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Exhibit 4.1(c)
EXECUTION COPY
$29,000,000
15% SENIOR SECURED NOTES DUE 2010 OF
PAHC HOLDINGS CORPORATION
PURCHASE AGREEMENT
February 7, 2005
JEFFERIES & COMPANY,
INC.
520 Madison Avenue
12th Floor
New York, NY 10022
Ladies and
Gentlemen:
PAHC Holdings
Corporation, a Delaware corporation (the "Company"),
hereby
agrees (this "Agreement")
with you as follows:
1. ISSUANCE OF NOTES. Subject to the terms and conditions
herein
contained, the Company
proposes to issue and sell to Jefferies & Company,
Inc.
(the "Initial Purchaser")
$29,000,000 aggregate principal amount of its 15%
Senior Secured Notes due 2010
(each a "Note" and, collectively, the "Notes").
The Notes will be issued
pursuant to an indenture (the "Indenture"), to be dated
as of February 10, 2005, by
and between the Company and HSBC Bank USA, National
Association, as trustee (in
such capacity, the "Trustee") and as collateral
agent (in such capacity, the
"Collateral Agent"). Capitalized terms used but not
defined herein shall have the
meanings set forth in the Indenture.
The Notes will
be offered and sold to the Initial Purchaser pursuant to
an
exemption from the
registration requirements under the Securities Act of
1933,
as amended (the "Act"). Upon
original issuance thereof, and until such time as
the same is no longer
required under the applicable requirements of the Act,
the
Notes shall bear the legends
set forth in the final offering circular, dated the
date hereof (the "Final
Offering Circular"). The Company has prepared a
preliminary offering
circular, dated February 2, 2005 (the "Preliminary
Offering
Circular"), and the Final
Offering Circular relating to the offer and sale of
the Notes (the "Offering").
"Offering Circular" means, as of any date or time
referred to in this
Agreement, the most recent offering circular (whether
the
Preliminary Offering Circular
or the Final Offering Circular, and any amendment
or supplement to either such
document), including, without limitation, exhibits
and schedules
thereto.
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2. TERMS OF OFFERING. The Initial Purchaser has advised the
Company,
and the Company understands,
that the Initial Purchaser will make offers to sell
(the "Exempt Resales") some
or all of the Notes purchased by the Initial
Purchaser hereunder on the
terms set forth in the Final Offering Circular, as
amended or supplemented, to
persons (the "Subsequent Purchasers") whom the
Initial Purchaser (i)
reasonably believes to be "qualified institutional
buyers"
as defined in Rule 144A under
the Act, as such Rule may be amended from time to
time ("QIBs"), (ii)
reasonably believes (based upon written representations
made
by such persons to the
Initial Purchaser) to be institutional "accredited
investors" ("Accredited
Investors") as defined in Rule 501(a)(1), (2), (3) or
(7) under the Act or (iii)
reasonably believes to be non-U.S. persons in
reliance upon Regulation S
under the Act.
Pursuant to the terms of the Collateral Agreements, the Notes will
be
secured by Liens in
substantially all of the assets of the Company,
including,
without limitation, a pledge
of the Capital Stock of Phibro Animal Health
Corporation, a New York
corporation ("Phibro Animal Health").
Holders of the Notes (including, without limitation,
Subsequent
Purchasers) will have the
registration rights set forth in the registration
rights agreement applicable
to the Notes (the "Registration Rights Agreement"),
to be executed on and dated
as of the Closing Date, as such term is defined
below. Pursuant to the
Registration Rights Agreement, the Company will agree,
among other things, to file
with the Securities and Exchange Commission (the
"SEC") (a) a registration
statement under the Act registering the offer and sale
of senior secured notes (the
"Exchange Notes") which shall be identical to the
Notes (except that the
Exchange Notes shall have been registered pursuant to
such registration statement,
will not be subject to restrictions on transfer or
contain additional interest
provisions) to be offered in exchange for the Notes
(such offer to exchange being
referred to as the "Exchange Offer"), and/or (b)
under certain circumstances,
a shelf registration statement pursuant to Rule 415
under the Act (the "Shelf
Registration Statement") relating to the resale by
certain holders of the Notes.
If required under the Registration Rights
Agreement, the Company will
issue Exchange Notes to the Initial Purchaser (the
"Private Exchange Notes"). If
the Company shall fail to satisfy its obligations
under the Registration Rights
Agreement, it will be required to pay additional
interest to the holders of
the Notes under certain circumstances, as set forth
in the Registration Rights
Agreement.
