1
Exhibit 4.2
================================================================================
CONTINENTAL GLOBAL GROUP, INC.
----------------------------------------
$120,000,000
11% SERIES A SENIOR NOTES DUE 2007
----------------------------------------
-------------------
PURCHASE AGREEMENT
DATED AS OF MARCH 26, 1997
-------------------
DONALDSON, LUFKIN & JENRETTE
Securities Corporation
================================================================================
2
March 26, 1997
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
277 Park Avenue
New York, New York 10172
Dear Sirs:
Continental Global Group, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell an aggregate of $120,000,000 in principal amount of
its 11% Series A Senior Notes due 2007 (the "Series A Senior Notes") to
Donaldson, Lufkin & Jenrette Securities Corporation (the "INITIAL PURCHASER"),
subject to the terms and conditions set forth herein. The Series A Senior Notes
will be issued pursuant to the provisions of an indenture (the "INDENTURE") to
be dated as of April 1, 1997 among the Company, the Subsidiary Guarantors (as
defined below) and Norwest Bank Minnesota, N.A., as trustee (the "TRUSTEE"). The
Series A Senior Notes and the Series B Senior Notes (as defined below) issuable
in exchange therefor are collectively referred to herein as the "SENIOR NOTES."
The Senior Notes will be, jointly and severally, guaranteed on a senior
unsecured basis by each of the entities listed on Schedule I hereto (each a
"SUBSIDIARY GUARANTOR" and together, the "SUBSIDIARY GUARANTORS"), being the
Company's only domestic subsidiaries as of the Closing Date (as defined below).
Capitalized terms used but not defined herein shall have the meanings given to
such terms in the Indenture.
The proceeds to the Company from the sale to the Initial Purchaser of
the Senior Notes (the "PROCEEDS") will be used (i) to refinance certain
indebtedness of the Company, including indebtedness incurred in connection with
the acquisition of an affiliated group of conveyor equipment companies in
Australia (the "BCE ACQUISITION") and outstanding indebtedness under the
Existing Credit Facility; (ii) to fund the Hewitt-Robins Acquisition (as defined
below); (iii) for general corporate purposes, including to fund future
acquisitions to the extent permitted by the Indenture; (iv) to pay fees and
expenses incurred in connection with the offering of the Series A Senior Notes;
and (v) to fund a dividend to the sole stockholder of the Company.
On or prior to the Closing Date, each of Continental Conveyor &
Equipment Company, a Delaware corporation ("CONTINENTAL"), and Goodman Conveyor
Company, a Delaware corporation will enter into a revolving credit facility (the
"REVOLVING CREDIT FACILITY") with Bank One Cleveland, N.A., as lender
thereunder. The Revolving Credit Facility will be secured by liens on
substantially all of the assets of the Company's subsidiaries (other than
Foreign Subsidiaries (as defined)) and will be guaranteed by the Company.
Concurrent with the closing of the sale of the Series A Senior Notes by
the Company to the Initial Purchaser pursuant to this Purchase Agreement (this
"AGREEMENT") Continental will acquire (the "HEWITT-ROBINS ACQUISITION")
substantially all of the assets of W. S. Tyler Incorporated's ("TYLER")
Hewitt-Robins Conveyor Components Division, a United States manufacturer of
idlers ("HEWITT-ROBINS"), pursuant to the Hewitt-Robins Purchase Agreement (the
"HEWITT-ROBINS ACQUISITION AGREEMENT".)
1
3
1. ISSUANCE OF SECURITIES. The Series A Senior Notes will be offered
and sold to the Initial Purchaser pursuant to an exemption from the registration
requirements under the Securities Act of 1933, as amended (the "SECURITIES
ACT"). The Company has prepared a preliminary offering memorandum, dated March
11, 1997 (the "PRELIMINARY OFFERING MEMORANDUM"), and a final offering
memorandum, dated March 26, 1997 (the "OFFERING MEMORANDUM") relating to the
Series A Senior Notes.
Upon original issuance thereof, and until such time as the same is no
longer required under the applicable requirements of the Securities Act, the
Series A Senior Notes (and all securities issued in exchange therefor or in
substitution thereof) shall bear the following legend:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY BE RELYING ON
THE EXEMPTION PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF THE
SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(1) (a) INSIDE THE UNITED STATES TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (b) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144
UNDER THE SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN
PERSON IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, (d) TO AN INSTITUTIONAL `ACCREDITED INVESTOR' (AS
DEFINED IN RULE 501(a)(1), (2), (3) or (7) OF THE SECURITIES ACT (AN
"INSTITUTIONAL ACCREDITED INVESTOR") THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SENIOR NOTES LESS THAN $100,000, AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE
WITH THE SECURITIES ACT OR (e) IN ACCORDANCE WITH ANOTHER EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
2. AGREEMENTS TO SELL AND PURCHASE. On the basis of the representations
and warranties contained in, and subject to the terms and conditions of, this
Agreement, the Company agrees to issue and sell the Series A Senior Notes to the
Initial Purchaser, and the Initial Purchaser agrees to purchase all of the
Series A Senior Notes from the Company, at a price equal to 97% of the principal
amount of the Series A Senior Notes (the "PURCHASE PRICE").
2
4
3. TERMS OF OFFERING. The Initial Purchaser has advised the Company
that the Initial Purchaser will make offers (the "EXEMPT RESALES") of the Series
A Senior Notes purchased by the Initial Purchaser hereunder on the terms set
forth in the Offering Memorandum, as amended or supplemented, solely to (i)
persons whom the Initial Purchaser reasonably believes to be "qualified
institutional buyers" as defined in Rule 144A under the Securities Act ("QIBs"),
(ii) a limited number of other institutional "accredited investors," as defined
in Rule 501(a) (1), (2), (3) or (7) under the Securities Act, that make certain
representations and agreements to the Company (each, an "ACCREDITED
INSTITUTION") and (iii) to non-U.S. persons outside the United States in
reliance upon Regulation S under the Securities Act (each, a "REGULATION S
PURCHASER") (such persons specified in clauses (i), (ii) and (iii) being
referred to herein as the "ELIGIBLE PURCHASERS"). The Initial Purchaser will
offer the Series A Senior Notes to Eligible Purchasers initially at a price
equal to 100% of the principal amount thereof. Such price may be changed at any
time without notice.
Holders (including subsequent transferees) of the Series A Senior Notes
will have the registration rights set forth in the registration rights agreement
(the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date, in the form
of Exhibit A hereto, for so long as such Series A Senior Notes constitute
"TRANSFER RESTRICTED SECURITIES" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company and the
Subsidiary Guarantors will agree to file with the Securities and Exchange
Commission (the "COMMISSION") under the circumstances set forth therein, (i) a
registration statement under the Securities Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to (A) the Company's 11% Series B Senior Notes
due 2007 (the "SERIES B SENIOR NOTES") to be offered in exchange for the Series
A Senior Notes (such offer to exchange being referred to as the "REGISTERED
EXCHANGE OFFER") and/or (ii) a shelf registration statement pursuant to Rule 415
under the Securities 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 Series A Senior Notes, and to
use their reasonable best efforts to cause such Registration Statements to be
declared effective and consummate the Registered Exchange Offer. This Agreement,
the Indenture, the Senior Notes, the Subsidiary Guarantees and the Registration
Rights Agreement are hereinafter referred to collectively as the "OPERATIVE
DOCUMENTS."
4. DELIVERY AND PAYMENT. Delivery to the Initial Purchaser by the
Company of, and payment by the Initial Purchaser for, the Series A Senior Notes
shall be made at 10:00 A.M., New York City time, on April 1, 1997 (the "CLOSING
DATE") (or such other date as the Company and the Initial Purchaser may agree),
at the offices of Latham & Watkins, 885 Third Avenue, New York, New York 10022.
