Exhibit 4.2
CONCORD CAMERA CORP.
$15,000,000 of
11% Senior Notes due 2005
Purchase Agreement
July 30, 1998
DREYFUS HIGH YIELD STRATEGIES FUND
CONCORD CAMERA CORP.
$15,000,000 of
11% Senior Notes due 2005
PURCHASE AGREEMENT
July 30, 0000
Xxx Xxxx, Xxx Xxxx
DREYFUS HIGH YIELD STRATEGIES FUND
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies & Gentlemen:
Concord Camera Corp., a New Jersey corporation (the "Company"),
proposes to issue and sell to Dreyfus High Yield Strategies Fund (the
"Purchaser") $15,000,000 aggregate principal amount of its 11% Senior Notes due
2005 (the "Senior Notes"), subject to the terms and conditions set forth herein.
The Senior Notes will be issued pursuant to an indenture (the "Indenture"), to
be dated the Closing Date (as defined below), between the Company and Bankers
Trust Company, as trustee (the "Trustee"). The Senior Notes are more fully
described in the offering memorandum referred to below.
1. Issuance of Notes. The Company proposes to, upon the terms and
subject to the conditions set forth herein, issue and sell to the Purchaser the
Senior Notes. The Senior Notes and the Exchange Notes (as defined below)
issuable in exchange therefore are hereinafter referred to as the Notes.
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the Indenture.
The proceeds to the Company from the sale to the Purchaser of the
Senior Notes will be used to fund capital expenditures, working capital
requirements, design and development costs incurred in connection with expanded
original equipment manufacturer sales, new camera and non-camera products and
general corporate purposes, which may include acquisitions.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act of 1933
(as amended, the "Act"), the Notes (and all securities issued in exchange
therefor or in substitution thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY
WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER XXXXXXX 0 XX XXX XXXXXX XXXXXX SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THE
SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR
AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION
5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER. THE
HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT
OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED
OR OTHERWISE TRANSFERRED, ONLY (1) TO THE COMPANY, (2)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (3) TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (4) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 904 OF REGULATION S UNDER THE
SECURITIES ACT, (5) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT (AN "IAI") THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE OR TRANSFER AGENT) OR (6) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT (AND BASED ON AN OPINION
OF COUNSEL IF THE COMPANY SO REQUESTS), SUBJECT IN EACH OF THE
FOREGOING CASES TO APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY
OF THE RESALE RESTRICTIONS SET FORTH IN (A) ABOVE."
2. Offering. The Senior Notes will be offered and sold to the Purchaser
without such offer and sale being registered under the Act, pursuant to an
exemption from the registration requirements under the Act. In connection with
the sale of the Senior Notes, the
2
Company has prepared an offering memorandum, dated July 30, 1998 (together with
the Exhibits thereto, the "Offering Memorandum"), relating to the Company and
the Senior Notes.
The Purchaser and its direct and indirect transferees will be
entitled to the benefits of the registration rights agreement relating thereto
(the "Registration Rights Agreement") in the form of Exhibit A hereto, to be
dated the Closing Date for so long as such Senior Notes constitute "Transfer
Restricted Securities" (as defined in such agreement). Pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission (the "Commission"), under the circumstances
set forth therein, (i) a registration statement under the Act (the "Exchange
Offer Registration Statement") with respect to an offer to exchange (the
"Exchange Offer") the Senior Notes for 11% Series B Senior Notes due 2005 (the
"Exchange Notes") to be offered in exchange for the Senior Notes or (ii) 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,
and to use its best efforts to cause such Registration Statements to be declared
effective and to consummate the Exchange Offer. This Agreement, the Notes, the
Indenture, and the Registration Rights Agreement are hereinafter sometimes
referred to collectively as the "Operative Documents."
3. Purchase, Sale and Delivery. (a) On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to its terms and conditions, the Company agrees to issue and sell to the
Purchaser, and the Purchaser agrees to purchase from the Company, the Senior
Notes. The purchase price for the Senior Notes shall be $14,850,000.
(b) Delivery of the Senior Notes shall be made against payment of the
purchase price, at the offices of Kronish, Lieb, Weiner & Xxxxxxx LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as may
be mutually acceptable. Such delivery and payment shall be made at 9:00 A.M. New
York time, on July 30, 1998 or at such other time as shall be agreed upon by the
Purchaser and the Company. Payment for the Senior Notes shall be made to the
Company by wire transfers to an account previously designated to the Purchaser
by the Company, provided that the Company shall give at least two business days'
prior written notice to the Purchaser of the information required to effect such
wire transfers. The time and date of such delivery and payment are herein called
the "Closing Date."
(c) Senior Notes sold to the Purchaser will be represented by one or
more permanent global Senior Notes in definitive, fully registered form without
interest coupons (each a "Restricted Global Note", registered in the name of
Cede & Co., as nominee of the Depository Trust Company ("DTC"), having an
aggregate principal amount corresponding to the aggregate principal amount of
the Senior Notes. The Restricted Global Notes shall be made available to the
Purchaser for inspection not later than 9:30 a.m., New York City time, on the
business day immediately preceding the Closing Date.
4. Agreements of the Company. The Company covenants and agrees with the
Purchaser as follows:
3
(a) To advise the Purchaser promptly and, if requested by the
Purchaser, confirm such advice in writing, (i) of the issuance by any
state securities commission of any stop order suspending the
qualification or exemption from qualification of any Notes for offering
or sale in any jurisdiction, or the initiation of any proceeding for
such purpose by any state securities commission or other regulatory
authority and (ii) of the happening of any event that, in the
reasonable opinion of counsel to the Company, makes any statement of a
material fact made in the Offering Memorandum untrue or that requires
the making of any additions to or changes in the Offering Memorandum in
order to make the statements therein, in the light of the circumstances
under which they are made, not misleading. The Company shall use its
best efforts to prevent the issuance of any stop order or order
suspending the qualification or exemption of any Notes under any state
securities or Blue Sky laws and, if at any time any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption of any Notes under any state
securities or Blue Sky laws, the Company shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(b) To furnish the Purchaser, without charge, as many copies
of the Offering Memorandum, and any amendments or supplements thereto
as the Purchaser may reasonably request by 5:00 P.M. (New York time) on
the business day next following the date of the execution of this
Agreement.
(c) Not to amend or supplement the Offering Memorandum prior
to the Closing Date unless the Purchaser shall previously have been
advised thereof and shall not have objected thereto within a reasonable
time after being furnished a copy thereof.
(d) If, after the date hereof and prior to the purchase of the
Notes by the Purchaser any event shall occur or condition shall exist
as a result of which, in the reasonable judgment of the Company or the
Purchaser or in the reasonable opinion of either counsel to the Company
or counsel to the Purchaser, it becomes necessary or advisable to amend
or supplement the Offering Memorandum in order to make the statements
therein, in the light of the circumstances when such Offering
Memorandum is delivered to the Purchaser, not misleading, or if in the
reasonable opinion of either counsel to the Company or counsel to the
Purchaser it is necessary or advisable to amend or supplement the
Offering Memorandum to comply with applicable law, (i) to notify the
Purchaser and (ii) forthwith to prepare an appropriate amendment or
supplement to such Offering Memorandum, at its own expense, so that the
statements therein as so amended or supplemented will not, in the light
of the circumstances when it is so delivered, be misleading or omit to
state a material fact, or so that such Offering Memorandum will comply
with applicable law.
