NOTE PURCHASE AGREEMENT AMONG BPC ACQUISITION CORP. AND GOLDMAN, SACHS & CO. as Initial Purchaser AND GSMP 2006 ONSHORE US, LTD. GSMP 2006 OFFSHORE US, LTD. GSMP 2006 INSTITUTIONAL US, LTD. GS MEZZANINE PARTNERS 2006 INSTITUTIONAL, L.P. as Subsequent...
AMONG
BPC
ACQUISITION CORP.
AND
▇▇▇▇▇▇▇,
▇▇▇▇▇ & CO.
as
Initial Purchaser
AND
GSMP
2006 ONSHORE US, LTD.
GSMP
2006 OFFSHORE US, LTD.
GSMP
2006 INSTITUTIONAL US, LTD.
GS
MEZZANINE
PARTNERS 2006 INSTITUTIONAL, L.P.
as
Subsequent Purchasers
Dated
as of:
September
20, 2006
Relating
to:
$425,000,000
SENIOR
SUBORDINATED NOTES DUE 2016
ffny03\syselja\660493.15
TABLE
OF CONTENTS
|
SECTION
1.
|
DEFINITIONS
AND ACCOUNTING TERMS
|
2
|
|
1.1.
|
Definitions.
|
2
|
|
1.2.
|
Computation
of Time Periods.
|
10
|
|
1.3.
|
Terms
Generally.
|
10
|
|
1.4.
|
Accounting
Terms.
|
10
|
|
SECTION
2.
|
AUTHORIZATION
AND ISSUANCE OF NOTES
|
10
|
|
2.1.
|
Authorization
of Issue.
|
10
|
|
2.2.
|
Sale
and Purchase of the Notes to the Initial Purchaser.
|
10
|
|
2.3.
|
Resale
of the Notes to the Subsequent Purchasers.
|
10
|
|
2.4.
|
Closing.
|
11
|
|
SECTION
3.
|
CONDITIONS
TO CLOSING
|
11
|
|
3.1.
|
Conditions
to Closing.
|
11
|
|
SECTION
4.
|
REPRESENTATIONS
AND WARRANTIES
|
14
|
|
4.1.
|
Due
Organization; Power and Authority.
|
14
|
|
4.2.
|
Capital
Stock and Ownership of HoldCo.
|
14
|
|
4.3.
|
Capital
Stock and Ownership of Company and Subsidiaries.
|
15
|
|
4.4.
|
Due
Authorization, Execution and Delivery.
|
15
|
|
4.5.
|
Non-Contravention;
Authorizations and Approvals.
|
16
|
|
4.6.
|
Financial
Statements and Projections.
|
16
|
|
4.7.
|
No
Material Adverse Effect.
|
17
|
|
4.8.
|
No
Actions or Proceedings.
|
17
|
|
4.9.
|
Title
to Properties.
|
17
|
|
4.10.
|
Intellectual
Property Rights.
|
18
|
|
4.11.
|
Taxes.
|
18
|
|
4.12.
|
Employee
Benefit Plans.
|
18
|
|
4.13.
|
Private
Offering; No Integration or General Solicitation; Rule 144A
Eligibility.
|
19
|
|
4.14.
|
Status
under Certain Statutes.
|
20
|
|
4.15.
|
Insurance.
|
20
|
|
4.16.
|
Use
of Proceeds; Margin Regulations.
|
20
|
|
4.17.
|
Compliance
with Laws; Permits; Environmental Matters.
|
20
|
|
4.18.
|
Solvency.
|
21
|
|
4.19.
|
Labor
and Employment Matters.
|
21
|
|
4.20.
|
Brokerage
Fees.
|
22
|
|
4.21.
|
Final
Memorandum.
|
22
|
|
SECTION
5.
|
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SUBSEQUENT
PURCHASERS
|
22 |
|
5.1.
|
Purchase
for Investment.
|
22
|
|
5.2.
|
Due
Organization; Corporate Power; Authorization;
Enforceability.
|
23
|
|
5.3.
|
No
Actions or Proceedings.
|
23
|
|
5.4.
|
Final
Memorandum.
|
23
|
|
5.5.
|
Investment
Decision.
|
23
|
|
SECTION
5A.
|
OFFERING
BY INITIAL PURCHASER
|
24
|
|
5A.1.
|
Offering
by Initial Purchaser.
|
24
|
|
SECTION
6.
|
COVENANTS
TO PROVIDE INFORMATION
|
24
|
|
6.1.
|
Reports
to Subsequent Purchasers and GSMP VCOC.
|
24
|
|
SECTION
7
|
.
OTHER AFFIRMATIVE COVENANTS
|
25
|
|
7.1.
|
Board
Representation.
|
25
|
|
7.2.
|
Access.
|
26
|
|
7.3.
|
Rule
144A.
|
26
|
|
7.4.
|
Corporate
Existence; Businesses and Properties.
|
26
|
|
7.5.
|
Taxes
and Other Claims.
|
26
|
|
7.6.
|
Books
and Records.
|
27
|
|
7.7.
|
Insurance.
|
27
|
|
SECTION
8.
|
PROVISIONS
RELATING TO RESALES OF NOTES
|
27
|
|
8.1.
|
Private
Offerings.
|
27
|
|
8.2.
|
Procedures
and Management Cooperation in Private Offerings.
|
28
|
|
8.3.
|
No
Integration.
|
28
|
|
SECTION
9.
|
EXPENSES,
INDEMNIFICATION AND CONTRIBUTION
|
28
|
|
9.1.
|
Expenses
of Subsequent Purchasers.
|
28
|
|
9.2.
|
Indemnification
of the Subsequent Purchasers.
|
29
|
|
9.3.
|
Waiver
of Punitive Damages.
|
29
|
|
9.4.
|
Survival.
|
30
|
|
9.5.
|
Tax
Treatment of Indemnification Payments.
|
30
|
|
9.6.
|
Indemnification
of the Initial Purchaser.
|
30
|
|
SECTION
10.
|
MISCELLANEOUS
|
30
|
|
10.1.
|
Notices.
|
30
|
|
10.2.
|
Benefit
of Agreement and Assignments.
|
31
|
|
10.3.
|
No
Waiver; Remedies Cumulative.
|
31
|
|
10.4.
|
Amendments,
Waivers and Consents.
|
31
|
|
10.5.
|
Counterparts.
|
32
|
|
10.6.
|
Reproduction.
|
32
|
|
10.7.
|
Headings.
|
32
|
|
10.8.
|
Survival
of Representations, Warrants, Covenants and Indemnities.
|
32
|
|
10.9.
|
Governing
Law; Submission to Jurisdiction; Venue.
|
32
|
|
10.10.
|
Severability.
|
33
|
|
10.11.
|
Entirety.
|
33
|
|
10.12.
|
Construction.
|
33
|
|
10.13.
|
Incorporation.
|
33
|
|
10.14.
|
Confidentiality.
|
34
|
|
10.15.
|
No
Personal Obligations.
|
35
|
|
10.16.
|
Currency.
|
35
|
|
10.17.
|
No
Fiduciary Duty.
|
35
|
EXHIBITS:
Exhibit
A - Form
of
Indenture
Exhibit
B - Form
of
Exchange and Registration Rights Agreement
Exhibit
C - Indemnification
Provisions for the Initial Purchaser
Exhibit
3.1(c)(i) - Form
of
Secretary’s Certificate
Exhibit
3.1(c)(ii) - Form
of
Officer’s Certificate
Exhibit
3.1(c)(iii) - Form
of
Solvency Certificate
SCHEDULES:
Schedule 2.2 - Information
relating to the Subsequent Purchasers
Schedule 4.2 - Capital
Stock and Ownership
Schedule 4.3 - Subsidiaries
Schedule
4.5 - Governmental
Approvals
Schedule
4.9 - Leased
Properties
Schedule
4.10 - Intellectual
Property
Schedule
4.11 - Taxes
Schedule
4.15 - Insurance
Schedule
4.17 - Environmental
Matters
Schedule
4.20 - Brokerage
Fees
NOTE
PURCHASE AGREEMENT, dated as of September 20, 2006, among BPC
Acquisition Corp.,
a
Delaware corporation (“Merger
Sub”);
▇▇▇▇▇▇▇,
Sachs & Co.,
a New
York partnership (“Initial
Purchaser”);
GSMP
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, Ltd.,
an
exempted Cayman Islands limited liability company (“GSMP
Onshore”);
GSMP
2006 Offshore US, Ltd.,
an
exempted Cayman Islands limited liability company (“GSMP
Offshore”);
GSMP
2006 Institutional US, Ltd.,
an
exempted Cayman Islands limited liability company (“GSMP
Institutional”
and,
together with GSMP Onshore and GSMP Offshore, the “Subsequent
Purchasers”,
and
together with the Initial Purchaser, the “Purchasers”);
and
GS
Mezzanine Partners 2006 Institutional, L.P.,
an
exempted Cayman Islands limited partnership (the “GSMP
VCOC”).
W
I T
N E S S E T H:
WHEREAS,
pursuant to that certain Agreement and Plan of Merger, dated as of June 28,
2006, substantially in the form previously furnished to the Purchasers (the
“Acquisition
Agreement”),
among
Merger Sub, BPC Holding Corporation, a Delaware corporation (the “Company”
or
the
“Issuer”)
and
BPC Holding Acquisition Corp. (which entity has changed its name to ▇▇▇▇▇
Plastics Group, Inc.) (“HoldCo”
or
“Holdings”),
Merger Sub will be merged with and into the Company, with the Company as the
surviving corporation of the merger (the “Acquisition”);
WHEREAS,
upon consummation of the Acquisition, HoldCo will be a holding company owned,
directly or indirectly, by affiliates of Apollo Management, L.P. and certain
other investors (collectively, the “Sponsor”),
and
HoldCo will directly own all of the outstanding capital stock of the Company
as
the surviving entity of the merger pursuant to which the Acquisition is effected
and thus HoldCo will have acquired the Company from ▇▇▇▇▇▇▇ Sachs Capital
Partners and JPMorgan Partners (collectively, the “Sellers”);
WHEREAS,
in order to finance the Acquisition, refinance certain existing indebtedness
of
the Company in connection with the Acquisition, and pay related transaction
fees
and expenses (collectively, the “Transactions”),
the
Issuer will require funds to be provided from:
(a) the
issuance by HoldCo of its common stock (the “HoldCo
Stock”)
to the
Sponsor and certain other equity investors, including the Subsequent Purchasers
(collectively, the “Equity Investors”) for cash proceeds that, together with the
“rollover” of certain existing equity investments in the Company by certain
management and employees of the Company, shall represent at least 20% of the
total debt and equity financing required by the Issuer to complete the
Acquisition (the “Equity
Contribution”),
which
cash proceeds will be contributed by HoldCo to the common equity of Merger
Sub;
(b) the
borrowing by the Issuer of approximately $675 million aggregate principal amount
of term loans under a senior secured credit facility (such term loans, together
with a revolving credit facility of approximately $200 million (a portion of
which may be outstanding immediately following the consummation of the
Transactions), the “Senior
Credit Facilities”),
pursuant to the Credit Agreement (as defined herein);
(c) the
receipt by the Issuer of $750 million of gross proceeds from the issuance by
Merger Sub of its second lien senior notes (the “Senior
Notes”
and
the
financing contemplated thereby, the “Senior
Financing”)
in a
public offering or in a Rule 144A or other private placement (less the amount
of
the fee for the placement of such notes); and
-1-
(d) the
issuance and sale by the Issuer to the Initial Purchaser of its senior
subordinated notes (the “Notes”)
on the
terms set forth herein in an original principal amount of $425
million.
WHEREAS,
on the Closing date, immediately following the Closing of the issuance to the
Initial Purchaser of the Notes, the Initial Purchaser will resell all of the
Notes to the Subsequent Purchasers on the terms and conditions set forth
herein.
WHEREAS,
in connection with the issuance and the Resale (as defined herein) of the Notes,
the Company has prepared and delivered to the Initial Purchaser on the date
hereof a final offering memorandum (including any amendment or supplement
thereto the “Final
Memorandum”)
relating to the Notes.
WHEREAS,
the Company, by its execution hereof, hereby confirms that it has authorized
the
use and delivery of the Final Memorandum by the Initial Purchaser (and only
by
the Initial Purchaser) to the Subsequent Purchasers (and only to the Subsequent
Purchasers) in connection with the Resale of the Notes by the Initial Purchaser
to the Subsequent Purchasers.
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION
1.
DEFINITIONS
AND ACCOUNTING TERMS
1.1. Definitions.
Capitalized
terms that are used herein without definition and are defined in the Indenture
shall have the respective meanings ascribed to them in the Indenture. As used
herein the following terms shall have the meanings specified herein (it being
understood that defined terms shall include in the singular number, the plural,
and in the plural, the singular):
“Accredited
Investor”
means
any Person that is an “accredited investor” within the meaning of Rule
501.
“Acquisition”
is
defined in the Recitals.
“Acquisition
Agreement”
is
defined in the Recitals.
“Acquisition
Documents”
means
the Acquisition Agreement and all Schedules thereto.
