EXHIBIT 1.1
PETROLEUM HELICOPTERS, INC.
$200,000,000 9 3/8% Senior Notes due 2009
PURCHASE AGREEMENT
April 17, 2002
New York, New York
UBS Warburg LLC
Deutsche Bank Securities Inc.
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171
Ladies and Gentlemen:
Petroleum Helicopters, Inc., a Louisiana corporation (the
"COMPANY"), and each of the Guarantors (as defined herein), agree with you as
follows:
1. Issuance of Notes. The Company proposes to issue and sell
to UBS Warburg LLC and Deutsche Bank Securities Inc. (the "INITIAL PURCHASERS")
$200,000,000 aggregate principal amount of 9 3/8% Senior Notes due 2009 (the
"ORIGINAL NOTES"). The Original Notes will be issued pursuant to an indenture
(the "INDENTURE"), to be dated the Closing Date (as defined herein), by and
among the Company, the Guarantors and The Bank of New York, as trustee (the
"TRUSTEE"). The Company's obligations under the Original Notes and the Indenture
will be unconditionally guaranteed (the "GUARANTEES") on an unsecured senior
basis by the Guarantors listed on Schedule I hereto (collectively, the
"GUARANTORS" and, collectively with the Company, the "ISSUERS"). All references
herein to the Original Notes include the related Guarantees, unless the context
otherwise requires. Capitalized terms used but not otherwise defined herein
shall have the meanings given to such terms in the Indenture or the Offering
Memorandum (as defined herein).
The Original Notes will be offered and sold to the Initial
Purchasers pursuant to an exemption from the registration requirements under the
Securities Act of 1933, as amended (the "ACT"). The Issuers have prepared a
preliminary offering memorandum, dated April 4, 2002 (the "PRELIMINARY OFFERING
MEMORANDUM"), and a final offering memorandum dated the date hereof (the
"OFFERING MEMORANDUM") relating to the Company, the
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Guarantors and the Original Notes. Any reference herein to the Preliminary
Offering Memorandum or the Offering Memorandum shall be deemed to refer to and
include the documents incorporated by reference therein (and any documents filed
after such date under the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), that are deemed to be incorporated therein).
The Initial Purchasers have advised the Company that the
Initial Purchasers intend, as soon as they deem practicable after this Purchase
Agreement (this "AGREEMENT") has been executed and delivered, to resell (the
"EXEMPT RESALES") the Original Notes purchased by the Initial Purchasers under
this Agreement in private sales exempt from registration under the Act on the
terms set forth in the Offering Memorandum, as amended or supplemented, solely
to (i) persons whom the Initial Purchasers reasonably believe to be "qualified
institutional buyers," as defined in Rule 144A under the Act ("QIBS"), and (ii)
other eligible purchasers pursuant to offers and sales that occur outside the
United States within the meaning of Regulation S under the Act; the persons
specified in clauses (i) and (ii) are sometimes collectively referred to herein
as the "ELIGIBLE PURCHASERS."
Upon issuance of the Original Notes and until such time as the
same is no longer required under the applicable requirements of the Act, the
Original Notes shall bear the legend relating thereto set forth under "Notice to
Investors" in the Offering Memorandum.
Holders (including subsequent transferees) of the Original
Notes will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT") to be dated the Closing Date,
substantially in the form attached hereto as Exhibit A. Pursuant to the
Registration Rights Agreement, the Issuers will agree to, under the provisions
set forth therein, (i) file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth in the Registration Rights
Agreement, (a) a registration statement under the Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to a new issue of debt securities
(collectively with the Private Exchange Notes (as defined in the Registration
Rights Agreement) the "EXCHANGE NOTES" and, together with the Original Notes,
the "NOTES," which term includes the guarantees related thereto) to be offered
in exchange for the Original Notes (the "EXCHANGE OFFER") and issued under the
Indenture or an indenture substantially identical to the Indenture and/or (b)
under certain circumstances set forth in the Registration Rights Agreement, a
shelf registration statement pursuant to Rule 415 under the Act (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, the "REGISTRATION STATEMENTS") relating to the resale by certain
holders of the Original Notes, and (ii) use their reasonable best efforts to
cause such Registration Statements to be declared effective. This Agreement, the
Notes, the Guarantees, the Indenture and the Registration Rights Agreement are
hereinafter sometimes referred to collectively as the "NOTE DOCUMENTS."
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The Company will pay off and terminate its existing bank
credit facilities and enter into a new senior revolving credit agreement (the
"NEW CREDIT AGREEMENT") with Whitney National Bank, whereby the Company will
have available a $50.0 million revolving credit facility, subject to a borrowing
base as set forth in the New Credit Agreement.
The Note Documents and the New Credit Agreement are
collectively referred to herein as the "TRANSACTION DOCUMENTS."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants of the Initial Purchasers contained in
this Agreement, the Company agrees to issue and sell to the Initial Purchasers,
and on the basis of the representations, warranties and covenants of the Issuers
contained in this Agreement, and subject to the terms and conditions contained
in this Agreement, the Initial Purchasers, severally and not jointly, agree to
purchase from the Company, the principal amount of the Original Notes set forth
opposite their respective names in Schedule III hereto. The purchase price for
the Original Notes shall be 97.75% of their principal amount.
3. Delivery and Payment. Delivery of, and payment of the
purchase price for, the Original Notes shall be made at 10:00 a.m., central
time, on April 23, 2002 (such date and time, the "CLOSING DATE") at the offices
of Gardere Wynne Sewell LLP at 1000 Louisiana, Suite 3400, Houston, Texas 77002.
The Closing Date and the location of delivery of and the form of payment for the
Original Notes may be varied by mutual agreement between the Initial Purchasers
and the Company.
One or more of the Original Notes in global form registered in
such names as the Initial Purchasers may request upon at least one business
day's notice prior to the Closing Date and having an aggregate principal amount
corresponding to the aggregate principal amount of the Original Notes shall be
delivered by the Company to the Initial Purchasers (or as the Initial Purchasers
direct), against payment by the Initial Purchasers of the purchase price
therefor by means of transfer of immediately available funds to such account or
accounts specified by the Company in accordance with its obligations under
Sections 4(g) and 8(n) hereof on or prior to the Closing Date, or by such means
as the parties hereto shall agree prior to the Closing Date.
4. Agreements of the Issuers. The Issuers, jointly and
severally, covenant and agree with the Initial Purchasers as follows:
(a) To furnish the Initial Purchasers and those persons
identified by the Initial Purchasers, without charge, with as many
copies of the Preliminary Offering Memorandum and the Offering
Memorandum, and any amendments or supplements thereto, as the Initial
Purchasers may reasonably request. The Issuers consent to the use of
the Preliminary Offering Memorandum and the Offering Memorandum, and
any
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amendments and supplements thereto required pursuant to this Agreement,
by the Initial Purchasers in connection with Exempt Resales.
(b) Not to amend or supplement the Offering Memorandum prior
to the Closing Date unless the Initial Purchasers shall previously have
been advised of such proposed amendment or supplement at least two
business days prior to the proposed use, and shall not have objected to
such amendment or supplement.
(c) If, prior to the time that the Initial Purchasers have
completed their distribution of the Original Notes, any event shall
occur that, in the reasonable judgment of the Issuers or in the
reasonable judgment of the Initial Purchasers, makes any statement of a
material fact in the Offering Memorandum, as then amended or
supplemented, untrue or that requires the making of any additions to or
changes in the Offering Memorandum in order to make the statements in
the Offering Memorandum, as then amended or supplemented, in the light
of the circumstances under which they are made, not misleading, or if
it is necessary to amend or supplement the Offering Memorandum to
comply with all applicable laws, the Issuers shall promptly notify the
Initial Purchasers of such event, or the Initial Purchasers shall
promptly notify the Issuers, as the case may be, and (subject to
Section 4(b)) prepare an appropriate amendment or supplement to the
Offering Memorandum so that (i) the statements in the Offering
Memorandum, as amended or supplemented, will, in the light of the
circumstances at the time that the Offering Memorandum is delivered to
prospective Eligible Purchasers, not be misleading and (ii) the
Offering Memorandum will comply with applicable law.