(e) To cooperate with the Purchaser and counsel to the
Purchaser in connection with the qualification or registration of the
Notes under the securities or Blue Sky laws of such jurisdictions as
the Purchaser may reasonably request; provided, however that the
Company shall not be required in connection therewith to register or
4
qualify as a foreign corporation where it is not now so qualified or to
take any action that would subject it to service of process in suits or
taxation, in each case, other than as to matters and transactions
relating to the Offering Memorandum, in any jurisdiction where it is
not now so subject.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated, to pay all costs, expenses, fees and taxes incident to the
performance of the obligations of the Company hereunder, including in
connection with: (i) the preparation, printing, filing and distribution
of the Offering Memorandum (including, without limitation, financial
statements) and all amendments and supplements thereto required
pursuant hereto, (ii) the preparation (including, without limitation,
duplication costs) and delivery of all preliminary and final Blue Sky
memoranda prepared and delivered in connection herewith, (iii) the
issuance, transfer and delivery by the Company of the Notes to the
Purchaser, (iv) the qualification or registration of the Notes for
offer and sale under the securities or Blue Sky laws of the several
states, including filing fees and the fees and disbursements of counsel
to the Purchaser relating to the memorandum described in (ii) above,
(v) the preparation of certificates for the Notes (including, without
limitation, printing and engraving thereof), (vi) the fees,
disbursements and expenses of the Company's counsel and accountants,
(vii) all expenses and listing fees in connection with the application
for quotation of the Notes in the National Association of Securities
Dealers, Inc. ("NASD") Automated Quotation System - PORTAL ("PORTAL"),
(viii) all fees and expenses (including fees and expenses of counsel to
the Company) of the Company in connection with the approval of the
Notes by DTC for "book-entry" transfer, (ix) rating the Notes by rating
agencies, (x) the reasonable fees and expenses of the Trustee and its
counsel in connection with the Indenture and the Notes, (xi) the costs
and expenses relating to investor presentations or any "road show"
undertaken in connection with the marketing of the Notes, including,
without limitation, expenses associated with slides, graphics, travel
and lodging expenses and (xii) the performance by the Company of its
other obligations under this Agreement and the other Operative
Documents, provided, however, that the expenses incurred pursuant to
clauses (ii) and (iv) above shall not exceed $1,000 without the consent
of the Company.
(g) To use the proceeds from the sale of the Notes in the
manner described in the Offering Memorandum under the caption "Use of
Proceeds."
(h) Not to voluntarily claim, and to resist actively any
attempts to claim, the benefit of any usury laws against the holders of
any Notes.
(i) To do and perform all things required to be done and
performed under this Agreement by it prior to or after the Closing Date
and to satisfy all conditions precedent on its part to the delivery of
the Notes.
5
(j) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act)
that could be integrated with the sale of the Notes in a manner that
would require the registration under the Act of the sale of the Senior
Notes to the Purchaser.
(k) For so long as any of the Notes remain outstanding and
during any period in which the Company is not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), to make available to any beneficial owner of Notes in connection
with any sale thereof and any prospective purchaser of such Notes from
such beneficial owner, the information required by Rule 144A(d)(4)
under the Act.
(l) To cause the Exchange Offer to be made in the appropriate
form to permit registered Exchange Notes to be offered in exchange for
the Senior Notes and to comply with all applicable federal and state
securities laws in connection with the Exchange Offer.
(m) To comply with all of its agreements set forth in the
Registration Rights Agreement and all agreements set forth in the
representation letters of the Company to DTC relating to the approval
of the Notes by DTC for "book-entry" transfer.
(n) To use its best efforts to effect the inclusion of the
Notes in PORTAL and to obtain approval of the Notes by DTC for
"book-entry" transfer.
(o) During a period of one year following the Closing Date, to
deliver without charge to the Purchaser, promptly upon their becoming
available, copies of (i) all reports or other publicly available
information that the Company shall mail or otherwise make available to
its stockholders and (ii) all reports, financial statements and proxy
or information statements filed by the Company with the Commission or
any national securities exchange and such other publicly available
information concerning the Company, including without limitation, press
releases.
(p) Prior to the Closing Date, to furnish to the Purchaser, as
soon as they have been prepared in the ordinary course by the Company,
copies of any consolidated financial statements or any unaudited
interim financial statements of the Company for any period subsequent
to the periods covered by the financial statements appearing in the
Offering Memorandum.
(q) The Company will not take, directly or indirectly, any
action designed to, or that might reasonably be expected to, cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Notes. Except as
permitted by the Act, the Company will not distribute any Offering
Memorandum or other offering material in connection with the offering
and sale of the Notes.
6
(r) Not to solicit any offer to buy or offer to sell the
Senior Notes by means of any form of general solicitation or general
advertising (as such terms are used in Regulation D under the Act) or
in any manner involving a public offering within the meaning of Section
4(2) of the Act.
(s) While any of the Notes remain outstanding, the Company
shall make available, upon request, to any seller of such Notes the
information specified in Rule 144A(d)(4) under the Act, unless the
Company is then subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended.
(t) To comply with the agreements in the Indenture, the
Registration Rights Agreement, and any other Operative Document.
5. Representations and Warranties. (a) The Company represents and
warrants to the Purchaser that:
(i) The Offering Memorandum has been prepared in connection
with the sale by the Company to the Purchaser of the Senior Notes. The
Offering Memorandum does not, and any supplement or amendment to the
Offering Memorandum 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, except that the representations
and warranties contained in this paragraph shall not apply to
statements in or omissions from the Offering Memorandum (or any
supplement or amendment thereto) made in reliance upon and in
conformity with information relating to the Purchaser furnished to the
Company in writing by the Purchaser expressly for use therein. Any
projections and other forward- looking information contained in the
Offering Memorandum have been prepared in good faith and are based upon
assumptions which, in light of the circumstances under which they were
made, are reasonable. No stop order preventing the use of the Offering
Memorandum, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement
are subject to the registration requirements of the Act, has been
issued.
(ii) When the Notes are issued and delivered pursuant to this
Agreement, no Note will be of the same class (within the meaning of
Rule 144A under the Act) as securities of the Company that are listed
on a national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated
inter-dealer quotation system.
(iii) Each of the Company and its subsidiaries (A) has been
duly organized, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, (B) has all
requisite corporate power and authority to carry on its business as it
is currently being conducted and as described in the Offering
Memorandum and to own, lease and operate its properties, and (C) is
duly qualified and in good standing as
7
a foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified or in good standing could not reasonably be expected to
result in a material adverse effect on the business of the Company and
its subsidiaries taken as a whole (each, a "Material Adverse Effect").
(iv) All of the outstanding shares of capital stock of the
Company have been duly authorized, validly issued, and are fully paid
and nonassessable and were not issued in violation of any preemptive or
similar rights. At June 30, 1998 after giving effect to the issuance
and sale of the Senior Notes pursuant hereto, the Company had an
authorized and outstanding consolidated capitalization as set forth in
the Offering Memorandum under the caption "Capitalization."
