any person acting on behalf of any of
them (other than the Initial Purchasers to which the Issuers make
no representation or warranty), has, directly or indirectly, made
offers or sales of any security, or solicited offers to buy any
security, under circumstances that would require the registration
of the Securities under the Act. Assuming the accuracy of the
representations and warranties of the Initial Purchasers in
Section 4 of this Agreement, it is not necessary in connection
with the offer, sale and delivery of the Securities to the Initial
Purchasers or the initial resale of the Securities by the Initial
Purchasers, in each case, in the manner contemplated by this
Agreement, to register any of the Securities under the Act or to
qualify either Indenture under the Trust Indenture Act.
(c) None of the Issuers or their
respective Affiliates, or any person acting on behalf of any of
them (other than the Initial Purchasers as to which the Issuers
make no representation or warranty), has engaged in any form of
general solicitation or general advertising (within the meaning of
Regulation D) in connection with any offer or sale of the
Securities in the United States.
(d) The Securities satisfy the
eligibility requirements of Rule 144A(d)(3) under the
Act.
(e) None of the Issuers or their
respective Affiliates, or any person acting on behalf of any of
them (other than the Initial Purchasers as to which the Issuers
make no representation or warranty), has engaged in any
“directed selling efforts” with respect to the
Securities, and each of the Issuers and their respective Affiliates
has complied with the “offering restrictions”
requirement of Regulation S. Terms used in this paragraph have
the meanings given to them by Regulation S.
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(f) No securities of any of the
Issuers are of the same class (within the meaning of Rule 144A
under the Act) as any of the Securities and listed on a national
securities exchange registered under Section 6 of the Exchange
Act or quoted in a U.S. automated inter-dealer quotation
system.
(g) None of the transactions
contemplated by this Agreement (including, without limitation, the
use of the proceeds from the sale of the Securities), 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 or X of the Board of Governors of
the Federal Reserve System.
(h) The Issuers have been advised by
the FINRA’s PORTAL Market that the Notes have been designated
PORTAL-eligible securities in accordance with the rules and
regulations of the FINRA.
(i) None of the Issuers or their
respective subsidiaries is, and after giving effect to the offering
and sale of the Securities and the application of the proceeds
thereof as described in the Offering Memorandum none of them will
be, required to register as an “investment company” or
a company “controlled by” an “investment
company” within the meaning of the Investment Company
Act.
(j) Holdings is subject to the
reporting requirements of, and has timely filed all material
required to be filed by it pursuant to, Section 13 or
Section 15(d) of the Exchange Act.
(k) None of the Issuers or their
respective Affiliates has paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of
any of them (except as contemplated by this Agreement).
(l) None of the Issuers or their
respective Affiliates has taken, directly or indirectly, any action
designed to cause or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act
or otherwise, in the stabilization or manipulation of the price of
any security of any of them to facilitate the sale or resale of the
Securities.
(m) The information to be provided
by the Issuers pursuant to Section 5(h) hereof will not, at
the date thereof, contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading.
(n) The statements set forth or
referenced under the headings “Crown’s
Business—Legal Proceedings”, “Description of
Certain Indebtedness”, “Description of the
Notes”, “Exchange Offer; Registration Rights” and
“Certain Material U.S. Federal Income Tax
Considerations” in the Offering Memorandum fairly summarize
the matters therein described.
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(o) The statistical and
market-related data included in the Offering Memorandum are based
on or derived from sources which the Issuers believe to be reliable
and accurate in all material respects.