(d) To cooperate with the Initial Purchasers and counsel to
the Initial Purchasers in connection with the qualification or
registration of the Original Notes under the securities laws of such
jurisdictions as the Initial Purchasers may request and to continue
such qualification in effect so long as required for the Exempt
Resales. Notwithstanding the foregoing, no Issuer shall be required to
qualify as a foreign corporation in any jurisdiction in which it is not
so qualified or to file a general consent to service of process in any
such jurisdiction or subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction where it is not then so subject.
(e) To advise the Initial Purchasers promptly and, if
requested by the Initial Purchasers, to confirm such advice in writing,
of the issuance by any securities commission of any stop order
suspending the qualification or exemption from qualification of any of
the Original Notes for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by any securities
commission or other regulatory authority. The Issuers shall use their
reasonable best efforts to prevent the issuance of any stop order or
order suspending the qualification or exemption of any of the Original
Notes under any securities laws, and if at any time any securities
commission or
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other regulatory authority shall issue an order suspending the
qualification or exemption of any of the Original Notes under any
securities laws, the Issuers shall use their reasonable best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(f) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement becomes effective or is
terminated other than by reason of a default by the Initial Purchasers,
to pay all costs, expenses, fees and disbursements and all stamp,
documentary or similar taxes incident to and in connection with: (i)
the preparation, printing and distribution of the Preliminary Offering
Memorandum and the Offering Memorandum (including, without limitation,
financial statements) and all amendments and supplements thereto, (ii)
all expenses of the Issuers and the Initial Purchasers in connection
with any meetings with prospective investors in the Original Notes
except for all airline, hotel and ground transportation costs of the
Initial Purchasers, (iii) the preparation, notarization (if necessary)
and delivery of the Note Documents and all other agreements, memoranda,
correspondence and documents prepared and delivered in connection with
this Agreement and with the Exempt Resales, (iv) the issuance, transfer
and delivery by the Company and the Guarantors of the Original Notes to
the Initial Purchasers, (v) the qualification or registration of the
Notes for offer and sale under the securities laws of the several
states of the United States or provinces of Canada (including, without
limitation, the cost of printing and mailing preliminary and final
"Blue Sky" or legal investment memoranda and fees and disbursements of
counsel (including local counsel) to the Initial Purchasers relating
thereto), (vi) the furnishing of such copies of the Preliminary
Offering Memorandum and the Offering Memorandum, and all amendments and
supplements thereto, as may be reasonably requested for use in
connection with Exempt Resales, (vii) the preparation of certificates
for the Notes, (viii) the application for quotation of the Notes in The
Portal Market ("PORTAL") of the National Association of Securities
Dealers, Inc. ("NASD"), including, but not limited to, all listing fees
and expenses, (ix) the approval of the Notes by The Depository Trust
Company ("DTC") for "book-entry" transfer, (x) the rating of the Notes
by rating agencies, (xi) the fees and expenses of the Trustee and its
counsel and (xii) the performance by the Issuers of their other
obligations under the Note Documents; provided, however, except as set
forth above in subparagraph (v) the Initial Purchasers shall be
responsible for all legal fees and expenses of their legal counsel.
(g) To use the proceeds from the sale of the Original Notes in
a manner consistent with the caption "Use of Proceeds" as described in
the Offering Memorandum.
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(h) To do and perform all things required to be done and
performed under this Agreement by them prior to or after the Closing
Date and to satisfy all conditions precedent on their part to the
delivery of the Original Notes.
(i) Not to permit any Issuer, and not to permit any of their
subsidiaries to, sell, offer for sale or solicit offers to buy any
security (as defined in the Act) that would be integrated with the sale
of the Original Notes in a manner that would require the registration
under the Act of the sale of the Original Notes to the Initial
Purchasers or any Eligible Purchasers.
(j) Not to permit any Issuer to, and to use their reasonable
best efforts to cause their affiliates (as defined in Rule 144 under
the Act) not to, resell any of the Original Notes that have been
reacquired by any of them.
(k) Not to permit any Issuer to engage, not to allow any of
their subsidiaries to engage, and to use their reasonable best efforts
to cause their other affiliates and any person acting on their behalf
(other than, in any case, the Initial Purchasers and any of their
affiliates, as to whom the Issuers make no covenant) not to engage, in
any form of general solicitation or general advertising (within the
meaning of Regulation D under the Act) in connection with any offer or
sale of the Original Notes in the United States prior to the
effectiveness of a registration statement with respect to the Notes.
(l) Not to engage, not to allow any of their subsidiaries to
engage, and to use their reasonable best efforts to cause their other
affiliates and any person acting on their behalf (other than, in any
case, the Initial Purchasers and any of their affiliates, as to whom
the Issuers make no covenant) not to engage, in any directed selling
effort with respect to the Original Notes, and to comply with the
offering restrictions requirement of Regulation S under the Act. Terms
used in this paragraph have the meanings given to them by Regulation S.
(m) From and after the Closing Date, for so long as any of the
Notes remain outstanding and are "restricted securities" within the
meaning of Rule 144(a)(3) under the Act and during any period in which
the Company is not subject to Section 13 or 15(d) of the Exchange Act,
to make available upon request the information required by Rule
144A(d)(4) under the Act to (i) any holder or beneficial owner of Notes
in connection with any sale of such Notes and (ii) any prospective
purchaser of such Notes from any such holder or beneficial owner
designated by the holder or beneficial owner. The Issuers will pay the
expenses of printing and distributing such documents.
(n) To comply with all of their agreements set forth in the
Registration Rights Agreement.
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(o) To comply with all of their obligations set forth in the
representations letter of the Issuers to DTC relating to the approval
of the Notes by DTC for "book-entry" transfer and to use their
reasonable best efforts to obtain approval of the Notes by DTC for
"book-entry" transfer.
(p) To use their reasonable best efforts to effect the
inclusion of the Original Notes in Portal.
(q) Prior to the Closing Date, to furnish without charge to
the Initial Purchasers, (i) as soon as they have been prepared, a copy
of any regularly prepared internal financial statements of the Company
and its subsidiaries for any period subsequent to the period covered by
the financial statements appearing in the Offering Memorandum, (ii) all
other reports and other communications (financial or otherwise) that
any of the Issuers mail or otherwise make available to their security
holders and (iii) such other information as the Initial Purchasers
shall reasonably request.
(r) Not to distribute prior to the Closing Date any offering
material in connection with the offer and sale of the Original Notes
other than the Preliminary Offering Memorandum and the Offering
Memorandum.
(s) During the period of two years after the Closing Date or,
if earlier, until such time as the Original Notes are no longer
restricted securities (as defined in Rule 144 under the Act), not to be
or become an investment company required to be registered, but not
registered, under the Investment Company Act of 1940.
(t) In connection with the offering, until the Initial
Purchasers shall have notified the Company of the completion of the
resale of the Notes, not to, and not to permit any of their affiliates
(as such term is defined in Rule 501(b) of Regulation D under the Act)
to, either alone or with one or more other persons, bid for or purchase
for any account in which they or any of their affiliates have a
beneficial interest in any of the Notes; and none of the Issuers nor
any of their affiliates will make bids or purchases for the purpose of
creating actual, or apparent, active trading in, or of raising the
price of, the Notes.
(u) The Company agrees that prior to any registration of the
Notes pursuant to the Registration Rights Agreement, or at such earlier
time as may be so required, the Indenture shall be qualified under the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"),
and that it will cause to be entered into any necessary supplemental
indentures in connection therewith.
5. Representations and Warranties. (a) The Issuers, jointly
and severally, represent and warrant to the Initial Purchasers that:
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(i) Each of the Preliminary Offering Memorandum and the Offering
Memorandum has been prepared in connection with the Exempt Resales. None
of the Preliminary Offering Memorandum, the Offering Memorandum or any
supplement or amendment thereto contains any untrue statement of a
material fact or omits to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Issuers make
no representation or warranty with respect to information relating to the
Initial Purchasers contained in or omitted from the Preliminary Offering
Memorandum or the Offering Memorandum or any supplement or amendment
thereto, in reliance upon and in conformity with information furnished to
the Company in writing by or on behalf of the Initial Purchasers expressly
for inclusion in the Preliminary Offering Memorandum or the Offering
Memorandum or any supplement or amendment thereto. No order preventing the
use of the Preliminary Offering Memorandum or the Offering Memorandum, or
any order asserting that any of the transactions contemplated by this
Agreement are subject to the registration requirements of the Act, has
been issued or, to the knowledge of any Issuer, has been threatened.