(v) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(vi) Each subsidiary, direct or indirect, of the Company is
set forth on Schedule A hereto. All of the outstanding shares of
capital stock of each of the Company's subsidiaries has been duly
authorized and validly issued, fully paid and non-assessable, and are
owned by the Company, directly or indirectly through one or more
subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(vii) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement, the Indenture, the Registration Rights Agreement and the
other Operative Documents and to consummate the transactions
contemplated hereby and thereby, including, without limitation, the
corporate power and authority to issue, sell and deliver the Notes as
provided herein and therein and the power to effect the Use of Proceeds
as described in the Offering Memorandum.
(viii) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is the legal, valid and
binding agreement of the Company, enforceable against it in accordance
with its terms, except insofar as indemnification and contribution
provisions may be limited by applicable law or equitable principles and
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
(ix) The Indenture has been duly and validly authorized by the
Company and, when duly executed and delivered by the Company, will be
the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization or
similar laws affecting the rights of creditors generally and subject to
8
general principles of equity. The Offering Memorandum contains a fair
summary of the terms of the Indenture. On the Closing Date, the
Indenture will conform in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended (the "TIA"), and the rules
and regulations of the Commission applicable to an indenture which is
qualified thereunder.
(x) The Senior Notes have been duly and validly authorized by
the Company, and have been duly and validly authorized for issuance and
sale to the Purchaser by the Company pursuant to this Agreement and,
when issued and authenticated in accordance with the terms of the
Indenture and delivered against payment therefor in accordance with the
terms hereof and thereof, will be the legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. The
Offering Memorandum contains a fair summary of the terms of the Senior
Notes.
(xi) The Exchange Notes have been duly and validly authorized
for issuance by the Company and, when issued and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, will
be the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms and entitled to the
benefits of the Indenture, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity. The Offering Memorandum contains a fair summary
of the terms of the Exchange Notes.
(xii) The Registration Rights Agreement has been duly and
validly authorized by the Company and, when duly executed and delivered
by the Company, will be the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity. The Offering
Memorandum contains a fair summary of the terms of the Registration
Rights Agreement.
(xiii) The Company and its subsidiaries are not, and, after
giving effect to the Offering, will not be (A) in violation of their
respective charters or bylaws, (B) in default in the performance of any
bond, debenture, note, indenture, mortgage, deed of trust or other
agreement or instrument for borrowed money to which any of them is a
party or by which any of them is bound or to which any of their
properties is subject, or (C) in violation of any local, state or
Federal law, statute, ordinance, rule, regulation, requirement,
judgment or court decree (including, without limitation, environmental
laws, statutes, ordinances, rules, regulations, judgments or court
decrees) applicable to the Company, its subsidiaries or any of their
assets or properties (whether owned or leased) other than, in the case
of clauses (B) and (C), any default or violation that (1)
9
could not reasonably be expected to result in a Material Adverse Effect
or (2) which is disclosed in the Offering Memorandum.
(xiv) None of (A) the execution, delivery or performance by
the Company of this Agreement and the other Operative Documents and (B)
the issuance and sale of the Notes violate, conflict with or constitute
a breach of any of the terms or provisions of, or a default under (or
an event that with notice or the lapse of time, or both, would
constitute a default), or require consent under, or result in the
imposition of a lien or encumbrance on any properties of the Company
and its subsidiaries, or an acceleration of any indebtedness of the
Company and its subsidiaries pursuant to, (i) the charters or bylaws of
the Company and its subsidiaries, (ii) any bond, debenture, note,
indenture, mortgage, deed of trust or other agreement or instrument for
borrowed money to which the Company or any of its subsidiaries is a
party or by which the Company, its subsidiaries or their property is or
may be bound, (iii) any statute, rule or regulation applicable to the
Company, its subsidiaries or any of their assets or properties or (iv)
any judgment, order or decree of any court or governmental agency or
authority having jurisdiction over the Company, its subsidiaries or any
of their assets or properties, except in the case of clauses (ii),
(iii) and (iv) for such violations conflicts, breaches, defaults,
consents, impositions of liens or accelerations that (x) could not
reasonably be expected to result in a Material Adverse Effect or (y)
which are disclosed in the Offering Memorandum. Other than as described
in the Offering Memorandum, no consent, approval, authorization or
order of, or filing, registration, qualification, license or permit of
or with, (A) any court or governmental agency, body or administrative
agency or (B) any other person is required for (1) the execution,
delivery and performance by the Company of this Agreement and the other
Operative Documents, (2) the issuance and sale of the Notes and the
transactions contemplated hereby and thereby, except (x) such as have
been obtained and made (or, in the case of the Registration Rights
Agreement, will be obtained and made) under the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and state
securities or Blue Sky laws and regulations or such as may be required
by the NASD or (y) where the failure to obtain any such consent,
approval, authorization or order of, or filing registration,
qualification, license or permit could not reasonably be expected to
result in a Material Adverse Effect.
(xv) There is (i) no action, suit or proceeding before or by
any court, arbitrator or governmental agency, body or official,
domestic or foreign, now pending or, to the best knowledge of the
Company, threatened or contemplated to which the Company or any of its
subsidiaries is a party or to which the business or property of the
Company or any of its subsidiaries is subject, (ii) no statute, rule,
regulation or order that has been enacted, adopted or issued by any
governmental agency or that has been proposed by any governmental body
or (iii) no injunction, restraining order or order of any nature by a
federal or state court or foreign court of competent jurisdiction to
which the Company or any of its subsidiaries is or may be subject or to
which the business, assets, or property of the Company and its
subsidiaries is or may be subject, other than those
10
accurately disclosed in the Offering Memorandum or which would not have
a Material Adverse Effect.
(xvi) No action has been taken and no statute, rule,
regulation or order has been enacted, adopted or issued by any
governmental agency that prevents the issuance of the Notes or prevents
or suspends the use of the Offering Memorandum; no injunction,
restraining order or order of any nature by a federal or state court of
competent jurisdiction has been issued that prevents the issuance of
the Notes, prevents or suspends the sale of the Notes in any
jurisdiction referred to in Section 4(e) hereof or that could adversely
affect the consummation of the transactions contemplated by this
Agreement, the Operative Documents or the Offering Memorandum; and
every request of any securities authority or agency of any jurisdiction
for additional information has been complied with in all material
respects.
(xvii) There is (i) no significant unfair labor practice
complaint pending against the Company or any of its subsidiaries nor,
to the best knowledge of the Company, threatened against the Company or
any of its subsidiaries, before the National Labor Relations Board, any
state or local labor relations board or any foreign labor relations
board, and no significant grievance or significant arbitration
proceeding arising out of or under any collective bargaining agreement
is so pending against the Company or any of its subsidiaries or, to the
best knowledge of the Company, threatened against the Company or any of
its subsidiaries, (ii) no significant strike, labor dispute, slowdown
or stoppage pending against the Company or any of its subsidiaries nor,
to the best knowledge of the Company, threatened against the Company or
any of its subsidiaries and (iii) to the best knowledge of the Company,
no union representation question existing with respect to the employees
of the Company or any of its subsidiaries that could reasonably be
expected to result in a Material Adverse Effect. To the best knowledge
of the Company, no collective bargaining organizing activities are
taking place with respect to the Company or any of its subsidiaries.