One or more Series A Senior Notes in definitive form (collectively, the
"DEFINITIVE NOTES"), registered in the name of Cede & Co., as nominee of the
Depository Trust Company ("DTC"), or such other names as the Initial Purchaser
may request upon at least one business days' notice to the Company, having an
aggregate principal amount corresponding to the aggregate principal amount of
Series A Senior Notes sold pursuant to Exempt Resales to Eligible Purchasers,
shall be delivered by the Company to the Initial Purchaser, against payment by
the Initial Purchaser of the purchase price thereof by wire transfer of
immediately available Federal funds to the order of the Company or as the
Company may direct. The Definitive Notes shall be made available to the Initial
Purchaser for inspection not later than 9:30 a.m. on the business day
immediately preceding the Closing Date.
3
5
5. AGREEMENTS OF THE COMPANY AND THE SUBSIDIARY GUARANTORS. Each of the
Company and the Subsidiary Guarantors hereby agrees with the Initial Purchaser
as follows:
(a) To advise the Initial Purchaser promptly and, if requested
by the Initial Purchaser, to confirm such advice in writing, (i) of
receipt of any notification with respect to the issuance by any state
securities commission of any stop order suspending the qualification or
exemption from qualification of any of the Series A Senior Notes or the
Subsidiary Guarantees for offering or sale in any jurisdiction
designated by the Initial Purchaser pursuant to Section 5(f) hereof, or
the initiation of any proceeding for such purpose by any state
securities commission or other regulatory authority and (ii) of the
happening of any event that makes any statement of a material fact made
in the Preliminary Offering Memorandum or the Offering Memorandum (or
any amendment or supplement thereto) untrue or that requires the making
of any additions to or changes in the Preliminary Offering Memorandum
or the Offering Memorandum (or any amendment or supplement thereto) in
order to make the statements therein, in the light of the circumstances
under which they are made, not misleading. The Company shall use its
reasonable best efforts to prevent the issuance of any stop order or
order suspending the qualification or exemption from qualification of
any Series A Senior Notes under any state securities or Blue Sky laws,
and, if at any time any state securities commission or other regulatory
authority shall issue any stop order or order suspending the
qualification or exemption from qualification of any Series A Senior
Notes under any state securities or Blue Sky laws, the Company shall
use its reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time.
(b) Subject to paragraph (e) below, to furnish to the Initial
Purchaser and those persons identified by the Initial Purchaser to the
Company, without charge, as many copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments or
supplements thereto, as the Initial Purchaser may reasonably request.
The Company consents to the lawful use of the Preliminary Offering
Memorandum and the Offering Memorandum, and any amendments or
supplements thereto, by the Initial Purchaser in connection with Exempt
Resales.
(c) Not to amend or supplement the Offering Memorandum,
whether before or after the Closing Date, unless (i) the Initial
Purchaser has been previously advised thereof and (ii) the Initial
Purchaser has not reasonably objected thereto (unless in the reasonable
judgment of counsel to the Company such amendment or supplement is
necessary to make the statements made in the Offering Memorandum not
misleading); and to prepare, promptly upon the Initial Purchaser's
request, any amendment or supplement to the Offering Memorandum that
may be reasonably deemed to be necessary or advisable in connection
with Exempt Resales (except to the extent any such amendment or
supplement requested would, in the judgment of counsel to the Company,
render the statements made in the Offering Memorandum, as proposed to
be amended or supplemented, misleading).
(d) Subject to paragraph (e) below, if, after the date hereof
and prior to the completion of Exempt Resales of the Series A Senior
Notes by the Initial Purchaser, any event shall occur as a result of
which, in the reasonable judgment of the Company or the Initial
Purchaser, it becomes necessary to amend or supplement the Offering
Memorandum to comply with any law, statute, rule or regulation or to
make the statements therein, in the light of the circumstances at the
time that the Offering Memorandum is delivered to an Eligible Purchaser
which is a prospective purchaser, not misleading, to promptly prepare
an appropriate amendment or supplement to the Offering Memorandum so
that the statements in the Offering Memorandum,
4
6
as so amended or supplemented, will comply with all applicable laws,
statutes, rules and regulations and will not, in the light of the
circumstances at the time it is so delivered, be misleading.
(e) Prior to the consummation of the Registered Exchange Offer
or the effectiveness of an applicable Shelf Registration Statement if,
in the reasonable judgment of the Initial Purchaser, the Initial
Purchaser or any of its affiliates (as such term is defined in the
rules and regulations under the Securities Act) are required to deliver
a prospectus or an offering memorandum in connection with sales of, or
market-making activities with respect to, the Senior Notes, (A) to
periodically amend or supplement the Offering Memorandum so that the
information contained in the Offering Memorandum complies with the
requirements of Rule 144A of the Securities Act, (B) to amend or
supplement the Offering Memorandum when necessary to reflect any
material changes in the information provided therein so that the
Offering Memorandum will not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances existing as of the
date the Offering Memorandum is so delivered, not misleading and (C) to
provide the Initial Purchaser with copies of each such amended or
supplemented Offering Memorandum as the Initial Purchaser may
reasonably request.
Subject to the terms of the Registration Rights Agreement,
following the consummation of the Registered Exchange Offer or the
effectiveness of an applicable Shelf Registration Statement and for so
long as the Senior Notes are outstanding, if, in the reasonable
judgment of the Initial Purchaser, the Initial Purchaser or any of its
affiliates (as such term is defined in the rules and regulations under
the Securities Act) are required to deliver a prospectus in connection
with sales of, or market-making activities with respect to, such
securities, (A) to periodically amend the applicable Registration
Statement so that the information contained therein complies with the
requirements of Section 10(a) of the Securities Act, (B) to amend the
applicable Registration Statement or supplement the related prospectus
or the documents incorporated therein when necessary to reflect any
material changes in the information provided therein so that the
Registration Statement and the prospectus will not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances existing as of the date the prospectus is so delivered,
not misleading and (C) to provide the Initial Purchaser with copies of
each amendment or supplement filed and such other documents as the
Initial Purchaser may reasonably request.
The Company hereby expressly acknowledges that the
indemnification and contribution provisions of Section 8 hereof are
specifically applicable and relate to each Offering Memorandum,
Registration Statement, prospectus, amendment or supplement referred to
in this Section 5(e).
(f) To (i) cooperate with the Initial Purchaser and counsel
for the Initial Purchaser in connection with the registration or
qualification of the Series A Senior Notes and the Subsidiary
Guarantees for offer and sale by the Initial Purchaser under the state
securities or Blue Sky laws of such jurisdictions as the Initial
Purchaser may reasonably request, (ii) continue such qualification in
effect so long as required for Exempt Resales of the Series A Senior
Notes and the Subsidiary Guarantees and (iii) file such consents to
service of process or other documents as may be necessary in order to
effect such qualification; provided that in no event shall the Company
or any Subsidiary Guarantor be obligated to qualify to do business in
any jurisdiction where it is not now so qualified, or take any action
which would subject it to general consent to
5
7
service of process or taxation, other than as to matters and
transactions relating to the Preliminary Offering Memorandum and the
Offering Memorandum or Exempt Resales, in any jurisdiction where it is
not now so subject.
(g) From and after the effective date of the Exchange Offer
Registration Statement or the applicable Shelf Registration Statement
and as long as any of the Senior Notes are outstanding, to file
reports pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), and, during the period of
three years following the date of this Agreement, to deliver without
charge to the Initial Purchaser, promptly upon their becoming
available, (i) all reports or other publicly available information
that the Company shall mail or otherwise make available to its
stockholders and (ii) all reports, financial statements and proxy or
information statements filed by the Company or the Subsidiary
Guarantors with the Commission or any national securities exchange.
(h) To use the Proceeds from the sale of the Series A Senior
Notes in the manner specified in the Offering Memorandum (and any
amendments or supplements thereto) under the caption "Use of
Proceeds."