“Agreement”
is
defined in Section 10.4.
“Affiliate”
is
defined in the Indenture.
“Applicable
Law”
is
defined in the Indenture.
“Board”
or
“Board
of Directors”
are
defined in the Indenture.
“Business
Day”
is
defined in the Indenture.
“Capital
Stock”
is
defined in the Indenture.
-2-
“Closing”
is
defined in Section 2.3(a).
“Closing
Date”
is
defined in Section 2.3(a).
“Closing
Payment”
means,
with respect to the Initial Purchaser, on the Closing Date, an amount in cash
equal to 2%
of the
aggregate principal amount of Notes purchased by the Initial Purchaser on the
Closing Date.
“Code”
means
the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.
“Commission”
is
defined in the Indenture.
“Common
Stock”
means
common stock, par value, $0.01 per share of HoldCo.
“Company”
means
Merger Sub, and from and after the merger of Merger Sub with and into the
Company pursuant to the Acquisition and the execution and delivery by the
parties thereto of the Assumption Agreement, the Company, as the surviving
corporation of the Acquisition.
“Consent
Solicitation”
is
defined in Section 3.1(b).
“Contractual
Obligation”
means,
as applied to any Person, any provision of any security issued by that Person
or
of any indenture, mortgage, deed of trust, contract, undertaking, agreement
or
other instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is
subject.
“Credit
Agreement”
is
defined in the Indenture.
“Credit
Documents”
means
the Credit Agreement and all certificates, instruments, and other documents
and
agreements made or delivered in connection therewith and related
thereto.
“Debt
Tender Offer”
is
defined in Section 3.1(b).
“Default”
is
defined in the Indenture.
“Discharge”
is
defined in Section 3.1(b).
“DTC”
is
defined in Section
8.2(a).
“EBITDA”
is
defined in the Indenture.
“Enforceability
Exceptions”
means,
with respect to any specified obligation, any limitations on the enforceability
of such obligation due to (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally, (ii)
general equitable principles (whether considered in a proceeding in equity
or at
law), (iii) an implied covenant of good faith and fair dealing, and (iv)
considerations of public policy.
“Entity”
is
defined in Section 7.1(a).
-3-
“Environmental
Laws”
shall
mean all applicable laws (including common law), rules, regulations, codes,
ordinances, orders, decrees or judgments, promulgated or entered into by any
Governmental Authority, relating in any way to the environment, preservation
or
reclamation of natural resources, the generation, management, Release or
threatened Release of, or exposure to, any Hazardous Material or to occupational
health and safety matters (to the extent relating to the environment or
Hazardous Materials).
“Equity
Contribution”
is
defined in the Recitals.
“Equity
Interests”
is
defined in the Indenture.
“Equity
Financing”
means
the purchase by the Equity Investors on the Closing Date of HoldCo’s common
stock pursuant to the Equity Contribution.
“Equity
Financing Documents”
means
collectively the Equity Subscription Agreements, the Stockholders Agreement
and
all certificates, instruments, and other documents made or delivered in
connection with the Equity Financing.
“Equity
Investors”
is
defined in the Recitals.
“Equity
Subscription Agreements”
mean
those certain Equity Subscription Agreements, dated as of the date hereof,
between HoldCo and each of the Equity Investors, as amended, supplemented,
restated or otherwise modified from time to time, and shall include Subsequent
Purchaser Equity Subscription Agreements.
“ERISA”
means
the Employee Retirement Income Security Act of 1974 (and any successor
provision), as amended from time to time.
“ERISA
Affiliate”
shall
mean any trade or business (whether or not incorporated) that, together with
the
Company or any of its Subsidiaries, is treated as a single employer under
Section 414(b) or (c) of the Code, or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
“ERISA
Event”
shall
mean (a) any Reportable Event or the requirements of Section 4043(b) of ERISA
apply with respect to a Plan; (b) the existence with respect to any Plan of
an
“accumulated funding deficiency” (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section
412(d) of the Code or Section 303(d) of ERISA of an application for a waiver
of
the minimum funding standard with respect to any Plan, the failure to make
by
its due date a required installment under Section 412(m) of the Code with
respect to any Plan or the failure to make any required contribution to a
Multiemployer Plan; (d) the incurrence by the Company any of its Subsidiaries
or
any ERISA Affiliate of any liability under Title IV of ERISA with respect to
the
termination of any Plan or Multiemployer Plan; (e) the receipt by the Company,
any of its Subsidiaries or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan
or to
appoint a trustee to administer any Plan under Section 4042 of ERISA; (f) the
incurrence by the Company, any of its Subsidiaries or any ERISA Affiliate of
any
liability with respect to the withdrawal or partial withdrawal from any Plan
or
Multiemployer Plan; (g) the receipt by the Company, any of its Subsidiaries
or
any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan
from
the Company, any of its Subsidiaries or any ERISA Affiliate of any notice,
concerning the impending imposition of Withdrawal Liability or a determination
that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; (h) the conditions
for
imposition of a lien under Section 302(f) of ERISA shall have been met with
respect to
-4-
“Event
of Default”
is
defined in the Indenture.
“Exchange
Act”
is
defined in the Indenture.
“Exchange
and Registration Rights Agreement”
means
the Exchange and Registration Rights Agreement among the Company and each
Subsequent Purchaser, dated as of the date hereof, in the form attached hereto
as Exhibit
B,
as
amended, supplemented, restated or otherwise modified from time to
time.
“Existing
Indebtedness”
is
defined in the Indenture.
“Existing
Senior Subordinated Notes”
is
defined in Section 3.1(b).
“Final
Memorandum”
is
defined in the Recitals.
“Financial
Statements”
is
defined in Section 4.6.
“Financing
Documents”
means
this Agreement, the Indenture, the Notes and the Exchange and Registration
Rights Agreement.
“GAAP”
means
those accounting principles in the United States, which are in effect at the
time of the preparation of financial statements required to be delivered
hereunder (and delivered together with the reconciliation statements provided
for in Section
6.1(d),
if
applicable).
“Governmental
Authority”
is
defined in the Indenture.
“GSMP
Institutional”
is
defined in the Preamble.
“GSMP
Offshore”
is
defined in the Preamble.
“GSMP
Onshore”
is
defined in the Preamble.
“GSMP
VCOC”
is
defined in the Preamble.
“Guarantee”
is
defined in the Indenture.
“Guarantor”
is
defined in the Indenture.
“Hazardous
Materials”
shall
mean all pollutants, contaminants, wastes, chemicals, materials, substances
and
constituents, including, without limitation, explosive or radioactive substances
or petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls or radon gas, of any nature subject to
regulation or which can give rise to liability under any Environmental
Law.
“HoldCo”
is
defined in the Recitals.
“Holder”
is
defined in the Indenture.
-5-
“Holdings”
is
defined in the Recitals.
“HSR
Act”
means
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, (or any successor
provision), as it may be amended from time to time.
“Indemnitees”
is
defined in Section 9.2.
“incur”
is
defined in the Indenture.
“Indebtedness”
is
defined in the Indenture.
“Indenture”
means
the indenture, dated as of the date hereof by and among the Company, the
Trustee, and the Guarantors, the form of which is attached hereto as
Exhibit
A,
as it
may be amended, supplemented, restated or otherwise modified from time to
time.
“Information
Memorandum”
shall
mean the Confidential Information Memorandum dated August, 2006 relating to
the
funding contemplated by the Credit Agreement, as modified or supplemented prior
to the Closing Date.
“Initial
Purchaser”
is
defined in the Preamble.
“Institutional
Accredited Investors”
is
defined in Section 8.1(a).
“Investment
Company Act”
means
the Investment Company Act of 1940 (or any successor provision), as it may
be
amended from time to time.
“Lien”
is
defined in the Indenture.
“Losses”
is
defined in paragraph (d) of Exhibit
C.
“Margin
Stock”
shall
have the meaning assigned to such term in Regulation U.
“Material
Adverse Effect”
shall
mean a material adverse effect on the business, property, operations or
condition of the Company and its Subsidiaries, taken as a whole, or the validity
or enforceability of any of the Financing Documents or the rights and remedies
of the Subsequent Purchasers and GSMP VCOC thereunder; provided,
however,
that
solely for purposes of determining whether the condition in Section
3.1(a)
has been
satisfied in connection with the Closing, any reference to “Material Adverse
Effect” in any of the representations and warranties referred to in Section
3.1(a)
shall
mean, “Company Material Adverse Effect” as defined in the Acquisition
Agreement.
“Multiemployer
Plan”
shall
mean a multiemployer plan as defined in Section 4001(a)(3) of ERISA to which
the
Company, any of its Subsidiaries or any ERISA Affiliate (other than one
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Code
Section 414) is making or accruing an obligation to make contributions, or
has
within any of the preceding six plan years made or accrued an obligation to
make
contributions.
“Non-Voting
Observer”
is
defined in Section 7.1(a).
“Notes”
is
defined in the Recitals.
-6-
“Organizational
Documents”
means
(i) with respect to any corporation, its certificate or articles of
incorporation or organization, as amended, and its bylaws, as amended, (ii)
with
respect to any limited partnership, its certificate or articles of limited
partnership, as amended, and its partnership agreement, as amended, (iii) with
respect to any general partnership, its partnership agreement, as amended,
and
(iv) with respect to any limited liability company, its certificate or articles
of organization or formation, as amended, and its operating agreement, as
amended. In the event any term or condition of this Agreement or any other
Financing Document requires any Organizational Document to be certified by
a
secretary of state or similar governmental official, the reference to any such
“Organizational Document” shall only be to a document of a type customarily
certified by such governmental official.
“PBGC”
shall
mean the Pension Benefit Guaranty Corporation referred to and defined in
ERISA.
“Patriot
Act”
means
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(or
any successor provision), as it may be amended or renewed from time to
time.
“Permitted
Lien”
is
defined in the Indenture.
“Person”
is
defined in the Indenture.
“Plan”
shall
mean any employee pension benefit plan, as such term is defined in Section
3(2)
of ERISA, (other than a Multiemployer Plan), (i) subject to the provisions
of
Title IV of ERISA, (ii) sponsored or maintained (at the time of determination
or
at any time within the five years prior thereto) by the Company, any of its
Subsidiaries or any ERISA Affiliate, or (iii) in respect of which the Company,
any of its Subsidiaries or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as
defined in Section 3(5) of ERISA.
“Private
Offering”
means
any offering by the Subsequent Purchasers of some or all of the Notes pursuant
to an available exception from the Securities Act.
“Projections”
shall
mean the projections of the Company and any of its Subsidiaries included in
the
Information Memorandum and any other projections and any forward looking
statements (including statements with respect to booked business) of such
entities furnished to a Subsequent Purchaser on behalf of the Company and any
of
its Subsidiaries prior to the Closing Date.
“Purchase
Price”
is
defined in Section 2.2(ii).
“Purchasers”
is
defined in the Preamble.
“Qualified
Institutional Buyer”
means
a
“qualified institutional buyer” as defined in Rule 144A.
“Real
Property”
means,
collectively, all right, title and interest (including any leasehold estate)
in
and to any and all parcels of or interests in real property owned in fee or
leased by the Company or any of its Subsidiaries, together with, in each case,
all easements, hereditaments and appurtenances relating thereto, all
improvements and appurtenant fixtures incidental to the ownership or lease
thereof.
“Release”
shall
mean any spilling, leaking, seepage, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposing, depositing,
emanating or migrating in, into, onto or through the environment.
“Regulation
D”
means
Regulation D under the Securities Act (or any successor provision), as it
may be amended from time to time.
-7-
“Regulation
S”
is
defined in the Indenture.
“Regulation
T”
means
Regulation T of the Board of Governors of the Federal Reserve System (or
any successor provision), as it may be amended from time to time.
“Regulation
U”
means
Regulation U of the Board of Governors of the Federal Reserve System (or
any successor provision), as it may be amended from time to time.
“Regulation
X”
means
Regulation X of the Board of Governors of the Federal Reserve System (or
any successor provision), as it may be amended from time to time.
“Related
Parties”
shall
mean, with respect to any specified person, such person’s Affiliates and the
respective directors, trustees, officers, employees, agents and advisors of
such
person and such person’s Affiliates.
“Reportable
Event”
shall
mean any reportable event as defined in Section 4043(c) of ERISA or the
regulations issued thereunder, other than those events as to which the 30 day
notice period referred to in Section 4043(c) of ERISA has been waived, with
respect to a Plan (other than a Plan maintained by an ERISA Affiliate that
is
considered an ERISA Affiliate only pursuant to subsection (m) or (o) of Section
414 of the Code).
“Required
Holders”
is
defined in the Indenture as Holders of at least a majority in aggregate
principal amount of the then outstanding Notes.
“Resale”
is
defined in Section 2.3(i).
“Responsible
Officer”
of
any
Person means the chairman, the chief executive officer, the president, the
chief
operating officer, the chief financial officer or the chief accounting officer
of such Person.
“Restricted
Subsidiary”
is
defined in the Indenture.
“Rule 144”
is
defined in the Indenture.
“Rule 144A”
is
defined in the Indenture.