The Company and its subsidiaries have not violated (A) any federal,
state or local law or foreign law relating to discrimination in hiring,
promotion or pay of employees (except as set forth in the Offering
Memorandum), (B) any applicable wage or hour laws or (C) any provision
of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the rules and regulations thereunder, which in the case
of clause (A), (B) or (C) above could reasonably be expected to result
in a Material Adverse Effect.
(xviii) The Company and its subsidiaries are in compliance
with and have not violated any environmental, safety or similar law or
regulation applicable to them or their business or property relating to
the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), do not lack any permit, license or other
approval required of them under applicable Environmental Laws and are
not violating any term or condition of such permit, license or approval
which could reasonably be expected to, either individually or in the
aggregate, result in a Material Adverse Effect. No facilities owned
11
or leased by the Company or its subsidiaries, or to the knowledge of
the Company, any facilities of any predecessor in interest of the
Company or its subsidiaries, is listed or, to the knowledge of the
Company, formally proposed for listing on the National Priorities List
or the Comprehensive Environmental Response, Compensation, and
Liability Information System, both as promulgated under the
Comprehensive Environmental Response, Compensation and Liability Act.
("CERCLA"), or on any comparable state list, or listed or, to the
knowledge of the Company, formally proposed for listing, on any
comparable local list, and the Company and its subsidiaries have not
received any written notification of potential or actual liability, or
any written request for information, pursuant to CERCLA or any
comparable state, local or foreign environmental law.
(xix) The Company and its subsidiaries have (i) good and
marketable title to all of the properties and assets described in the
Offering Memorandum as owned by them, free and clear of all liens,
charges, encumbrances and restrictions, except such as are described in
the Offering Memorandum or as could not reasonably be expected to
result in a Material Adverse Effect, (ii) peaceful and undisturbed
possession under all material leases to which they are a party as
lessee, (iii) all licenses, certificates, permits, authorizations,
approvals, franchises and other rights from, and have made all
declarations and filings with, all federal, state and local
authorities, all self-regulatory authorities and all courts and other
tribunals (each an "Authorization") necessary to engage in the business
conducted by the Company and its subsidiaries in the manner described
in the Offering Memorandum, except as described in the Offering
Memorandum or as could not reasonably be expected to result in a
Materially Adverse Effect, and no such Authorization contains a
materially burdensome restriction that is not disclosed in the Offering
Memorandum and (iv) no reason to believe that any governmental body or
agency is considering limiting, suspending or revoking any such
Authorization. Except where the failure to be in full force and effect
could not reasonably be expected to result in a Material Adverse
Effect, all such Authorizations are valid and in full force and effect
and the Company and its subsidiaries are in compliance in all material
respects with the terms and conditions of all such Authorizations and
with the rules and regulations of the regulatory authorities having
jurisdiction with respect thereto.
(xx) The Company and its subsidiaries own, possess or have the
right to employ all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, software,
systems or procedures), trademarks, service marks and trade names,
inventions, computer programs, technical data and information
(collectively, the "Intellectual Property") presently employed by them
in connection with the businesses now operated by them or which are
proposed to be operated by them free and clear of and without violating
any right, claimed right, charge, encumbrance, pledge, security
interest, restriction or lien of any kind of any other person and the
Company and its subsidiaries have not received any notice of
infringement of or conflict with asserted
12
rights of others with respect to any of the foregoing except as
disclosed in the Offering Memorandum or as could not reasonably be
expected to result in a Material Adverse Effect. The use of the
Intellectual Property in connection with the business and operations of
the Company and its subsidiaries does not infringe on the rights of any
person, except as could not reasonably be expected to result in a
Material Adverse Effect.
(xxi) Neither the Company and its subsidiaries, nor, to the
best knowledge of the Company, any of their officers, directors,
partners, employees, agents or affiliates or any other person acting on
behalf of the Company or any of its subsidiaries has directly or
indirectly, given or agreed to give any money, gift or similar benefit
(other than legal price concessions to customers in the ordinary course
of business) to any customer, supplier, employee or agent of a customer
or supplier, official or employee of any governmental agency (domestic
or foreign), instrumentality of any government (domestic or foreign) or
any political party or candidate for office (domestic or foreign) or
other person who was, is or may be in a position to help or hinder the
business of the Company and its subsidiaries (or assist the Company and
its subsidiaries in connection with any actual or proposed transaction)
which (i) might subject the Company and its subsidiaries, or any other
individual or entity to any damage or penalty in any civil, criminal or
governmental litigation or proceeding (domestic or foreign), (ii) if
not given in the past, might have had a material adverse effect on the
assets, business or operations of the Company and its subsidiaries or
(iii) if not continued in the future, could reasonably be expected to
result in a Material Adverse Effect.
(xxii) All material tax returns required to be filed by the
Company and its subsidiaries in all jurisdictions have been so filed.
All taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such
entities or that are due and payable have been paid, other than those
being contested in good faith and for which adequate reserves have been
provided or those currently payable without penalty or interest. To the
knowledge of the Company, there are no material proposed additional tax
assessments against the Company and its subsidiaries, or the assets or
property of the Company and its subsidiaries.
(xxiii) None of the Company and its subsidiaries is (i) an
"investment company" or company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended
(the "Investment Company Act"), or (ii) a "holding company" or "a
subsidiary company" or an "affiliate" of a holding company within the
meaning of the Public Utility Holding Company Act of 1935, as amended.
(xxiv) Except as disclosed in the Offering Memorandum, there
are no holders of securities of the Company who, by reason of the
execution by the Company of this Agreement or any other Operative
Document to which it is a party or the consummation by the Company of
the transactions contemplated hereby or thereby, have the right to
13
request or demand that the Company register under the Act or analogous
foreign laws and regulations securities held by them.
(xxv) The Company and 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
accountability for assets; (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 thereto.
(xxvi) The Company and its subsidiaries maintain insurance
covering its properties, operations, personnel and businesses. Such
insurance insures against such losses and risks as are adequate in
accordance with customary industry practice to protect the Company and
its business and the Company's subsidiaries and their business. The
Company and its subsidiaries have not received notice from any insurer
or agent of such insurer that substantial capital improvements or other
expenditures will have to be made in order to continue such insurance.
All such insurance is outstanding and duly in force on the date hereof,
subject only to changes made in the ordinary course of business,
consistent with past practice, which do not, singly or in the
aggregate, materially alter the coverage thereunder or the risks
covered thereby.
(xxvii) The Company has not (i) taken, directly or indirectly,
any action designed to, or that might reasonably be expected to, cause
or result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Notes or (ii),
except as described in the Offering Memorandum, since the date of the
Offering Memorandum (A) sold, bid for, purchased or paid any person any
compensation for soliciting purchases of, the Notes or (B) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(xxviii) No registration under the Act of the Notes is
required for the sale of the Senior Notes to the Purchaser as
contemplated hereby assuming (i) that the Purchaser is a "qualified
institutional buyer," as defined in Rule 144A under the Act ("QIB"). No
securities of the same class as the Notes have been issued and sold by
the Company within the six-month period immediately prior to the date
hereof.