(i) Not to voluntarily claim, and to resist actively any
attempts to claim, the benefit of any usury laws against the holders
of any Senior Notes.
(j) To pay and be responsible for all costs, expenses, fees
and taxes in connection with, incident to or in respect of:
(1) the preparation, printing, filing and
distribution of the Preliminary Offering Memorandum and the
Offering Memorandum (including, without limitation,
financial statements and exhibits) and all amendments and
supplements to any of them;
(2) the preparation, printing and delivery of the
Operative Documents, all preliminary and final Blue Sky
memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in
connection herewith and with the Exempt Resales (including
in each case any disbursements of counsel to the Initial
Purchaser relating to such printing and delivery; provided
that such fees and disbursements, together with any
disbursements of counsel to the Initial Purchaser reimbursed
pursuant to clause (4) below, shall not exceed $20,000);
(3) the issuance, transfer and delivery by the
Company and the Subsidiary Guarantors of the Senior Notes
and the Subsidiary Guarantees to the Initial Purchaser;
(4) the registration or qualification of the
Senior Notes and Subsidiary Guarantees for offer and sale
under the securities or Blue Sky laws of the jurisdictions
referred to in Section 5(f) hereof (including in each case,
the reasonable fees and disbursements of counsel to the
Initial Purchaser relating to such registration or
qualification and memoranda relating thereto; provided that
such fees and disbursements, together with any disbursements
of counsel to the Initial Purchaser reimbursed pursuant to
clause (2) above, shall not exceed $20,000);
(5) furnishing such copies of the Preliminary
Offering Memorandum and the Offering Memorandum and all
amendments and supplements thereto as may be
6
8
reasonably requested for use in connection with the Exempt
Resales;
(6) the preparation of certificates for the Senior
Notes (including, without limitation, printing and engraving
thereof);
(7) the fees, disbursements and expenses of the
Company's counsel and accountants;
(8) the rating of the Senior Notes by investment
rating agencies, if any;
(9) all expenses and listing fees in connection
with the application for quotation of the Series A Senior
Notes in the National Association of Securities Dealers,
Inc. ("NASD") Automated Quotation System - PORTAL
("PORTAL");
(10) all fees and expenses of the Company in
connection with approval of the Senior Notes by DTC for
"book-entry" transfer;
(11) the fees and expenses of the Trustee and the
Trustee's counsel in connection with the Indenture and the
Senior Notes;
(12) the performance by the Company of its other
obligations under this Agreement and the other Operative
Documents; and
(13) all out-of-pocket expenses incurred by the
Initial Purchaser (including reasonable fees and expenses of
counsel to the Initial Purchaser); provided that such fees
and expenses (which shall not include any fees and expenses
payable pursuant to clauses (2) or (4) of this Section 5(j))
shall not exceed $350,000.
(k) If this Agreement shall be terminated pursuant to any of
the provisions hereof (other than a default by the Initial Purchaser)
or if for any reason the Company and the Subsidiary Guarantors shall
be unable or unwilling to perform their obligations hereunder, the
Company and the Subsidiary Guarantors shall, except as otherwise
agreed by the parties hereto, reimburse the Initial Purchaser for the
fees and expenses to be paid or reimbursed pursuant to Section 5(j)
above, and reimburse the Initial Purchaser for all out-of-pocket
expenses (including the reasonable fees and expenses of counsel to the
Initial Purchaser) reasonably incurred by the Initial Purchaser in
connection with the transactions contemplated by this Agreement;
provided that such fees and expenses (which shall not include any fees
and expenses payable pursuant to clauses (2) or (4) of this Section
5(j) above) shall not exceed $350,000.
(l) During the period set forth in 5(o) hereof, to furnish
to the Initial Purchaser, as soon as they have been prepared by the
Company, a copy of any consolidated financial statements of the
Company for any period subsequent to the period covered by the
financial statements appearing in the Offering Memorandum.
(m) Not to distribute prior to the Closing Date any offering
material in connection with the offering and sale of the Series A
Senior Notes other than the Preliminary Offering Memorandum and the
Offering Memorandum.
(n) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect
7
9
of any security (as defined in the Securities Act) that would be
integrated with the sale of the Series A Senior Notes in a manner that
would require the registration under the Securities Act of the sale to
the Initial Purchaser or the Eligible Purchasers of Series A Senior
Notes.
(o) For so long as any of the Senior Notes remain outstanding
and during any period in which the Company is not subject to Section 13
or 15(d) of the Exchange Act, to make available to any holder of Series
A Senior Notes in connection with any sale thereof and any prospective
purchaser of such Series A Senior Notes from such holder, the
information (the "RULE 144A INFORMATION") required by Rule 144A(d)(4)
under the Securities Act.
(p) To cause the Registered Exchange Offer to be made on the
appropriate form to permit registered Series B Senior Notes to be
offered in exchange for the Series A Senior Notes and to comply in all
material respects with all applicable federal and state securities laws
in connection with the Registered Exchange Offer.
(q) To comply with its agreements set forth in the
Registration Rights Agreement and all agreements set forth in the
representation letters of the Company to DTC relating to the approval
of the Senior Notes by DTC for "book-entry" transfer.
(r) To use its reasonable best efforts to effect the inclusion
of the Series A Senior Notes in PORTAL and to obtain approval of the
Senior Notes by DTC for "book-entry" transfer.
(s) Not to, and to cause its affiliates not to, offer, sell,
contract to sell or grant any option to purchase or otherwise transfer
or dispose of any Senior Notes or any other debt security issued by the
Company or any of its subsidiaries (other than a private loan, credit
or financing agreement with a bank or similar financing institution) or
any security convertible into or exchangeable or exercisable for any
such debt security, for a period of 180 days after the Closing Date,
without the Initial Purchaser's prior written consent, except for (i)
sales or transfers between affiliates of the Company and the Company or
any of its subsidiaries and (ii) the issue and exchange of Series B
Senior Notes for Series A Senior Notes in the Registered Exchange
Offer.
(t) To do and perform all things required or necessary to be
done and performed under this Agreement by the Company that are within
its control prior to the Closing Date and to satisfy all conditions on
its part precedent to the delivery of the Series A Senior Notes that
are within its control.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SUBSIDIARY
GUARANTORS. Each of the Company, and as regards itself only, each of the
Subsidiary Guarantors, represents and warrants to the Initial Purchaser that:
(a) The Preliminary Offering Memorandum and the Offering
Memorandum have been prepared in connection with the Exempt Resales.
The Preliminary Offering Memorandum as of its date did not, and the
Offering Memorandum as of its date does not and as of the Closing Date
will not, and any amendment or supplement thereto will not, contain any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except that
the representations and warranties contained in this paragraph (a)
shall not apply to statements or
8
10
omissions in the Preliminary Offering Memorandum or the Offering
Memorandum (or any amendment or supplement thereto) made in reliance
upon or in conformity with information relating to the Initial
Purchaser furnished to the Company in writing by the Initial Purchaser
expressly for use therein. The Company and the Subsidiary Guarantors
acknowledge for all purposes under this Agreement that the statements
set forth in the fourth paragraph on the cover page and under the
caption "Plan of Distribution" in the Offering Memorandum constitute
the only written information furnished to the Company by the Initial
Purchaser expressly for use in the Preliminary Offering Memorandum and
the Offering Memorandum (or any amendment or supplement thereto). The
Company has no knowledge of, and has not received any notifications
with respect, to the issuance of any stop order preventing the use of
any 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 Securities Act.