“Rule
501”
means
Rule 501 under the Securities Act (or any successor provision), as it may be
amended from time to time.
“Rule 502”
means
Rule 502 under the Securities Act (or any successor provision), as it may be
amended from time to time.
“SEC”
means
the Securities and Exchange Commission.
“Securities
Act”
is
defined in the Indenture.
“Sellers”
is
defined in the Recitals.
“Senior
Credit Facilities”
is
defined in the Recitals.
-8-
“Senior
Financing”
is
defined in the Recitals.
“Senior
Financing Documents”
means
all indentures, agreements, certificates, instruments, and other documents
made
or delivered in connection with the Senior Financing and related
thereto.
“Senior
Notes”
is
defined in the Recitals.
“Specified
Representations”
means
the representations and warranties set forth in the Financing Documents and
the
Equity Financing Documents relating to corporate power and authority, the
execution, delivery, and enforceability of the Financing Documents and the
Equity Financing Documents, Federal Reserve margin regulations, and the
Investment Company Act.
“Sponsor”
is
defined in the Recitals.
“Stockholders
Agreement”
means
the Stockholders Agreement, dated as of the date hereof, among HoldCo and the
Equity Investors, in the form previously provided to the Subsequent Purchasers,
as amended, supplemented, restated or otherwise modified from time to
time.
“Subsequent
Purchasers”
is
defined in the Preamble.
“Subsequent
Purchaser Equity Subscription Agreements”
means
the Subscription Agreements, dated as of the date hereof, between HoldCo and
the
Subsequent Purchasers, in the form previously provided to the Subsequent
Purchasers, as amended, supplemented, restated or otherwise modified from time
to time.
“Subsequent
Purchaser Stock”
means
the common stock which the Subsequent Purchasers will subscribe for and purchase
pursuant to the Subsequent Purchaser Equity Subscription Agreements, at the
Closing.
“Subsidiary”
is
defined in the Indenture.
“Taxes”
is
defined in the Indenture.
“TIA”
is
defined in the Indenture.
“Transaction
Documents”
means,
collectively, the Acquisition Documents, the Equity Financing Documents, the
Financing Documents, the Senior Financing Documents and the Credit
Documents.
“Transactions”
means
the Acquisition and all other transactions provided for in, or contemplated
by,
the Transaction Documents as being transactions to be completed on the Closing
Date or promptly thereafter.
“Trustee”
is
defined in the Indenture.
“Unfunded
Pension Liability”
means
the excess of a Plan’s benefit liabilities under Section 4001(a)(16) of ERISA,
over the current value of that Plan’s assets, determined in accordance with the
assumptions used for funding the Plan pursuant to Section 412 of the Code for
the applicable plan year.
“Withdrawal
Liability”
shall
mean liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of
Subtitle E of Title IV of ERISA.
-9-
1.2. Computation
of Time Periods.
For
purposes of computation of periods of time hereunder, the word “from” means
“from and including” and the words “to” and “until” each mean “to but
excluding.”
1.3. Terms
Generally.
Unless
the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any
reference herein to any Person shall be construed to include such Person’s
successors and assigns, and (c) the words “including” and “includes” shall
mean “including without limitation” and “includes without limitation”, as
applicable.
1.4. Accounting
Terms.
Accounting
terms used but not otherwise defined herein shall have the meanings provided,
and be construed in accordance with, GAAP.
SECTION
2.
AUTHORIZATION
AND ISSUANCE OF NOTES
2.1. Authorization
of Issue.
On
or
prior to the execution and delivery of this Agreement, the Company will
authorize the issue and sale of the Notes. The Notes shall be in the form
specified in the Indenture.
2.2. Sale
and Purchase of the Notes to the Initial Purchaser.
(i) Subject
to the terms and conditions of this Agreement (including, without limitation,
Section
3.1),
the
Company will issue and sell to the Initial Purchaser, and the Initial Purchaser
will purchase from the Company, at the Closing, the Notes.
(ii) The
aggregate cash purchase price (the “Purchase
Price”)
for
the Notes shall be equal to the principal amount of the Notes being so
purchased, net of the Closing Payment with respect thereto, as specified on
Schedule
2.2.
(iii) The
parties agree to report the sale and purchase of the Notes for all Tax purposes
in a manner consistent with the foregoing and agree to take no position
inconsistent with the foregoing.
(iv) The
parties
agree that the failure of the Initial Purchaser to purchase the Notes at the
Closing shall not relieve the Subsequent Purchasers of any of their obligations
under that certain commitment letter, dated August 1, 2006, relating to the
purchase of the Notes.
2.3. Resale
of the Notes to the Subsequent Purchasers.
-10-
(i) Subject
to the terms and conditions of this Agreement (including, without limitation,
Section
3.1),
the
Initial Purchaser will immediately following its purchase of the Notes from
the
Company pursuant to Section
2.2,
sell
(the “Resale”)
to the
Subsequent Purchasers, and each of the Subsequent Purchasers will purchase
from
the Initial Purchaser, at the Closing, the Notes.
(ii) The
aggregate cash purchase price for the Resale of the Notes to the Subsequent
Purchaser shall be equal to the aggregate Purchase Price paid by the Initial
Purchaser for the Notes.
(iii) Schedule
2.2
hereto
sets forth, for each Subsequent Purchaser, the aggregate principal amount of
the
Notes to be purchased by such Subsequent Purchaser and the portion of the
Purchaser Price payable by such Subsequent Purchaser therefor. The obligations
of Subsequent Purchasers to purchase and pay for the Notes hereunder are several
and not joint and no Subsequent Purchaser shall have any liability to any Person
for the performance or non-performance by any other Subsequent
Purchaser.
2.4. Closing.
(a) The
sale
and purchase of the Notes to the Initial Purchaser and the Resale of the Notes
to the Subsequent Purchasers shall occur at the offices of Wachtell, Lipton,
▇▇▇▇▇ & ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (or at such other place as the Company and the
Purchasers may agree), at 10:00 a.m. local time, at a closing (the “Closing”)
on
September 20, 2006, or on such other Business Day or time thereafter as may
be
agreed upon by the Company and the Purchasers (in either case, the date and
time
of the Closing is referred to herein as the “Closing
Date”).
At
the Closing (i) the Company will deliver to the Initial Purchaser the Notes
to
be purchased by the Initial Purchaser on the Closing Date, in such denominations
as the Initial Purchaser may request, dated as of the Closing Date against
payment by the Initial Purchaser to the Company or to its order of immediately
available funds in the amount of the Purchase Price, by wire transfer of
immediately available funds to bank account or accounts as the Company may
request.
(b) If
at the
Closing the Company shall fail to deliver to the Initial Purchaser the Notes
as
provided in Section
2.4(a),
or any
of the conditions specified in Section
3
shall
not have been fulfilled or waived as provided herein, then the Initial Purchaser
shall, at its election, be relieved of all further obligations under this
Agreement, without thereby waiving any rights the Purchasers may have by reason
of such failure or such non-fulfillment.
SECTION
3.
CONDITIONS
TO CLOSING
3.1. Conditions
to Closing.
The
Initial Purchaser’s obligation to purchase and pay for the Notes to be purchased
by it at the Closing is subject to the satisfaction or express waiver by the
Purchasers prior to or at the Closing of each of the conditions specified below
in this Section
3.1.
(a) Representations
and Warranties.
(A)
Each
of the representations made by the Company in the Acquisition Agreement as
are
material to the interests of the Purchasers, but only to the extent that the
Company has the right to terminate its obligations under the Acquisition
Agreement as a result of a breach of such representations in the Acquisition
Agreement (determined without regard to whether any notice is required to be
delivered by the Company) and (B) each of the Specified Representations made
by
the Company, in each
-11-
(b) Existing
Debt.
All
amounts due or outstanding in respect of the existing credit agreement of the
Company shall have been (or substantially simultaneously with the closing under
the Senior Credit Facilities shall be) paid in full, all commitments in respect
thereof terminated and all guarantees thereof and security therefor discharged
and released. The Company will either (i) offer to purchase on the Closing
Date
(the “Debt
Tender Offer”)
all of
the Company’s outstanding 10.75% senior subordinated notes due 2012 (the
“Existing
Senior Subordinated Notes”)
and,
in connection therewith, amend substantially all of the covenants related
thereto that can be amended with a majority vote of the holders thereof (the
“Consent
Solicitation”)
on
terms and conditions customary for such types of tender offers and related
consent solicitations, or (ii) “discharge,” on the Closing Date the Existing
Senior Subordinated Notes pursuant to the terms of the indenture governing
such
notes (the “Discharge”).
After
giving effect to the Transactions, the Company and its subsidiaries shall have
outstanding no indebtedness or preferred stock other than (a) the loans and
other extensions of credit under the Senior Credit Facilities, (b) the
Senior Notes, (c) the Notes, and (d) other limited indebtedness and certain
capitalized leases in existence as of the Closing Date).
(c) Compliance
Certificates.
(i) Secretary’s
Certificate.
The
Company and each Guarantor shall have delivered to each Purchaser a Secretary’s
Certificate, dated as of the Closing Date, in the form of Exhibit
3.1(c)(i) hereto,
certifying, among other things, as to (i) such entity’s, certificate of
incorporation (or, if a limited liability company, certificate of formation)
and
by-laws (or, if a limited liability company, limited liability company
agreement), (ii) the incumbency and signatures of certain officers of such
entity, and (iii) other corporate or limited liability company, as the case
may
be, proceedings (including board and/or stockholder or member resolutions)
of
such entity relating to the authorization, execution and delivery of the Notes,
this Agreement and the other Transaction Documents to which such entity is
a
party.
(ii) Officer’s
Certificate.
The
Company and each Guarantor shall have delivered to each Purchaser an Officer’s
Certificate, dated as of the Closing Date, in the form of Exhibit
3.1(c)(ii)
hereto,
certifying that the conditions specified in this Section 3.1
have
been fulfilled or waived.
(iii) Solvency
Certification.
The
Company shall have delivered to each Purchaser a certificate from the chief
financial officer or the Vice President and Treasurer of the Company, in the
form of Exhibit
3.1(c)(iii),
certifying on behalf of the Company to the effect that the Company and its
Subsidiaries, on a consolidated basis, are and immediately after giving effect
to the Transactions will be, solvent.
(d) Opinion
of Counsel.
At
the
Closing the Subsequent Purchasers shall have received opinions from O’Melveny
& ▇▇▇▇▇ LLP and
any
local counsel reasonably required by the Subsequent Purchasers in form
reasonably satisfactory to the Subsequent Purchasers.
-12-
(e) Acquisition.
The
Acquisition shall have been consummated in accordance with the terms of the
Acquisition Agreement, without giving effect to any amendments, modifications
or
waivers by Merger Sub thereto that are materially adverse to the interests
of
the Purchasers not approved by the Purchasers (which approval shall not be
unreasonably withheld or delayed).
(f) Equity
Contribution.
The
Equity Contribution shall have been made in at least the amount set forth in
the
Recitals.
(g) Credit
Agreement and Senior Financing.
The
Senior Credit Facilities shall have become effective contemporaneously and
the
Issuer shall have borrowed on the Closing Date not more than $675 million in
term loans under the Senior Credit Facilities and the Issuer shall have borrowed
on the Closing Date not more than $750 million pursuant to the Senior Financing,
in each case on terms and conditions consistent with those set forth in that
certain bank commitment letter, substantially in the form previously furnished
to the Purchasers or as otherwise agreed among the parties thereto.
(h) No
Material Adverse Effect.
There
shall not have occurred since December 31, 2005 any change or condition that
would constitute a “Company Material Adverse Effect” as defined in the
Acquisition Agreement.
(i) Financial
Information.
The
Purchasers shall have received a pro forma consolidated balance sheet and
related pro forma consolidated statements of income of the Company as of and
for
the twelve-month period ending on the last day of the most recently completed
four-fiscal quarter period ended at least 45 days before the Closing Date,
prepared after giving effect to the Transactions as if the Transactions had
occurred as of such date (in the case of such balance sheet) or at the beginning
of such period (in the case of such other financial statements.
(j) Other
Information.
The
Purchasers shall have received all documentation and other information required
by regulatory authorities under applicable “know your customer” and anti-money
laundering rules and regulations, including without limitation the Patriot
Act.
(k) Proceedings
and Documents.
Each
Purchaser and such Purchaser’s counsel shall have received all counterpart
originals or certified or other copies of this Agreement and the other
Transaction Documents.
(l) Closing
Payment.
At
the
Closing, the Initial Purchaser shall have received the Closing Payment required
to be paid under Section
2.2(ii),
by
netting such amount from the principal amount of the Notes being purchased
by
the Initial Purchaser, as provided in said Section.
-13-
(m) Deliverables
to the Initial Purchaser.
At
the
Closing, the Initial Purchaser shall have received opinion or advice “10b-5”
letters with respect to the Final Memorandum from each of O’Melveny & ▇▇▇▇▇
LLP, counsel for the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for
the Initial Purchaser, in form and substance substantially similar to the
opinion or advice letters delivered to the initial purchasers in connection
with
the Senior Financing.
SECTION
4.