(xxix) No employee pension benefit plan (within the meaning of
Section 3(2) of ERISA, but excluding any "multiemployer plan" within
the meaning of Section 3(37) of ERISA) established or maintained by the
Company or any of its subsidiaries or to which the Company or any of
its subsidiaries has made contributions, which is subject to Part 3 or
Subtitle B of Title I of ERISA, or Section 412 of the Internal Revenue
Code of 1986 (the "Code"), had an accumulated funding deficiency (as
such term is defined in Section
14
302 of ERISA or Section 412 of the Code), whether or not waived, as of
the last day of the most recent plan year of such plan heretofore ended
for which an excise tax is due (or would be due if such deficiency were
not waived). Each of the Company and its subsidiaries has made all
contributions required to be made by it to any "multiemployer pension
plan" (within the meaning of Section 3(37) of ERISA). Neither the
Company nor any Related Person (as such term is defined below) has
incurred, or is expecting to incur, any withdrawal liability
(determined under Section 4201 of ERISA) with respect to any plan
covered by Title IV of ERISA and in respect of which the Company or a
Related Person is an "employer" as defined in Section 3(5) of ERISA,
and to the best of the Company's knowledge, there has not been any
"reportable event" (within the meaning of Section 4043 of ERISA and
regulations thereunder, other than an event for which the 30-day notice
requirement has been waived), or any other event or condition which
presents a material risk of the termination of any such plan,
including, but not limited to, a termination by action of the Pension
Benefit Guaranty Corporation, which termination would create a material
liability of the Company or a Related Person to the Pension Benefit
Guaranty Corporation. "Related Person" shall mean any trade or business
(whether or not incorporated) which is under common control (as defined
in Section 414(b) and (c) of the Code) with the Company within the
meaning of Section 4001(b) of ERISA. As of the last day of the most
recent plan year heretofore ended of each employee benefit plan
described in the preceding sentence (other than a "multiemployer
plan"), the present value of all accrued benefits under each such
employee benefit plan (calculated on the basis of the actuarial
assumptions specified in the most recent actuarial valuation for each
such plan) did not exceed the fair market value of the assets of such
plan allocable to such benefit by more than $1,000,000. Neither any
employee pension benefit plan (excluding any "multiemployer plan"
within the meaning of Section 3(37) of ERISA) established or maintained
by the Company or any of its subsidiaries or to which the Company or
any of its subsidiaries has made contributions, nor any trust created
thereunder, nor any trustee or administrator thereof (including the
Company and its subsidiaries), has engaged in any non-exempt prohibited
transaction (as described in Section 406 of ERISA or in Section 4975 of
the Code) that could subject the Company or any of its subsidiaries
either directly or indirectly through an obligation to indemnify to any
material tax or material penalty on prohibited transactions imposed
under said Section 4975 of the Code or under ERISA. The execution and
delivery of this Agreement, the other Operative Documents and the sale
of the Senior Notes to the Purchaser will not involve any prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975
of the Code. Each employee benefit plan described in the preceding
sentence is in compliance in all material respects with all applicable
provisions of ERISA and the Code, except for plan amendments required
or permitted by such statutes as to which applicable grace periods for
making such amendments have not expired, and the Company and its
subsidiaries have made, accrued or provided for all contributions
heretofore required to be made by the Company and its subsidiaries and
the Company and its subsidiaries have complied in all material respects
with the continuation coverage requirements of Title X of the
Consolidated Omnibus Budget Act of 1985, as amended. The Company and
its subsidiaries have no
15
material "expected post-retirement benefit obligation" (within the
meaning of Financial Accounting Standards Board Statement No. 106). The
consummation of the transactions contemplated by this Agreement
(including, without limitation, the Use of Proceeds) will not result in
any material payment (including, without limitation, severance, golden
parachute or otherwise) becoming due from the Company or any of its
subsidiaries to any employee of the Company or any of its subsidiaries
as a consequence of such transaction.
(xxx) The Offering Memorandum, as of its date, and each
amendment or supplement thereto, as of its date, contains the
information specified in, and meets the requirements of, Rule
144A(d)(4) under the Act applicable to the Company.
(xxxi) Subsequent to the respective dates as of which
information is given in the Offering Memorandum and up to the Closing
Date, except as set forth in the Offering Memorandum, (i) the Company
and its subsidiaries have neither incurred any liabilities or
obligations, direct or contingent, which are material, individually or
in the aggregate, to the Company and its subsidiaries taken as a whole,
nor entered into any transaction not in the ordinary course of
business, (ii) there has not been, singly or in the aggregate, any
change or development which could reasonably be expected to result in a
Material Adverse Effect and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company or any
of its subsidiaries on any class of their capital stock.
(xxxii) None of the execution, delivery and performance of
this Agreement, the issuance and sale of the Notes, the application of
the proceeds from the issuance and sale of the Notes and the
consummation of the transactions contemplated thereby as set forth in
the Offering Memorandum, will violate Regulations G, T, U or X
promulgated by the Board of Governors of the Federal Reserve System or
analogous foreign laws and regulations.
(xxxiii) To the best knowledge of the Company, the accountants
who have certified or will certify the financial statements included or
to be included as part of the Offering Memorandum are independent
accountants. The historical financial statements of the Company and its
subsidiaries comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under
the Act and present fairly in all material respects the financial
position and results of operations of the Company and its subsidiaries
at the respective dates and for the respective periods indicated. Such
financial statements have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis throughout
the periods presented. The pro forma financial statements included in
the Offering Memorandum have been prepared on a basis consistent with
such historical statements, except for the pro forma adjustments
specified therein, and give effect to assumptions made on a reasonable
basis and present fairly in all material respects the historical and
proposed transactions contemplated by this Agreement, the other
Operative Documents; and such pro forma financial statements comply as
to form in all material respects with the
16
requirements applicable to pro forma financial statements included in
registration statements on Form S-1 under the Act. The other financial
and statistical information and data included in the Offering
Memorandum, historical and pro forma, are accurately presented in all
material respects and prepared on a basis consistent with the financial
statements, historical and pro forma, included in the Offering
Memorandum and the books and records of the Company and its
subsidiaries, as applicable.
(xxxiv) Except pursuant to this Agreement and except for any
arrangements between the Purchaser and Barrington Capital Group, its
financial advisor (the "Financial Advisor"), there are no contracts,
agreements or understandings between the Company and any other person
that would give rise to a valid claim against the Company or the
Purchaser for a brokerage commission, finder's fee or like payment in
connection with the issuance, purchase and sale of the Notes.
(xxxv) Each certificate signed by any officer of the Company
and delivered to the Purchaser or counsel for the Purchaser shall be
deemed to be a representation and warranty by the Company to the
Purchaser as to the matters covered thereby.
(xxxvi) When the Notes are issued and delivered pursuant to
this Agreement, the Notes will not be of the same class (within the
meaning of Rule 144A of the Act) as any security of the Company that is
listed on a national securities exchange registered under Section 6 of
the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(xxxvii) No form of general solicitation or general
advertising (as defined under Regulation D under the Act) was used by
the Company or any of its representatives in connection with the offer
and sale of the Notes contemplated hereby, including, without
limitation, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or
radio, or any seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. No securities of the
same class as the Notes have been issued and sold by the Company within
the six-month period immediately prior to the date hereof.
(xxxviii) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the TIA.