(p) There are no contracts,
agreements or other documents or pending legal or governmental
proceedings to which any of the Issuers or their respective
subsidiaries is a party or any property of any of the Issuers or
their respective subsidiaries is subject that would be required to
be described in a prospectus under the Act that have not been
described in the Offering Memorandum. The contracts, agreements and
other documents so described in the Offering Memorandum are in full
force and effect on the date of this Agreement. None of the Issuers
or their respective subsidiaries or, to the knowledge of any
Issuer, any other party is in breach of or default under any such
contracts, agreements or other documents, other than a breach or
default that would not reasonably be expected to have a material
adverse effect on (i) the issue and sale of the Securities or
the consummation of the other transactions contemplated by the
Transaction Documents (including, without limitation, the
application of the proceeds from the issuance of the Securities) or
(ii) the condition (financial or otherwise), prospects,
earnings, business or properties of Holdings and its subsidiaries,
taken as a whole, whether or not arising from transactions in the
ordinary course of business (“ Material Adverse Effect
”).
(q) Holdings and each of its
subsidiaries has been duly organized and is validly existing as a
corporation or other legal entity in good standing under the laws
of the jurisdiction in which it is organized, with full corporate
or other statutory power and authority to own or lease, as the case
may be, and operate its properties and conduct its business as
described in the Offering Memorandum. Holdings and each of its
subsidiaries is duly qualified to do business as a foreign
corporation or other legal entity and is in good standing under the
laws of each jurisdiction which requires such qualification, except
where the failure to do so qualify or be in good standing would not
reasonably be expected to result in a Material Adverse
Effect.
(r) All the outstanding shares of
capital stock of each subsidiary of Holdings have been duly and
validly authorized and issued and are fully paid and except as set
forth in the Offering Memorandum, all outstanding shares of capital
stock of such subsidiaries are owned by Holdings, either directly
or through wholly owned subsidiaries, free and clear of any
perfected security interest or any other security interests,
claims, liens or encumbrances, except for any such perfected
security interests, or other security interests, claims, liens or
encumbrances described in the Offering Memorandum or that would not
reasonably be expected to result in a Material Adverse Effect or an
Event of Default (as defined in the Indenture).
(s) Holdings’ capitalization
is as set forth in the “Actual” column of the table set
forth under the heading “Capitalization” in the
Offering Memorandum. On the Closing Date, Holdings’
capitalization will be consistent in all material respects with the
“As Adjusted” column of the table set forth under the
heading “Capitalization” in the Offering
Memorandum.
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(t) This Agreement shall have been
duly authorized, executed and delivered by each such Issuer and,
assuming the due authorization, execution and delivery thereof by
the Initial Purchasers, will constitute the legal, valid and
binding obligation of each such Issuer, enforceable against such
Issuer in accordance with its terms (except that the enforcement
thereof may be subject to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws of
general applicability affecting creditors’ rights generally
from time to time in effect and to general principles of equity and
the discretion of the court before which any proceeding therefor
may be brought regardless of whether such enforcement is considered
in a proceeding at law or in equity) and except that any rights to
indemnity and contribution further may be limited or prohibited by
Federal or state securities laws and public policy
considerations.
(u) The Indenture has been duly
authorized by each of the Issuers and, assuming the due
authorization, execution and delivery thereof by the Trustee, when
executed and delivered by each of the Issuers, will constitute the
legal, valid and binding instrument of each of the Issuers,
enforceable against each of the Issuers in accordance with its
terms (except that the enforcement thereof may be subject to
applicable bankruptcy, reorganization, insolvency, fraudulent
conveyance, moratorium or other laws of general applicability
affecting creditors’ rights generally from time to time in
effect and to general principles of equity and the discretion of
the court before which any proceeding therefor may be brought
regardless of whether such enforcement is considered in a
proceeding at law or in equity). The Indenture meets the
requirements for qualification under the Trust Indenture
Act.
(v) The Notes have been duly
authorized by the Company and Crown Americas Capital II and,
when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms hereof, will have been duly
executed and delivered by the Company and Crown Americas
Capital II and will constitute the legal, valid and binding
joint and several obligations of the Company and Crown Americas
Capital II, entitled to the benefits of the Indenture and
enforceable against the Company and Crown Americas Capital II
in accordance with their terms (except that the enforcement thereof
may be subject to applicable bankruptcy, reorganization,
insolvency, fraudulent conveyance, moratorium or other laws of
general applicability affecting creditors’ rights generally
from time to time in effect and to general principles of equity and
the discretion of the court before which any proceeding therefor
may be brought regardless of whether such enforcement is considered
in a proceeding at law or in equity).