REPRESENTATIONS
AND WARRANTIES
The
Company represents and warrants to the Purchasers on and as of the date hereof
(after giving pro
forma
effect
to the consummation on the Closing Date of the transactions contemplated by
this
Agreement and the other Transaction Documents, the Acquisition and the issuance
of the Notes to be issued on the date hereof and the application of the proceeds
thereof) as follows (provided, however, that the representations set forth
in
Section
4.21
shall be
made solely to the Initial Purchaser and the Company shall have no liability
to
the Subsequent Purchasers as a result of any breach thereof):
4.1. Due
Organization; Power and Authority.
The
Company and each of its Subsidiaries (a) is a partnership, limited liability
company or corporation duly organized, validly existing and in good standing
(or, if applicable in a foreign jurisdiction, enjoys the equivalent status
under
the laws of any jurisdiction of organization outside the United States) under
the laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business as
now
conducted, (c) is qualified to do business in each jurisdiction where such
qualification is required, except where the failure so to qualify would not
reasonably be expected to have a Material Adverse Effect, and (d) has the power
and authority to execute, deliver and perform its obligations under the
Financing Documents and each other agreement or instrument contemplated thereby
to which it is or will be a party and, in the case of the Company, to issue
and
sell the Notes as contemplated hereunder.
4.2. Capital
Stock and Ownership of HoldCo.
At
the
Closing, after giving effect to the consummation of the Transactions, (i) the
authorized number of shares of Capital Stock of HoldCo will consist only of
200,000,000 shares
of
Common Stock, par value $0.01 per share, of
which
4,835,191 shares
of
Common Stock have been issued and are outstanding and
(ii)
no shares of any class of the Capital Stock of HoldCo will be held in HoldCo’s
treasury or by any of its Subsidiaries. As of the Closing Date, except for
options to acquire 488,184 shares
of
Common Stock issued under HoldCo’s employee stock option plans or pursuant to
the Stockholders Agreement, there are no outstanding securities of HoldCo or
any
of its Subsidiaries that will be convertible into or exchangeable for shares
of
Capital Stock of HoldCo or any of its Subsidiaries, and no outstanding options,
warrants, calls, subscriptions, convertible securities, or other rights,
agreements or commitments which will obligate HoldCo or any of its Subsidiaries
to issue, transfer or sell any shares of Capital Stock of HoldCo or any of
its
Subsidiaries. Schedule 4.2 hereto sets forth the ownership of all outstanding
shares of Common Stock and options as of the Closing Date. Except as disclosed
on Schedule 4.2 or as set forth in the Stockholders Agreement, as of the Closing
Date, there are no outstanding obligations of HoldCo or any of its Subsidiaries
to repurchase, redeem or otherwise acquire any shares of Capital Stock of HoldCo
or any of its Subsidiaries and there are no voting trusts or other agreements
or
understandings to which HoldCo or any of its Subsidiaries is a party with
respect to the holding, voting or disposing of Capital Stock of HoldCo or any
of
its Subsidiaries. As of the Closing
-14-
4.3. Capital
Stock and Ownership of Company and Subsidiaries.
(a) Schedule
4.3 sets forth as of the Closing Date the name and jurisdiction of
incorporation, formation or organization of each direct and indirect subsidiary
of HoldCo, as to each such subsidiary, the percentage of each class of Equity
Interests owned by HoldCo or by any such subsidiary.
(b) As
of the
Closing Date, there are no outstanding subscriptions, options, warrants, calls,
rights or other agreements or commitments (other than stock options granted
to
employees or directors and directors’ qualifying shares) of any nature relating
to any Equity Interests of the Company or any of its Subsidiaries.
4.4. Due
Authorization, Execution and Delivery.
(a) Agreement.
This
Agreement has been duly authorized, executed and delivered by the Company and,
when duly executed and delivered by the Purchasers and GSMP VCOC in accordance
with its terms, will constitute valid and legally binding obligations of the
Company, enforceable against the Company in accordance with its terms, subject
to the Enforceability Exceptions.
(b) Indenture.
The
Indenture has been duly authorized, executed and delivered by, the Company
and,
immediately following the Acquisition, each Guarantor and, when duly executed
and delivered by the Trustee in accordance with its terms, will constitute
valid
and legally binding obligations of the Company and each Guarantor enforceable
against the Company and each Guarantor in accordance with its terms, subject
to
the Enforceability Exceptions.
(c) Notes.
The
Notes are in the form contemplated by the Indenture, have been duly authorized
for issuance and sale pursuant to this Agreement and the Indenture and, when
issued and delivered by the Company on the Closing Date as provided herein
and
therein and authenticated by the Trustee as provided in the Indenture, will
have
been duly executed, issued and delivered by the Company, and upon payment and
delivery in accordance with this Agreement will constitute valid and legally
binding obligations of the Company, enforceable against it in accordance with
their terms subject to the Enforceability Exceptions.
(d) Exchange
and Registration Rights Agreement.
The
Exchange and Registration Rights Agreement has been duly authorized, executed
and delivered by the Company and, when duly executed and delivered by the
Purchasers parties thereto, will constitute valid and legally binding
obligations of the Company, enforceable against the Company in accordance with
its terms, subject to the Enforceability Exceptions.
(e) Equity
Financing Documents.
Each of
the Purchaser Equity Subscription Agreements and the Stockholders Agreement
has
been duly authorized, executed and delivered by HoldCo, and, when duly executed
and delivered by the Purchasers party thereto, will constitute valid and legally
binding
-15-
(f) Other
Transaction Documents.
Each
Transaction Document to which the Company or any of its Subsidiaries is a
party has been duly authorized, executed and delivered by such party a
party thereto and constitutes a valid and legally binding obligation of such
party, enforceable against such party in accordance with its terms, subject
to
the Enforceability Exceptions.
4.5. Non-Contravention;
Authorizations and Approvals.
(a) The
execution, delivery and performance by the Company and each of the Guarantors
of
each of the Financing Documents to which it is a party, and the issue and sale
of Notes hereunder and the transactions forming a part of the Transactions
will
not (i) violate (A) any provision of law, statute, rule or regulation, or of
the
certificate or articles of incorporation or other constitutive documents
(including any partnership, limited liability company or operating agreements)
or by laws of the Company or any such Guarantor, (B) any applicable order of
any
court or any rule, regulation or order of any Governmental Authority or (C)
any
provision of any indenture, certificate of designation for preferred stock,
agreement or other instrument to which the Company or any such Guarantor is
a
party or by which any of them or any of their property is or may be bound,
(ii)
be in conflict with, result in a breach of or constitute (alone or with notice
or lapse of time or both) a default under, give rise to a right of or result
in
any cancellation or acceleration of any right or obligation (including any
payment) or to a loss of a material benefit under any such indenture,
certificate of designation for preferred stock, agreement or other instrument,
where any such conflict, violation, breach or default referred to in clause
(i)
or (ii) of this Section
4.5(a),
would
reasonably be expected to have, individually or in the aggregate a Material
Adverse Effect, or (iii) result in the creation or imposition of any Lien upon
or with respect to any property or assets now owned or hereafter acquired by
the
Company or any such Guarantor, other than the Liens created by the Transaction
Documents and Permitted Liens.
(b) No
action, consent or approval of, registration or filing with or any other action
by any Governmental Authority or third party is or will be required in
connection with the Transactions or the exercise by a Purchaser or GSMP VCOC
of
its rights under the Financing Documents, except for (a) such actions, consents
and approvals the failure of which to be obtained or made would not reasonably
be expected to have a Material Adverse Effect and (b) filings or other actions
listed on Schedule 4.5.
4.6. Financial
Statements and Projections.
(a) The
unaudited pro forma consolidated balance sheet and related consolidated
statements of income and cash flows of the Company, together with its
consolidated Subsidiaries (including the notes thereto) (the “Pro Forma
Financial Statements”) and pro forma adjusted EBITDA (the “Pro Forma Adjusted
EBITDA”), for twelve months ended July 1, 2006, copies of which have heretofore
been furnished to a Purchaser (via inclusion in the Information Memorandum),
have been prepared giving effect (as if such events had occurred on such date)
to the Transactions. Each of the Pro Forma Financial Statements and the Pro
Forma Adjusted EBITDA has been prepared in good faith based on assumptions
believed by the Company to have been reasonable as of the date of delivery
thereof (it being understood that such assumptions are based on good faith
estimates of certain items and that the actual amount of such items on the
Closing Date is subject to change), and presents fairly in all material respects
on a pro forma basis the estimated financial position of the Company and its
consolidated Subsidiaries as at July 1, 2006, assuming that the Transactions
had
actually occurred at such date, and the results of operations of the Company
and
its consolidated subsidiaries for the twelve-month period ended July 1, 2006,
assuming that the Transactions had actually occurred on the first day of such
twelve-month period.
-16-
(b) The
audited combined balance sheets of the Company as at the end of the 2003, 2004
and 2005 fiscal years (which fiscal years ended, in each case, on the Saturday
nearest the end of such calendar year), and the related audited combined
statements of income, stockholders’ equity, and cash flows for such fiscal
years, reported on by and accompanied by a report from Ernst & Young, copies
of which have heretofore been furnished to the Purchasers, present fairly in
all
material respects the combined financial position of the Company as at such
date
and the combined results of operations, stockholders’ equity, and cash flows of
the Company for the years then ended.
(c) All
written information (other than the Projections, estimates and information
of a
general economic nature or general industry nature) (the “Information”)
concerning the Company or any of its Subsidiaries, the Transactions and any
other transactions contemplated hereby included in the Information Memorandum
or
otherwise prepared by or on behalf of the foregoing or their representatives
and
made available to a Purchaser in connection with the Transactions or the other
transactions contemplated hereby, when taken as a whole, was true and correct
in
all material respects, as of the date such Information was furnished to a
Purchaser and as of the Closing Date and did not, taken as a whole, contain
any
untrue statement of a material fact as of any such date or omit to state a
material fact necessary in order to make the statements contained therein,
taken
as a whole, not materially misleading in light of the circumstances under which
such statements were made.
(d) The
Projections and estimates and information of a general economic nature prepared
by or on behalf of the Company or any of its representatives and that have
been
made available to a Purchaser in connection with the Transactions or the other
transactions contemplated hereby (i) have been prepared in good faith based
upon
assumptions believed by the Company to be reasonable as of the date thereof
(it
being understood that actual results may vary materially from the Projections),
as of the date such Projections and estimates were furnished to a Purchaser
and
as of the Closing Date, and (ii) as of the Closing Date, have not been modified
in any material respect by the Company.
4.7. No
Material Adverse Effect.
Since
December 31, 2005, there has been no event, development or circumstance that
has
or would reasonably be expected to have a Material Adverse Effect.
4.8. No
Actions or Proceedings.
There
are
no actions, suits or proceedings at law or in equity or, to the knowledge of
the
Company, investigations by or on behalf of any Governmental Authority or in
arbitration now pending, or, to the knowledge of the Company, threatened in
writing against or affecting the Company or any of its Subsidiaries or any
business, property or rights of any such person which would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
4.9. Title
to Properties.
(a)
Each
the Company and any of its Subsidiaries has valid fee simple title to, or valid
leasehold interests in, or easements or other limited property interests in,
all
its Real Properties and has valid title to its personal property and assets,
in
each case, except for Permitted Liens and except for defects in title that
do
not materially interfere with its ability to conduct its business as currently
conducted or to utilize such properties and assets for their intended purposes
and except where the failure to have such title would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect. All such
properties and assets are free and clear of Liens, other than Permitted
Liens.
-17-
(b) Each
of
the Company and any of its Subsidiaries has complied with all obligations under
all leases to which it is a party, except where the failure to comply would
not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, and all such leases are in full force and effect, except leases
in respect of which the failure to be in full force and effect would not
reasonably be expected to have a Material Adverse Effect. Except as set forth
on
Schedule
4.9,
the
Company and any of its Subsidiaries enjoys peaceful and undisturbed possession
under all such leases, other than leases in respect of which the failure to
enjoy peaceful and undisturbed possession would not reasonably be expected
to
have, individually or in the aggregate, a Material Adverse Effect.
4.10. Intellectual
Property Rights.
Except
as
would not reasonably be expected to have a Material Adverse Effect and as set
forth in Schedule 4.10, (a) the Company and each of its Subsidiaries owns,
or
possesses the right to use, all of the patents, patent rights, trademarks,
service marks, trade names, copyrights, mask works, domain names, and any and
all applications or registrations for any of the foregoing (collectively,
“Intellectual Property Rights”) that are reasonably necessary for the operation
of their respective businesses, without conflict with the rights of any other
person, (b) to the best knowledge of the Company, neither the Company nor its
Subsidiaries nor any intellectual property right, proprietary right, product,
process, method, substance, part, or other material now employed, sold or
offered by or contemplated to be employed, sold or offered by the Company or
any
of its Subsidiaries, is interfering with, infringing upon, misappropriating
or
otherwise violating any intellectual property rights of any person, and (c)
no
claim or litigation regarding any of the foregoing is pending or, to the best
knowledge of the Company, threatened.
