Exhibit 1.1
Owens Corning
9.000% Senior Notes Due
2019
Underwriting Agreement
June 3, 2009
To the Representatives named
in
Schedule I hereto
of the several
Underwriters named
in
Schedule II
hereto
Ladies and Gentlemen:
Owens Corning, a corporation
organized under the laws of the State of Delaware (the
“Company”), proposes to sell to the several
underwriters named in Schedule II hereto (the
“Underwriters”), for whom you (the
“Representatives”) are acting as representatives, the
principal amount of its securities identified in Schedule I
hereto (the “Securities”). The Securities will be fully
and unconditionally guaranteed (the “Guarantees”) when
issued by the Subsidiaries of the Company listed on Annex A hereto
(the “Guarantors”). The Securities will be issued under
an indenture (the “Indenture”) dated as of June 2,
2009, among the Company, the Guarantors and Wells Fargo Bank, N.A.,
as trustee (the “Trustee”). To the extent there are no
additional Underwriters listed on Schedule II other than you,
the term Representatives as used herein shall mean you, as
Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. Any
reference herein to the Registration Statement, the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated
by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective
Time of the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms
“amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Time of
the Registration Statement or the issue date of the Base
Prospectus, any Preliminary Prospectus or the Final Prospectus, as
the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 20
hereof.
1.
Representations and Warranties . The
Company and the Guarantors, jointly and severally represent and
warrant to, and agree with, each Underwriter as set forth below in
this Section 1.
(a) The
Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission an automatic
shelf registration statement, as defined in Rule 405 (the file
number of which is set forth in Schedule I hereto) on
Form S-3, including a related Base Prospectus, for
registration under the Act of the offering and sale of the
Securities. Such Registration Statement, including any
amendments thereto filed prior to
the Execution Time, became effective upon filing. The Company may
have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more
preliminary prospectus supplements relating to the Securities, each
of which has previously been furnished to you. The Company will
file with the Commission a final prospectus supplement relating to
the Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the
Act and the rules thereunder, and, except to the extent the
Representatives shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and
other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The
Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
(b) On each
Effective Time, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) and
at the Closing Time (as defined in Section 3 hereof), the
Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on each Effective Time and at the Execution Time, the
Registration Statement did not and will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; at the Effective Time and the Closing Time,
the Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to
Rule 424(b) and at the Closing Time, the Final Prospectus
(together with any supplement thereto) will not include any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
provided , however , that neither the Company nor any
of the Guarantors makes any representations or warranties as to
(i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it
being understood and agreed that the only such information
furnished by or on behalf of any Underwriter consists of the
information described as such in Section 8 hereof.
(c) (i) The
Disclosure Package and (ii) each electronic road show, when
taken together as a whole with the Disclosure Package, does 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. The preceding sentence does not apply to
statements in or omissions from
2
the Disclosure Package based upon
and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by or on behalf of any Underwriter consists
of the information described as such in Section 8
hereof.
(d) (i) At
the time of filing the Registration Statement, (ii) at the
time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Sections 13 or 15(d) of the Exchange Act or form
of prospectus), (iii) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance
on the exemption in Rule 163, and (iv) at the Execution Time,
the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees
to pay the fees required by the Commission relating to the
Securities within the time required by Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with
Rules 456(b) and 457(r).
(e) (i) At
the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the
Securities and (ii) as of the Execution Time, the Company was
not and is not an Ineligible Issuer (as defined in Rule 405),
without taking account of any determination by the Commission
pursuant to Rule 405 that it is not necessary that the Company be
considered an Ineligible Issuer.