(b) The Company and each of its direct and indirect
subsidiaries (1) is and, immediately after giving effect to the
Hewitt-Robins Acquisition, will be, duly organized, validly existing
and in good standing under the laws of its respective jurisdiction of
incorporation, (2) has, and immediately after giving effect to the
Hewitt-Robins Acquisition, will have, requisite corporate power and
authority to carry on its respective business as it is currently being
conducted and to own, lease and operate its respective properties, and
(3) is and, immediately after giving effect to the Hewitt-Robins
Acquisition, will be, duly qualified and in good standing as a foreign
corporation registered to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would
not, singly or in the aggregate, have a Material Adverse Effect. As
used herein, "MATERIAL ADVERSE EFFECT" shall mean any effect or group
of related or unrelated effects that (i) would be reasonably expected,
individually or in the aggregate, to result in a material adverse
effect on the assets, properties, business, results of operations,
condition (financial or otherwise) or prospects of the Company and its
subsidiaries, taken as a whole, immediately after giving effect to the
Hewitt-Robins Acquisition, or (ii) would interfere with, adversely
affect or question the validity of (A) the execution, delivery and
performance of any of the Operative Documents, the issuance of the
Senior Notes and the Subsidiary Guarantees or the consummation of this
Agreement and the transactions contemplated hereby, (B) the performance
by the Company and each of its subsidiaries of its respective
agreements and obligations under this Agreement or the consummation of
the transactions contemplated thereby or (C) the consummation of the
Hewitt-Robins Acquisition.
(c) All of the outstanding shares of capital stock of or other
ownership interests in the Company and each of its subsidiaries has
been duly authorized and validly issued, is fully paid and
nonassessable; the outstanding shares of capital stock of or other
ownership interests in each of the Company's subsidiaries have not been
issued in violation of any preemptive or similar rights and are owned
free and clear of any security interest, mortgage, pledge, claim, lien,
limitation on voting rights or encumbrance (each a "Lien") except for
Liens granted pursuant to the Revolving Credit Facility and the
Australian Revolving Credit Facility. There are no outstanding
subscriptions, rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, any shares of capital stock or
other equity interest in the Company or any of its subsidiaries.
(d) The Company has all necessary corporate power and
authority to execute, deliver
9
11
and perform its obligations under each of the Operative Documents and
the Revolving Credit Facility and to consummate the transactions
contemplated by the Operative Documents and the Revolving Credit
Facility and to issue, sell and deliver the Series A Senior Notes
pursuant to this Agreement. Each of the Subsidiary Guarantors has all
necessary corporate power and authority to execute, deliver and perform
its obligations under the Operative Documents and the Revolving Credit
Facility and to consummate the transactions contemplated by the
Operative Documents and Revolving Credit Facility and to issue and
deliver the Subsidiary Guarantees pursuant to this Agreement.
Continental has all necessary corporate power and authority to execute,
deliver and perform its obligations under the Hewitt-Robins Acquisition
Agreement. On December 31, 1996, as adjusted to reflect the Offering
and the application of the net proceeds therefrom, the BCE Acquisition
and the Hewitt-Robins Acquisition, the Company would have had an
authorized and outstanding consolidated cash and capitalization as set
forth in the Offering Memorandum under the caption "Capitalization."
(e) The Company has no direct or indirect subsidiaries,
immediately after giving effect to the Hewitt-Robins Acquisition, other
than those listed on Schedule II hereto.
(f) None of the Company or any of its subsidiaries is (1) in
violation of its respective charter or bylaws or (2) in default in the
performance of any term, provision, obligation, agreement or condition
contained in any bond, debenture, note or any other evidence of
indebtedness or any indenture, mortgage, deed of trust or other
contract, lease or other instrument to which the Company or any of its
subsidiaries is a party or to which any of them or their respective
properties may be subject or bound, except, in the cause of clause (2)
above, for such defaults as would not, singly or in the aggregate, have
a Material Adverse Effect.
(g) None of (A) the execution, delivery or performance by the
Company and the Subsidiary Guarantors of this Agreement, the Revolving
Credit Facility and the other Operative Documents, (B) the performance
by Continental of the Hewitt-Robins Acquisition Agreement and
consummation of the Hewitt-Robins Acquisition, (C) the issuance and
sale of the Series A Senior Notes by the Company, (D) the issuance of
the Subsidiary Guarantees by the Subsidiary Guarantors and (E) the
consummation by the Company and the Subsidiary Guarantors of the
transactions described in the Offering Memorandum under the caption
"Use of Proceeds," will conflict with or constitute a breach of any of
the terms or provisions of, or a default under, or result in the
imposition of a Lien on any properties of the Company or any of its
subsidiaries, or an acceleration of indebtedness pursuant to, (1) the
charter or bylaws of the Company or any of its subsidiaries, (2) any
bond, debenture, note, or any other evidence of indebtedness, or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which the Company or any of its subsidiaries is a party
or by which any of them or their property is bound, or (3) any law or
administrative regulation applicable to the Company, any of its
subsidiaries or any of their assets or properties, or any judgment,
order or decree of any court or governmental agency or authority
entered in any proceeding to which the Company or any of its
subsidiaries was or is now a party or to which any of them or their
respective properties may be subject or bound. No consent, approval,
authorization or order of, or filing or registration with, any
regulatory body, administrative agency, or other governmental agency
(except as securities or Blue Sky laws of the various states may
require) that has not been made or obtained is required for (1) the
execution, delivery and performance of the Operative Documents, the
Revolving Credit Facility and the valid issuance and sale of the Series
A Senior Notes and the Subsidiary Guarantees or (2) the performance by
the Company of the Hewitt-Robins Acquisition Agreement and all
documents or agreements related thereto and the transactions
contemplated hereby and
10
12
thereby, except (i) such consents, approvals, authorizations or orders
that are not specifically required pursuant to the terms of the
Hewitt-Robins Acquisition Agreement or (ii) where the failure to obtain
such consents, approvals, authorizations or orders would not have a
Material Adverse Effect. No consents or waivers from any person are
required to consummate the transactions contemplated by the Operative
Documents or the Offering Memorandum, other than such consents and
waivers as have been or will be obtained prior to the Closing Date or,
in the case of the Registration Rights Agreement and the transactions
contemplated thereby, will be obtained and made under the Securities
Act, the Trust Indenture Act of 1939, as amended (the "TIA"), and state
securities or Blue Sky laws and regulations.
(h) This Agreement has been duly authorized, executed and
delivered by the Company and the Subsidiary Guarantors.
(i) The Indenture has been duly authorized by the Company and
the Subsidiary Guarantors and when executed and delivered by the
Company (assuming the due execution and delivery thereof by the
Trustee) will be a legally valid and binding obligation of the Company
and the Subsidiary Guarantors, enforceable against the Company and the
Subsidiary Guarantors in accordance with its terms, except as the
enforceability thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors rights generally and (ii) limited
by general principles of equity (whether considered in a proceeding at
law or in equity). The Offering Memorandum contains an accurate
summary, in all material respects, of the terms of the Indenture.
(j) The Series A Senior Notes have been duly authorized by the
Company and, when issued and authenticated in accordance with the terms
of the Indenture and delivered to and paid for by the Initial Purchaser
in accordance with the terms of this Agreement, will be the legally
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforceability
thereof may be (i) subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect the
enforcement of creditors rights generally and (ii) limited by general
principles of equity (whether considered in a proceeding at law or in
equity). The Offering Memorandum contains an accurate summary, in all
material respects, of the terms of the Series A Senior Notes.
(k) The Series B Senior Notes have been duly authorized by the
Company and, when issued and authenticated in accordance with the terms
of the Registered Exchange Offer and the Indenture, will be the legally
valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the enforceability
thereof may be (i) subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect the
enforcement of creditors rights generally and (ii) limited by general
principles of equity (whether considered in a proceeding at law or in
equity). The Offering Memorandum contains an accurate summary, in all
material respects, of the terms of the Series B Senior Notes.