(w) The Guarantees have been duly
authorized by the Guarantors and, when the Notes have been executed
in accordance with the provisions of the Indenture, will have been
duly executed and delivered by the Guarantors and will constitute
legal, valid and binding obligations of the Guarantors, entitled to
the benefits of the Indenture and enforceable against the
Guarantors in accordance with their terms (except that the
enforcement thereof may be subject to applicable bankruptcy,
reorganization, insolvency, fraudulent conveyance, moratorium or
other laws of general applicability affecting creditors’
rights generally from time to time in effect and to general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought regardless of whether such
enforcement is considered in a proceeding at law or in
equity).
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(x) The Registration Rights
Agreement has been duly authorized by each of the Issuers and,
assuming the due authorization, execution and delivery thereof by
the Representative when executed and delivered by each of the
Issuers, will constitute the legal, valid and binding obligation of
each of the Issuers, enforceable against each of the Issuers in
accordance with its terms (except that the enforcement thereof may
be subject to applicable bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other laws of general
applicability affecting creditors’ rights generally from time
to time in effect and to general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought regardless of whether such enforcement is considered in a
proceeding at law or in equity and except that any rights to
indemnity and contribution further may be limited or prohibited by
Federal or state securities laws and public policy
considerations).
(y) No holder of securities of any
of the Issuers will be entitled to have such securities registered
under the registration statements required to be filed by the
Issuers pursuant to the Registration Rights Agreement other than as
expressly permitted thereby.
(z) Each other Transaction Document
has been duly authorized by each Issuer a party thereto and,
assuming the due authorization, execution and delivery thereof by
the other parties thereto, when executed and delivered by each such
Issuer will constitute the legal, valid and binding obligation of
each such Issuer, enforceable against each such Issuer in
accordance with its terms (except that the enforcement thereof may
be subject to applicable bankruptcy, reorganization, insolvency,
fraudulent conveyance, moratorium or other laws of general
applicability affecting creditors’ rights generally from time
to time in effect and to general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought regardless of whether such enforcement is considered in a
proceeding at law or in equity and except that any rights to
indemnity and contribution further may be limited or prohibited by
Federal or state securities laws and public policy
considerations).
(aa) The documents (or portions
thereof) incorporated by reference in the Offering Memorandum when
they became effective or were filed with the Commission, as the
case may be, complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
none of such documents contained an untrue statement of a material
fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading.
(bb) No consent, approval,
authorization, filing with or order of any court or governmental
agency or body is required in connection with the transactions
contemplated by any of the Transaction Documents, except
(i) in the case of compliance with the terms of the
Registration Rights Agreement such as will be obtained under the
Act and the Trust Indenture Act, (ii) such as may be required
under the blue sky laws of any state in connection with the
purchase and distribution of the Securities by the
Initial
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Purchasers in the manner
contemplated herein and in the Offering Memorandum and the
Registration Rights Agreement, and except where the failure to
obtain the same would not reasonably be expected to have a Material
Adverse Effect.
(cc) None of the execution and
delivery by any of the Issuers party thereto of any of the
Transaction Documents, the issue and sale of the Securities, the
consummation of the other transactions contemplated by the
Transaction Documents (including, without limitation, the
application of the proceeds from the issuance of the Securities)
will conflict with, result in a breach or violation or imposition
of any lien, charge or encumbrance upon any property or assets of
any of the Issuers or their respective subsidiaries pursuant to
(i) the organizational documents of Holdings or any of its
subsidiaries; (ii) the terms of any indenture, contract,
lease, mortgage, deed of trust, note agreement, loan agreement,
credit agreement or other agreement, obligation, condition,
covenant or instrument to which Holdings or any of its subsidiaries
is a party or bound or to which any property or assets of Holdings
or any of its subsidiaries is subject; or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to
Holdings or any of its subsidiaries or any property or assets of
Holdings or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over Holdings or any of its
subsidiaries or property or assets of any of its subsidiaries,
except, in the case of clauses (ii) and (iii) above, as
would not reasonably be expected to have a Material Adverse Effect
or to materially adversely affect the rights of the holders of the
Securities or of the Initial Purchasers under the Transaction
Documents.