(f) Each
Issuer Free Writing Prospectus and the final term sheet prepared
and filed pursuant to Section 5(d) hereto does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein
by reference and any prospectus supplement deemed to be a part
thereof that has not been superseded or modified. The foregoing
sentence does not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon and in conformity with
written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein, it being
understood and agreed that the only such information furnished by
or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(g) Each of
the Company and its Subsidiaries has been duly incorporated, formed
or otherwise organized and is validly existing as a corporation,
limited liability company or other company form in good standing
under the laws of the jurisdiction in which it is chartered, formed
or organized with full corporate, limited liability company or
other company power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus, and
is duly qualified to do business as a foreign corporation, limited
liability company or other company form and is in good standing
under the laws of each jurisdiction which requires such
qualification except where the failure to have such power, be so
qualified or in good standing has not had or could not reasonably
be expected to have, individually or in the aggregate, a Material
Adverse Effect.
3
(h) All the
outstanding Capital Stock of the Company and each of its
Subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable and, except as otherwise set forth
in the Disclosure Package and the Preliminary Prospectus,
(x) all of the Capital Stock of the Company’s
Subsidiaries (other than the Guarantors), to the extent owned by
the Company, is owned by the Company free and clear of any security
interests, claims, liens or encumbrances and (y) all Capital
Stock of the Guarantors is owned by the Company either directly or
through wholly owned subsidiaries free and clear of any security
interests, claims, liens or encumbrances. The statements
(w) in the Preliminary Prospectus and the Final Prospectus
under the headings “Prospectus Supplement Summary,”
“Material United States Federal Income Tax
Considerations” and “Description of the Notes,”
(x) in the Company’s Annual Report on the Form 10-K for
its fiscal year ended December 31, 2008 under the headings
“Legal Proceedings” and “Management’s
Discussion and Analysis of Financial Condition and Results of
Operation—Environmental Matters” (except to the extent
updated by the Company’s Current Report on Form 8-K filed on
June 2, 2009), (y) in the Company’s Quarterly
Report on the Form 10-Q for its fiscal quarter ended March 31,
2009 under the headings “Legal Proceedings” and
“Management’s Discussion and Analysis of Financial
Condition and Results of Operation—Environmental
Matters” and (z) in the Company’s Current Report
on Form 8-K filed on June 2, 2009, fairly summarize the
matters described therein (insofar as they purport to describe the
provisions of laws and documents referred to therein).
(i) This
Agreement has been duly authorized, executed and delivered by the
Company and the Guarantors; the Indenture has been duly authorized
by the Company and the Guarantors and, assuming due authorization,
execution and delivery thereof by the Trustee, when executed and
delivered by the Company and the Guarantors, will constitute a
legal, valid, binding instrument enforceable against the Company
and the Guarantors in accordance with its terms (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors’
rights generally from time to time in effect and to general
principles of equity (“Enforceability Exceptions”));
the Securities have been duly authorized, and, when executed and
authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters, will have been
duly executed and delivered by the Company and will constitute the
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture (subject to Enforceability Exceptions);
the Guarantees have been duly authorized, and, when executed in
accordance with the provisions of the Indenture and delivered to
and paid for by the Underwriters, will have been duly executed and
delivered by the Guarantors and will constitute the legal, valid
and binding obligations of the Guarantors entitled to the benefits
of the Indenture (subject to Enforceability Exceptions).
(j) The
Company is not and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as
described in the Disclosure Package and the Final Prospectus, will
not be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
4
(k) No
consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein or in the Indenture, except those
consents, approvals, authorizations, filings or orders that
(i) have been obtained under the Act and the Trust Indenture
Act, (ii) may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of
the Securities by the Underwriters in the manner contemplated
herein, (iii) as have been described in the Disclosure Package
or (iv) the absence of which could not reasonably be expected
to have a Material Adverse Effect on the Company’s ability to
consummate the transactions contemplated herein or in the
Indenture.
(l) None of
the execution and delivery of this Agreement or the Indenture, the
issue and sale of the Securities, the consummation of any other of
the transactions herein or therein contemplated, or the fulfillment
of the terms hereof or thereof will result in a breach or violation
of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries
pursuant to, (i) the charter or by-laws or comparable
constituting documents of the Company or any of the Guarantors,
(ii) the charter or by-laws or comparable constituting
documents of any of the Company’s Subsidiaries that are not
Guarantors (iii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which
the Company or any of its Subsidiaries is a party or bound or to
which its or their property is subject, or (iv) any statute,
law, rule, regulation, judgment, order or decree applicable to the
Company or any of its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
Subsidiaries or any of its or their properties, which violation or
default would, in the case of clauses (iii) and
(iv) above, have a Material Adverse Effect.