This Agreement, the Indenture, the Collateral Agreements,
the
Registration Rights
Agreement, the Notes, the Exchange Notes, the Private
Exchange Notes and the Escrow
and Security Agreement, to be dated February 10,
2005 (the "Escrow
Agreement"), between the Company and HSBC Bank USA,
National
Association, as escrow agent
and collateral agent, pursuant to which the Company
will deposit the gross
proceeds from the Offering in an escrow account (the
"Escrow Account"), are
referred to herein as the "Documents."
3. PURCHASE, SALE AND DELIVERY. On the basis of the
representations,
warranties, agreements and
covenants herein contained and subject to the selling
restrictions, terms and
conditions herein set forth, the Company agrees to issue
and sell to the Initial
Purchaser, and the Initial Purchaser agrees to purchase
from the Company, the Notes
at a purchase price of 100% of the principal amount
thereof. Delivery to the
Initial Purchaser of and payment for the Notes shall be
made at a closing (the
"Closing") to be held at 10:00 a.m., New York time, on
February 10, 2005 (the
"Closing Date") at the New York offices of Mayer, Brown,
Rowe & Maw
LLP.
As consideration for the placement of the Notes and financial
advisory
services rendered, the
Company agrees to pay to the Initial Purchaser the
following fees:
(i) $870,000,
representing a commission on the placement of the Notes
equal
to 3.0% of the gross
proceeds; and
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(ii) a financial
advisory fee of $580,000;
in each case due and payable
on the Closing Date. The Initial Purchaser may net
the above fees against the
purchase price of the Notes.
The Company shall deliver to the Initial Purchaser one or
more
certificates representing the
Notes in definitive form, for your account
registered in such names and
denominations as the Initial Purchaser may request
no later than 9:00 p.m. two
days immediately preceding the Closing Date, against
payment by the Initial
Purchaser of the purchase price therefor by immediately
available federal funds bank
wire transfer to the Escrow Account. The
certificates representing the
Notes in definitive form shall be made available
to the Initial Purchaser for
inspection at the New York offices of Mayer, Brown,
Rowe & Maw LLP (or such
other place as shall be reasonably acceptable to the
Initial Purchaser) not later
than 10:00 a.m. one business day immediately
preceding the Closing Date.
Notes to be represented by one or more definitive
global securities in
book-entry form will be deposited on the Closing Date,
by
or on behalf of the Company,
with The Depository Trust Company ("DTC") or its
designated custodian, and
registered in the name of Cede & Co.
4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The
Company
represents and warrants to
the Initial Purchaser that, as of the date hereof and
as of the Closing
Date:
(a) The Preliminary Offering Circular
as of its date did not, and the Final
Offering
Circular as of its date did not, and as of the Closing Date
will
not, and each
supplement or amendment thereto as of its date will not,
contain any
untrue statement of a material fact or omit to state any
material fact
(except, in the case of the Preliminary Offering
Circular,
for pricing
terms and other financial terms intentionally left
blank)
necessary in
order to make the statements therein, in light of the
circumstances
under which they were made, not misleading; provided,
however, that
the Company does not make any representation or warranty
as
to information
furnished in writing to it by the Initial Purchaser
specifically for
use therein. No injunction or order has been issued that
either (i)
asserts that any of the transactions contemplated by
this
Agreement or any
other Document is subject to the registration
requirements
of the Act, or
(ii) would prevent or suspend the issuance or sale of any
of
the Notes or the
use of the Preliminary Offering Circular, the Final
Offering
Circular or any amendment or supplement thereto, in any
jurisdiction.
Each of the Preliminary Offering Circular and the Final
Offering
Circular, as of their respective dates contained, and the
Final
Offering
Circular, as amended or supplemented, as of the Closing Date
will
contain, all the
information specified in, and meet the requirements of,
Rule 144A(d)(4)
under the Act.
(b) Each corporation, partnership, or
other entity in which the Company,
directly or
indirectly through any of its subsidiaries, will own as of
the
Closing Date
more than fifty percent (50%) of any class of Capital Stock
is
listed on
Schedule I attached hereto (the "Subsidiaries"). The
Capital
Stock of each
such Subsidiary that will be owned, directly or
indirectly,
by the Company as of the Closing
Date, will be owned by the Company, as of
the Closing
Date, free and clear of all Liens other than Permitted
Liens
(and, in the
case of Capital Stock of any Subsidiary held by any
other
Subsidiary,
Permitted Liens (as defined in the 2007 Indenture)) and in
the
case of La
Cornubia S.A, Liens in favor of its creditors (including
The
Republic of
France) pursuant to bankruptcy proceedings filed with
respect
to La Cornubia
S.A. in The Republic of France. Each such Subsidiary of
the
Company will be
a Restricted Subsidiary.