(xxxix) Except as disclosed in the Offering Memorandum, no
relationship, direct or indirect, exists between or among the Company
or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of
its subsidiaries on the other hand, which would be required by Item 404
of Regulation S-K under the Act to be described in the Offering
Memorandum if the Offering Memorandum were a prospectus included in a
registration statement filed by the Company on Form S-1 with the
Commission.
17
The Company acknowledges that the Purchaser and, for purposes
of the opinions to be delivered pursuant to Section 6 hereof, counsel to the
Company, will rely upon the accuracy and truth of the foregoing representations
and hereby consents to such reliance.
(b) The Purchaser represents, warrants and covenants to the Company and
agrees that:
(i) The Purchaser is a QIB, with such knowledge and experience
in financial and business matters as are necessary in order to evaluate
the merits and risks of an investment in the Notes.
(ii) The Purchaser is aware that the sale to it is being made
in reliance on Rule 144A, and is acquiring such Notes for its own
account or for the account of another qualified institutional buyer.
The Purchaser is not acquiring the Notes with a view to any
distribution thereof that would violate the Act or the securities laws
of any state of the United States or any other applicable jurisdiction.
(iii) The Purchaser acknowledges and agrees that the Notes are
being offered in a transaction not involving any public offering in the
United States within the meaning of the Act, that the Notes have not
been registered under the Act and that (A) the Notes may be resold,
pledged or otherwise transferred only (I) to the Company, (II) pursuant
to a registration statement which has been declared effective under the
Act, (III) to a person it reasonably believes is a QIB in a transaction
meeting the requirements of Rule 144A under the Act, (IV) pursuant to
offers and sales to non-U.S. persons that occur outside the United
States in a transaction meeting the requirements of Rule 904 of
Regulation S under the Act, (V) to an institutional "accredited
investor" (as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Act that, prior to such transfer, furnishes to the trustee
a signed letter containing certain representations and agreements
relating to the transfer of the Notes (the form of which letter can be
obtained from the Trustee) or (VI) pursuant to any other available
exemption from the registration requirements of the Act (and based on
an opinion of counsel if the Company so requests) subject in each of
the foregoing cases to the applicable state securities laws of any
State of the United States or any other applicable jurisdiction and (B)
the Purchaser will, and each subsequent holder is required to, notify
any subsequent purchaser from it of the resale restrictions set forth
in (A) above.
(iv) The Purchaser acknowledges that neither the Company nor
any person representing the Company has made any representation to it
with respect to the Company or the offering or sale of the Notes, other
than the information contained in the Offering Memorandum, which has
been delivered to it and upon which it is relying in making its
investment decision with respect to the Notes. The Purchaser has access
to such financial and other information concerning the Company and the
Notes as it has deemed necessary in connection with its decision to
purchase the Notes, including an opportunity to ask questions of and
request information from the Company.
18
(v) Except pursuant to this Agreement and except for any
arrangements between the Purchaser and the Financial Advisor, there are
no contracts, agreements or understandings between the Purchaser and
any other person that would give rise to a valid claim against the
Company or the Purchaser for a brokerage commission, finder's fee or
like payment in connection with the issuance, purchase and sale of the
Notes. All commissions, fees or other payments to the Financial Advisor
shall be paid by the Company.
(vi) The Purchaser understands that the Company and, for
purposes of the opinions to be delivered pursuant to Section 6 hereof,
counsel to the Company will rely upon the accuracy and truth of the
foregoing representations and hereby consents to such reliance. The
Purchaser agrees that, if any of the foregoing acknowledgements,
representations or agreements deemed to have been made by it are no
longer accurate, it shall promptly notify the Company. If the Purchaser
is acquiring the Notes as a fiduciary or agent for one or more investor
accounts, the Purchaser represents that it has sole investment
discretion with respect to each such account and that it has full power
to make the foregoing acknowledgements, representations and agreements
on behalf of each such account.
6. Conditions of Obligations of Purchaser and Company. (a) The
obligation of the Purchaser to purchase and pay for the Notes as provided
herein, shall be subject to the satisfaction of the following conditions:
(i) All of the representations and warranties of the Company contained
in this Agreement shall be true and correct on the date hereof and on the
Closing Date with the same force and effect as if made on and as of the date
hereof and the Closing Date, respectively. The Company shall have performed or
complied with all of the agreements herein contained and required to be
performed or complied with by it at or prior to the Closing Date.
(ii) The Offering Memorandum shall have been printed and copies
distributed to the Purchaser not later than 10:00 a.m., New York City time, on
the day following the date of this Agreement or at such later date and time as
to which the Purchaser may agree, and no stop order suspending the qualification
or exemption from qualification of the Notes in any jurisdiction referred to in
Section 4(e) shall have been issued and no proceeding for that purpose shall
have been commenced or shall be pending or threatened.
(iii) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
which would, as of the Closing Date, prevent the issuance of the Notes; no
action, suit or proceeding shall have been commenced and be pending against or
affecting or, to the best knowledge of the Company, threatened against, the
Company or its subsidiaries before any court or arbitrator or any governmental
body, agency or official that (1) could reasonably be expected to result in a
Material Adverse Effect or (2) has not been disclosed in the Offering
Memorandum; and no stop order shall have been issued preventing the use of the
Offering Memorandum, or any
19
amendment or supplement thereto, or which could reasonably be expected to result
in a Material Adverse Effect.
(iv) Since the dates as of which information is given in the Offering
Memorandum, (1) there shall not have been any material adverse change, or any
development that is reasonably likely to result in a material adverse change, in
the condition, financial or otherwise, or the earnings, business, management or
operations, of the Company from that set forth in the Offering Memorandum, (2)
no dividend or distribution of any kind shall have been declared, paid or made
by the Company on any class of its capital stock, (3) the Company and its
subsidiaries shall not have incurred any liabilities or obligations, direct or
contingent, that are material, individually or in the aggregate, to the Company
and its subsidiaries, taken as a whole, and that are required to be disclosed on
a balance sheet or notes thereto in accordance with generally accepted
accounting principles and are not disclosed on the latest balance sheet or notes
thereto included in the Offering Memorandum. Since the date hereof and since the
dates as of which information is given in the Offering Memorandum, there shall
not have occurred any Material Adverse Effect.
(v) The Purchaser shall have received a certificate, dated the Closing
Date, signed on behalf of the Company by Xxx X. Xxxxxxx, Chairman and Chief
Executive Officer in form and substance reasonably satisfactory to the
Purchaser, confirming, as of the Closing Date, the matters set forth in
paragraphs (i), (ii), (iii) and (iv) of this Section 6(a) and that, as of the
Closing Date, the obligations of the Company to be performed hereunder on or
prior thereto have been duly performed in all material respects.
(vi) The Purchaser shall have received on the Closing Date an opinion,
dated the Closing Date, in form and substance satisfactory to the Purchaser and
counsel to the Purchaser, of Kronish, Lieb, Weiner & Xxxxxxx LLP, counsel for
the Company, to the effect set forth in Exhibit B hereto.
(vii) Prior to the Closing Date, the Company shall have furnished to
the Purchaser such further information, certificates and documents as the
Purchaser may reasonably request.
(viii) The Company and the Trustee shall have entered into the
Indenture and the Purchaser shall have received counterparts, conformed as
executed, thereof.