(dd) The consolidated historical
financial statements and schedules of Holdings and its consolidated
subsidiaries included in the Offering Memorandum present fairly in
all material respects the financial condition, results of
operations and cash flows of Holdings and its consolidated
subsidiaries as of the dates and for the periods indicated, comply
as to form in all material respects with the applicable
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein). The selected historical financial data set forth under
the caption “Selected Historical Financial Data” in the
Offering Memorandum comply as to form in all material respects with
the applicable requirements of the Act (except that historical data
for the fiscal years ended December 31, 2004 and 2005 is
omitted) and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted
therein). The summary historical financial data set forth under the
caption “Summary—Summary Historical and Adjusted
Consolidated Condensed Financial Data” in the Offering
Memorandum fairly present, on the basis stated in the Offering
Memorandum, the information included therein. The adjusted
financial data included in the Offering Memorandum include
assumptions that provide a reasonable basis for presenting the
significant effects directly attributable to the transactions and
events described therein, the related adjustments give appropriate
effect to those assumptions, and the adjustments reflect the proper
application of those adjustments to the historical amounts in the
adjusted financial data included in the Offering
Memorandum.
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(ee) Other than as set forth in the
Offering Memorandum, no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving Holdings or any of its subsidiaries or any property or
assets of Holdings or any of its subsidiaries is pending or, to the
knowledge of Holdings, threatened that would reasonably be expected
to have a Material Adverse Effect.
(ff) Holdings and each of its
subsidiaries owns or leases all such properties as are necessary to
the conduct of its operations as presently conducted. Holdings and
each of its subsidiaries has good and marketable title to, or valid
leasehold interests in, or easements or other limited property
interests in, or is licensed to use, all its material properties
and assets, except for minor defects that do not interfere with its
ability to conduct its business as currently conducted or utilize
such properties and assets for their intended purposes, and except
where failure to have such title, leasehold interests, easements or
other limited property interests or licenses to use, in the
aggregate, would not reasonably be expected to have a Material
Adverse Effect. All material properties and assets of Holdings and
its subsidiaries are free and clear of all liens, charges,
encumbrances or restrictions, except for Permitted Liens (as
defined in the Indenture) and as described in the Offering
Memorandum. Each of the Issuers and their respective subsidiaries
has good and marketable title to all personal property it purports
to own, except as described in the Offering Memorandum.
(gg) Neither Holdings nor any of its
subsidiaries is in violation or default of (i) any provision
of its organizational documents; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement, credit agreement or other agreement,
obligation, condition, covenant or instrument to which it is a
party or bound or to which its property or assets is subject; or
(iii) any statute, law, rule, regulation, judgment, order or
decree applicable to it or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over it or any
such subsidiaries or any of their respective property or assets,
except, in the case of clauses (ii) and (iii) above, for
any such violation or default which would not reasonably be
expected to have a Material Adverse Effect.
(hh) PricewaterhouseCoopers LLP (the
“ Independent Accountants ”), who have certified
certain financial statements of Holdings and its consolidated
subsidiaries and delivered their report with respect to the audited
consolidated financial statements and schedules included in the
Offering Memorandum, are independent public accountants with
respect to Holdings within the meaning of the Act and the Exchange
Act and the related published rules and regulations
thereunder.
(ii) Holdings 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 (except in any case in which the failure so to file would
not reasonably be expected to have a Material Adverse Effect).
Holdings and each of its subsidiaries has paid all taxes required
to be paid by it as shown in such return 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 being contested in good faith or as would not
reasonably be expected to have a Material Adverse
Effect.