(m) No
holders of securities of the Company have rights to the
registration of such securities under the Registration Statement,
except those holders of securities who have rights under
(i) the Registration Rights Agreement, dated as of
July 7, 2006, and the First Amendment thereto, dated as of
October 27, 2006, by and among the Company, Owens Corning
Sales, LLC, J.P. Morgan Securities Inc. and any parties identified
on the signature pages of any Joinder Agreements executed pursuant
thereto or (ii) the Registration Rights Agreement, dated as of
July 7, 2006, and the First Amendment thereto, dated as of
October 27, 2006, by and among the Company, Owens Corning
Sales, LLC and the Owens Corning/Fibreboard Asbestos Personal
Injury Trust.
(n) The
consolidated historical financial statements and schedules of the
Company and its consolidated Subsidiaries included or incorporated
by reference in the Disclosure Package, the Final Prospectus and
the Registration Statement present fairly the financial condition,
results of operations and cash flows of the Company as of the dates
and for the periods indicated, comply as to form with the
applicable accounting requirements of Regulation S-X under the Act
and have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent
basis throughout the periods involved (except as otherwise noted
therein). The selected financial data set forth under the caption
“Selected Financial Information” included in
or
5
incorporated by reference in the
Preliminary Prospectus, the Final Prospectus and Registration
Statement fairly present, on the basis stated in or incorporated by
reference in the Preliminary Prospectus, the Final Prospectus and
the Registration Statement, the information included
therein.
(o) No
action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company
or any of its Subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that
(i) could reasonably be expected to have a Material Adverse
Effect on the performance of this Agreement, the Indenture or the
consummation of any of the transactions contemplated hereby or
thereby or (ii) could reasonably be expected to have a
Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto).
(p) The
Company and each of its Subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as
presently conducted.
(q) Neither
the Company nor any of its Subsidiaries is in violation or default
of (i) any provision of its charter or bylaws or comparable
constituting documents, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property
is subject, except for such violations or defaults that would not
have a Material Adverse Effect; or (iii) any statute, law,
rule, regulation, judgment, order or decree applicable to the
Company or its Subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or such Subsidiary
or any of its properties, as applicable, except, with respect to
(iii) above, for such violations or defaults that would not
have a Material Adverse Effect.
(r) PricewaterhouseCoopers
LLP, who have certified certain financial statements of the Company
and its consolidated Subsidiaries and delivered their report with
respect to the audited consolidated financial statements and
schedules included or incorporated by reference in the Disclosure
Package and the Final Prospectus, are independent public
accountants with respect to the Company in accordance with the
rules of the PCAOB and within the meaning of the Act.
(s) There are
no stamp or other issuance or transfer taxes or duties or other
similar fees or charges required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale of
the Securities.
(t) The
Company has filed all tax returns that are required to be filed or
has requested extensions thereof (except (i) in any case in
which the failure to so file or so request an extension would not
have a Material Adverse Effect or (ii) as set forth in or
contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto)) 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
6
currently being contested in good
faith or as would not have a Material Adverse Effect or except as
set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any amendment or supplement
thereto).
(u) No labor
problem or dispute with the employees of the Company or any of its
Subsidiaries exists or is threatened or imminent, and the Company
is not aware of any existing or imminent labor disturbance by the
employees of any of its or its Subsidiaries’ principal
suppliers, contractors or customers, that could have a Material
Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto).