(c) The Company and its Subsidiaries
(i) have been duly organized or formed, as
the case may be,
are validly existing and are in good standing (to the
extent relevant
in such jurisdiction) under the laws of their
jurisdiction
of organization
or formation, as the case may be, (ii) have all
requisite
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corporate or
other power and corporate or other authority to carry on
their
business and to
own, lease and operate their properties and assets, and
(iii) are duly
qualified or licensed to do business and are in good
standing (to the
extent relevant in such jurisdiction) as a foreign
corporation,
partnership or other entity as the case may be, authorized
to
do business in
each jurisdiction in which the nature of such businesses
or
the ownership or
leasing of such properties requires such qualification,
except where the
failure to be so qualified would not, individually or in
the aggregate,
have a material adverse effect on (A) the properties,
business,
prospects, operations, earnings, assets, liabilities or
condition
(financial or
otherwise) of the Company and its Subsidiaries, taken as
a
whole, (B) the
ability of the Company to perform its obligations in all
material
respects under any Document to which it is a party, (C)
the
enforceability
of any Collateral Agreement or the attachment, perfection
or
priority of any of the Liens
intended to be created thereby or (D) the
validity of any
of the Documents or the consummation of any of the
transactions
contemplated therein (each, a "Material Adverse
Effect").
(d) All of the issued and outstanding
shares of Capital Stock of the Company
have been duly
authorized and validly issued, are fully paid and
nonassessable,
and were not issued in violation of, and except as set
forth
in the Final
Offering Circular are not subject to, any preemptive or
similar rights.
The column entitled "Actual" in the table under the
caption
"Capitalization"
in the Final Offering Circular (including the footnotes
thereto) sets
forth, as of September 30, 2004, the capitalization of
the
Company and its
Subsidiaries, taken as a whole. All of the outstanding
shares of
Capital Stock of each of the Subsidiaries are owned, directly
or
indirectly, by
the Company, free and clear of all liens, security
interests,
mortgages, pledges, charges, equities, claims or restrictions
on
transferability
or encumbrances of any kind (collectively, "Liens"),
other
than those
imposed by the Act and the securities or "Blue Sky" laws
of
certain domestic
or foreign jurisdictions, restrictions on the
transferability
of Voting Stock of Phibro Animal Health provided in that
certain
Stockholders Agreement, dated as of November 30, 2000, among,
inter
alia, Phibro
Animal Health, Jack C. Bendheim and the Palladium
Investors
(the
"Stockholders Agreement (Palladium)"), and Liens
constituting
Permitted Liens
(and, in the case of Capital Stock of any Subsidiary
held
by any other
Subsidiary, Permitted Liens (as defined in the 2007
Indenture)) and
in the case of La Cornubia S.A, Liens in favor of its
creditors
(including The Republic of France) pursuant to
bankruptcy
proceedings
filed with respect to La Cornubia S.A. in The Republic
of
France. Except
as set forth in the Final Offering Circular, there are
no
outstanding (A)
options, warrants or other rights for third parties to
purchase from
the Company or any of its Subsidiaries, (B) agreements,
contracts,
arrangements or other obligations of the Company or any of
its
Subsidiaries to
issue to third parties or (C) other rights of third
parties
to convert any
obligation into or exchange any securities for, in the
case
of each of
clauses (A) through (C), shares of Capital Stock in the
Company
or any of its
Subsidiaries.
(e) No holder of securities of the
Company or any of its Subsidiaries will be
entitled to have
such securities registered under the registration
statements
required to be filed by the Company with respect to the
Exchange
Notes or the
Private Exchange Notes pursuant to the Registration
Rights
Agreement.
(f) The Company has all requisite
corporate or other power and corporate or
other authority
to execute, deliver and perform its obligations under
the
Documents to
which it is a party and to consummate the transactions
contemplated
thereby.