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(jj) No labor problem or dispute
with the employees of Holdings or any of its subsidiaries exists or
is threatened or imminent, and there is no existing or imminent
labor disturbance or collective bargaining activities by the
employees of Holdings or any of its subsidiaries or, to the
knowledge of any of the Issuers, by the employees of any of the
principal suppliers, contractors or customers of Holdings or any of
its subsidiaries, in each case, that would have a Material Adverse
Effect.
(kk) Holdings and each of its
subsidiaries, except as disclosed in the Offering Memorandum, or to
the extent it would not reasonably be expected to have a Material
Adverse Effect, is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
are prudent and customary in the businesses in which they are
engaged. All policies of insurance and fidelity or surety bonds
insuring Holdings or any of its subsidiaries or the businesses,
assets, employees, officers and directors of Holdings or any of its
subsidiaries are in full force and effect other than any policies
of insurance and fidelity or surety bonds that, if not in full
force and effect, would not reasonably be expected to have a
Material Adverse Effect. Holdings and each of its subsidiaries is
in compliance with the terms of such policies and instruments in
all material respects. There are no claims by Holdings or any of
its subsidiaries under any such policy or instrument as to which
any insurance company is denying liability or defending under a
reservation of rights clause, except for such claims which, if
successfully denied, would not reasonably be expected to have a
Material Adverse Effect. Neither Holdings nor any of its
subsidiaries has been refused any insurance coverage sought or
applied for. Neither Holdings nor 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 its business at a cost that would not reasonably be
expected to have a Material Adverse Effect.
(ll) No subsidiary of Holdings is
prohibited, directly or indirectly, from paying any dividends on
such subsidiary’s capital stock, from making any other
distribution on such subsidiary’s capital stock, from
repaying to Holdings or any other subsidiary of Holdings any loans
or advances to such subsidiary from Holdings or such other
subsidiary or from transferring any of such subsidiary’s
property or assets to Holdings or any other subsidiary of Holdings,
except as described in or contemplated by the Offering Memorandum
(exclusive of any amendment or supplement thereto).
(mm) Holdings and each of its
subsidiaries owns or possesses adequate licenses or other rights to
use all patents, trademarks, service marks, trade names, copyrights
and know-how that are necessary to conduct their respective
businesses as described in the Offering Memorandum, except where
the failure to own or possess such licenses or other rights to use
such patents, trademarks, service marks, trade names, copyrights
and know-how would not reasonably be expected to have a Material
Adverse Effect. Neither Holdings nor any of its subsidiaries has
received any notice of infringement of or conflict with (or knows
of any such infringement of or conflict with) asserted rights of
others with respect to any patents, trademarks, service marks,
trade names, copyrights or know-how that, if such assertion of
infringement or conflict were sustained, could have a Material
Adverse Effect.
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(nn) Holdings and each of its
subsidiaries possesses all licenses, certificates, permits and
other authorizations issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their
respective businesses as currently conducted, except where the
failure to possess such licenses, certificates, permits or other
authorizations would not reasonably be expected to have a Material
Adverse Effect, and neither Holdings nor any of its subsidiaries
has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to have a
Material Adverse Effect.
(oo) Holdings and each of its
subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance 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.
Holdings and its Subsidiaries maintain systems of “internal
control over financial reporting” (as defined in
Rule 13a-15(f) of the Exchange Act) that comply with the
requirements of the Exchange Act and have been designed by, or
under the supervision of, management to provide reasonable
assurance regarding the reliability of financial reporting and the
preparation of financial statements for external purposes in
accordance with generally accepted accounting
principles.
(pp)(i) Holdings and each of its
subsidiaries is in compliance in all material respects with any and
all applicable foreign, federal, state and local laws and
regulations and rules of common law relating to pollution or the
protection of the environment, natural resources or occupational
health and safety, including without limitation those relating to
the release or threat of release of Hazardous Materials (“
Environmental Laws ”); (ii) Holdings and each of
its subsidiaries has received and is in compliance in all material
respects with all permits, li