(l) The Subsidiary Guarantees to be endorsed on the Series A
Senior Notes by the Subsidiary Guarantors have been duly authorized by
the Subsidiary Guarantors and when executed and delivered by the
Subsidiary Guarantors and when the Series A Senior Notes are issued and
authenticated in accordance with the Indenture and delivered to and
paid for by the Initial Purchaser in accordance with the terms of this
Agreement, the Subsidiary Guarantees will be the legally valid and
binding obligations of the Subsidiary Guarantors, enforceable against
the Subsidiary Guarantors in accordance with their terms and entitled
to the benefits of the Indenture,
11
13
except as the enforceability thereof may be (i) subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in
effect which affect the enforcement of creditors rights generally and
(ii) limited by general principles of equity (whether considered in a
proceeding at law or in equity). The Offering Memorandum contains an
accurate summary, in all material respects, of the terms of the
Subsidiary Guarantees to be endorsed on the Series A Senior Notes.
(m) The Subsidiary Guarantees to be endorsed on the Series B
Senior Notes by the Subsidiary Guarantors have been duly authorized and
when executed and delivered by the Subsidiary Guarantors and when the
Series B Senior Notes have been issued and authenticated in accordance
with the terms of the Registered Exchange Offer and the Indenture, the
Subsidiary Guarantees to be endorsed on the Series B Senior Notes will
be the legally valid and binding obligations of the Subsidiary
Guarantors, enforceable against the Subsidiary Guarantors in accordance
with their terms, except as the enforceability thereof may be (i)
subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the enforcement
of creditors rights generally and (ii) limited by general principles of
equity (whether considered in a proceeding at law or in equity). The
Offering Memorandum contains an accurate summary, in all material
respects, of the terms of the Subsidiary Guarantees to be endorsed on
the Series B Senior Notes.
(n) The Registration Rights Agreement has been duly authorized
by the Company and the Subsidiary Guarantors and when executed and
delivered by the Company and the Subsidiary Guarantors (assuming the
due execution and delivery thereof by the Initial Purchaser), will be a
legally valid and binding obligation of the Company and the Subsidiary
Guarantors, enforceable against the Company and the Subsidiary
Guarantors in accordance with its terms, except as the enforceability
thereof may be (i) subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect the
enforcement of creditors rights generally, (ii) limited by general
principles of equity (whether considered in a proceeding at law or in
equity) and (iii) limited by securities laws prohibiting or limiting
the availability of, and public policy against, indemnification or
contribution. The Offering Memorandum contains an accurate summary, in
all material respects, of the principal terms of Registration Rights
Agreement.
(o) The Revolving Credit Facility has been duly authorized and
when executed and delivered by the Company and the Subsidiary
Guarantors and (assuming the due execution and delivery thereof by the
other parties thereto) will be a legally valid and binding obligation
of the Company and the Subsidiary Guarantors, enforceable against the
Company and the Subsidiary Guarantors in accordance with its terms,
except as the enforceability thereof may be (i) subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws in
effect which affect the enforcement of creditors rights generally and
(ii) limited by general principles of equity (whether considered in a
proceeding at law or in equity). The Offering Memorandum contains an
accurate summary, in all material respects, of the principal terms of
the Revolving Credit Facility.
(p) The Tax Payment Agreement has been duly authorized and
when executed and delivered by the Company and its subsidiaries and
will be a legally valid and binding obligation of the Company and its
subsidiaries, enforceable against the Company and its subsidiaries in
accordance with its terms, except as the enforceability thereof may be
(i) subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
12
14
enforcement of creditors rights generally and (ii) limited by general
principles of equity (whether considered in a proceeding at law or in
equity). The Offering Memorandum contains an accurate summary, in all
material respects, of the principal terms of the Tax Payment Agreement.
(q) The Management Agreement has been duly authorized and when
executed and delivered by the Company will be a legally valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as the enforceability thereof may be
(i) subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the enforcement
of creditors rights generally, (ii) limited by general principles of
equity (whether considered in a proceeding at law or in equity) and
(iii) limited by securities laws prohibiting or limiting the
availability of, and public policy against, indemnification or
contribution. The Offering Memorandum contains an accurate summary, in
all material respects, of the principal terms of the Management
Agreement.
(r) The Hewitt-Robins Acquisition Agreement has been duly
authorized, executed and delivered by Continental and is a legally
valid and binding obligation of Continental, enforceable against
Continental in accordance with its terms, except as the enforceability
thereof may be (i) subject to applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect the
enforcement of creditors rights generally and (ii) limited by general
principles of equity (whether considered in a proceeding at law or in
equity). The Hewitt-Robins Acquisition Agreement is in full force and
effect and, to the Company's knowledge, there has not occurred any
default or breach by any party thereto.
(s) The Company has delivered to the Initial Purchaser true
and correct executed copies of the Hewitt-Robins Acquisition Agreement
and all documents and agreements related thereto and there have been no
amendments, alterations, modifications or waivers thereto or in the
exhibits or schedules thereto, except as have been delivered to the
Initial Purchaser.
(t) Except to the extent described in the Offering Memorandum
there is (i) no action, suit, proceeding or investigation before or by
any court, arbitrator or governmental agency, body or official,
domestic or foreign, now pending or, to the knowledge of the Company or
any Subsidiary Guarantor, threatened or contemplated to which the
Company or any of its subsidiaries is or may be a party or to which the
business or property of the Company or any of its subsidiaries is or,
after giving effect to the Hewitt-Robins Acquisition, may be subject,
(ii) no law, statute, rule, regulation or order has been enacted,
adopted or issued by any governmental agency or, to the best knowledge
of the Company or any Subsidiary Guarantor, proposed by any
governmental body or (iii) no injunction, restraining order or order of
any nature by a federal or state court or other tribunal of competent
jurisdiction applicable to the Company or any of its subsidiaries has
been issued that, in the case of clauses (i), (ii) and (iii) above, (1)
is required to be disclosed in the Offering Memorandum and that is not
so disclosed, (2) might have a Material Adverse Effect, (3) would
interfere with or adversely affect the issuance of the Series A Senior
Notes and the Subsidiary Guarantees or (4) in any manner draw into
question the validity of the Operative Documents, the Hewitt-Robins
Acquisition Agreement, the Series A Senior Notes or the Subsidiary
Guarantees.
(u) No holder of any security of the Company or any of its
subsidiaries has any right or, by reason of the execution by the
Company and the Subsidiary Guarantors of this Agreement, the Revolving
Credit Facility, any other Operative Document or the Hewitt-Robins
Acquisition Agreement, the issuance and sale of the Series A Senior
Notes and the Subsidiary Guarantees by
13
15
the Company and the Subsidiary Guarantors, respectively, or the
consummation of the transactions contemplated hereby and thereby, have
the right to request or demand that the Company or any of its
subsidiaries register under the Securities Act or analogous foreign
laws and regulations securities held by them.
(v) Neither the Company nor any of its subsidiaries is, or
immediately after giving effect to the Hewitt-Robins Acquisition will
be, involved in any material labor dispute nor, to the knowledge of the
Company or any Subsidiary Guarantor, is any material dispute threatened
which, if such dispute were to occur, would have a Material Adverse
Effect.
(w) The Company and its subsidiaries have not and, immediately
after giving effect to the Hewitt-Robins Acquisition will not have,
violated any applicable existing federal, state, local or foreign laws
or regulations ("LAWS") including, but not limited to (i) safety or
similar Laws applicable to its business, (ii) Laws relating to
discrimination in the hiring, promotion or pay of employees, (iii)
wages and hour Laws and (iv) provisions of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), or the rules and
regulations promulgated thereunder, except for such instances of
noncompliance that, in each case, either singly or in the aggregate,
would not have a Material Adverse Effect.