(ii) The documents incorporated by reference in the Offering
Memorandum heretofore filed with the Commission were filed in a timely
manner and, when they were filed (or, if any amendment with respect to any
such document was filed, when such amendment was filed), conformed in all
material respects to the requirements of the Exchange Act and the rules
and regulations thereunder, and any further incorporated documents so
filed will, when they are filed, conform in all material respects with the
requirements of the Exchange Act and the rules and regulations thereunder;
no such document when it was filed (or, if an amendment with respect to
any such document was filed, when such amendment was filed) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and no such further incorporated document, when it is
filed, will contain an untrue statement of a material fact or will omit to
state a material fact required to be stated therein or necessary in order
to make the statements therein not misleading.
(iii) There are no securities of the Issuers that are listed on a
national securities exchange registered under Section 6 of the Exchange
Act or that are quoted in a United States automated interdealer quotation
system of the same class as the Notes within the meaning of Rule 144A
under the Act.
(iv) Attached hereto as Schedule II is a true and complete list of
each subsidiary of the Company, its jurisdiction of incorporation or
formation, type of entity and percentage equity ownership by the Company
(collectively, the "SUBSIDIARIES"). The entities listed on Schedule II
hereto are the only Subsidiaries, direct or indirect, of the Company. All
of the issued and outstanding shares of capital stock or other equity
interests of each of
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the Subsidiaries have been duly and validly authorized and issued, are
fully paid and nonassessable, were not issued in violation of any
preemptive or similar rights and, except as set forth in the Offering
Memorandum, are owned by the Company free and clear of all Liens (as
defined in the Indenture) other than Permitted Liens (as defined in the
Indenture). Except as set forth in the Offering Memorandum, there are no
outstanding options, warrants or other rights to acquire or purchase, or
instruments convertible into or exchangeable for, any shares of capital
stock of any of the Subsidiaries. No holder of any securities of the
Company or any of the Subsidiaries is entitled to have such securities
(other than the Notes) registered under any registration statement
contemplated by the Registration Rights Agreement.
(v) Each of the Company and the Subsidiaries (a) is a corporation,
partnership or other entity duly organized and validly existing under the
laws of the jurisdiction of its incorporation or organization, as the case
may be; (b) has all requisite corporate, partnership or limited liability
company or other power and authority, as the case may be, and has all
governmental licenses, authorizations, consents and approvals, necessary
to own its property and carry on its business as now being conducted,
except if the failure to obtain any such license, authorization, consent
and approval could not reasonably be expected to have a Material Adverse
Effect; and (c) is qualified to do business and is in good standing in all
jurisdictions in which the nature of the business conducted by it makes
such qualification necessary and where failure to be so qualified and in
good standing individually or in the aggregate could reasonably be
expected to have a Material Adverse Effect. A "MATERIAL ADVERSE EFFECT"
means any material adverse effect on the business, condition (financial or
other), results of operations, performance or prospects of the Company and
the Subsidiaries, taken as a whole.
(vi) Each of the Issuers has all requisite corporate or limited
liability company power and authority, as the case may be, to execute,
deliver and perform all of its obligations under the Transaction Documents
to which it is a party and to consummate the transactions contemplated by
the Transaction Documents to be consummated on its part and, without
limitation, the Company has all requisite corporate or limited liability
company power and authority, as the case may be, to issue, sell and
deliver the Notes and each Guarantor has all requisite corporate power and
authority to execute, deliver and perform all its obligations under its
Guarantee. Each of the Issuers has duly authorized the execution, delivery
and performance of each of the Transaction Documents to which it is a
party. Each of the Transaction Documents conforms, or when executed and
delivered will conform, in all material respects to the descriptions
thereof in the Offering Memorandum.
(vii) This Agreement has been duly and validly executed and
delivered by each Issuer.
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(viii) The Indenture has been duly and validly authorized by each
Issuer and, when duly executed and delivered by each Issuer (assuming the
due authorization, execution and delivery thereof by the Trustee), will be
a legal, valid and binding obligation of each of the Issuers, enforceable
against each of them in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought. The Indenture, when executed and
delivered, will conform in all material respects to the description
thereof in the Offering Memorandum.
(ix) The Original Notes have been duly and validly authorized for
issuance and sale to the Initial Purchasers by the Company and, when
issued, authenticated and delivered by the Company against payment by the
Initial Purchasers in accordance with the terms of this Agreement and the
Indenture (assuming the due authorization, execution and delivery thereof
by the Trustee), the Original Notes will be legal, valid and binding
obligations of the Company, entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought. The Original Notes, when issued,
authenticated and delivered, will conform in all material respects to the
description thereof in the Offering Memorandum.
(x) The Exchange Notes have been, or upon the Closing Date will be,
duly and validly authorized for issuance by the Company and, when issued,
authenticated and delivered by the Company in accordance with the terms of
the Registration Rights Agreement, the Exchange Offer and the Indenture
(assuming the due authorization, execution and delivery thereof by the
Trustee), the Exchange Notes will be legal, valid and binding obligations
of the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought. The Exchange Notes, when issued,
authenticated and delivered, will conform in all material respects to the
description thereof in the Preliminary Memorandum and the Offering
Memorandum.
(xi) The Guarantees have been duly and validly authorized by the
Guarantors and, when the Original Notes are issued, authenticated and
delivered by the Company against payment by the Initial Purchasers in
accordance with the terms of this Agreement
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and the Indenture (assuming the due authorization, execution and delivery
thereof by the Trustee), will be legal, valid and binding obligations of
the Guarantors, enforceable against each of them in accordance with their
terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
by general principles of equity and the discretion of the court before
which any proceeding therefor may be brought. The Guarantees, when
executed and delivered, will conform in all material respects to the
description thereof in the Offering Memorandum.
(xii) The guarantees to be endorsed on the Exchange Notes have been
duly and validly authorized by the Guarantors and, when the Exchange Notes
are issued, authenticated and delivered in accordance with the terms of
the Registration Rights Agreement, the Exchange Offer and the Indenture
(assuming the due authorization, execution and delivery thereof by the
Trustee), will be legal, valid and binding obligations of the Guarantors,
enforceable against each of them in accordance with their terms, except as
the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(xiii) The Registration Rights Agreement has been duly and validly
authorized by each of the Issuers and, when duly executed and delivered by
each of the Issuers (assuming the due authorization, execution and
delivery thereof by the Initial Purchasers), will constitute a legal,
valid and binding obligation of each of the Issuers, enforceable against
them in accordance with its terms, except (A) as the enforcement thereof
may be subject to bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to the enforcement
of creditors' rights generally and general principles of equity and the
discretion of the court before which any proceeding therefor may be
brought and (B) that any rights to indemnity or contribution thereunder
may be limited by federal and state securities laws and public policy
considerations. The Registration Rights Agreement will conform in all
material respects to the description thereof in the Offering Memorandum.
(xiv) The New Credit Agreement has been duly and validly authorized
by the Company and the Guarantors and, when executed and delivered by the
Company and the Guarantors (assuming the due authorization, execution and
delivery by the other parties thereto), will be legal, valid and binding
obligations of the Company and the Guarantors, enforceable against each of
them in accordance with its terms, except (A) the enforcement thereof may
be subject to bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and general principles of equity and the discretion of the
court before which any proceeding therefor
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may be brought and (B) that any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public
policy considerations. The New Credit Agreement, when executed and
delivered, will conform in all material respects to the description
thereof in the Offering Memorandum.
(xv) All taxes, fees and other governmental charges that are due and
payable on or prior to the Closing Date in connection with the execution,
delivery and performance of the Note Documents and the execution, delivery
and sale of the Original Notes shall have been paid by or on behalf of the
Company at or prior to the Closing Date.