(v) (i) The
Company and each of its Subsidiaries have insurance covering their
respective material properties, material operations, personnel and
businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks
as are customary for companies whose businesses are similar to the
Company and each of its Subsidiaries, respectively, and
(ii) neither the Company nor any of its Subsidiaries has
(x) received written notice from any insurer or agent of such
insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such
insurance or (y) 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 substantially similar coverage at
reasonable cost from substantially similar insurers as may be
necessary to continue its business, except, in the case of
(x) and (y), as would not have a Material Adverse Effect or
except as set forth in or contemplated in the Disclosure Package
and the Final Prospectus (exclusive of any amendment or supplement
thereto).
(w) None of
the Guarantors or any of the Company’s wholly owned U.S.
domestic Subsidiaries is currently prohibited, directly or
indirectly, from paying any dividends to the Company or a
Subsidiary of the Company, from making any other distribution on
such Guarantor’s or Subsidiary’s Capital Stock, from
repaying to the Company any loans or advances to such Guarantor or
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 described in or contemplated
by the Disclosure Package and the Final Prospectus (exclusive of
any amendment or supplement thereto) or as set forth in the
Intercompany Subordination Agreement, dated as of October 31,
2006, among the Company, Owens Corning Sales, Inc., Exterior
Systems Inc., Soltech Inc., IPM Inc., CDC Corporation, Owens
Corning Remodeling Systems LLC, Integrex, Owens Corning Fiberglas
Technology and Citibank N.A. as administrative agent, as amended or
supplemented.
(x) The
Company and the Guarantors possess all licenses, certificates,
permits and other authorizations issued by all applicable
authorities necessary to conduct their respective businesses, and
neither the Company nor any such Guarantor 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 have a Material Adverse Effect, except as set forth
in
7
or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any amendment or
supplement thereto).
(y) The
Company and each of its Subsidiaries maintain 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. The
Company and its Subsidiaries maintain “disclosure controls
and procedures” (as such term is defined in Rule 13a-15(e)
under the Exchange Act); such disclosure controls and procedures
are effective; and the Company and its Subsidiaries’ internal
controls over financial reporting are effective and the Company and
its Subsidiaries are not aware of any material weakness in their
internal controls over financial reporting.
(z) The
Company has not taken, directly or indirectly, any action designed
to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the
Securities.
(aa) The
Company and its Subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants, including any laws or regulations
relating to the storage, release, disposal or other handing or
management of asbestos or asbestos-related products
(“Environmental Laws”), (ii) have received and are
in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) have not received notice
of any actual or potential liability under any environmental law,
except where such non-compliance with Environmental Laws, failure
to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto). Except as set forth in the
Disclosure Package and the Final Prospectus, neither the Company
nor any of its Subsidiaries has been named as a “potentially
responsible party” under the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as
amended.
(bb) In the
ordinary course of its business, the Company periodically reviews
the effect of Environmental Laws on the business, operations and
properties of the Company and its Subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws, or any permit, license or
approval, any related constraints on
8
operating activities and any
potential liabilities to third parties). On the basis of such
review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any
amendment or supplement thereto).
(cc) Except
as set forth in the Disclosure Package and the Final Prospectus
(exclusive of any amendment or supplement thereto), each employee
benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or
contributed to by the Company or by any trade or business (whether
or not incorporated) which, together with the Company or any
Subsidiary, would be treated as a single employer under
Section 414 of the Code or Section 4001 of ERISA (an
“ERISA Affiliate”) for employees or former employees of
the Company and its ERISA Affiliates (a “Plan”) has
been maintained in compliance with its terms and the requirements
of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of
1986, as amended (the “Code”), except where the failure
to comply with such applicable statutes, orders, rules and
regulations would not, individually or in the aggregate, have a
Material Adverse Effect; as of the date hereof, no prohibited
transaction, within the meaning of Section 406 of ERISA or
Section 4975 of the Code, has occurred with respect to any
such Plan excluding transactions effected pursuant to a statutory
or administrative exemption and except such transactions that would
not, individually or in the aggregate, have a Material Adverse
Effect; each such Plan that is intended to be qualified under
Section 401(a) of the Code has received a favorable
determination letter, or is based on a form which has received a
favorable opinion letter, on which the Company or its applicable
ERISA Affiliate is entitled to rely from the Internal Revenue
Service covering all tax law changes prior to the Economic Growth
and Tax Relief Reconciliation Act of 2001 (or has submitted, or is
within the remedial amendment period for submitting, an application
for such a determination letter and is awaiting a response from the
Internal Revenue Service), and, as of the date hereof, the Company
has no knowledge of any event or condition that would result in the
revocation or failure to issue any such determination letter or
opinion letter; for each such Plan that is subject to the funding
rules of Section 412 of the Code or Section 302 of ERISA,
there has been no failure to satisfy the minimum funding standards
of Section 412 of the Code or Section 302 of ERISA; and
no “reportable event” (within the meaning of
Section 4043 of ERISA) has occurred with respect to any such
Plan that is subject to Title IV of ERISA, except as would not,
individually or in the aggregate, have a Material Adverse Effect;
and as of the date hereof, the fair market value of the assets of
each such plan (excluding for these purposes accrued but unpaid
contributions) exceeds the present value of all benefits accrued
under such plan determined using reasonable actuarial
assumptions.