(g) The execution, delivery and
performance of each of this Agreement, the
Indenture, the
Escrow Agreement and the Collateral Agreements have been
duly and validly
authorized by the Company. Each of the Indenture, the
Escrow Agreement
and the Collateral Agreements, when executed and
delivered
by the Company,
will constitute a legal, valid and binding obligation of
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the Company,
enforceable against the Company in accordance with its
terms,
except that the
enforcement thereof may be subject to (i) bankruptcy,
insolvency,
reorganization, receivership, moratorium, fraudulent
conveyance
or other similar
laws now or hereafter in effect relating to creditors'
rights generally
and (ii) general principles of equity (whether applied
by
a court of law
or equity) and the discretion of the court before which
any
proceeding
therefor may be brought.
(h) The execution, delivery and
performance of the Registration Rights
Agreement has
been duly and validly authorized by the Company. The
Registration
Rights Agreement, when executed and delivered by the
Company,
will constitute
a legal, valid and binding obligation of the Company,
enforceable
against the Company in accordance with its terms, except
that
(A) the
enforcement thereof may be subject to (i) bankruptcy,
insolvency,
reorganization,
receivership, moratorium, fraudulent conveyance or other
similar laws now
or hereafter in effect relating to creditors' rights
generally and
(ii) general principles of equity (whether applied by a
court
of law or
equity) and the discretion of the court before which any
proceeding
therefor may be brought and (B) any rights to indemnity
or
contribution
thereunder may be limited by federal and state securities
laws
and public
policy considerations.
(i) The Notes, when issued, will be in
the form contemplated by the Indenture.
The Indenture
meets the requirements for qualification under the Trust
Indenture Act of
1939, as amended (the "TIA"). The execution, delivery
and
performance of
each of the Notes, Exchange Notes and Private Exchange
Notes
have each been
duly and validly authorized by the Company and, in the
case
of the Notes,
when authenticated, delivered to and paid for by the
Initial
Purchaser in
accordance with the terms of this Agreement and the
Indenture,
will have been
duly executed, issued and delivered and will be legal,
valid
and binding
obligations of the Company, entitled to the benefit of
the
Indenture, the
Collateral Agreements, the Registration Rights
Agreement,
and enforceable
against the Company in accordance with their terms,
except
that the
enforcement thereof may be subject to (i) bankruptcy,
insolvency,
reorganization,
receivership, moratorium, fraudulent conveyance or other
similar laws now
or hereafter in effect relating to creditors' rights
generally and
(ii) general principles of equity (whether applied by a
court
of law or
equity) and the discretion of the court before which any
proceeding
therefor may be brought. Upon and following delivery to
the
Initial
Purchaser, the Notes will rank at least pari passu in right
of
payment with all
other Indebtedness of the Company that is outstanding on
the Closing Date
or that may be incurred thereafter and senior in right
of
payment to all
Indebtedness of the Company that is outstanding on the
Closing Date or
that may be incurred thereafter and which by its terms
is
subordinated in
right of payment to all other Indebtedness of the
Company.
(j) Neither the Company nor any of its
Subsidiaries is in violation of its
certificate of
incorporation, by-laws, limited liability operating
agreement or
other organizational document (as applicable with respect
to
the Company or
such Subsidiary, its "Charter Documents"). Neither the
Company nor any
of its Subsidiaries is (i) in violation of any federal,
state, local or
foreign statute, law (including, without limitation,
common
law) or
ordinance, or any judgment, decree, rule, regulation or
order,
except for such
violations that would not, individually or in the
aggregate,
result in a Material Adverse Effect (collectively,
"Applicable
Law") of any
federal, state, local and other governmental authority,
governmental or
regulatory agency or body, court, arbitrator or
self-regulatory
organization, domestic or foreign having jurisdiction
over
the Company or
any of its Subsidiaries or any of their respective
assets,
properties or
operations (each, a "Governmental Authority") applicable
to
any of them or
any of their respective properties, or (ii) in breach of
or
default under
any bond, debenture, note or other evidence of
Indebtedness,
indenture,
mortgage, deed of trust, lease or any other agreement or
instrument to
which any of them is a party or by which any of them or
their
respective
property is bound (collectively, "Applicable Agreements"),
other
than as
disclosed in the Final Offering Circular and except for any
such
breaches or
defaults
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that would not,
individually or in the aggregate, result in a Material
Adverse Effect.
There exists no condition that, with the passage of time
or
otherwise, would
(a) constitute a violation of any such (i) Charter
Document or (ii)
Applicable Law, (b) constitute a breach of or default
under any
Applicable Agreement or (c) result in the imposition of
any
penalty or the
acceleration of any Indebtedness and, in the case of
clause
(a)(ii), (b) or
(c) above, could reasonably be expected to result in a
Material Adverse
Effect.