4.11. Taxes.
Except
as
set forth on Schedule 4.11:
(a) Except
as
would not, individually or in the aggregate, reasonably be expected to have
a
Material Adverse Effect, (i) each of the Company and any of its Subsidiaries
has
filed or caused to be filed all federal, state, local and non U.S. Tax returns
required to have been filed by it and (ii) taken as a whole, and each such
Tax
return is true and correct;
(b) Each
of
the Company and any of its Subsidiaries has timely paid or caused to be timely
paid all Taxes shown to be due and payable by it on the returns referred to
in
clause (a) and all other Taxes or assessments (or made adequate provision (in
accordance with GAAP) for the payment of all Taxes due) with respect to all
periods or portions thereof ending on or before the Closing Date (except Taxes
or assessments that are being contested in good faith by appropriate proceedings
and for which the Company or any of the Subsidiaries (as the case may be) has
set aside on its books adequate reserves in accordance with GAAP), which Taxes,
if not paid or adequately provided for, would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and
(c) Other
than as would not be, individually or in the aggregate, reasonably expected
to
have a Material Adverse Effect: as of the Closing Date, with respect to each
the
Company and its Subsidiaries, (i) there are no claims being asserted in writing
with respect to any Taxes, (ii) no presently effective waivers or extensions
of
statutes of limitation with respect to Taxes have been given or requested and
(iii) no Tax returns are being examined by, and no written notification of
intention to examine has been received from, the Internal Revenue Service or
any
other Taxing authority.
4.12. Employee
Benefit Plans.
-18-
(a) Except
as
would not reasonably be expected, individually or in the aggregate, to have
a
Material Adverse Effect: (i) each Plan is in compliance in all material respects
with the applicable provisions of ERISA and the Code; (ii) no Reportable Event
has occurred during the past five years as to which the Company any of its
Subsidiaries or any ERISA Affiliate was required to file a report with the
PBGC,
other than reports that have been filed; (iii) no Plan has any Unfunded Pension
Liability in excess of $20.0 million; (iv) no ERISA Event has occurred or is
reasonably expected to occur; (v) none of the Company and any of its
Subsidiaries has engaged in a “prohibited transaction” (as defined in Section
406 of ERISA and Code Section 4975) in connection with any employee pension
benefit plan (as defined in Section 3(2) of ERISA) that would subject the
Company or any of its Subsidiaries to tax; and (vi) none of the Company, any
of
its Subsidiaries and the ERISA Affiliates (A) has received any written
notification that any Multiemployer Plan is in reorganization or has been
terminated within the meaning of Title IV of ERISA, or has knowledge that any
Multiemployer Plan is reasonably expected to be in reorganization or to be
terminated or (B) has incurred or is reasonably expected to incur any withdrawal
liability to any Multiemployer Plan.
(b) Each
of
the Company and any of its Subsidiaries is in compliance (i) with all applicable
provisions of law and all applicable regulations and published interpretations
thereunder with respect to any employee pension benefit plan or other employee
benefit plan governed by the laws of a jurisdiction other than the United States
and (ii) with the terms of any such plan, except, in each case, for such
noncompliance that would not reasonably be expected to have a Material Adverse
Effect.
(c) Except
as
would not reasonably be expected to result in a Material Adverse Effect, there
are no pending, or to the knowledge of the Company, threatened claims (other
than claims for benefits in the normal course), sanctions, actions or lawsuits,
asserted or instituted against any Plan or any person as fiduciary or sponsor
of
any Plan that could result in liability to the Company, any of its Subsidiaries
or the ERISA Affiliates.
(d) Within
the last five years, no Plan of the Company, any of its Subsidiaries or the
ERISA Affiliates has been terminated, whether or not in a “standard termination”
as that term is used in Section 404(b)(1) of ERISA, that would reasonably be
expected to result in liability to the Company, any of its Subsidiaries or
the
ERISA Affiliates in excess of $20.0 million, nor has any Plan of the Company,
any of its Subsidiaries or the ERISA Affiliates (determined at any time within
the past five years) with Unfunded Pension Liabilities been transferred outside
of the “controlled group” (with the meaning of Section 4001(a)(14) of ERISA of
the Company, any of its Subsidiaries or the ERISA Affiliates that has or would
reasonably be expected to result in a Material Adverse Effect.
4.13. Private
Offering; No Integration or General Solicitation; Rule 144A
Eligibility.
(a) Subject
to compliance by the Purchasers with the representations and warranties set
forth in Section
5
and with
the procedures set forth in Section
8,
it is
not necessary in connection with the offer, issue, sale and delivery of the
Notes to the Purchasers on the Closing Date, in the manner contemplated by
this
Agreement and the other Financing Documents to register the Notes or the
Purchaser Stock under the Securities Act or to qualify the Indenture under
the
TIA.
(b) None
of
the Company or its Subsidiaries and any person acting on any of their behalf
(other than the Purchasers and their Affiliates, as to whom the Company makes
no
any representation or warranty) has, directly or indirectly, offered, issued,
sold or solicited any offer to buy any security of a type which would be
integrated with the sale of the Notes in any manner that would require the
Notes
to be registered under the Securities Act. None of the Company or its
Subsidiaries and any person acting on any of their behalf (other than the
Purchasers and their Affiliates, as to whom the Company makes no any
-19-
(c) Subject
to compliance by the Purchasers with the representations and warranties set
forth in Section
5
and with
the procedures set forth in Section
8,
the
Notes are eligible for resale pursuant to Rule 144A and will not, at the
Closing Date, be of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act or quoted on a U.S.
automated inter-dealer quotation system.
4.14. Status
under Certain Statutes.
The
Company or any of its Subsidiaries is not an “investment company” as defined in,
or subject to regulation under, the Investment Company Act of 1940, as
amended.
4.15. Insurance.
Schedule
4.15
sets
forth a true, complete and correct description of all material insurance
maintained by or on behalf of the Company or any of its Subsidiaries as of
the
Closing Date. As of such date, such insurance is in full force and
effect.
4.16. Use
of
Proceeds; Margin Regulations.
(a) The
Company will use the proceeds of the Notes (a) to fund a portion of the merger
consideration for the Acquisition, (b) to refinance certain existing
indebtedness of the Company in connection with the Acquisition, and (c) to
pay
related transaction fees and expenses.
(b) The
Company or any of its Subsidiaries is not engaged principally, or as one of
its
important activities, in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.
(c) No
part
of the proceeds of any Note will be used, whether directly or indirectly, and
whether immediately, incidentally or ultimately, (i) to purchase or carry Margin
Stock or to extend credit to others for the purpose of purchasing or carrying
Margin Stock or to refund indebtedness originally incurred for such purpose,
or
(ii) for any purpose that entails a violation of, or that is inconsistent with,
the provisions of the Regulations of the Board, including Regulation U or
Regulation X.
4.17. Compliance
with Laws; Permits; Environmental Matters.
(a) None
of
the Company, any of its Subsidiaries and their respective properties or assets
is in violation of (nor will the continued operation of their material
properties and assets as currently conducted violate) any law, rule or
regulation (including any zoning, building, ordinance, code or approval or
any
building permit, but excluding any Environmental Laws, which are subject to
Section
4.17(b)),
or is
in default with respect to any judgment, writ, injunction or decree of any
Governmental Authority, where such violation or default would reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect.
(b) Except
as
set forth in Schedule
4.17
and
except as to matters that would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect: (i) no written notice, request
for information, order, complaint or penalty has been received by the Company
or
any of its Subsidiaries, and there are no judicial, administrative or other
actions, suits or proceedings pending or, to the Company’s knowledge, threatened
which allege a violation of or liability under any Environmental
-20-
4.18. Solvency.
(a) Immediately
after giving effect to the Transactions on the Closing Date, (i) the fair value
of the assets of the Company (individually) and the Company and its Subsidiaries
on a consolidated basis, at a fair valuation, will exceed the debts and
liabilities, direct, subordinated, unmatured, unliquidated, contingent or
otherwise, of the Company (individually) and the Company and its Subsidiaries
on
a consolidated basis, respectively; (ii) the present fair saleable value of
the
property of the Company (individually) and the Company and its Subsidiaries
on a
consolidated basis will be greater than the amount that will be required to
pay
the probable liability of the Company (individually) and the Company and its
Subsidiaries on a consolidated basis, respectively, on their debts and other
liabilities, direct, subordinated, unmatured, unliquidated, contingent or
otherwise, as such debts and other liabilities become absolute and matured;
(iii) the Company (individually) and the Company and its Subsidiaries on a
consolidated basis will be able to pay their debts and liabilities, direct,
subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured; and (iv) the Company (individually) and the Company and
its Subsidiaries on a consolidated basis will not have unreasonably small
capital with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted following the
Closing Date.
(b) On
the
Closing Date, the Company does not intend to, and the Company does not believe
that it or any of its Subsidiaries will, incur debts beyond its ability to
pay
such debts as they mature, taking into account the timing and amounts of cash
to
be received by it or any such Subsidiary and the timing and amounts of cash
to
be payable on or in respect of its Indebtedness or the Indebtedness of any
such
Subsidiary.
4.19. Labor
and Employment Matters.
Except
as, individually or in the aggregate, would not reasonably be expected to have
a
Material Adverse Effect: (a) there are no strikes or other labor disputes
pending or threatened against the Company or any of the Subsidiaries; (b) the
hours worked and payments made to employees of the Company or any of its
Subsidiaries have not been in violation of the Fair Labor Standards Act or
any
other applicable law dealing with such matters; and (c) all payments due from
the Company or any of its Subsidiaries or for which any claim may be made
against the Company or any of its Subsidiaries, on account of wages and employee
health and welfare insurance and other benefits have been paid or accrued as
a
liability on the books of the Company or any of its Subsidiaries to the extent
required by GAAP. Except as, individually or in the aggregate, would not
reasonably be expected to have a Material
-21-
4.20. Brokerage
Fees.
Except
as
set forth on Schedule
4.20,
none of
the Company and their Subsidiaries has paid, or is obligated to pay, to any
Person any brokerage or finder’s fees in connection with the transactions
contemplated hereby or by any other Transaction Document.
4.21. Final
Memorandum.
The
Final
Memorandum at the Closing Date does not contain 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 the Company makes no
representation or warranty as to the information contained in or omitted from
the Final Memorandum in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Initial Purchaser
specifically for inclusion therein.
SECTION
5.
REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE SUBSEQUENT PURCHASERS
Each
Subsequent Purchaser, severally and not jointly, represents and warrants to
the
Company as of the date hereof as follows:
5.1. Purchase
for Investment.
(a) Such
Subsequent Purchaser is acquiring the Notes for its own account, for investment
purposes only and not with a view to any distribution thereof within the meaning
of the Securities Act.
(b) Such
Subsequent Purchaser has received such information as it deems necessary in
order to make an investment decision with respect to the Notes and has had
the
opportunity to ask questions of and receive answers from the Company and its
Subsidiaries and their respective officers and directors and to obtain such
additional information which the Company or its Subsidiaries possess or could
acquire without unreasonable effort or expense as such Purchaser deems necessary
to verify the accuracy of the information furnished to such Purchaser and has
asked such questions, received such answers and obtained such information as
it
deems necessary to verify the accuracy of the information furnished to such
Purchaser.
(c) Such
Subsequent Purchaser is an Accredited Investor.
(d) Such
Subsequent Purchaser understands that the Notes have not been and, except as
provided in the Exchange and Registration Rights Agreement, will not be
registered under the Securities Act or any state or other securities law, that
the Notes are being issued by the Company in transactions exempt from the
registration requirements of the Securities Act and that the Notes may be resold
only if registered pursuant to the provisions of the Securities Act or if an
exemption from registration under the Securities Act is available.
-22-
(e) Such
Purchaser further understands that the exemption from registration afforded
by
Rule 144 depends on the satisfaction of various conditions, and that, if
applicable, Rule 144 may afford the basis for sales only in limited
amounts.
(f) Except
as
otherwise disclosed, such Subsequent Purchaser did not employ any broker or
finder in connection with the transactions contemplated in this Agreement and
no
fees or commissions are payable to the Subsequent Purchasers except as otherwise
provided for in this Agreement.
(g) The
source of funds to be used by such Subsequent Purchaser to pay the portion
of
the Purchase Price paid by such Subsequent Purchaser does not include assets
of
any employee benefit plan (other than a plan exempt from the coverage of ERISA)
or plan or any other entity the assets of which consist of “plan assets” of
employee benefit plans or plans as defined in Department of Labor regulation
Section 2510.3-101. As used in this Section 5.1(g),
the
term “employee benefit plan” shall have the meaning assigned to such term in
Section 3 of ERISA, and the term “plan” shall have the meaning assigned
thereto in Section 4975(e)(1) of the Code.
5.2. Due
Organization; Corporate Power; Authorization; Enforceability.
It
is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization. The execution, delivery and performance of this
Agreement and the Exchange and Registration Rights Agreement are within its
corporate, limited liability company or limited partnership, as the case may
be,
power and authority and have been duly authorized by all necessary action of
such Subsequent Purchaser, do not conflict with or result in a breach of or
violate any of such Subsequent Purchaser’s governing documents or any contract
to which such Subsequent Purchaser is a party or by which its assets are bound
or any Applicable Laws and constitute legal, valid and binding agreements of
such Subsequent Purchaser enforceable against it in accordance with their
respective terms, subject to the Enforceability Exceptions.