(xvi) None of the Company or any of the Subsidiaries is (A) in
violation of its charter, bylaws or other constitutive documents, (B) in
default (or, with notice or lapse of time or both, would be in default) in
the performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note, indenture, mortgage,
deed of trust, loan or credit agreement, lease, license, franchise
agreement, authorization, permit, certificate or other agreement or
instrument to which any of them is a party or by which any of them is
bound or to which any of their assets or properties is subject
(collectively, "AGREEMENTS AND INSTRUMENTS"), or (C) in violation of any
law, statute, rule, regulation, judgment, order or decree of any domestic
or foreign court with jurisdiction over any of them or any of their assets
or properties or other governmental or regulatory authority, agency or
other body, which, in the case of clauses (B) and (C) herein, individually
or in the aggregate, could reasonably be expected to have a Material
Adverse Effect. There exists no condition that, with notice, the passage
of time or otherwise, would constitute a default by the Company or any of
its Subsidiaries under any such document or instrument or result in the
imposition of any penalty or the acceleration of any indebtedness, other
than penalties, defaults or conditions that, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(xvii) The execution, delivery and performance by each of the
Issuers of the Transaction Documents to which it is a party, including the
consummation of the offer and sale of the Original Notes and the offer and
exchange of the Exchange Notes, does not and will not violate, conflict
with or constitute a breach of any of the terms or provisions of or a
default under (or an event that with notice or the lapse of time, or both,
would constitute a default), or require consent under, or result in the
creation or imposition of a Lien, on any property or assets of the Company
or any Subsidiaries (other than as contemplated by to the New Credit
Agreement) pursuant to, (i) the charter, bylaws or other constitutive
documents of any of the Company or any of its Subsidiaries, (ii) any
judgment, order or decree of any domestic or foreign court or governmental
agency or authority having jurisdiction over the Company or any of its
Subsidiaries or their respective assets or properties except such
judgments, orders or decrees that would have a Material Adverse Effect,
(iii) assuming the consummation of the New Credit Agreement, any of the
Agreements and Instruments
-13-
or (iv) any law, statute, rule or regulation applicable to the Company or
any of its Subsidiaries or their respective assets or properties, except
in the case of clauses (iii) and (iv), such violations, conflicts,
breaches or defaults as could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect. Assuming the
accuracy of the representations and warranties of the Initial Purchasers
in Section 5(b) of this Agreement, no consent, approval, authorization or
order of, or filing, registration, qualification, license or permit of or
with, any court or governmental agency, body or administrative agency,
domestic or foreign, is required to be obtained or made by the Company or
any of its Subsidiaries for the execution, delivery and performance by the
Company and each of its Subsidiaries of the Transaction Documents to which
they are party including the consummation of any of the transactions
contemplated thereby, except (x) such as have been or will be obtained or
made on or prior to the Closing Date, (y) registration of the Exchange
Offer or resale of the Notes under the Act pursuant to the Registration
Rights Agreement and (z) qualification of the Indenture under the Trust
Indenture Act in connection with the issuance of the Exchange Notes. No
consents or waivers from any other person or entity are required for the
execution, delivery and performance of this Agreement or any of the other
Transaction Documents or the consummation of any of the transactions
contemplated hereby or thereby, other than such consents and waivers as
have been obtained or will be obtained prior to the Closing Date and will
be in full force and effect, except such consents or waivers that the
failure to obtain could not be reasonably expected to have a Material
Adverse Effect.
(xviii) Except as set forth in the Offering Memorandum, there is (A)
no action, suit or proceeding before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, now pending
or, to the knowledge of the Issuers, threatened or contemplated, to which
the Company or any of the Subsidiaries is or may be a party or to which
the business, assets or property of such person is or may be subject, (B)
no statute, rule, regulation or order that has been enacted, adopted or
issued or, to the knowledge of the Issuers, that has been proposed by any
governmental body or agency, domestic or foreign, (C) no injunction,
restraining order or order of any nature by a federal or state court or
foreign court of competent jurisdiction to which the Company or any of the
Subsidiaries is or may be subject that (x) in the case of clause (A)
above, if determined adversely to the Company or any of the Subsidiaries,
could, individually or in the aggregate, reasonably be expected, (1) to
have a Material Adverse Effect or (2) to interfere with or adversely
affect the issuance of the Notes in any jurisdiction or adversely affect
the consummation of the transactions contemplated by any of the
Transaction Documents and (y) could, individually or in the aggregate,
reasonably be expected, (1) to have a Material Adverse Effect or (2) to
interfere with or adversely affect the issuance of the Notes or the
Guarantees in any jurisdiction or adversely affect the consummation of the
transactions contemplated by any of the Transaction Documents. Every
request of any securities authority or agency of any jurisdiction for
additional information with respect to the Notes that has been received by
-14-
the Company or any of the Subsidiaries or their counsel prior to the date
hereof has been, or will prior to the Closing Date be, complied with in
all material respects.
(xix) Except as could not reasonably be expected to have a Material
Adverse Effect, no labor disturbance by the employees of any of the
Company or any of the Subsidiaries exists or, to the knowledge of the
Issuers, is imminent.
(xx) Except as set forth in the Offering Memorandum, the Company and
each of the Subsidiaries (A) is in compliance with, or not subject to
costs or liabilities under, all laws, regulations, rules of common law,
orders and decrees, as in effect as of the date hereof, and any present
judgments and injunctions issued or promulgated thereunder relating to
pollution or protection of public and employee health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants applicable to it or its business or operations or ownership
or use of its property ("ENVIRONMENTAL LAWS"), other than noncompliance or
such costs or liabilities that, individually or in the aggregate, could
not reasonably be expected to have a Material Adverse Effect, and (B)
possesses all permits, licenses or other approvals required under
applicable Environmental Laws, except where the failure to possess any
such permit, license or other approval could not reasonably be expected to
have, either individually or in the aggregate, a Material Adverse Effect.
All currently pending and, to the knowledge of the Issuers, threatened
proceedings, notices of violation, demands, notices of potential
responsibility or liability, suits and existing environmental conditions
by any governmental authority which the Company or any of its Subsidiaries
could reasonably expect to result in a Material Adverse Effect are
accurately described in all material respects in the Offering Memorandum.
The Company and each of the Subsidiaries maintains a system of internal
environmental management controls sufficient to provide reasonable
assurance of compliance in all material respects of their business
facilities, real property and operations with requirements of applicable
Environmental Laws.
(xxi) The Company and each of the Subsidiaries have (A) all
licenses, certificates, permits, authorizations, approvals, franchises and
other rights from, and has made all declarations and filings with, all
applicable authorities, all self-regulatory authorities and all courts and
other tribunals (each, an "AUTHORIZATION") necessary to engage in the
business conducted by them in the manner described in the Offering
Memorandum, except where failure to hold such Authorizations could not,
individually or in the aggregate, be reasonably expected to have a
Material Adverse Effect, and (B) no reason to believe that any
governmental body or agency, domestic or foreign, is considering limiting,
suspending or revoking any such Authorization, except where any such
limitations, suspensions or revocations could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. All
such Authorizations are valid and in full force and effect and the Company
and each of the Subsidiaries are in compliance in all material respects
with the terms and conditions of all such Authorizations and with the
rules and regulations of the regulatory authorities having jurisdiction
with
-15-
respect to such Authorizations, except for any invalidity, failure to be
in full force and effect or noncompliance with any Authorization that
could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(xxii) Each of the Company and the Subsidiaries has valid title in
fee simple to all items of real property and valid title to all personal
property owned by each of them, in each case free and clear of any Lien,
except (i) as created pursuant to the New Credit Agreement, (ii) such as
do not materially and adversely affect the value of such property and do
not interfere with the use made or proposed to be made of such property by
the Company or such Subsidiaries to an extent that such interference could
reasonably be expected to have a Material Adverse Effect, and (iii) Liens
described in the Offering Memorandum. Any real property and buildings held
under lease by the Company or any of the Subsidiaries are held under
valid, subsisting and enforceable leases, with such exceptions as do not
materially interfere with the use made or proposed to be made of such
property and buildings by the Company or the Subsidiaries.
(xxiii) Each of the Company and the Subsidiaries owns, possesses or
has the right to employ all patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively, the
"INTELLECTUAL PROPERTY") necessary to conduct the businesses operated by
it as described in the Offering Memorandum, except where the failure to
own, possess or have the right to employ such Intellectual Property could
not reasonably be expected to have a Material Adverse Effect. None of the
Company or any of the Subsidiaries has received any notice of infringement
of or conflict with (or knows of any such infringement or a conflict with)
asserted rights of others with respect to any of the foregoing that, if
such assertion of infringement or conflict were sustained, could
reasonably be expected to have a Material Adverse Effect. The use of the
Intellectual Property in connection with the business and operations of
the Company and the Subsidiaries does not infringe on the rights of any
person, except for such infringement as could not reasonably be expected
to have a Material Adverse Effect.