(x) Except as set forth in the Offering Memorandum, the
Company and its subsidiaries are and, immediately after giving effect
to the Hewitt-Robins Acquisition will be, in compliance with all
applicable existing federal, state, local and foreign laws and
regulations (collectively, "ENVIRONMENTAL LAWS") relating to protection
of human health or the environment or imposing liability or standards
of conduct concerning any Hazardous Material (as defined below), except
for such instances of noncompliance that, either singly or in the
aggregate, would not have a Material Adverse Effect. The term
"HAZARDOUS MATERIAL" means (i) any "hazardous substance" as defined by
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, (ii) any "hazardous waste" as defined by the
Resource Conservation and Recovery Act, as amended, (iii) any petroleum
or petroleum product, (iv) any polychlorinated biphenyl and (v) any
pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, waste or substance regulated under or within the meaning of
any other Environmental Law. Except as set forth in the Offering
Memorandum, there is no alleged liability, or, to the best knowledge
and information of the Company or any Subsidiary Guarantor, potential
liability (including, without limitation, alleged or potential
liability for investigatory costs, cleanup costs, governmental response
costs, natural resources damages, property damages, personal injuries,
or penalties) of the Company or any of its subsidiaries arising out of,
based on, or resulting from (1) the presence or release into the
environment of any Hazardous Material at any location currently or
previously owned by the Company or any of its subsidiaries or at any
location currently or previously used or leased by the Company or any
of its subsidiaries, or (2) any violation or alleged violation of any
Environmental Law, except in each case with respect to clause (1) and
(2), alleged or potential liabilities that, singly or in the aggregate,
would not have a Material Adverse Effect.
(y) In connection with the Hewitt-Robins Acquisition, the
Company has reviewed the effect of Environmental Laws and the disposal
of hazardous or toxic substances or wastes, pollutants or contaminants
on the business, assets, operations and properties of Hewitt-Robins and
identified and evaluated associated costs and liabilities (including,
without limitation, all material capital and operating expenditures
required for clean-up, closure of properties and compliance with
Environmental Laws, all permits, licenses and approvals, all related
constraints on operating
14
16
activities and all potential liabilities to third parties). On the
basis of such reviews, the Company has reasonably concluded that such
associated costs and liabilities would not reasonably be expected to
have a Material Adverse Effect.
(z) The Company and each of its subsidiaries owns free and
clear of all Liens or possesses or has the right to use free and clear
of any rights of third parties that adversely affects such use by the
Company and its subsidiaries and, immediately after giving effect to
the Hewitt-Robins Acquisition, will own free an clear of all Liens,
will possess or will have the right to use free and clear of any rights
of third parties that adversely affects such use by the Company and its
subsidiaries, the 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,
"INTELLECTUAL PROPERTY") employed by it, except where the failure to
own, possess or use such Intellectual Property would not, either singly
or in the aggregate, have a Material Adverse Effect, and none of the
Company or any of its subsidiaries has received any notice that its use
of any Intellectual Property allegedly infringes upon, or conflicts
with, rights asserted by others, or any notice of an action or
proceedings seeking to limit, cancel or question the validity of any
Intellectual Property except for such instances that, singly or in the
aggregate, would not have a Material Adverse Effect if an unfavorable
decision, judgment, ruling or finding is rendered against the Company
or any of its subsidiaries. No other person is to the Company's or any
Subsidiary Guarantor's knowledge, infringing upon any of the
Intellectual Property or has notified the Company or any of its
subsidiaries that it is claiming ownership of, or the right to use any
Intellectual Property owned by the Company or its subsidiaries. The
Company and its subsidiaries have taken all reasonable steps to protect
the Intellectual Property from infringement by any other person, except
where the failure to take such steps would not, individually or in the
aggregate, have a Material Adverse Effect on the Company or its
subsidiaries.
(aa) Except as set forth in the Offering Memorandum, all tax
returns required to be filed by the Company and each of its
subsidiaries in any jurisdiction have been filed, and all material
taxes (including, but not limited to, withholding taxes, penalties and
interest, assessments, fees and other charges due or claimed to be due
from any taxing authority) have been paid other than those (i) being
contested in good faith and for which adequate reserves have been
provided or (ii) currently payable without penalty or interest.
(ab) Except as set forth in the Offering Memorandum or that,
singly or in the aggregate, would not have a Material Adverse Effect,
(i) the Company and each of its subsidiaries has and, immediately after
giving effect to the Hewitt-Robins Acquisition, will have, (1) such
permits, licenses, franchises, authorizations or approvals of
governmental or regulatory authorities ("PERMITS") and has made all
declarations and filings with and notices to, all federal, state, local
and other governmental authorities, all self-regulatory organizations
and all courts and other tribunals as are necessary to own, lease,
operate and use its respective properties and assets and to conduct
their business as presently conducted and (2) fulfilled and performed
all of their material obligations with respect to the Permits, and (ii)
no event has occurred that could allow, or after notice or lapse of
time could allow, revocation or termination of any Permit or that could
result in any other material impairment of the rights granted to the
Company or any of its subsidiaries under any Permit, and the Company
has no reason to believe that any governmental body or agency is
considering limiting, suspending or revoking any Permit.
(ac) Except as set forth in the Offering Memorandum or that,
singly or in the
15
17
aggregate, would not have a Material Adverse Effect, immediately after
giving effect to the Hewitt-Robins Acquisition, (i) the Company and
each of its subsidiaries will have good and marketable title, free and
clear of all Liens except Liens for taxes not yet due and payable and
Liens granted pursuant to the Revolving Credit Facility and the
Australian Revolving Credit Facility, to all property and assets
described in the Offering Memorandum as being owned by it, (ii) each
lease to which the Company and each of its subsidiaries will be a party
will be valid and binding and no default will have occurred or will be
continuing thereunder and (iii) the Company and its subsidiaries will
enjoy peaceful and undisturbed possession under all such leases to
which it will be a party as lessee.
(ad) The Company and each of its subsidiaries maintains
insurance for their respective businesses and the value of their
respective properties (including, without limitation, public liability
insurance, third party property damage insurance and replacement value
insurance) which the Company and its subsidiaries believe is adequate
in accordance with customary industry practice to protect the Company
and its subsidiaries and their businesses, and all such insurance is
outstanding and in force as of the date hereof.
(ae) The financial statements, together with related notes
forming part of the Offering Memorandum (and any amendment or
supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of
the Company and its subsidiaries on the basis stated in the Offering
Memorandum at the respective dates or for the respective periods to
which they apply, and such financial statements and related schedules
and notes have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods
involved, except as disclosed therein and comply as to form in all
material respects with the requirements applicable to registration
statements on Form S-1 under the Securities Act. The pro forma
financial statements, together with related notes forming part of the
Offering Memorandum (and any amendment or supplement thereto), are, in
all material respects, accurately presented and prepared in good faith
on the basis of the assumptions described therein, and such assumptions
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein.
(af) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that: (1) transactions are executed in accordance with
management's general or specific authorizations; (2) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain accountability for assets; and (3) the recorded accountability
for assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect thereto.
(ag) Subsequent to the respective dates as of which
information is given in the Preliminary Offering Memorandum and up to
the Closing Date, except as set forth in the Offering Memorandum: (1)
neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, which are material,
individually or in the aggregate, to the Company and its subsidiaries,
immediately after giving effect to the Hewitt-Robins Acquisition, taken
as a whole, nor entered into any material transactions not in the
ordinary course of business; (2) there has not been any decrease in the
Company's capital stock or the capital stock of the Company's
subsidiaries or any increase in long-term indebtedness to meet working
capital requirements or any material increase in short-term
indebtedness of the Company or any of its subsidiaries, considered in
the aggregate, or any payment of or declaration to pay
16
18
any dividends or any other distribution with respect to the Company's
or any of its subsidiaries' capital stock, as the case may be; and (3)
there has not been any event or series of events that would have a
Material Adverse Effect.
(ah) Immediately prior to and upon the issuance of the Series
A Senior Notes, (i) the present fair saleable value of the assets of
the Company and its subsidiaries exceeded and will exceed the amount
that will be required to be paid on, or in respect of, the debts and
other liabilities (including contingent liabilities) of the Company and
its subsidiaries as they become absolute and matured, (ii) the assets
of the Company and its subsidiaries do not constitute and will not
constitute unreasonably small capital to carry out their businesses as
conducted or as proposed to be conducted and (iii) the Company and its
subsidiaries do not intend to, or believe that they will, incur debts
or other liabilities beyond their ability to pay such debts and
liabilities as they mature. The Company does not intend to permit any
of its subsidiaries to incur debts or other liabilities beyond their
respective ability to pay such debts and liabilities as they mature.