5.3. No
Actions or Proceedings.
There
are
no legal or governmental actions, suits or proceedings pending or, to any
Subsequent Purchaser’s knowledge, threatened against or affecting such
Subsequent Purchaser, or any of its properties or assets which, if adversely
determined, in the aggregate, would reasonably be expected to materially and
adversely affect the ability of such Subsequent Purchaser to consummate any
of
the transactions contemplated by this Agreement or the Exchange and Registration
Rights Agreement.
5.4. Final
Memorandum
The
Subsequent Purchasers agree and acknowledge that (a) they received the Final
Memorandum in connection with their purchase of the Notes only by reason of
their purchase of the Notes from the Initial Purchaser and (b) they did not
rely
on the Final Memorandum in making their investment decision, and that the
Company will have no liability under this Agreement or otherwise to the
Subsequent Purchasers on account of any statements therein; provided that the
foregoing shall not affect the rights and obligations of the parties under
this
Agreement or otherwise as if the Final Memorandum had not been delivered to
the
Initial Purchaser.
5.5. Investment
Decision
The
Subsequent Purchasers agree and acknowledge that (i) they did not rely on any
investigation that the Initial Purchaser or any person acting on its behalf
may
have conducted with respect to the Notes
-23-
SECTION
5A.
OFFERING
BY INITIAL PURCHASER
5A.1. Offering
by Initial Purchaser.
(a) The
Initial Purchaser acknowledges that the Notes have not been and will not be
registered under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons, except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
(b) The
Initial Purchaser represents and warrants to and agrees with the Company
that:
(i) it
has
not offered or sold, and will not offer or sell, any Notes within the United
States or to, or for the account or benefit of, U.S. persons (x) as part of
their distribution at any time or (y) otherwise until 40 days after the later
of
the commencement of the offering and the date of closing of the offering except
to those persons whom it reasonably believes to be “qualified institutional
buyers” (as defined in Rule 144A under the Securities Act) or if any such person
is buying for one or more institutional accounts for which such person is acting
as a fiduciary or agent, only when such person has represented to it that each
such account is a qualified institutional buyer to whom notice has been given
that such sale or delivery is being made in reliance on Rule 144A and, in each
case, in transactions in accordance with Rule 144A;
(ii) neither
it nor any person acting on its behalf has made or will make offers or sales
of
the Notes in the United States by means of any form of general solicitation
or
general advertising (within the meaning of Regulation D) in the United States
or
in any manner involving a public offering within the meaning of Section 4(2)
of
the Act;
(iii) in
connection with each sale pursuant to Section
5A(b)(i),
it has
taken or will take reasonable steps to ensure that the purchaser of such Notes
is aware that such sale is being made in reliance on Rule 144A;
(iv) it
is an
institutional “accredited investor” (as defined in 501(a) of Regulation
D).
(c) The
Initial Purchaser represents and warrants that, (i) on and prior to the Closing
Date, it has made offers and sales of the Notes, and has delivered the Final
Memorandum, only to the Subsequent Purchasers and (ii) it will not deliver
the
Final Memorandum in connection with any subsequent offers or sales of the
Notes.
SECTION
6.
COVENANTS
TO PROVIDE INFORMATION
6.1. Reports
to Subsequent Purchasers and GSMP VCOC.
The
Company covenants and agrees (subject to the provisions of Section
10.14)
with
each Subsequent Purchaser, any Affiliate thereof and GSMP VCOC, that so long
as
the Subsequent Purchasers and their Affiliates constitute the Required Holders,
the
Company and its Subsidiaries shall
deliver (i) to
-24-
SECTION
7.
OTHER
AFFIRMATIVE COVENANTS
The
Company further covenants and agrees (subject to the provisions of Section
10.14)
with
the Subsequent Purchasers, until the principal amount of (and premium, if any,
on) all the Notes, and all interest, and other obligations hereunder in respect
thereof (other than indemnification obligations that have not become due and
payable), shall have been paid in full, as follows:
7.1. Board
Representation.
(a) So
long
as the Subsequent Purchasers and their Affiliates constitute the Required
Holders, GSMP VCOC shall have the right to designate an employee of The ▇▇▇▇▇▇▇
▇▇▇▇▇ Group, Inc. or its Affiliates as a non-voting observer (a “Non-Voting
Observer”)
to the
Board of Directors of each of the Company and HoldCo (each, an “Entity”).
Neither Entity shall establish or employ committees of the Board of Directors
for the purpose of circumventing the rights of the GSMP VCOC to have a
Non-Voting Observer on the Board of Directors. Each Non-Voting Observer
shall be entitled to reimbursement from each Entity for his or her reasonable
travel or other out-of-pocket expenses related to the performance of their
respective duties.
(b) So
long
as GSMP VCOC shall be entitled to exercise its rights pursuant to this
Section 7.1,
each
Entity shall hold regular meetings of its Board of Directors periodically at
such times as its Board of Directors may in good faith determine. Within a
reasonable time after each such meeting, either telephonically or in person, of
a Board of Directors of an Entity, such Entity shall cause minutes of such
meeting to be delivered to the Non-Voting Observer.
(c) The
Non-Voting Observer shall be entitled to be present at all meetings of the
Board
of Directors of each Entity and shall be notified of any such meeting by
reasonable prior notice, including such meeting’s time and place, in the same
manner as directors of such Entity and shall receive monthly financial
statements of the type described in Section
6.1(a)
above
and copies of all written materials distributed to directors of such Entity
for
purposes of such Board of Directors meetings at the same time as directors
of
such Entity and shall be entitled to participate in discussions and consult
with, and make proposals and furnish advice to, such Board of Directors without
voting; provided, however,
that
such Non-Voting Observer shall not have voting rights with respect to actions
taken or elected not to be taken by the Board of Directors and shall be subject
to all rules governing such Board of Directors and committee, it being
understood that no Board of Directors of any Entity shall be under any
obligation to take any action with respect to any proposals made or advice
furnished by the Non-Voting Observer, and nothing herein shall prevent the
Board
of Directors of any Entity from acting by written instrument to the extent
permitted by Applicable Law. The Non-Voting Observer shall have a duty of
confidentiality to such Entity, including a duty not to disclose and/or use
confidential information, comparable to such duties of a director of such
Entity.
-25-
(d) If
an
issue is to be discussed or otherwise arises at a meeting of the Board of
Directors which, in the reasonable judgment of the Board of Directors, cannot
be
discussed in the presence of the Non-Voting Observer in order to avoid a
conflict of interest on the part of the Non-Voting Observer or to preserve
an
attorney-client or accountant-client or any other available privilege, then
such
issue may be discussed without the Non-Voting Observer being present and may
be
deleted from any materials being distributed in connection with any meeting
at
which such issues are to be discussed, so long as the Non-Voting Observer is
given notice of the occurrence of such meeting and the deletion of such
materials.
7.2. Access.
(a) The
Company will, and will cause its Subsidiaries to, upon reasonable notice at
reasonable times from time to time and without causing undue disruption, (i)
provide GSMP VCOC and its authorized representatives reasonable opportunities
to
routinely consult with and advise the management of the Company and its
Subsidiaries, on all matters relating to the operation of the Company and each
Subsidiary (ii) provide GSMP VCOC and its authorized representatives, subject
to
compliance with Applicable Laws, confidentiality obligations to third parties
and attorney-client privilege, reasonable access during normal business hours
to
all books and records, facilities and properties of the Company and its
Subsidiaries (including copies of such documents as the Company reasonably
approves), and (ii) permit GSMP VCOC and its authorized representatives to
make
such inspections thereof as may be reasonably requested and discuss the affairs,
finances and accounts with the officers thereof.
7.3. Rule
144A.
For
so
long as any of the Notes remain outstanding and constitute “restricted
securities” within the meaning of the Securities Act, the Company will make
available at its expense, upon request, to any holder of such Notes, and any
prospective purchasers thereof, the information specified in Rule 144A(d)(4)
under the Securities Act, unless the Company is then subject to Section 13
or
15(d) of the Exchange Act.
7.4. Corporate
Existence; Businesses and Properties.
(a) The
Company will do or cause to be done all things necessary to preserve, renew
and
keep in full force and effect its legal existence, except, in the case of a
Subsidiary of the Company, where the failure to do so would not reasonably
be
expected to have a Material Adverse Effect.
(b) Except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect, do or cause to be done all things necessary to (i) lawfully
obtain, preserve, renew, extend and keep in full force and effect the permits,
franchises, authorizations, patents, trademarks, service marks, trade names,
copyrights, licenses and rights with respect thereto necessary to the normal
conduct of its business, (ii) comply in all material respects with all
applicable laws, rules, regulations (including any zoning, building ordinance,
code or approval or any building permits or any restrictions of record) and
judgments, writs, injunctions, decrees and orders of any Governmental Authority,
whether now in effect or hereafter enacted, and (iii) at all times maintain
and
preserve all property necessary to the normal conduct of its business and keep
such property in good repair, working order and condition and from time to
time
make, or cause to be made, all needful and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith, if any, may be properly conducted at all
times (in each case except as expressly permitted by this
Agreement).
7.5. Taxes
and Other Claims.
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The
Company will pay and discharge promptly when due all material Taxes imposed
upon
it or upon its income or profits or in respect of its property, before the
same
shall become delinquent or in default, as well as all lawful claims which,
if
unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that such payment and discharge shall not be required with
respect to any such Tax or claim so long as the validity or amount thereof
shall
be contested in good faith by appropriate proceedings, and the Company or its
affected Subsidiary, as applicable, shall have set aside on its books reserves
in accordance with GAAP with respect thereto.
7.6. Books
and Records.
The
Company will maintain all financial records in accordance with
GAAP.
7.7. Insurance.
The
Company will maintain, with financially sound and reputable insurance companies,
insurance in such amounts and against such risks as are customarily maintained
by similarly situated companies engaged in the same or similar businesses
operating in the same or similar locations and cause the Purchasers to be listed
as a co loss payee on property and casualty policies and as an additional
insured on liability policies.
SECTION
8.
PROVISIONS
RELATING TO RESALES OF NOTES
8.1. Private
Offerings.
Following
the consummation of the Resale, and prior to the effectiveness of any
registration statement of the Notes pursuant to the Exchange and Registration
Rights Agreement, the Subsequent Purchasers confirm and agree that they may
resell, pledge or otherwise transfer the Notes only pursuant to Private
Offerings or pursuant to the provisions of Rule 144(k) adopted under the
Securities Act, and only in accordance with the following:
(a) Offers
and Sales only to Institutional Accredited Investors or Qualified Institutional
Buyers.
Offers
and sales of the Notes will be made only by the Subsequent Purchasers or
Affiliates thereof who are qualified to do so in the jurisdictions in which
such
offers or sales are made. Each such offer or sale shall be made in accordance
with the Indenture only (i) to persons who are Qualified Institutional
Buyers, (ii) to institutional Accredited Investors that the offeror or seller
reasonably believes to be and, with respect to sales and deliveries, are
Accredited Investors who are not Qualified Institutional Buyers (“Institutional
Accredited Investors”)
who
make the representations and warranties set forth in Section
5
hereof
or (iii) to non-U.S. persons outside the United States (as such terms are
defined in Regulation S) to whom offers and sales of the Notes may be made
in
reliance upon Regulation S and in accordance with applicable foreign
securities laws and subject to delivery of a legal opinion reasonably acceptable
to the Company to the effect that such sale can be made without registration
under the Securities Act.
(b) No
General Solicitation.
The
Notes will be offered by approaching prospective subsequent Purchasers on an
individual basis. No general solicitation or general advertising (within the
meaning of Rule 502) and no directed selling efforts (as defined in
Regulation S) will be made in connection with the offering of the
Notes.
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(c) Purchases
by Fiduciaries.
In the
case of a Subsequent Purchaser acting as a fiduciary for one or more third
parties, in connection with an offer and sale to such purchaser pursuant to
this
Section 8.1,
such
fiduciary and such third parties shall meet the requirements of Section
8.1(a)
hereof.
(d) Restrictive
Legend.
Upon
original issuance by the Company, and until such time as specified in the
Indenture, the Notes shall bear such legends as are required under the
Indenture.
8.2. Procedures
and Management Cooperation in Private Offerings.
(a) The
Company and the Subsequent Purchasers agree that, at the request of the Required
Holders, the Company will cooperate with the Required Holders and use
commercially reasonable efforts to cause the Notes, if then eligible for the
following treatment, to (i) be registered in the name of Cede & Co., as
nominee of The Depository Trust Company (“DTC”)
and
settle through the book-entry system of the DTC and (ii) be eligible for the
National Association of Securities Dealers, Inc. PORTAL market.