(k) Neither the execution, delivery or
performance of the Documents nor the
consummation of
any transactions contemplated therein will conflict
with,
violate,
constitute a breach of or a default (with the passage of time
or
otherwise)
under, require the consent of any person (other than
consents
already obtained
and in full force and effect) under, result in the
imposition of a
Lien on any assets of the Company or any of its
Subsidiaries
(except for Liens created pursuant to the Documents), or
result in an
acceleration of Indebtedness under or pursuant to (i)
the
Charter
Documents, (ii) any Applicable Agreement, or (iii) any
Applicable
Law, except for
conflicts, violations, breaches, defaults, consents,
Lien
impositions or
accelerations of Indebtedness that, in the case of
clause
(ii) or (iii)
above, would not result in a Material Adverse Effect.
Immediately
after consummation of the Offering and the transactions
contemplated in
the Documents (including the application of the proceeds
of
the Notes as
disclosed in the Final Offering Circular), no Default or
Event
of Default
(each, as defined in the Indenture) will exist.
(l) When executed and delivered, the
Documents will conform in all material
respects to the
descriptions thereof in the Final Offering Circular.
(m) No consent, approval,
authorization or order of any Governmental Authority
or third party
is required for the issuance and sale by the Company of
the
Notes to the
Initial Purchaser or the consummation by the Company of
the
other
transactions contemplated hereby, except such as have been
obtained
(and are in full
force and effect) and such as may be required under
foreign
securities laws or state securities or "Blue Sky" laws
in
connection with
the purchase and resale of the Notes by the Initial
Purchaser.
(n) Except as disclosed in the Final
Offering Circular, there is no action,
claim, suit,
demand, hearing, notice of violation or deficiency, or
proceeding,
domestic or foreign (collectively, "Proceedings"), pending
or,
to the knowledge
of the Company, threatened, that either (i) seeks to
restrain,
enjoin, prevent the consummation of, or otherwise challenge
any
of the Documents
or any of the transactions contemplated therein, or (ii)
would,
individually or in the aggregate, have a Material Adverse
Effect.
The Company is
not subject to any judgment, order, decree, rule or
regulation of
any Governmental Authority that would, individually or in
the
aggregate, have
a Material Adverse Effect. No injunction or order has
been
issued and no
Proceeding is pending or, to the knowledge of the Company
or
any of its
Subsidiaries, threatened that (i) asserts that the offer,
sale
and delivery of
the Notes to the Initial Purchaser pursuant to this
Agreement or the
initial resale of the Notes by the Initial Purchaser in
the manner
contemplated by this Agreement is subject to the
registration
requirements of
the Act, or (ii) would prevent or suspend the issuance
or
sale of the
Notes, including the Exempt Resales, or the use of the
Preliminary
Offering Circular, the Final Offering Circular, or any
amendment or
supplement thereto, in any jurisdiction.
(o) The Company and its Subsidiaries
possess all licenses, permits,
certificates,
consents, orders, approvals and other authorizations
from,
and have made
all declarations and filings with, all Governmental
Authorities,
presently required or necessary to own or lease, as the
case
may be, and to
operate their respective properties and to carry on
their
respective
businesses as now or proposed to be conducted as set forth
in
the Final
Offering Circular ("Permits"), except where the
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failure to
obtain such Permits would not, individually or in the
aggregate,
have a Material Adverse
Effect; the Company and its Subsidiaries have
fulfilled and
performed all of their obligations with respect to such
Permits and no
event has occurred which allows, or after notice or lapse
of
time would
allow, revocation or termination thereof or results in any
other
material
impairment of the rights of the holder of any such Permit,
except
(i) as disclosed
in the Final Offering Circular and (ii) where such
failure
to perform such
obligations would not, individually or in the aggregate,
result in a
Material Adverse Effect; and neither the Company nor any of
its
Subsidiaries
have received any notice of any proceeding relating to
revocation or
modification of any such Permit, except as described in
the
Final Offering
Circular or except where such revocation or modification
would not,
individually or in the aggregate, have a Material
Adverse
Effect.