(ix) The Company shall have entered into the Registration Rights
Agreement and the Purchaser shall have received counterparts, conformed as
executed, thereof.
(x) The Notes shall have been approved by the NASD for trading and duly
listed in PORTAL.
(xi) The Company shall furnish such other documents and certificates as
are reasonably requested by Purchaser and its counsel.
20
All opinions, certificates, letters and other documents required by
this Section 6(a) to be delivered by the Company will be in compliance with the
provisions hereof only if they are reasonably satisfactory in form and substance
to the Purchaser. The Company will furnish the Purchaser with such conformed
copies of such opinions, certificates, letters and other documents as it shall
reasonably request.
(b) The obligation of the Company to sell the Notes as provided herein,
shall be subject to the satisfaction of the following conditions:
(i) All of the representations and warranties of the Purchaser
contained in this Agreement shall be true and correct on the date hereof and on
the Closing Date with the same force and effect as if made on and as of the date
hereof and the Closing Date, respectively. The Purchaser shall have performed or
complied with all of the agreements herein contained and required to be
performed or complied with by it at or prior to the Closing Date.
(ii) No action shall have been taken and no statute, rule, regulation
or order shall have been enacted, adopted or issued by any governmental agency
which would, as of the Closing Date, prevent the issuance of the Notes.
7. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Purchaser and the Company contained
in this Agreement, including the agreement contained in Section 4(f), shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of the Purchaser any controlling person thereof or by or on
behalf of the Company or any controlling person thereof, and shall survive
delivery of and payment for the Notes to and by the Purchaser. The
representations contained in Section 5 and the agreement contained in Section
4(f) shall survive the termination of this Agreement.
8. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon execution and delivery
of a counterpart hereof by each of the parties hereto.
(b) The Purchaser shall have the right to terminate this Agreement at
any time prior to the Closing Date by notice to the Company from the Purchaser,
without liability on the Purchaser's part to the Company if, on or prior to such
date, any of the following has occurred: (i) the Company shall have failed,
refused or been unable to perform in any material respect any agreement on its
part to be performed hereunder or (ii) any other condition to the obligations of
the Purchaser hereunder as provided in Section 6 is not fulfilled when and as
required in any material respect.
(c) The Company shall have the right to terminate this Agreement at any
time prior to the Closing Date by notice to the Purchaser from the Company,
without liability on the Company's part to the Purchaser if, on or prior to such
date, (i) the Purchaser shall have failed,
21
refused or been unable to perform in any material respect any agreement on its
part to be performed hereunder or (ii) any other condition to the obligations of
the Company hereunder as provided in Section 6 is not fulfilled when and as
required in any material respect.
(d) Any notice of termination pursuant to this Section 8 shall be by
telephone, telex, telephonic facsimile, or telegraph, confirmed in writing by
letter.
9. Notice. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to the Purchaser
shall be mailed, delivered, or telexed, telegraphed or telecopied and confirmed
in writing to Dreyfus High Yield Strategies Fund, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: [Corporate Finance Department], telecopy number: (212) [
]; and if sent to the Company, shall be mailed, delivered or telexed,
telegraphed or telecopied and confirmed in writing to Concord Camera Corp., 00
Xxxxxx Xxx, Xxxxxx, X.X. 00000, Attention: Controller, telecopy number: (732)
382-9081, with a copy to Kronish, Lieb, Weiner & Xxxxxxx LLP, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxxxx, telecopy
number: (000) 000-0000.
10. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Purchaser and the Company, and their respective
successors and assigns, and no other person shall have or be construed to have
any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained. The term "successors
and assigns" shall not include a purchaser, in its capacity as such, of Notes
from the Purchaser.
11. Construction. This Agreement shall be construed in accordance with
the internal laws of the State of New York. TIME IS OF THE ESSENCE IN THIS
AGREEMENT.
12. Captions. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
13. Counterparts. This Agreement may be executed in various
counterparts which together shall constitute one and the same instrument.
[Signature page to follow]
22
If the foregoing correctly sets forth the understanding among
the Purchaser and the Company, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
between us.
Very truly yours,
CONCORD CAMERA CORP.
By:_______________________________
Name:
Title:
Accepted and agreed to as of the date first above written:
DREYFUS HIGH YIELD STRATEGIES FUND
By:_________________________________
Name:
Title:
23
Schedule A
List of Subsidiaries of the Company
-----------------------------------
Concord Camera Corp.
Concord Holding Corp.
Concord-Keystone Sales Corp.
Concord Camera Illinois Corp.
Starprint Corporation
Concord Camera Europe Ltd.
Concord Camera France SARL
Concord Camera GmbH
Concord Camera (Magyarorszag) Kereskedelmi KFT
Concord Camera (Panama) Inc.
Concord Camera HK Limited
Exhibit A
Form of Registration Rights Agreement
-------------------------------------
Exhibit B
Form of Opinion of Kronish, Lieb, Weiner & Xxxxxxx LLP
1. The Company is duly organized and validly existing as a
corporation in good standing under the laws of the State of New Jersey, and has
all requisite corporate power and authority to carry on its business as it is
currently being conducted and as described in the Offering Memorandum and to
own, lease and operate its properties.
2. The Company is duly qualified and is in good standing as a
foreign corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires such
qualification or license, except where failure to be so qualified or licensed
would not have a Material Adverse Effect.
3. All the issued and outstanding shares of capital stock of
each of the Company's direct and indirect subsidiaries are owned of record, and,
to our knowledge, beneficially, as set forth on Schedule A hereto.
4. When the Senior Notes are issued and delivered pursuant to
the Agreement, no Senior Note will be of the same class (within the meaning of
Rule 144A under the Act) as securities of the Company that are listed on a
national securities exchange registered under Section 6 of the Exchange Act or
that are quoted in a United States automated inter-dealer quotation system.
5. The Company has all requisite corporate power and authority
to execute, deliver and perform its obligations under the Agreement, the
Indenture, the Registration Rights Agreement and the other Operative Documents,
as applicable, and to consummate the transactions contemplated thereby,
including, without limitation, the corporate power and authority to issue, sell
and deliver the Senior Notes.
6. The Agreement has been duly and validly authorized,
executed and delivered by the Company and, assuming due execution by the other
parties thereto, is the legally valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization or similar laws affecting the rights of creditors generally and
subject to general principles of equity.
7. Each of the Indenture and the Registration Rights
Agreement, has been duly and validly authorized, executed and delivered by the
Company and assuming due execution by the other parties thereto, is the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except that such counsel need express no opinion as
to the validity or enforceability of rights of indemnity or contribution, or
26
both and except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity.
8. The Senior Notes have been duly and validly authorized for
issuance and sale to the Purchaser by the Company pursuant to the Agreement and,
when issued and authenticated in accordance with the terms of the Indenture and
delivered against payment therefor in accordance with the terms of the Agreement
and the Indenture, will be the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture, except that such counsel need express
no opinion as to the validity or enforceability of rights of indemnity or
contribution, or both, and except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization or similar laws
affecting the rights of creditors generally and subject to general principles of
equity.