(b) If
requested by the Required Holders, the Company and its Subsidiaries will assist
the Subsequent Purchasers in completing any sale process undertaken in
connection with the private resale of the Notes or any portion thereof
(including any such re-sales of the Notes pursuant to any Private Offering),
to
any number of prospective Holders, subject to Section
10.14
hereof,
by (i) providing direct contact between senior management and advisors and
prospective purchasers; (ii) responding to inquiries of, and providing answers
to, prospective purchasers; (iii) providing assistance in completion of the
prospective purchasers’ due diligence review; and (iv) hosting one or more
meetings of prospective purchasers; provided
that
such assistance shall not be required more than two times per year or more
than
five times during the term of the Notes (and it being understood that such
assistance will not include a preparation of an offering memorandum or a similar
document and that the Subsequent Purchasers may not use the Final Memorandum
and
that such assistance will otherwise be limited to assistance set forth under
items (i) through (iv) above).
8.3. No
Integration.
None
of
Holdings, the Company and their Affiliates shall make any offer or sale of
securities of any class that is or will be integrated with the sale of the
Notes
by the Company to the Purchasers in a manner that would require registration
of
the Notes under the Securities Act.
SECTION
9.
EXPENSES,
INDEMNIFICATION AND CONTRIBUTION
9.1. Expenses
of Subsequent Purchasers.
The
Company will reimburse the Subsequent Purchasers for all reasonable and
documented expenses, including consultant, advisor and counsel fees and
disbursements, incurred by the Subsequent Purchasers in connection with (a)
any
amendment, waiver or consent under or in respect of this Agreement or the other
Financing Documents (whether or not such amendment, waiver or consent becomes
effective) and (b) enforcing, defending or declaring (or determining whether
or
how to enforce, defend or declare) any rights or remedies under this Agreement
or the other Financing Documents or in responding to any subpoena or other
legal
process or informal investigative demand issued in connection with this
Agreement, or the other Financing Documents, including in connection with any
insolvency or bankruptcy of Holdings, the Company or any of their Subsidiaries
or in connection with any work-out or restructuring of the transactions
contemplated hereby, by the Financing Documents or by the Notes. The Company
will pay, and will save the Subsequent Purchasers harmless from, all claims
in
respect of any
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9.2. Indemnification
of the Subsequent Purchasers.
The
Company agrees to indemnify each Subsequent Purchaser, GSMP VCOC, each of their
respective Affiliates and each of their respective directors, trustees,
officers, employees, agents, trustees and advisors (each such person being
called an “Indemnitee”) against, and to hold each Indemnitee harmless from, any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees, charges and disbursements (except the allocated costs
of in-house counsel), incurred by or asserted against any Indemnitee arising
out
of, in any way connected with, or as a result of (i) the execution or delivery
of the Transaction Documents or any agreement or instrument contemplated hereby
or thereby, the performance by the parties hereto and thereto of their
respective obligations thereunder or the consummation of the Transactions and
the other transactions contemplated hereby, (ii) the use of the proceeds of
the
Notes or (iii) any claim, litigation, investigation or proceeding relating
to
any of the foregoing, whether or not any Indemnitee is a party thereto, and
regardless of whether any of the foregoing is raised or initiated by a third
party or the Company or any of its Subsidiaries; provided, that such indemnity
shall not, as to any Indemnitee, be available to the extent that such losses,
claims, damages, liabilities or related expenses are determined by a final,
non
appealable judgment of a court of competent jurisdiction to have resulted from
the gross negligence or willful misconduct of such Indemnitee (for purposes
of
this proviso only, each Subsequent Purchaser and GSMP VCOC shall be treated
as
several and separate Indemnitees, but each of them together with its respective
Related Parties, shall be treated as a single Indemnitee). Subject to and
without limiting the generality of the foregoing sentence, the Company agrees
to
indemnify each Indemnitee against, and hold each Indemnitee harmless from,
any
and all losses, claims, damages, liabilities and related expenses, including
reasonable counsel or consultant fees, charges and disbursements (limited to
not
more than one counsel, plus, if necessary, one local counsel per jurisdiction)
(except the allocated costs of in-house counsel), incurred by or asserted
against any Indemnitee arising out of, in any way connected with, or as a result
of (A) any claim related in any way to Environmental Laws and the Company or
any
of its Subsidiaries, or (B) any actual or alleged presence, Release or
threatened Release of Hazardous Materials at, under, on or from any Property;
provided, that such indemnity shall not, as to any Indemnitee, be available
to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee or any of its Related Parties. None of the Indemnitees (or
any
of their respective affiliates) shall be responsible or liable to the Company
or
any of its respective Subsidiaries, Affiliates or stockholders or any other
person or entity for any special, indirect, consequential or punitive damages,
which may be alleged as a result of the Notes or the Transactions. The
provisions of this Section
9.2
shall
remain operative and in full force and effect regardless of the expiration
of
the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of all amounts owing to a Purchaser or GSMP VCOC pursuant
to the terms of a Transaction Document, the invalidity or unenforceability
of
any term or provision of a Transaction Document, or any investigation made
by or
on behalf of a Purchaser. All amounts due under this Section
9.2
shall be
payable on written demand therefor accompanied by reasonable documentation
with
respect to any reimbursement, indemnification or other amount
requested.
9.3. Waiver
of Punitive Damages.
To
the
extent permitted by applicable law, none of the parties hereto shall assert,
and
each hereby waives, any claim against the other parties (including their
respective Affiliates, partners, stockholders, members, directors, officers,
agents, employees and controlling persons), on any theory of liability for
special, indirect, consequential or punitive damages (as opposed to direct
or
actual damages) arising out
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9.4. Survival.
The
obligations of the Company under this Section 9
will
survive the payment or transfer of any Note, the enforcement, amendment or
waiver of any provision of this Agreement and the termination of this
Agreement.
9.5. Tax
Treatment of Indemnification Payments.
Any
indemnification payment pursuant to this Agreement shall be treated for all
Tax
purposes as an adjustment to the Purchase Price.
9.6. Indemnification
of the Initial Purchaser.
The
Company and the Initial Purchaser agree to the indemnification and contribution
provisions set for in Exhibit
C
hereto.
SECTION
10.
MISCELLANEOUS
10.1. Notices.
Except
as
otherwise expressly provided herein, all notices and other communications shall
have been duly given and shall be effective (a) when delivered (except that
if the day of delivery is not a Business Day, then the next Business Day),
(b) when transmitted via telecopy (or other facsimile device) on a Business
Day during normal business hours to the number set out below if the sender
on
the same day sends a confirming copy of such notice by a recognized overnight
delivery service (charges prepaid), (c) the day following the day (except
that if such day is not a Business Day, then the next Business Day) on which
the
same has been delivered prepaid to a reputable national overnight air courier
service or (d) the third Business Day following the day on which the same
is sent by certified or registered mail, postage prepaid, in each case to the
respective parties at the address set forth below, or at such other address
as
such party may specify by written notice to the other party hereto:
(a) if
to a
Purchaser or its nominee, or to the GSMP VCOC or its nominee, to such Purchaser,
GSMP VCOC, or nominee at the address specified in Schedule 2.2, with a copy
(which copy shall not constitute notice) as specified in Schedule 2.2, or at
such other address as the Purchaser or its nominee, or the GSMP VCOC or its
nominee, shall have specified to the Company in writing;
(b) if
to any
Holder, to such Holder at the address as such Holder shall have specified to
the
Company in writing;
(c) if
to the
Company, to: ▇▇▇▇▇ Plastics Holding Corporation (f/k/a BPC
Holding Corporation), ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, fax
▇▇▇-▇▇▇-▇▇▇▇,
Attention: General
Counsel,
with a
copy (which copy shall not constitute notice) to: O’Melveny
& ▇▇▇▇▇ LLP, Times Square Tower, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, fax ▇▇▇-▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
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10.2. Benefit
of Agreement and Assignments.
(a) Except
as
otherwise expressly provided herein, all covenants, agreements and other
provisions contained in this Agreement by or on behalf of any of the parties
hereto shall bind, inure to the benefit of and be enforceable by their
respective successors and permitted assigns; provided,
however,
that
none of the Company may assign or transfer any of its rights or obligations
without the prior written consent of the other parties hereto.
(b) Nothing
in this Agreement or in any other Financing Document, express or implied, shall
give to any Person other than the parties hereto or thereto and their permitted
successors and assigns any benefit or any legal or equitable right, remedy
or
claim under this Agreement.
(c) Notwithstanding
anything to the contrary contained herein, the Purchasers may (i) subject to
the
consent of the Company, not to be unreasonably withheld, assign the rights
to
purchase all or any portion of the Notes allocated to such Purchaser pursuant
to
Schedule 2.2 to any Affiliate or direct or indirect limited partner of such
Purchaser or (ii) transfer its Notes (together with its rights hereunder) to
any
Person in compliance with the provisions of this Agreement, subject, in each
case, to such Person becoming a party hereto and the ability of such Person
to
make the representations and warranties set forth in Section
5,
and
each such Person that is an Affiliate of a Purchaser shall be entitled to the
full benefit and be subject to the obligations of this Agreement as if such
Person were a Purchaser hereunder (it being understood that each such Person
that is not an Affiliate of a Purchaser shall only be entitled to the rights
of
a Holder and not to any additional rights that a Purchaser may have under this
Agreement).
10.3. No
Waiver; Remedies Cumulative.
No
failure or delay on the part of any party hereto in exercising any right, power
or privilege hereunder or under the Notes and no course of dealing between
T the
Company and any other party shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
the Notes preclude any other or further exercise thereof or the exercise of
any
other right, power or privilege hereunder or thereunder. The rights and remedies
provided herein and in the Notes are cumulative and not exclusive of any rights
or remedies that the parties would otherwise have. No notice to or demand on
the
Company in any case shall entitle the Company to any other or further notice
or
demand in similar or other circumstances or constitute a waiver of the rights
of
the other parties hereto to any other or further action in any circumstances
without notice or demand.
10.4. Amendments,
Waivers and Consents.
This
Agreement may be amended, and the observance of any term hereof may be waived
(either retroactively or prospectively), with the written consent of the Company
and the Required Holders; provided,
however,
that no
such amendment or waiver may, (a) without the prior written consent of GSMP
VCOC, amend or waive the provisions of which GSMP VCOC is expressly a
beneficiary, or (b) impose on any Purchaser any additional financial commitment
or obligation to buy additional Notes that it is not otherwise obligated to
buy
hereunder, without the prior written consent of such Purchaser.
No
amendment or waiver of this Agreement will extend to or affect any obligation,
covenant or agreement not expressly amended or waived or thereby impair any
right consequent thereon. As used herein, the term this “Agreement”
and
references thereto shall mean this Agreement as it may from time to time be
amended, supplemented or modified.
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10.5. Counterparts.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed and delivered shall be deemed an original, but all of which shall
constitute one and the same instrument. It shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties
hereto.
10.6. Reproduction.
This
Agreement, the other Transaction Documents and all documents relating hereto
and
thereto, including: (a) consents, waivers and modifications that may hereafter
be executed, (b) documents received by the Purchasers at the Closing (except
the
Notes themselves), and (c) financial statements, certificates and other
information previously or hereafter furnished in connection herewith, may be
reproduced by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process and any original document so reproduced
may be destroyed. The Company and each Purchaser agree and stipulate that,
to
the extent permitted by Applicable Law, any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not
such
reproduction was made in the regular course of business) and any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence. This Section
10.6
shall
not prohibit any party hereto or any holder of the Notes from contesting any
such reproduction to the same extent that it could contest the original or
from
introducing evidence to demonstrate the inaccuracy of any such
reproduction.
10.7. Headings.
The
headings of the sections and subsections hereof are provided for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Agreement.
10.8. Survival
of Representations, Warrants, Covenants and Indemnities.
All
representations, warranties, covenants and indemnities set forth herein shall
survive the execution and delivery of this Agreement, the issuance of the Notes,
and, except as otherwise expressly provided herein with respect to covenants,
the payment of principal of the Notes and any other obligations
hereunder.
10.9. Governing
Law; Submission to Jurisdiction; Venue.
(a) THIS
AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS
OF
THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK, EXCLUDING
CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD REQUIRE THE
APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.
(b) If
any
action, proceeding or litigation shall be brought in order to enforce any right
or remedy under this Agreement or any of the Notes, each party hereto hereby
consents and will submit, and will cause each of their respective Subsidiaries
to submit, to the jurisdiction of any state or federal court of competent
jurisdiction sitting within the area comprising the Southern District of New
York on the date of this Agreement. Each party hereto hereby irrevocably waives,
and will cause each of their respective Subsidiaries to waive, any objection,
including, but not limited to, any objection to the laying of venue or based
on
the grounds of forum
non conveniens,
which
they may now or hereafter have to the bringing of
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(c) Each
party hereto irrevocably consents, and will cause each of their respective
Subsidiaries to consent, to the service of process of any of the applicable
aforementioned courts in any such action, proceeding or litigation by the
mailing of copies thereof by registered or certified mail, postage prepaid,
to
the address set forth in Section 10.1,
such
service to become effective thirty (30) days after such mailing.
(d) Nothing
herein shall affect the right of (i) any party hereto to serve process in any
other manner permitted by law or (ii) the Purchasers to
commence legal proceedings or otherwise proceed against the Company or any
of
its Subsidiaries in any other jurisdiction.