(p) The Company and each of its
Subsidiaries has good and marketable title to
all real
property owned by it and good title to all personal property
owned
by it and good
and indefeasible title to all leasehold estates in real
and
personal
property being leased by it (collectively, the "Property") and,
as
of the Closing
Date, the Property will be free and clear of all Liens
(other than
restrictions on the transferability of Voting Stock of
Phibro
Animal Health
provided in the Stockholders Agreement (Palladium),
Permitted
Liens (and, in
the case of Property of each Subsidiary, Permitted Liens
(as
defined in the
2007 Indenture))). All Applicable Agreements to which
the
Company or any
of its Subsidiaries is a party or by which any of them
is
bound are valid
and enforceable against the Company or such Subsidiary,
as
applicable, and
are valid and enforceable against the other party or
parties thereto
and are in full force and effect with only such
exceptions
as would not,
individually or in the aggregate, have a Material
Adverse
Effect. The
assets of the Company and its Subsidiaries include all of
the
assets and
properties necessary or required in, or otherwise material
to,
the conduct of
the businesses of each of them as currently conducted and
as
proposed to be
conducted (as described in the Final Offering Circular),
and
such assets are
in good working condition, except where the failure of
such
assets to be in
working condition would not, individually or in the
aggregate, have
a Material Adverse Effect. As of the date hereof, the
Company does not
own any assets, and the only assets of the Company on
the
Closing Date
will be the Capital Stock of Phibro Animal Health and
the
proceeds of the
Notes.
(q) All Tax returns required to be
filed by the Company and each of its
Subsidiaries
have been filed (taking into account all applicable
extensions) and
all such returns are true, complete and correct in all
material
respects. All material Taxes that are due from the Company and
its
Subsidiaries
have been paid other than those (i) currently payable
without
penalty or
interest or (ii) being contested in good faith and by
appropriate
proceedings and for which adequate reserves have been
established in
accordance with generally accepted accounting principles
of
the United
States, consistently applied ("GAAP"). To the knowledge of
the
Company, after
due inquiry, there are no actual or proposed Tax
assessments
against the
Company or any of its Subsidiaries that would, individually
or
in the
aggregate, have a Material Adverse Effect. The accruals and
reserves
on the books and
records of the Company and its Subsidiaries in respect
of
any material Tax
liability for any period not finally determined are
adequate in all
material respects to meet any assessments of Tax accrued
through the date
as of which they relate and for which the Company or any
of its
Subsidiaries may be liable. For purposes of this Agreement, the
term
"Tax" and
"Taxes" shall mean all federal, state, local and foreign
taxes,
and other
assessments of a similar nature (whether imposed directly
or
through
withholding), including, without limitation, any
interest,
additions to
tax, or penalties applicable thereto.
(r) The Company and its Subsidiaries
own, or are licensed under, and have the
right to use, or
can acquire on reasonable terms, adequate patents,
patent
rights,
licenses, inventions, copyrights, know-how (including,
without
limitation,
trade secrets and other unpatented and/or unpatentable
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proprietary or
confidential information, systems or procedures),
trademarks,
service marks and trade names (collectively,
"Intellectual
Property")
necessary for the conduct of their businesses and, as of
the
Closing Date,
such Intellectual Property will be free and clear of all
Liens, other
than Permitted Liens (and, in the case of Intellectual
Property of each
Subsidiary, Permitted Liens (as defined in the 2007
Indenture)),
except where the failure to do so could reasonably be
expected
to have a
Material Adverse Effect. To the Company's knowledge, no claims
or
notices of any
potential claim have been asserted by any person
challenging
the use of any
such Intellectual Property by the Company or any of its
Subsidiaries or
questioning the validity or effectiveness of the
Intellectual
Property or any license or agreement related thereto
(other
than any claims
that, if successful, would not, individually or in the
aggregate, have
a Material Adverse Effect). To the Company's knowledge,
the
use of such
Intellectual Property by the Company or any of its
Subsidiaries
will not
infringe on the Intellectual Property rights of any other
person.
(s) The Company maintains a system of
internal accounting controls sufficient
to provide
reasonable assurance that (i) material transactions are
executed
in accordance
with management's general or specific authorization,
(ii)
material
transactions are recorded as necessary to permit preparation
of
financial
statements in conformity with GAAP, and to maintain
asset
accountability,
(iii) access to assets is permitted only in accordance
with
management's
general or specific authorization and (iv) the recorded
accountability
for assets is compared with the existing assets at
reasonable
intervals and appropriate action is taken with respect to
any
material
differences.