(ai) Neither the Company nor any of its subsidiaries nor 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 Series A Senior Notes to violate Regulation G (12 C.F.R.
Part 207), Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R.
Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System, in each case as in effect now
or as the same may hereafter be in effect on the Closing Date.
(aj) None of the Company or its subsidiaries are or,
immediately after giving effect to the Hewitt-Robins Acquisition, will
be, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or (b) a "holding company" or a "subsidiary company" of a
holding company or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended or (c) subject
to regulation under the Federal Power Act, the Interstate Commerce Act
or any federal or state statute or regulation limiting its respective
ability to incur indebtedness for borrowed money.
(ak) The Company and its subsidiaries have, and immediately
after giving effect to the Hewitt-Robins Acquisition will have,
complied with all of the provisions of Florida H.B. 1771, codified as
Section 517.075 of the Florida Statutes, and all regulations
promulgated thereunder relating to issuers doing business with the
Government of Cuba or with any person or any affiliate located in Cuba.
(al) The accountants, Ernst & Young LLP, that have certified
certain financial statements and supporting schedules included in the
Offering Memorandum are independent public accountants with respect to
the Company and Hewitt-Robins as required by the Securities Act and the
Exchange Act. The historical financial statements of the Company and
Hewitt-Robins, together with related schedules and notes, set forth in
the Offering Memorandum comply as to form in all material respects with
the requirements applicable to registration statements on Form S-1
under the Securities Act.
(am) The accountants, Coopers & Lybrand, chartered
accountants, that have certified certain financial statements and
supporting schedules included in the Offering Memorandum are
independent public accountants with respect to BCE Holdings Pty. Ltd.
as required by the Securities Act and the Exchange Act. The historical
financial statements of BCE Holdings Pty.
17
19
Ltd., together with related schedules and notes, set forth in the
Offering Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under
the Securities Act.
(an) When the Series A Senior Notes are issued and delivered
pursuant to this Agreement, such Series A Senior Notes will not be of
the same class (within the meaning of Rule 144A under the Securities
Act) as securities of the Company that are listed on a national
securities exchange registered under Section 6 of the Exchange Act or
that are quoted in a United States automated inter-dealer quotation
system.
(ao) Assuming (i) that the representations and warranties of
the Initial Purchaser in Section 7 hereof are true, (ii) that the
representations of the Accredited Institutions set forth in the
certificates of such Accredited Institutions in the form set forth in
Annex A to the Offering Memorandum are true, (iii) compliance by the
Initial Purchaser with its covenants set forth in Section 7 hereof,
(iv) that none of the Eligible Purchasers is an affiliate of the
Company and (v) that each of the Eligible Purchasers is a QIB, an
Accredited Institution or a Regulation S Purchaser, the purchase and
Exempt Resales of the Series A Senior Notes pursuant hereto are exempt
from the registration requirements of the Securities Act. No form of
general solicitation or general advertising was used by the Company or
any of its representatives in connection with the offer and sale of the
Series A Senior Notes or in connection with the 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 any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising. No securities of the same class as the Series A Senior
Notes have been issued and sold by the Company within the six-month
period immediately prior to the date hereof.
(ap) Set forth on Schedule III hereto is a list of each
employee pension or benefit plan with respect to which the Company or
any of its subsidiaries is a party in interest or disqualified person.
The execution and delivery of this Agreement, the other Operative
Documents and the sale of the Series A Senior Notes to be purchased by
the Eligible Purchasers will not involve any prohibited transaction
within the meaning of Section 406 of ERISA or Section 4975 of the
Internal Revenue Code of 1986, as amended. The representation made by
the Company in the preceding sentence is made in reliance upon and
subject to the accuracy of, and compliance with, the representations
and covenants made or deemed made by the Eligible Purchasers as set
forth in the Offering Memorandum under the Section entitled "Notice to
Investors."
(aq) The Company and the Subsidiary Guarantors have not (i)
taken, directly or indirectly, any action designed to cause or to
result in, or that has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Series A Senior Notes or (ii) since the date of the Preliminary
Offering Memorandum (A) sold, bid for, purchased, or paid anyone other
than the Initial Purchaser any compensation for soliciting purchases
of, the Series A Senior Notes or (B) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other
securities of the Company.
(ar) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information
specified in, and meeting the requirements of, Rule 144A(d)(4) under
the Securities Act.
18
20
(as) The Indenture conforms as to form in all material
respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which is
qualified thereunder. The Indenture is not required to be qualified
under the Trust Indenture Act prior to the first to occur of (i) the
Registered Exchange Offer and (ii) the effectiveness of the Shelf
Registration Statement.
(at) Each certificate signed by any officer of the Company or
a Subsidiary Guarantor and delivered to the Initial Purchaser or
counsel for the Initial Purchaser shall be deemed to be a
representation and warranty by the Company or such Subsidiary Guarantor
to the Initial Purchaser as to the matters covered thereby.
(au) None of the Company, its subsidiaries or any of its or
their affiliates or any person acting on its or their behalf has
engaged or will engage in any directed selling efforts within the
meaning of Regulation S with respect to the Series A Senior Notes, and
the Company, its subsidiaries and its or their affiliates and all
persons acting on its or their behalf have complied with and will
comply with the offering restrictions requirements of Regulation S in
connection with the offering of the Series A Senior Notes outside the
United States.
(av) There is no "substantial U.S. market interest" as
defined in Rule 902(n) of Regulation S for the Series A Senior Notes
or any security of the same class as the Series A Senior Notes.
(aw) The sale of the Series A Senior Notes in offshore
transactions pursuant to Regulation S is not part of a plan or scheme
to evade the registration provisions of the Securities Act.
The Company and the Subsidiary Guarantors acknowledge that the
Initial Purchaser and, for purposes of the opinions to be delivered to the
Initial Purchaser pursuant to Section 9 hereof, counsel to the Company and the
Subsidiary Guarantors and counsel to the Initial Purchaser will rely upon the
accuracy and truth of the foregoing representations and hereby consents to such
reliance.
7. REPRESENTATIONS, WARRANTIES AND CERTAIN AGREEMENTS OF THE
INITIAL PURCHASER.
(a) The Initial Purchaser represents and warrants to the Company and
the Subsidiary Guarantors as follows:
(1) The Initial Purchaser represents and warrants that it is
either a QIB or an Accredited Institution, in either case, 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 Series A Senior Notes.
(2) The Initial Purchaser (i) is not acquiring the Series A
Senior Notes with a view to any distribution thereof or with any
present intention of offering or selling any of the Series A Senior
Notes in a transaction that would violate the Securities Act or the
securities laws of any State of the United States or any other
applicable jurisdiction, (ii) will be reoffering and reselling the
Series A Senior Notes only to QIBs in reliance on the exemption from
the registration requirements of the Securities Act provided by Rule
144A, to a limited number of Accredited
19
21
Institutions that execute and deliver a letter containing certain
representations and agreements in the form attached as Annex A to the
Offering Memorandum and to non-U.S. persons outside the United States
in offshore transactions in reliance upon Regulation S under the
Securities Act and (iii) has not solicited and, unless and until the
Series A Senior Notes are registered under the Securities Act, will not
solicit any offer to buy or offer to sell the Series A Senior Notes by
any means, 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 any seminar or meeting whose
attendees have been invited by any general solicitation or general
advertising or in any manner involving a public offering within the
meaning of the Securities Act.