If
service of process is made on a designated agent it should be made by either
(i) personal delivery or (ii) mailing a copy of summons and complaint to
the agent via registered or certified mail, return receipt
requested.
(e) EACH
PARTY HERETO HEREBY WAIVES, AND
WILL
CAUSE EACH OF THEIR RESPECTIVE SUBSIDIARIES TO WAIVE,
ANY AND
ALL RIGHTS ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION,
PROCEEDING OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN
CONNECTION WITH, THIS AGREEMENT.
10.10. Severability.
If
any
provision of this Agreement is determined to be illegal, invalid or
unenforceable, such provision shall be fully severable to the extent of such
illegality, invalidity or unenforceability and the remaining provisions shall
remain in full force and effect and shall be construed without giving effect
to
the illegal, invalid or unenforceable provisions.
10.11. Entirety.
This
Agreement together with the other Financing Documents represents the entire
agreement of the parties hereto and thereto, and supersedes all prior agreements
and understandings, oral or written, if any, relating to the Financing Documents
or the transactions contemplated herein or therein.
10.12. Construction.
Each
covenant contained herein shall be construed (absent express provision to the
contrary) as being independent of each other covenant contained herein, so
that
compliance with any one covenant shall not (absent such an express contrary
provision) be deemed to excuse compliance with any other covenant. Where any
provision herein refers to action to be taken by any Person, or which such
Person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such Person, whether or not
expressly specified in such provision.
10.13. Incorporation.
All
Schedules attached hereto are incorporated as part of this Agreement as if
fully
set forth herein.
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10.14. Confidentiality.
(a) Subject
to the provisions of clauses (b) and (e) of this Section 10.14,
each of
the Purchasers and GSMP VCOC agrees that it will not disclose without the prior
written (including e-mail) consent of Holdings or the Company (other than to
its
employees, auditors, investors, partners, creditors, advisors, counsel or any
rating agencies that are reviewing securities or loans issued by such Purchaser
or GSMP VCOC, in each case, to the extent such disclosure reasonably relates
to
the administration of the investment represented by its Notes and who are
informed that such information is subject to the provisions of this Section
10.14
and who
enter into confidentiality arrangements with such Purchaser or GSMP VCOC in
form
and substance consistent with the provisions of this Section
10.14
applicable to Purchasers reasonably satisfactory to such Purchaser or GSMP
VCOC
forms of which will be provided to the Company prior to their use) any
information which has been furnished to such Purchaser or GSMP VCOC in
connection with its evaluation of an investment in the Notes and of the other
transactions referred to herein or is now or in the future furnished pursuant
to
this Agreement (including Sections
6.1, 7.1 or 7.2
hereof)
or any other Transaction Document; provided
that any
Purchaser or GSMP VCOC may disclose any such information (i) as was or has
become generally available to the public other than by virtue of a breach of
this Section 10.14(a)
or any
other confidentiality obligation by such Purchaser or GSMP VCOC or any
other Person to whom such Purchaser or GSMP VCOC has provided such information
as permitted by this Section 10.14,
provided
that
this clause (i) shall not permit any Purchaser to deliver the Final Memorandum
to any third party, (ii) as may be required in any report, statement or
testimony required to be submitted to any municipal, state or Federal regulatory
body having or claiming to have jurisdiction over such Purchaser or GSMP VCOC
or
to the Commission or similar organizations (whether in the United States of
America or elsewhere) or their successors, (iii) as may be required or in the
opinion of counsel appropriate in respect of any summons or subpoena or in
connection with any litigation, (iv) as may be required or in the opinion of
counsel appropriate in order to comply with any law, order, regulation or ruling
applicable to such Purchaser or GSMP VCOC and (v) other than the Final
Memorandum, to any prospective or actual subsequent Purchaser, in connection
with any contemplated transfer of any of the Notes by such Purchaser;
provided
that
prior to or concurrently with any disclosure of information to any Person
pursuant to this clause (v) any such prospective or actual subsequent Purchaser
expressly agrees in writing to be bound by the confidentiality provisions
contained in this Section 10.14
pursuant
to a confidentiality agreement with Holdings or the Company embodying the
provisions of this Section 10.14.
Each of
the Purchasers and GSMP VCOC agrees that in the event it intends to disclose
confidential information in accordance with clauses (ii), (iii) or (iv) above,
it shall, to the extent reasonably practicable, provide Holdings and the Company
notice of such requirement prior to making any disclosure so that Holdings
or
the Company may seek an appropriate protective order or confidential treatment
of the information being disclosed.
(b) The
Company hereby acknowledges and agrees that each Purchaser and GSMP VCOC may
share with any of its Affiliates, and such Affiliates may share with such
Purchaser and GSMP VCOC, any information related to the Company or any of its
Subsidiaries (including any nonpublic information regarding the creditworthiness
of, the Company or any of its Subsidiaries) to the extent such sharing
reasonably relates to the administration of the investment represented by its
Notes and such Affiliates are informed that such information is subject to
the
provisions of this Section
10.14;
provided
such
Persons shall be subject to the provisions of this Section 10.14
to the
same extent as such Purchaser and GSMP VCOC.
(c) Without
limiting the obligations of the Company to provide information to the Purchasers
under this Agreement, each Purchaser and GSMP VCOC understands that it may
receive material non-public information relating to the Company pursuant to
this
Agreement, or upon exercise of its rights hereunder (including pursuant to
Section
7.1
or
7.2)
and
acknowledge that the Company shall not have
-34-
(d) Notwithstanding
anything to the contrary set forth herein, each party (and each of their
respective Affiliates, partners, shareholders, directors, officers, employees,
representatives or other agents) may disclose to any and all Persons, without
limitations of any kind, the tax treatment and tax structure of the Transactions
and all materials of any kind (including opinions and other tax analyses) that
are provided to any such party relating to such tax treatment and tax structure.
However, any information relating to the tax treatment or tax structure shall
remain subject to the confidentiality provisions hereof (and the foregoing
sentence shall not apply) to the extent reasonably necessary to enable the
parties hereto, their respective Affiliates, and their respective Affiliates’
partners, shareholders, directors, officers and employees to comply with
applicable securities laws. For this purpose, “tax structure” means any facts
relevant to the federal income tax treatment of the Transactions but does not
include information relating to the identity of any of the parties hereto or
any
of their respective Affiliates.
10.15. No
Personal Obligations.
Notwithstanding
anything to the contrary contained herein or in any Financing Document, it
is
expressly understood and the Purchasers expressly agree that nothing contained
herein or in any other Financing Document or in any other document contemplated
hereby or thereby (whether from a covenant, representation, warranty or other
provision herein or therein) shall create, or be construed as creating, any
personal liability of any stockholder, director, officer, member, partner,
manager or employee of the Company and its Subsidiaries (excluding any such
Person which is a Guarantor or other express obligor on the Notes) in such
Person’s capacity as such, with respect to (a) any payment obligation of
the Company or any of their Subsidiaries, (b) any obligation of the Company
or any of its Subsidiaries to perform any covenant, undertaking, indemnification
or agreement, either express or implied, contained herein or in any other
Financing Document, (c) any representation or warranty contained herein or
any
other Financing Document, (d) any other claim or liability to the
Purchasers under or arising under this Agreement or any other Financing Document
or in any other document contemplated hereby or thereby, or (e) any credit
extended or loan made; provided that
nothing herein shall be deemed to be a waiver of claims arising from
fraud.
10.16. Currency.
Unless
otherwise specified, all dollar amounts referred to in this Agreement are in
lawful money of the United States.
10.17. No
Fiduciary Duty.
The
Company acknowledges and agrees that (i) the purchase and sale of the Notes
pursuant to this Agreement is an arm's-length commercial transaction between
the
Company, on the one hand, and the several Purchasers, on the other, (ii) in
connection therewith and with the process leading to such transaction each
Purchaser is acting solely as a principal and not the agent or fiduciary of
the
Company, (iii) no Purchaser has assumed an advisory or fiduciary responsibility
in favor of the Company with respect to the transactions contemplated hereby
or
the process leading thereto (irrespective of whether such Purchaser has advised
or is currently advising the Company on other matters) or any other obligation
to the Company except the obligations expressly set forth in this Agreement
and
(iv) the Company has consulted its own legal and financial advisors to the
extent it deemed appropriate. The Company agrees that it will not claim that
the
Purchasers, or any of them, has rendered advisory services of any nature or
respect, or owes a fiduciary or similar duty to the Company, in connection
with
such transactions or the process leading thereto.
-35-
[SIGNATURE
PAGES FOLLOW]
-36-
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above
written.
|
BPC
ACQUISITION CORP.
By: _________________________
Name:
Title:
|
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above
written.
|
▇▇▇▇▇▇▇,
SACHS & CO.
By: _________________________
Name:
Title:
|
IN
WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this
Agreement to be duly executed and delivered as of the date first above
written.
|
GSMP
2006 ONSHORE US, LTD.
By: _________________________
Name:
Title:
|
|
|
GSMP
2006 OFFSHORE US, LTD.
By: _________________________
Name:
Title:
|
|
|
GSMP
2006 INSTITUTIONAL US, LTD.
By: _________________________
Name:
Title:
|
|
|
GS
MEZZANINE
PARTNERS 2006 INSTITUTIONAL, L.P.
By: GS
Mezzanine Advisors 2006, L.L.C
its
General Partner
By: _________________________
Name:
Title:
|
EXHIBIT
C
Indemnification
and Contribution In Favor of the Initial Purchaser
(a) The
Company agrees to indemnify and hold harmless the Initial Purchaser, the
directors, officers and Affiliates of the Initial Purchaser and each person
who
controls the Initial Purchaser within the meaning of either the Securities
Act
or the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or other U.S. federal or state statutory law
or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained
in
the Final Memorandum or in any amendment or supplement thereto or arise out
of
or are based upon the omission or alleged omission to state therein a 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,
and agree (subject to the limitations set forth in the provisos to this
sentence) to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by it in connection with investigating
or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any
such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
in
the Final Memorandum, or in any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Initial Purchaser specifically for inclusion
therein. This indemnity agreement will be in addition to any liability that
the
Company may otherwise have. The Company shall not be liable under this Exhibit
C
to any indemnified party regarding any settlement or compromise or consent
to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual
or
potential parties to such claim or action) unless such settlement, compromise
or
consent is consented to by the Company which consent shall not be unreasonably
withheld.
(b) The
Initial Purchaser agrees to indemnify and hold harmless (i) as of the date
hereof, the Company, (ii) each person, if any, who controls (within the meaning
of either the Act or the Exchange Act) as of the date hereof, the Company,
and
(iii) as of the date hereof, the directors and officers of the Company, to
the
same extent as the foregoing indemnity from the Company, but only with reference
to written information relating to the Initial Purchaser furnished to the
Company by or on behalf of the Initial Purchaser specifically for inclusion
in
the Final Memorandum (or in any amendment or supplement thereto). This indemnity
agreement will be in addition to any liability that the Initial Purchaser may
otherwise have. The Company acknowledges that the first paragraph under the
heading “Plan of Distribution” in the Final Memorandum constitutes the only
information furnished in writing by or on behalf of the Initial Purchaser for
inclusion in the Final Memorandum.
(c) Promptly
after receipt by an indemnified party under this Exhibit C of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Exhibit C,
notify the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not
otherwise learn of such action and such failure results in the forfeiture by
the
indemnifying party of substantial rights or defenses and (ii) will not, in
any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or
(b)
above, except as provided in paragraph (d) below. The indemnifying party shall
be entitled to appoint counsel (including local counsel) of the indemnifying
party’s choice at the indemnifying party’s expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party
C-1
(d) In
the
event that the indemnity provided in paragraph (a) or (b) of this Exhibit C
is
unavailable to or insufficient to hold harmless an indemnified party for any
reason (other than by virtue of the failure of an indemnified party to notify
the indemnifying party of its right to indemnification pursuant to subsection
(a) or (b) above, where such failure materially prejudices the indemnifying
party (through the forfeiture of substantial rights or defenses)), the Company,
on the one hand, and the Initial Purchaser, on the other hand, severally agree
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending any loss, claim, damage, liability or action)
(collectively “Losses”) to which the Company and the Initial Purchaser may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and by the Initial Purchaser, on
the
other hand, from the offering of the Notes; provided, however, that in no case
shall the Initial Purchaser be responsible for any amount in excess of the
purchase discount or commission applicable to the Notes related to the Losses
purchased by the Initial Purchaser hereunder. If the allocation provided by
the
immediately preceding sentence is unavailable for any reason or not permitted
by
applicable law, the Company, on the one hand, and the Initial Purchaser, on
the
other hand, severally shall contribute in such proportion as is appropriate
to
reflect not only such relative benefits but also the relative fault of the
Company, on the one hand, and the Initial Purchaser, on the other hand, in
connection with the statements or omissions that resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Company shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses) received by them, and benefits received by the
Initial Purchaser shall be deemed to be equal to the total purchase discounts
and commissions received by them. Relative fault shall be determined by
reference to, among
C-2
C-3