(xxiv) The Company and each of the Subsidiaries have (A) all
licenses, certificates, permits, authorizations, approvals, franchises and
other rights from, and have made all declarations and filings with, all
applicable governmental authorities, all self-regulatory authorities and
all courts and other tribunals (each, a "LICENSE"), necessary to engage in
the businesses conducted by them in the manner described in the Offering
Memorandum, except where failure to hold such Licenses could not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, and (B) no reason to believe that
-16-
any governmental body or agency, domestic or foreign, is considering
limiting, suspending or revoking any such License, except where any such
limitations, suspensions or revocations could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. All
such Licenses are valid and in full force and effect and the Company and
each of the Subsidiaries are in compliance in all material respects with
the terms and conditions of all such Licenses and with the rules and
regulations of the regulatory authorities having jurisdiction with respect
to such Licenses, except for any invalidity, failure to be in full force
and effect or noncompliance with any License that could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(xxv) All tax returns required to be filed by the Company and each
of the Subsidiaries have been filed in all jurisdictions where such
returns are required to be filed; and all taxes, including withholding
taxes, value added and franchise taxes, penalties and interest,
assessments, fees and other charges due or claimed to be due from such
entities or that are due and payable have been paid, other than those
being contested in good faith and for which reserves have been provided in
accordance with generally accepted accounting principles or those
currently payable without penalty or interest and except where the failure
to make such required filings or payments could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect.
To the knowledge of the Issuers, there are no material proposed additional
tax assessments against the Company or any of the Subsidiaries or their
assets or property.
(xxvi) To the knowledge of the Issuers, neither the Company or any
Subsidiary, nor any employee or agent thereof, has made any payment of
funds of the Company or any Subsidiary or received or retained any funds
in violation of any law, rule or regulation, which violation could
reasonably be expected to have a Material Adverse Effect.
(xxvii) Neither the Company nor any of the Subsidiaries have any
liability for any prohibited transaction or accumulated funding deficiency
(within the meaning of Section 412 of the Internal Revenue Code of 1986,
as amended (the "Code")) or any complete or partial withdrawal liability
with respect to any pension, profit sharing or other plan which is subject
to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), to which the Company or any of the Subsidiaries makes or ever
has made a contribution and in which any employee of the Company or any of
the Subsidiaries is or has ever been a participant. With respect to such
plans, the Company and each of the Subsidiaries are in compliance in all
material respects with all applicable provisions of ERISA.
(xxviii) Neither the Company nor any of the Subsidiaries is an
"investment company" or a company "controlled" by an "investment company"
incorporated in the United States within the meaning of the Investment
Company Act of 1940, as amended.
-17-
(xxix) The Company and each of the Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that: (A) transactions are executed in accordance with management's
general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of their financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (C) access to assets is permitted only in
accordance with management's general or specific authorization; and (D)
the recorded accountability for their assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(xxx) The Company and each of the Subsidiaries maintain insurance
covering their properties, assets, operations, personnel and businesses,
and such insurance is of such type and in such amounts in accordance with
customary industry practice to protect the Company and of the Subsidiaries
and their businesses. None of the Company or any of the Subsidiaries has
received notice from any insurer or agent of such insurer that any
material capital improvements or other material expenditures will have to
be made in order to continue any insurance maintained by any of them other
than capital improvements and other expenditures that have been budgeted
by the Company or the Subsidiaries, as the case may be.
(xxxi) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of Regulation D under the Act) has (A) taken, directly or
indirectly, any action designed to, or that might reasonably be expected
to, cause or result in stabilization or manipulation of the price of any
security of the Issuers to facilitate the sale or resale of the Original
Notes or (B) sold, bid for, purchased or paid any person any compensation
for soliciting purchases of the Original Notes in a manner that would
require registration of the Original Notes under the Act or paid or agreed
to pay to any person any compensation for soliciting another to purchase
any other securities of any Issuer in a manner that would require
registration of the Original Notes under the Act.
(xxxii) Neither the Company nor any of its affiliates (as defined in
Regulation D under the Act) has, directly or through any agent (other than
the Initial Purchasers, as to which no representation is made), sold,
offered for sale, contracted to sell, pledged, solicited offers to buy or
otherwise disposed of or negotiated in respect of, any security (as
defined in the Act) that is currently or will be integrated with the sale
of the Original Notes in a manner that would require the registration of
the Original Notes under the Act.
(xxxiii) None of the Issuers or any of their affiliates, or any
person acting on their behalf (other than the Initial Purchasers, as to
whom the Issuers make no representation), is engaged in any directed
selling effort with respect to the Original Notes, and each of them has
complied with the offering restrictions requirement of Regulation S under
the Act. Terms used in this paragraph have the meaning given to them by
Regulation S.
-18-
(xxxiv) No form of general solicitation or general advertising was
used by the Issuers or any of their representatives (other than the
Initial Purchasers, as to whom the Issuers make no representation) in
connection with the offer and sale of any of the Original Notes or in
connection with Exempt Resales, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine or
similar medium or broadcast over television or radio or displayed on any
computer terminal, or any seminar or meeting whose attendees have been
invited by any general solicitation or general advertising. None of the
Company or any of its affiliates has entered into, and none of the Company
or any of its affiliates will enter into, any contractual arrangement with
respect to the distribution of the Original Notes except for this
Agreement.
(xxxv) Since December 31, 2001, except as set forth or contemplated
in the Offering Memorandum, (a) neither the Company nor any of the
Subsidiaries has (1) incurred any liabilities or obligations, direct or
contingent, that could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, or (2) entered into any
transaction not in the ordinary course of business that could reasonably
be expected to have a Material Adverse Effect, (b) there has not been any
event or development in respect of the business or condition (financial or
other) of the Company and the Subsidiaries that, individually or in the
aggregate, could reasonably be expected to have a Material Adverse Effect
and (c) there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock and (d)
there has not been any material change in the long-term debt of the
Company or any of the Subsidiaries except as disclosed in the Offering
Memorandum.
(xxxvi) Neither the Company nor any of the Subsidiaries (or any
agent thereof acting on their behalf) has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale
of the Notes to violate Regulations T, U or X of the Board of Governors of
the Federal Reserve System, as in effect, or as the same may hereafter be
in effect, on the Closing Date.
(xxxvii) To the Company's knowledge, each of Deloitte & Touche LLP
and KPMG LLP is an independent accountant within the meaning of the Act.
The historical financial statements and the notes thereto included in the
Offering Memorandum present fairly in all material respects the
consolidated financial position and results of operations of the Company
and its consolidated subsidiaries at the respective dates and for the
respective periods indicated. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis throughout the periods presented (except as disclosed in
the Offering Memorandum). The other financial information and data
included in the Offering Memorandum are accurately presented in all
material respects and prepared on a basis consistent with the financial
statements and the books and records of the Company and the Subsidiaries.
-19-
(xxxviii) The assumptions used in the preparation of as adjusted
financial information included in the Offering Memorandum are reasonable
in all material respects and the adjustments used therein are appropriate
in all material respects to give effect to the transactions or
circumstances referred to therein.
(xxxix) As of the date hereof (and immediately prior to and
immediately following the issuance of the Notes on the Closing Date) the
Company and each of the Guarantors is and will be Solvent. No Issuer is
contemplating either the filing of a petition by it under any bankruptcy
or insolvency laws or the liquidating of all or a substantial portion of
its property, and no Issuer has knowledge of any person contemplating the
filing of any such petition against any Issuer. As used herein, "SOLVENT"
shall mean, for any person on a particular date, that on such date (a) the
fair value of the property of such person is greater than the total amount
of liabilities, including, without limitation, contingent liabilities, of
such person, (b) the present fair salable value of the assets of such
person is not less than the amount that will be required to pay the
probable liability of such person on its debts as they become absolute and
matured, (c) such person does not intend to, and does not believe that it
will, incur debts and liabilities beyond such person's ability to pay as
such debts and liabilities mature, (d) such person is not engaged in a
business or a transaction, and is not about to engage in a business or a
transaction, for which such person's property would constitute an
unreasonably small capital and (e) such person is able to pay its debts as
they become due and payable.