(t) The audited consolidated financial
statements and related notes of the
Company and its
Subsidiaries contained in the Final Offering Circular
(the
"Financial
Statements") present fairly in all material respects the
financial
position, results of operations and cash flows of the Company
and
its consolidated
Subsidiaries, as of the respective dates and for the
respective
periods to which they apply and have been prepared in
accordance
with GAAP and
except as disclosed in the Final Offering Circular, the
requirements of
Regulation S-X of the Act. The historical financial data
set forth under
"Summary Historical and Unaudited Consolidated Financial
Data" and
"Selected Consolidated Financial Data" included in the
Final
Offering
Circular have been prepared on a basis consistent with that of
the
Financial
Statements and present fairly in all material respects
the
financial
position and results of operations of the Company and
its
consolidated
Subsidiaries as of the respective dates and for the
respective
periods
indicated. All other financial, statistical, and market
and
industry-related
data included in the Final Offering Circular are fairly
and accurately
presented and are based on or derived from sources that
the
Company believes
to be reliable and accurate in all material respects.
PricewaterhouseCoopers LLP are independent public accountants with
respect
to the
Company.
(u) Subsequent to the respective dates
as of which information is given in the
Final Offering
Circular, except as disclosed in the Final Offering
Circular, (i)
neither the Company nor any of its Subsidiaries has (x)
incurred any
liabilities, direct or contingent, that are material,
individually or
in the aggregate, to the Company and its Subsidiaries,
or
(y) entered into
any transactions not in the ordinary course of business
which are
material with respect to the Company and its
Subsidiaries
considered as
one enterprise, (ii) there has not been any material
decrease
in the Capital
Stock or any material increase in long-term Indebtedness
or
any material
increase in short-term Indebtedness of the Company and
its
Subsidiaries, or
any payment of or declaration to pay any dividends or
any
other
distribution with respect to the Company, and (iii) there has
not
been any
material adverse change in the properties, business,
prospects,
operations,
earnings, assets, liabilities or condition (financial or
otherwise) of
the Company and its Subsidiaries, taken as a whole,
since
June 30, 2004
(each of clauses (i), (ii) and (iii), a "Material
Adverse
Change"). To the
knowledge of the Company after due inquiry, there is no
event that is
reasonably likely to
8
<PAGE>
occur, which if
it were to occur, would, individually or in the
aggregate,
have a Material
Adverse Effect, except such events that have been
adequately
disclosed in the Final Offering Circular.
(v) No "nationally recognized
statistical rating organization" (as such term is
defined for
purposes of Rule 436(g)(2) under the Act) (i) has imposed
(or
has informed the
Company that it is considering imposing) any condition
(financial or
otherwise) on the Company retaining any rating assigned
to
the Company or
any of its Subsidiaries or to any securities of the
Company
or any of its
Subsidiaries, or (ii) has indicated to the Company that it
is
considering (A)
the downgrading, suspension, or withdrawal of, or any
review for a
possible change that does not indicate the direction of
the
possible change
in, any rating so assigned, or (B) any change in the
outlook for any rating of
the Company or any of its Subsidiaries or any
securities of
the Company or any of its Subsidiaries.
(w) All Indebtedness represented by
the Notes is being incurred for the
purposes set
forth in the Final Offering Circular under the heading "Use
of
Proceeds." On
the Closing Date, the Company will be solvent. As used
in
this paragraph,
"solvent" means, with respect to a particular date, that
on
such date the
present fair market value (present fair saleable value)
of
the assets of
the Company is not less than the total amount required to
pay
the probable
liabilities of the Company on its total existing debts
and
liabilities
(including, without limitation, contingent liabilities) as
they
become absolute
and matured, the Company is able to realize upon its
assets
and pay its
debts and other liabilities, contingent obligations and
commitments as
they mature and become due in the normal course of
business,
assuming the
sale of the Notes as contemplated by this Agreement and
the
Final Offering
Circular, the Company is not incurring debts or
liabilities
beyond its
ability to pay as such debts and liabilities mature, and
the
Company is not
engaged in any business or transaction, and is not about
to
engage in any
business or transaction, for which its property would
constitute
unreasonably small capital after giving due consideration to
the
prevailing
practice in the industry in which the Company is engaged.
In
computing the
amount of such contingent liabilities at any time, it is
intended that
such liabilities will be computed at the amount that, in
the
light of all the
facts and circumstances existing at such time,
represents
the amount that
can reasonably be expected to become an actual or
matured
liability.