(dd) There is
and has been no failure on the part of the Company and any of the
Company’s directors or officers, in their capacities as such,
to comply 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
relating to loans and Sections 302 and 906 relating to
certifications.
9
(ee) Neither
the Company nor any of its Subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of
the Company or any of its Subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by
such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder (the
“FCPA”); and the Company, its Subsidiaries and, to the
knowledge of the Company, its affiliates have conducted their
businesses in compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are
reasonably expected to continue to ensure, continued compliance
therewith.
(ff) The
operations of the Company and its Subsidiaries are and have been
conducted at all times in compliance with (i) applicable
financial recordkeeping and reporting requirements, except as would
not have a Material Adverse Effect, and (ii) the money
laundering statutes and the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any of its
Subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Company, threatened.
(gg) Neither
the Company nor any of its Subsidiaries nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of
the Company or any of its Subsidiaries is currently subject to any
sanctions administered by the Office of Foreign Assets Control of
the U.S. Treasury Department (“OFAC”); and the Company
will take reasonable measures to ensure that it does not directly
or indirectly use the proceeds of the offering of the Securities
hereunder, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other person
or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by
OFAC.
(hh) Each
guarantor under the Company’s Credit Agreement, dated as of
October 31, 2006, among the Company, as borrower, the lenders
from time to time party thereto, Citibank, N.A., as administrative
agent, Citigroup Global Markets Inc. and Banc of America Securities
LLC, as joint lead arrangers and joint bookrunners, Bank of
America, N.A. and Goldman Sachs Credit Partners L.P., as
co-syndication agents and Morgan Stanley Bank and Wachovia Bank,
N.A., as co-documentation agents (as amended by the First Amendment
to Credit Agreement, dated as of August 2, 2007, and the
Second Amendment to Credit Agreement, dated as of October 31,
2007), is also a Guarantor (as defined herein).
(ii) The
Company and its Subsidiaries possess adequate rights to use all
material patents, patent applications, trademarks, service marks,
trade names, trademark registrations, service mark registrations,
copyrights, licenses and know-how (including trade secrets and
other unpatented and/or patentable proprietary or confidential
information, systems or procedures) necessary for the conduct of
their respective businesses; and the conduct of their respective
businesses will not conflict in any material respect with any such
rights of others, except where the failure to do so, individually
or in
10
the aggregate, would not reasonably
be expected to have a Material Adverse Effect; and the Company and
its Subsidiaries have not received any written notice of any claim
of infringement of, or written notice of any conflict with, any
such rights of others.
(jj) Except
as disclosed in the Registration Statement, the Disclosure Package
and the Final Prospectus, (i) the Company does not have
any material lending or other relationship with any bank or
lending affiliate of Citigroup Global Markets Holdings Inc. and
(ii) does not intend to use any of the proceeds from the sale
of the Securities hereunder to repay any outstanding debt owed to
any affiliate of Citigroup Global Markets Holdings Inc.