(xl) Except as described in the section entitled "Plan of
distribution" in the Offering Memorandum, there are no contracts,
agreements or understandings between the Company or any of the
Subsidiaries and any other person other than the Initial Purchasers that
would give rise to a valid claim against the Company, any Subsidiary or
any Initial Purchaser for a brokerage commission, finder's fee or like
payment in connection with the issuance, purchase and sale of the Notes.
(xli) The statistical and market-related data and forward-looking
statements (within the meaning of Section 27A of the Act and Section 21E
of the Exchange Act) included in the Offering Memorandum are based on or
derived from sources that the Issuers believe to be reliable and accurate
in all material respects.
(xlii) The Company has delivered to the Initial Purchasers a true
and correct copy of the New Credit Agreement, together with all related
agreements and all schedules and exhibits thereto, and there shall have
been no material amendments, alterations, modifications or waivers of any
of the provisions of any such documents since their respective dates of
execution, other than any such amendments, alterations, modifications and
waivers as to which the Initial Purchasers has been advised in writing and
which would be required to be disclosed in the Offering Memorandum; and
there exists no event or condition
-20-
which would constitute a default or an event of default under the New
Credit Agreement.
(xliii) Each certificate signed by any officer of the Issuers and
delivered to the Initial Purchasers or counsel for the Initial Purchasers
pursuant to, or in connection with, this Agreement shall be deemed to be a
representation and warranty by the Issuers to the Initial Purchasers as to
the matters covered by such certificate.
The Issuers acknowledge that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 8 of this Agreement, counsel to the Issuers and counsel to the Initial
Purchasers will rely upon the accuracy and truth of the foregoing
representations and the Issuers hereby consent to such reliance.
(b) Each Initial Purchaser acknowledges that it is purchasing
the Original Notes pursuant to a private sale exemption from registration under
the Act, and that the Original Notes have not been registered under the 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 the registration
requirements of the Act. Each Initial Purchaser represents, warrants and
covenants to the Issuers that:
(i) It is a QIB with such knowledge and experience in financial and
business matters as are necessary in order to evaluate the merits and
risks of an investment in the Notes.
(ii) (A) Neither it, nor any person acting on its behalf, has or
will solicit offers for, or offer or sell, the Original Notes by any form
of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Act and (B) it has and will
solicit offers for the Original Notes only from, and will offer and sell
the Original Notes only to (1) persons whom such Initial Purchasers
reasonably believes to be QIBs or, if any such person is buying for one or
more institutional accounts for which such person is acting as fiduciary
or agent, only when such person has represented to the Initial Purchasers
that each such account is a QIB to whom notice has been given that such
sale or delivery is being made in reliance on Rule 144A, and, in each
case, in reliance on the exemption from the registration requirements of
the Act pursuant to Rule 144A, or (2) persons other than U.S. persons
outside the United States in reliance on the exemption from the
registration requirements of the Act provided by Regulation S.
(iii) With respect to offers and sales outside the United States:
(A) the Initial Purchasers will comply with all applicable
laws and regulations in each jurisdiction in which they acquire,
offer, sell or deliver Notes or
-21-
have in their possession or distribute either any Offering
Memorandum or any such other material, in all cases at their own
expense; and
(B) the Initial Purchasers have offered the Original Notes and
will offer and sell the Original Notes (1) as part of its
distribution at any time and (2) otherwise until 40 days after the
later of the commencement of the offering of the Original Notes and
the Closing Date, only in accordance with Rule 903 of Regulation S
or another exemption from the registration requirements of the Act.
Accordingly, neither the Initial Purchasers nor any persons acting
on their behalf have engaged or will engage in any directed selling
efforts (within the meaning of Regulation S) with respect to the
Original Notes, and any such persons have complied and will comply
with the offering restrictions requirements of Regulation S.
Terms used in this Section 5(b)(iii) have the meanings given
to them by Regulation S.
(iv) The source of funds being used by it to acquire the Original
Notes does not include the assets of any "employee benefit plan" (within
the meaning of Section 3 of ERISA) or any "plan" (within the meaning of
Section 4975 of the Code).
The Initial Purchasers understand that the Issuers and, for
purposes of the opinions to be delivered to them pursuant to Section 8 hereof,
counsel to the Issuers and counsel to the Initial Purchasers will rely upon the
accuracy and truth of the foregoing representations, and the Initial Purchasers
hereby consent to such reliance.
6. Indemnification. (a) The Issuers, jointly and severally,
agree to indemnify and hold harmless each Initial Purchaser, each person, if
any, who controls an Initial Purchaser within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, the agents, employees, officers and
directors of each Initial Purchaser and the agents, employees, officers and
directors of any such controlling person from and against any and all losses,
liabilities, claims, damages and expenses whatsoever (including, but not limited
to, reasonable attorneys' fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all reasonable
amounts paid in settlement of any claim or litigation) (collectively, "LOSSES")
to which they or any of them may become subject under the Act, the Exchange Act
or otherwise insofar as such Losses (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 Preliminary Offering Memorandum or the Offering
Memorandum, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Issuers
-22-
will not be liable to an Initial Purchaser to the extent, but only to the
extent, that any such Loss arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission relating
to such Initial Purchaser made therein in reliance upon and in conformity with
written information relating to such Initial Purchaser furnished to the Company
by or on behalf of such Initial Purchaser expressly for use therein; provided,
however, that with respect to any untrue statement or alleged untrue statement
of, or omission or alleged omission to state, a material fact made in the
Preliminary Offering Memorandum, the indemnity set forth in this Section 6(a)
shall not inure to the benefit of an Initial Purchaser and related persons from
whom the person asserting any Losses purchased the Notes concerned, to the
extent that any such Losses of such Initial Purchaser and related persons occurs
under the circumstances where it shall have been determined by a court of
competent jurisdiction (or appropriate arbitral proceeding) by final and
nonappealable judgment that (i) the Company had previously furnished copies of
the Offering Memorandum to the Initial Purchaser, (ii) delivery of the Offering
Memorandum was required under this Agreement or by the Act to be made to such
person, (iii) the untrue statement or omission of a material fact contained in
the Preliminary Offering Memorandum was corrected in the Offering Memorandum,
(iv) there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Notes to such person, a copy of the Offering
Memorandum and (v) delivery of the Offering Memorandum would have eliminated
such Losses.
(b) Each Initial Purchaser, severally and not jointly, agrees
to indemnify and hold harmless each Issuer, each person, if any, who controls an
Issuer within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, and each of their respective agents, employees, officers and
directors and the agents, employees, officers and directors of any such
controlling person from and against any Losses to which they or any of them may
become subject under the Act, the Exchange Act or otherwise insofar as such
Losses (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
Preliminary Offering Memorandum or the Offering Memorandum, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such Loss arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission relating to such Initial
Purchaser made therein in reliance upon and in conformity with information
relating to such Initial Purchaser furnished in writing to the Company by or on
behalf of such Initial Purchasers expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 6(a) or 6(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "ACTION"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is
-23-
to be sought in writing of the commencement of such action (but the failure so
to notify an indemnifying party shall not relieve such indemnifying party from
any liability that it may have under this Section 6 except to the extent that it
has been prejudiced in any material respect by such failure). In case any such
action is brought against any indemnified party, and it notifies an indemnifying
party of the commencement of such action, the indemnifying party will be
entitled to participate in such action, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense of such
action with counsel satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such action, but the reasonable fees and expenses of
such counsel shall be at the expense of such indemnified party or parties unless
(i) the employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying parties (or such
indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel) at
any time for all indemnified parties in connection with any one action or
separate but substantially similar or related actions arising in the same
jurisdiction out of the same general allegations or circumstances. An
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent which consent may not be unreasonably
withheld. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by paragraph (a) or (b)
of this Section 6, then the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 45 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement (except with respect to that portion of fees and
expenses, if any, that the indemnifying party is contesting in good faith) and
(iii) such indemnified party shall have given the indemnifying party at least 45
days prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional
-24-
release of such indemnified party from all liability on claims that are the
subject matter of such proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such indemnified party.