(x) The Company has not and, to its
knowledge, no one acting on its behalf has,
(i) taken,
directly or indirectly, any action designed to cause or
to
result in, or
that has constituted or which might reasonably be expected
to
constitute, the
stabilization or manipulation of the price of any
security
of the Company
to facilitate the sale or resale of any of the Notes,
(ii)
sold, bid for,
purchased, or paid anyone any compensation for
soliciting
purchases of,
any of the Notes, or (iii) except as disclosed in the
Final
Offering
Circular, paid or agreed to pay to any person any compensation
for
soliciting
another to purchase any other securities of the Company.
(y) Without limiting any provision
herein, no registration under the Act and no
qualification of
the Indenture under the TIA is required for the sale of
the Notes to the
Initial Purchaser as contemplated hereby or for the
Exempt
Resales,
assuming (i) that the purchasers in the Exempt Resales are QIBs
or
Accredited
Investors or non-U.S. persons and (ii) the accuracy of
the
Initial
Purchaser's representations contained herein.
(z) When issued and delivered pursuant
to this Agreement and the Indenture, the
Notes will be
eligible for resale pursuant to Rule 144A under the Act
and
no other
securities of the Company are of the same class (within
the
meaning of Rule
144A under the Act) as the Notes and listed on a
national
securities
exchange registered under Section 6 of the Securities
Exchange
Act of 1934, as
amended (the "Exchange Act"), or quoted in a U.S.
automated
inter-dealer
quotation system. No securities of the Company of the
same
class as the
Notes have been offered, issued or sold by
9
<PAGE>
the Company or
any of its Affiliates within the six-month period
immediately
prior to the date hereof.
(aa) Neither the Company nor
any of its Affiliates or other person acting on
behalf of the
Company has offered or sold the Notes by means of any
general
solicitation or
general advertising within the meaning of Rule 502(c)
under
the Act or, with
respect to Notes sold outside the United States to
non-U.S. persons
(as defined in Rule 902 under the Act), by means of any
directed selling
efforts within the meaning of Rule 902 under the Act,
and
the Company,
each Affiliate of the Company and each other person acting
on
behalf of the
Company have complied with and will implement the
"offering
restrictions"
within the meaning of such Rule 902; provided, that no
representation
is made in this subsection with respect to the actions
of
the Initial
Purchaser.
(bb) Each of the Company, its
Subsidiaries, and each ERISA Affiliate has
fulfilled its
obligations, if any, under the minimum funding standards
of
Section 302 of
the United States Employee Retirement Income Security Act
of
1974, as amended
("ERISA") with respect to each "pension plan" (as
defined
in Section 3(2)
of ERISA), subject to Section 302 of ERISA which the
Company, its
Subsidiaries, or any ERISA Affiliate sponsors or maintains,
or
with respect to
which it has (or within the last three years had) any
obligation to
make contributions, except where the failure to do so
would
not lead to a
liability to any such pension plan not reflected in all
material
respects in the Final Offering Circular, and each such plan is
in
compliance in
all material respects with the presently applicable
provisions of
ERISA and the Code (as defined below). Neither the
Company,
its
Subsidiaries, nor any ERISA Affiliate has incurred any unpaid
liability
to the Pension
Benefit Guaranty Corporation (other than for the payment
of
premiums in the
ordinary course) or to any such plan under Title IV of
ERISA. "ERISA
Affiliate" means a corporation, trade or business that
is,
along with the
Company or any Subsidiary, a member of a controlled group
of
corporations or
a controlled group of trades or businesses, as described
in
Section 414 of
the Internal Revenue Code of 1986, as amended (the
"Code")
or Section 4001
of ERISA.
(cc) Except as disclosed in
the Final Offering Circular, (i) neither the Company
nor any of its
Subsidiaries is a party to or bound by any collective
bargaining
agreement with any labor organization other than the
collective
bargaining
agreements listed on Schedule III attached hereto; (ii) there
is
no union
representation question existing with respect to the employees
of
the Company or
any of its Subsidiaries, and, to the knowledge of the
Company, no
other union organizing activities are taking place; (iii)
to
the Company's
knowledge, no union organizing or decertification efforts
are
underway or
threatened against the Company or any of its Subsidiaries;
(iv)
no labor strike,
work stoppage, slowdown, or other labor dispute is
pending
against the
Company or any of its Subsidiaries, or, to the knowledge of
the
Company,
threatened against the Company or any of its Subsidiaries,
that
could,
individually or in the aggregate, reasonably be expected to
result
in a Material
Adverse Effect; (v) there is no worker's compensation
liability,
experience or matter tha