(kk) Neither
the Company nor any of its Subsidiaries nor any of its or their
properties or assets has any immunity from the jurisdiction of any
court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or
otherwise) under the laws of the State of New York.
(ll) Any
certificate signed by any officer of the Company or the Guarantors
and delivered to the Representatives or counsel for the
Underwriters in connection with the offering of the Securities
shall be deemed a representation and warranty by the Company and
the Guarantors, as to matters covered thereby, to each
Underwriter.
2.
Purchase and Sale . Subject to the
terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each
Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set
forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter’s name in
Schedule II hereto.
3.
Delivery and Payment . Delivery of
and payment for the Securities shall be made on the date and at the
time specified in Schedule I hereto or at such time on such
later date not more than three Business Days after the foregoing
date as the Representatives shall designate, which date and time
may be postponed by agreement between the Representatives and the
Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called
the “Closing Time”). Delivery of the Securities shall
be made to the Representatives for the respective accounts of the
several Underwriters against payment by the several Underwriters
through the Representatives of the purchase price thereof to or
upon the order of the Company by wire transfer payable in same-day
funds to an account specified by the Company. Delivery of the
Securities shall be made through the facilities of The Depository
Trust Company unless the Representatives shall otherwise instruct.
Certificates for the Securities shall be registered in such names
and in such denominations as Citigroup Global Markets Inc. may
request not less than two Business Days in advance of the Closing
Time.
The Company agrees to have the
Securities available for inspection by the Representative in New
York, New York, not later than 1:00 PM on the Business Day prior to
the Closing Time.
4.
Offering by Underwriters . It is
understood that the several Underwriters propose to offer the
Securities for sale to the public as set forth in the Final
Prospectus.
11
5.
Agreements . The Company agrees with
each Underwriter that:
(a) Prior to
the termination of the offering of the Securities, the Company will
not file any amendment of the Registration Statement or supplement
(including the Final Prospectus or any Preliminary Prospectus) to
the Base Prospectus unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed
amendment or supplement without the prior written consent of the
Representatives, which consent shall not be withheld unreasonably,
unless the Company is required by law to make such filing before
consent can be given.
(b) The
Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed in a form approved by the
Representatives with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such
timely filing. The Company will promptly advise the Representatives
(i) when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b), (ii) when, prior to termination of the
offering of the Securities, subject to Section 5(b), any
amendment to the Registration Statement shall have been filed or
become effective, (iii) of any request by the Commission or
its staff for any amendment of the Registration Statement, or any
Rule 462(b) Registration Statement, or for any supplement to
the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of
any notice objecting to its use or the institution or threatening
of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or
the institution or threatening of any proceeding for such purpose.
The Company will use its best efforts to prevent the issuance of
any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such
issuance, occurrence or notice of objection, to obtain as soon as
possible the withdrawal of such stop order or relief from such
occurrence or objection, including, if necessary, by filing an
amendment to the Registration Statement or a new registration
statement and using its best efforts to have such amendment or new
registration statement declared effective as soon as
practicable.
(c) The
Company will prepare a final term sheet, containing solely a
description of final terms of the Securities and the offering
thereof, in the form approved by you and attached as Schedule IV
hereto and to file such term sheet pursuant to Rule 433(d)
within the time required by such Rule.
(d) If, at
any time prior to the filing of the Final Prospectus pursuant to
Rule 424(b), any event occurs as a result of which the Disclosure
Package would include 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 or the circumstances then prevailing not misleading, the
Company will (i) notify promptly the Representatives so that
any use of the Disclosure Package may cease until it is amended or
supplemented; (ii) amend or supplement the Disclosure Package
to correct such
12
statement or omission; and
(iii) supply any amendment or supplement to you in such
quantities as you may reasonably request.
(e) If, at
any time when a prospectus relating to the Securities is required
to be delivered under the Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 172), any event
occurs as a result of which the Final Prospectus as then
supplemented would include any untrue statement of a material fact
or om