(d) The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 6 of this
Agreement is for any reason held to be unavailable from the indemnifying party,
or is insufficient to hold harmless a party indemnified under Section 6 of this
Agreement, each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such aggregate Losses (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Issuers, on the one hand, and an Initial Purchaser, on the other hand, from
the offering of the Original Notes or (ii) if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Issuers,
on the one hand, and such 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. The relative benefits received by the
Issuers, on the one hand, and an Initial Purchaser, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
of Original Notes (net of discounts and commissions but before deducting
expenses) received by the Issuers are to (y) the total discounts and commissions
received by such Initial Purchaser. The relative fault of the Issuers, on the
one hand, and an Initial Purchaser, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuers or such Initial Purchaser and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission or alleged statement or omission.
The Issuers and the Initial Purchasers agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation or by any other method of allocation that does not take
into account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7, (i) in no case shall an Initial Purchaser be
required to contribute any amount in excess of the amount by which the total
discount and commissions applicable to the Original Notes purchased hereof
pursuant to this Agreement exceeds the amount of any damages that such Initial
Purchaser has otherwise been required to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person, if
any, who
-25-
controls an Initial Purchaser within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act shall have the same rights to contribution as
an Initial Purchaser, and each person, if any, who controls an Issuer within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each
director, officer, employee and agent of such Issuer shall have the same rights
to contribution of such Issuer. Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section 7, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this Section 7 or otherwise, except to
the extent that it has been prejudiced in any material respect by such failure;
provided, however, that no additional notice shall be required with respect to
any action for which notice has been given under Section 6 for purposes of
indemnification. Anything in this section to the contrary notwithstanding, no
party shall be liable for contribution with respect to any action or claim
settled without its written consent, provided, however, that such written
consent was not unreasonably withheld.
8. Conditions of Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase and pay for the Original
Notes, as provided for in this Agreement, shall be subject to satisfaction of
the following conditions prior to or concurrently with such purchase:
(a) All of the representations and warranties of the Issuers
contained in this Agreement shall be true and correct, or true and
correct in all material respects where such representations and
warranties are not qualified by materiality or Material Adverse
Effect, on the date of this Agreement and, in each case after giving
effect to the transactions contemplated hereby, on the Closing Date,
except that if a representation and warranty is made as of a
specific date, and such date is expressly referred to therein, such
representation and warranty shall be true and correct (or true and
correct in all material respects, as applicable) as of such date.
The Issuers shall have performed or complied with all of the
agreements and covenants contained in this Agreement and required to
be performed or complied with by them at or prior to the Closing
Date.
(b) The Offering Memorandum shall have been printed and copies
distributed to the Initial Purchasers on the day of this Agreement
or at such later date as the Initial Purchasers may determine. No
stop order suspending the qualification or exemption from
qualification of the Original Notes in any jurisdiction shall have
been issued and no proceeding for that purpose shall have been
commenced or shall be pending or threatened.
-26-
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by
any governmental agency that would, as of the Closing Date, prevent
the issuance of the Original Notes or consummation of the Exchange
Offer; except as disclosed in the Offering Memorandum, no action,
suit or proceeding shall have been commenced and be pending against
or affecting or, to the best knowledge of the Issuers, threatened
against any Issuer before any court or arbitrator or any
governmental body, agency or official that, if adversely determined,
could reasonably be expected to have a Material Adverse Effect; and
no stop order preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum, or any amendment or
supplement thereto, or any order asserting that any of the
transactions contemplated by this Agreement are subject to the
registration requirements of the Act shall have been issued.
(d) Since December 31, 2001, except as set forth or
contemplated in the Offering Memorandum, (a) neither the Company nor
any Subsidiary has (1) incurred any liabilities or obligations,
direct or contingent, that would reasonably be expected to have a
Material Adverse Effect, or (2) entered into any material
transaction not in the ordinary course of business, (b) there has
not been any event or development in respect of the business or
condition (financial or other) of the Company and the Subsidiaries
that, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect and (c) there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(e) The Initial Purchasers shall have received certificates,
dated the Closing Date, signed by two authorized officers of each
Issuer confirming, as of the Closing Date, to their knowledge, the
matters set forth in paragraphs (a), (b), (c) and (d) of this
Section 8.
(f) The Initial Purchasers shall have received on the Closing
Date opinions dated the Closing Date, addressed to the Initial
Purchasers, of Akin, Gump, Strauss, Hauer & Feld, L.L.P. counsel to
the Issuers, and Anthony J. Correro III, general counsel of the
Company, substantially in the form of Exhibits B-1 and B-2 hereto in
form and substance reasonably satisfactory to the Initial Purchasers
and counsel to the Initial Purchasers.
(g) The Initial Purchasers shall have received on the Closing
Date an opinion (satisfactory in form and substance to the Initial
Purchasers) dated the Closing Date from each of Cahill Gordon &
Reindel and Gardere Wynne Sewell LLP, counsel to the Initial
Purchasers.
(h) The Initial Purchasers shall have received a "comfort
letter" from Deloitte & Touche LLP, independent public accountants
for the Company, dated the
-27-
date of this Agreement, addressed to the Initial Purchasers and in
form and substance satisfactory to the Initial Purchasers and
counsel to the Initial Purchasers. In addition, the Initial
Purchasers shall have received a "bring-down comfort letter" from
Deloitte & Touche LLP, dated as of the Closing Date, addressed to
the Initial Purchasers and in form and substance satisfactory to the
Initial Purchasers and counsel to the Initial Purchasers.
(i) Each of the Issuers and the Trustee shall have executed
and delivered the Indenture and the Initial Purchasers shall have
received copies, conformed as executed, thereof.
(j) The Company shall have executed and delivered the New
Credit Agreement and the Initial Purchasers shall have received
counterparts, conformed as executed, thereof.
(k) Each of the Issuers shall have executed and delivered into
the Registration Rights Agreement and the Initial Purchasers shall
have received counterparts, conformed as executed, thereof.
(l) The Company shall have notified the lenders under the
Company's existing credit facility, of the Company's intention to
pay all obligations with respect thereto with a portion of the
proceeds of the Original Notes and to terminate such facility, and
simultaneously with the issuance of the Original Notes all such
obligations shall be paid in full and such facility shall be
terminated.
(m) All government authorizations required in connection with
the issue and sale of the Notes as contemplated under this Agreement
and the performance of the Issuers' obligations hereunder and under
Indenture and the Notes shall be in full force and effect.
(n) The Initial Purchasers shall have been furnished with
wiring instructions for the application of the proceeds of the
Original Notes in accordance with this Agreement and such other
information as it may reasonably request.
(o) Cahill Gordon & Reindel and Gardere Wynne Sewell LLP,
counsel to the Initial Purchasers, shall have been furnished with
such documents as they may reasonably request to enable them to
review or pass upon the matters referred to in this Section 8 and in
order to evidence the accuracy, completeness or satisfaction in all
material respects of any of the representations, warranties or
conditions contained in this Agreement.
(p) The Original Notes shall be eligible for trading in Portal
upon issuance.
-28-
(q) All agreements set forth in the representation letter of
the Issuers to DTC relating to the approval of the Notes by DTC for
"book-entry" transfer shall have been complied with.
The documents required to be delivered by this Section 8 will
be delivered at the office of counsel for the Initial Purchasers on the Closing
Date.
9. Initial Purchasers' Information. The Issuers and the
Initial Purchasers severally acknowledge that the statements with respect to the
delivery of the Original Notes to the Initial Purchasers set forth in (i) the
last paragraph of the cover page and (ii) in the first sentence of the fourth
paragraph, the first sentence of the sixth paragraph and in the seventh
paragraph under the caption "Plan of distribution" in the Preliminary Offering
Memorandum and the Offering Memorandum constitute the only information furnished
in writing by the Initial Purchasers expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum.
10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements contained in this
Agreement, including the agreements contained in Sections 4(f) and 11(d), the
indemnity agreements contained in Section 6 and the contribution agreements
contained in Section 7 shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Initial Purchasers
or any controlling person thereof or by or on behalf of the Issuers or any
controlling person thereof, and shall survive delivery of and payment for the
Original Notes to and by the Initial Purchasers. The agreements contained in
Sections 4(f), 6, 7, 9 and 11(d) shall survive the termination of this
Agreement, including pursuant to Section 11.