9. The Exchange Notes have been duly and validly authorized
for issuance by the Company and, when issued and authenticated in accordance
with the terms of the Exchange Offer and the Indenture and delivered in
accordance with the terms of the Exchange Offer and the Indenture, will be the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms and entitled to the benefits of the
Indenture, except that such counsel need express no opinion as to the validity
or enforceability of rights of indemnity or contribution, or both, and except as
such enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
10. The statements in the Offering Memorandum, insofar as such
constitute a summary of the legal matters, documents or proceedings referred to
therein, fairly present in all material respects such legal matters, documents
and proceedings.
11. The Indenture complies as to form in all material respects
with the requirements of the TIA, and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder. Prior to
the effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement, it is not necessary to qualify the Indenture under the
TIA.
12. The Offering Memorandum contains a fair summary of the
terms of the Senior Notes, the Indenture and the Registration Rights Agreement
required to be described in the Offering Memorandum.
13. No registration under the Act of the Senior Notes is
required for the sale of the Senior Notes to the Purchaser as contemplated by
the Agreement assuming (i) that the Purchaser is a Qualified Institutional
Buyer, as defined in Rule 144A under the Act, and (ii) the accuracy of the
Company's representations in Sections 5(a)(ii), (xxvii), (xxviii) (other than
with respect to the first sentence) and (xxx) of the Agreement.
27
14. The Offering Memorandum, as of its date (except for the
financial statements, including the notes thereto, and supporting schedules and
other financial, statistical and accounting data included therein or omitted
therefrom, as to which no opinion is expressed), contains all the information
specified in, and meets the requirements of, Rule 144A(d)(4) under the Act
applicable to the Company.
15. None of (A) the execution, delivery or performance by the
Company of the Agreement and the other Operative Documents or (B) the issuance
and sale of the Senior Notes violates, conflicts with or constitutes a breach of
any of the terms or provisions of, or a default under (or an event that with
notice or the lapse of time, or both, would constitute a default), or require
consent under, or result in the imposition of a lien or encumbrance on any
properties of the Company and its subsidiaries, or an acceleration of any
indebtedness of the Company and its subsidiaries pursuant to, (i) the respective
charters or bylaws of the Company and its subsidiaries, (ii) any bond,
debenture, note, indenture, mortgage, deed of trust or other agreement or
instrument for borrowed money known to such counsel to which the Company or any
of its subsidiaries is a party or by which any of them or their respective
properties are or may be bound, (iii) any local, state, federal or
administrative statute, rule or regulation applicable to the Company, its
subsidiaries or any of their respective assets or properties, or (iv) any
judgment, order or decree of any court or governmental agency or authority
having jurisdiction over the Company, its subsidiaries or any of their
respective assets or properties known to such counsel, except in the case of
clauses (ii), (iii) and (iv) for such violations, conflicts, breaches, defaults,
consents, impositions of liens or accelerations that (x) could not, singly or in
the aggregate, reasonably be expected to result in a Material Adverse Effect or
(y) are disclosed in the Offering Memorandum. Assuming compliance with
applicable state securities and Blue Sky laws, as to which such counsel
expresses no opinion, and except for the filing of a registration statement
under the Act and qualification of the Indenture under the Trust Indenture Act
of 1939, as amended, in connection with the Registration Rights Agreement, or as
may be required by the NASD or as described in the Offering Memorandum, no
consent, approval, authorization or order of, or filing, registration,
qualification, license or permit of or with, any court or governmental agency,
body or administrative agency is required for the execution, delivery and
performance by the Company of the Agreement, the Operative Documents or the
issuance and sale of the Senior Notes, except (i) such as have been obtained and
made or have been disclosed in the Offering Memorandum and (ii) where the
failure to obtain such consents or approvals, authorizations or orders of, or
make such filings, registrations, qualifications, licenses or permits of or
with, any court or governmental agency, body or administrative agency could not
reasonably be expected to result in a Material Adverse Effect. To such counsel's
knowledge, after reasonable inquiry, except as described in the Offering
Memorandum, no consents or approvals, authorizations or orders of, or filings,
registrations, qualifications, licenses or permits of or with, any court or
governmental agency, body or administrative agency or from any other person are
required for the execution, delivery and performance by the Company of the
Agreement, the Operative Documents or the issuance and sale of the Senior Notes,
other than such consents, approvals, authorizations, orders, filings,
registrations, qualifications, licenses and permits as have been obtained.
28
16. None of the Company and its subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (ii) a
"holding company" or a "subsidiary company" or an "affiliate" of a holding
company within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
17. Except as disclosed in the Offering Memorandum or as set
forth in the Agreement or the Registration Rights Agreement, to such counsel's
knowledge, there are no holders of securities of the Company who, by reason of
the execution by the Company of the Agreement or any other Operative Document to
which it is a party or the consummation by the Company of the transactions
contemplated thereby, have the right to request or demand that the Company
register under the Act securities held by them.
18. None of the execution, delivery and performance of the
Agreement, the issuance and sale of the Senior Notes, the application of the
proceeds from the issuance and sale of the Senior Notes and the consummation of
the transactions contemplated thereby as set forth in the Offering Memorandum,
will violate Regulations G, T, U or X promulgated by the Board of Governors of
the Federal Reserve System.
19. To such counsel's knowledge, no search of court records
having been made, there is (i) no action, suit, or proceeding (other than
proceedings with respect to pending license applications) before or by any
court, arbitrator or governmental agency, body or official, domestic or foreign,
now pending, or threatened or contemplated to which the Company or any of its
subsidiaries is a party or to which the business or property of the Company or
any of its subsidiaries is subject or (ii) no injunction, restraining order or
order of any nature by a federal or state court of competent jurisdiction to
which the Company or any of its subsidiaries is or may be subject or to which
the business, assets or property of the Company or any of its subsidiaries is or
may be subject has been issued, except those which (a) could not reasonably be
expected to result in a Material Adverse Effect upon the Company and its
subsidiaries or (b) which are disclosed in the Offering Memorandum.
20. To such counsel's knowledge, there is no statute, rule,
regulation or order that has been enacted, adopted or issued by any governmental
agency or that has been proposed by any governmental body to which the Company
and its subsidiaries is or may be subject or to which the business, assets or
property of the Company and its subsidiaries are or may be subject, except those
which (a) could not reasonably be expected to result in a Material Adverse
Effect upon the Company and its subsidiaries or (b) which are disclosed in the
Offering Memorandum.
21. The statements contained in the Offering Memorandum under
the caption "Certain Federal Income Tax Consequences" are a fair and accurate
summary of the matters discussed therein.
29
Such counsel has participated in conferences with officers and
other representatives of the Company at which the contents of the Offering
Memorandum and related matters were discussed and, although such counsel has not
undertaken to investigate or verify independently, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Offering Memorandum (except as indicated above), on the basis
of the foregoing, no facts have come to such counsel's attention which led such
counsel to believe that the Offering Memorandum, as of its date or the Closing
Date, contained an untrue statement of a material fact or omitted to state any
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
(except as to financial statements and related notes, the financial statement
schedules and other financial and statistical data included therein).
Such counsel are members of the Bar of the State of New York,
and such counsel does not herein express an opinion as to any matters governed
by any laws other than the laws of the State of New York, the laws of the State
of New Jersey governing corporations and the federal laws of the United States
of America.
30