11. Effective Date of Agreement; Termination. (a) This
Agreement shall become effective upon execution and delivery of a counterpart
hereof by each of the parties hereto.
(b) The Initial Purchasers shall have the right to terminate
this Agreement at any time prior to the Closing Date by notice to the Company
from the Initial Purchasers, without liability (other than with respect to
Sections 6 and 7) on the Initial Purchasers' part to the Issuers if, on or prior
to such date, (i) the Issuers shall have failed, refused or been unable to
perform in any material respect any agreement on their part to be performed
under this Agreement when and as required, (ii) any other condition to the
obligations of the Initial Purchasers under this Agreement to be fulfilled by
the Issuers pursuant to Section 8 is not fulfilled when and as required in any
material respect, (iii) trading in securities of the Company on the Nasdaq
National Market shall have been suspended or materially limited, (iv) trading in
securities generally on the New York Stock Exchange, the American Stock Exchange
or the Nasdaq National Market shall have been suspended or materially limited,
or minimum prices shall have been established thereon by the Commission, or by
such exchange or other regulatory
-29-
body or governmental authority having jurisdiction, (v) a general banking
moratorium shall have been declared by federal or New York authorities, (vi)
there is an outbreak or escalation of hostilities or other national or
international calamity, in any case involving the United States, on or after the
date of this Agreement, or if there has been a declaration by the United States
of a national emergency or war or other national or international calamity or
crisis (economic, political, financial or otherwise) which affects the U.S. and
international markets, making it, in the Initial Purchasers' judgment,
impracticable to proceed with the offering or delivery of the Original Notes on
the terms and in the manner contemplated in the Offering Memorandum or (vii)
there shall have been such a material adverse change or material disruption in
the financial, banking or capital markets generally (including, without
limitation, the markets for debt securities of companies similar to the Company)
or the effect (or potential effect if the financial markets in the United States
have not yet opened) of international conditions on the financial markets in the
United States shall be such as, in the Initial Purchasers' judgment, to make it
inadvisable or impracticable to proceed with the offering or delivery of the
Notes on the terms and in the manner contemplated in the Offering Memorandum.
(c) Any notice of termination pursuant to this Section 11
shall be given at the address specified in Section 12 below by telephone, telex,
telephonic facsimile or telegraph, confirmed in writing by letter.
(d) If the sale of the Notes provided for in this Agreement is
not consummated because of any refusal, inability or failure on the part of the
Issuers to satisfy any condition to the obligations of the Initial Purchasers
set forth in this Agreement to be satisfied on its part or because of any
refusal, inability or failure on the part of the Issuers to perform any
agreement in this Agreement or comply with any provision of this Agreement, the
Issuers will reimburse the Initial Purchasers for all of its reasonable
out-of-pocket expenses, including, without limitation, the fees and expenses of
the Initial Purchasers' counsel incurred in connection with this Agreement.
(e) If any Initial Purchaser shall fail to purchase and pay
for any of the Original Notes agreed to be purchased by such Initial Purchaser
hereunder and such failure to purchase shall constitute a default in the
performance of its obligations under this Agreement, the remaining Initial
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Original Notes, and if such non-defaulting
Initial Purchasers do not purchase all the Original Notes, this Agreement will
terminate without liability to such nondefaulting Initial Purchasers or the
Issuers. In the event of a default by any Initial Purchaser as set forth in this
paragraph (e), the Closing Date shall be postponed for such period, not
exceeding five business days, as the nondefaulting Initial Purchasers shall
determine in order that the required changes in the Offering Memorandum or in
any other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting
-30-
Initial Purchaser of its liability, if any, to the Issuers or any nondefaulting
Initial Purchaser for damages occasioned by its default hereunder.
12. Notice. All communications with respect to or under this
Agreement, except as may be otherwise specifically provided in this Agreement,
shall be in writing and, if sent to the Initial Purchasers, shall be mailed,
delivered, or, telegraphed or telecopied and confirmed in writing to UBS Warburg
LLC, 299 Park Avenue, 38th Floor, New York, New York 10171 (telephone: (212)
821-3000, fax: (203)-719-1075), Attention: Syndicate Department, with a copy to
Cahill Gordon & Reindel, 80 Pine Street, New York, New York 10005 (telephone:
(212) 701-3000, fax: (212) 269-5420), Attention: Richard E. Farley, Esq. and
Gardere Wynne Sewell LLP, 1000 Louisiana, Suite 3400, Houston, TX 77002
(telephone: (713) 276-5898, fax: (713) 276-6898), Attention: Greg Sergesketter,
Esq. and, if sent to the Issuers, shall be mailed, delivered or telegraphed or
telecopied and confirmed in writing to Petroleum Helicopters, Inc., Post Office
Box 90808, Municipal Airport, Lafayette, LA 70509-0808 (telephone: (337)
235-2452, fax: (337) 206-9576), Attention: Chief Executive Officer, with a copy
to Akin, Gump, Strauss, Hauer & Feld, L.L.P., 1900 Pennzoil Place, South Tower,
711 Louisiana Street, Houston, TX 77002 (telephone: (713) 220-5800, fax: (713)
236-0822), Attention: Richard J. Wilkie, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged by telecopier machine, if telecopied; and one business day after
being timely delivered to a next-day air courier.
13. Parties. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Initial Purchasers, the Issuers and the
controlling persons and agents referred to in Sections 6 and 7, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term "successors and assigns" shall not include a purchaser, in its capacity as
such, of Notes from the Initial Purchasers.
14. Construction. This Agreement shall be construed in
accordance with the internal laws of the State of New York (without giving
effect to any provisions thereof relating to conflicts of law).
15. Captions. The captions included in this Agreement are
included solely for convenience of reference and are not to be considered a part
of this Agreement.
16. Counterparts. This Agreement may be executed in various
counterparts that together shall constitute one and the same instrument.
If the foregoing agreement correctly sets forth the
understanding among the Issuers and the Initial Purchasers, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Issuers and the
Initial Purchasers.
PETROLEUM HELICOPTERS, INC.
By: /s/ MICHAEL J. McCANN
-----------------------------------
Name: Michael J. McCann
Title: Chief Financial Officer
EACH SUBSIDIARY GUARANTOR LISTED ON
SCHEDULE I HERETO
By: /s/ MICHAEL J. McCANN
-----------------------------------
Name: Michael J. McCann
Title: Vice President
Confirmed and accepted as of
the date first above written:
UBS WARBURG LLC
By: /s/ RICHARD R.S. SMITH
-----------------------------
Name: Richard R.S. Smith
Title: Managing Director
By: /s/ L. BRETT WATKINS
-----------------------------
Name: L. Brett Watkins
Title: Director
Deutsche Bank Securities Inc.
By: /s/ MARK FEDORCIK
-----------------------------
Name: Mark Fedorcik
Title: Director
SCHEDULE I
GUARANTORS
1. International Helicopter Transport, Inc.
2. Evangeline Airmotive, Inc.
3. Air Evac Services, Inc.
4. PHI Aeromedical Services, Inc.
5. Petroleum Helicopters International, Inc.
6. Acadian Composites, L.L.C.
7. Helicopter Management, L.L.C.
8. Helicopter Leasing, L.L.C.
SCHEDULE II
<Table>
<Caption>
% JURISDICTION OF
OWNED BY THE INCORPORATION OR
SUBSIDIARY TYPE OF ENTITY COMPANY ORGANIZATION
---------- -------------- ------------- ---------------
1. International Helicopter Transport, Corporation 100% Louisiana
Inc.
2. Evangeline Airmotive, Inc. Corporation 100% Louisiana
3. Acadian Composites, L.L.C. LLC 100% Louisiana
4. Air Evac Services, Inc. Corporation 100% Louisiana
5. PHI Aeromedical Services, Inc. Corporation 100% Louisiana
6. Petroleum Helicopters International, Corporation 100% Louisiana
Inc.
</Table>
SCHEDULE III
<Table>
<Caption>
PRINCIPAL AMOUNT OF
INITIAL PURCHASERS ORIGINAL NOTES
- ------------------ -------------------
UBS Warburg LLC $160,000,000
Deutsche Bank Securities Inc. $ 40,000,000
Total $200,000,000
</Table>