(b) The Initial Purchaser agrees that, in connection with the Exempt
Resales, the Initial Purchaser will solicit offers to buy the Series A Senior
Notes only from, and will offer to sell the Series A Senior Notes only to, the
Eligible Purchasers. The Initial Purchaser further agrees that it will offer to
sell the Series A Senior Notes only to, and will solicit offers to buy the
Series A Senior Notes only from, persons who in purchasing such Series A Senior
Notes will be deemed to have represented and agreed (1) if such Eligible
Purchaser is a QIB, that they are purchasing the Series A Senior Notes for their
own accounts or accounts with respect to which they exercise sole investment
discretion and that they or such accounts are QIBs, (2) that such Series A
Senior Notes will not have been registered under the Securities Act and may be
resold, pledged or otherwise transferred, only (A) (I) inside the United States
to a person who the seller reasonably believes is a "qualified institutional
buyer" within the meaning of Rule 144A under the Securities Act in a transaction
meeting the requirements of Rule 144A, (II) in a transaction meeting the
requirements of Rule 144 under the Securities Act, (III) outside the United
States to a foreign person in a transaction meeting the requirements of Rule 904
under the Securities Act, (IV) to an institutional accredited investor (as
defined in Rule 501(a)(1), (2) (3) or (7) of the Securities Act (an
"Institutional Accredited Investor") that, prior to such transfer, furnishes the
Trustee a signed letter containing certain representations and agreements (the
form of which can be obtained from the Trustee) and, if such transfer is in
respect of an aggregate principal amount of Series A Senior Notes less than
$100,000, an opinion of counsel acceptable to the Company that such transfer is
in compliance with the Securities Act or (V) in accordance with another
exemption from the registration requirements of the Securities Act (and based
upon an opinion of counsel if the Company so requests), (B) to the Company or
(C) pursuant to an effective registration statement under the Securities Act, in
each case, in accordance with any applicable securities laws of any state of the
United States or any other applicable jurisdiction, and (3) that the holder
will, and each subsequent holder is required to, notify any purchaser from it of
the security evidenced thereby of the resale restrictions set forth in (2)
above. Accordingly, the Initial Purchaser represents and agrees that neither it,
its affiliates nor any persons acting on its or their behalf has engaged or will
engage in any directed selling efforts within the meaning of Rule 901(b) of
Regulation S with respect to the Series A Senior Notes, and it, its affiliates
and all persons acting on its or their behalf have complied and will comply with
the offering restrictions requirements of Regulation S.
(c) The Initial Purchaser represents and agrees that the Series A
Senior Notes offered and sold in reliance on Regulation S have been and will be
offered and sold only in offshore transactions and that such securities have
been and will be represented upon issuance by a global security that may not be
exchanged for definitive securities until the expiration of the Restricted
Period and only upon certification of beneficial ownership of the securities by
a non-U.S. person or a U.S. person who purchased such securities in a
transaction that was exempt from the registration requirements of the Securities
Act, which U.S. person will acquire an interest in a Transfer Restricted
Security.
(d) The Initial Purchaser agrees that, at or prior to confirmation of a
sale of Series A Senior
20
22
Notes (other than a sale pursuant to Rule 144A or to Accredited Institutional
Investors in transactions that are exempt from the registration requirements of
the Securities Act), it will have sent to each distributor, dealer or person
receiving a selling concession, fee or other remuneration that purchases Senior
Notes from it during the Restricted Period a confirmation or notice to
substantially the following effect:
"The Senior Notes covered hereby have not been registered under the
U.S. Securities Act of 1933, as amended (the "Securities Act"), and may
not be offered and sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their distribution
at any time or (ii) otherwise until 40 days after the later of the
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings assigned to them
in Regulation S."
The Initial Purchaser further agrees that it has not entered and will
not enter into any contractual arrangement with respect to the distribution or
delivery of the Series A Senior Notes, except with its affiliates or with the
prior written consent of the Company.
(e) The Initial Purchaser further represents and agrees that (1) it has
not offered or sold and will not offer or sell any Series A Senior Notes to
persons in the United Kingdom prior to the expiry of the period of six months
from the issue date of the Series A Senior Notes, except to persons whose
ordinary activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, (ii) it has complied and will comply with
all applicable provisions of the Financial Services Act 1986 with respect to
anything done by it in relation to the Series A Senior Notes in, from or
otherwise involving the United Kingdom and (iii) it has only issued or passed on
and will only issue or pass on in the United Kingdom any document received by it
in connection with the issuance of the Series A Senior Notes to a person who is
of a kind described in Article 11(3) of the Financial Services Act of 1986
(Investment Advertisements) (Exemptions) Order 1995 or is a person to whom the
document may otherwise lawfully be issued or passed on.
(f) The Initial Purchaser agrees that it will not offer, sell or
deliver any of the Series A Senior Notes in any jurisdiction outside the United
States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the Series A Senior
Notes in such jurisdictions. The Initial Purchaser understands that no action
has been taken to permit a public offering in any jurisdiction outside the
United States where action would be required for such purpose.
(g) The Initial Purchaser agrees not to cause any advertisement of the
Series A Senior Notes to be published in any newspaper or periodical or posted
in any public place and not to issue any circular relating to the Series A
Senior Notes, except such advertisements as include the statements required by
Regulation S.
(h) The sale of the Series A Senior Notes in offshore transactions
pursuant to Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act.
(i) The Initial Purchaser is not a pension or welfare plan (as defined
in Section 3 of ERISA) and is not acquiring the Series A Senior Notes on behalf
of a pension or welfare plan).
21
23
Terms used in this Section 7 that have meanings assigned to them in
Regulation S are used herein as so defined.
The Initial Purchaser acknowledges that the Company and, for purposes
of the opinions to be delivered to the Initial Purchaser pursuant to Section 9
hereof, counsel to the Company and the Subsidiary Guarantors and counsel to the
Initial Purchaser will rely upon the accuracy and truth of the foregoing
representations and the Initial Purchaser hereby consents to such reliance.
8. INDEMNIFICATION.
(a) The Company and each Subsidiary Guarantor agree to,
jointly and severally, indemnify and hold harmless (i) the Initial
Purchaser, (ii) each person, if any, who controls (within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act)
the Initial Purchaser (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "CONTROLLING PERSON") and (iii)
the respective officers, directors, partners, employees and agents of
the Initial Purchaser or any Controlling Person (any person referred to
in clause (i), (ii) or (iii) in such capacity may hereinafter be
referred to as an "INDEMNIFIED PERSON") to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including, without limitation and as
incurred, reimbursement of all reasonable costs of investigating,
preparing, pursing or defending any claim or action, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of
counsel to any Indemnified Person) directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in
the Preliminary Offering Memorandum or the Offering Memorandum (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any Rule 144A Information
provided by the Company or any Subsidiary Guarantor to any holder or
prospective purchaser of Series A Senior Notes pursuant to Section
5(o), or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances under which they were made,
not misleading, except insofar as such losses, claims, damages,
liabilities, judgments, actions or expenses are caused by any such
untrue statement or alleged untrue statement or omission or alleged
omission that is made in reliance upon and in conformity with
information relating to the Initial Purchaser furnished in writing to
the Company by the Initial Purchaser expressly for use therein;
provided, however, that the indemnification contained in this paragraph
(a) with respect to the Preliminary Offering Memorandum shall not inure
to the benefit of the Initial Purchaser (or to the benefit of any
person controlling the Initial Purchaser) on account of any such loss,
claim, damage, liability, judgment, action or expense arising from the
sale of the Series A Senior Notes by the Initial Purchaser to any
person if a copy of the Offering Memorandum, as it may be amended or
supplemented, shall not have been delivered or sent to such person, at
or prior to the written confirmation of such sale, and the untrue
statement or alleged untrue statement or omission or alleged omission
of a material fact contained in the Preliminary Offering Memorandum was
corrected in the Offering Memorandum, as it may have been amended or
supplemented; provided that the Company has delivered the Offering
Memorandum, as it may have been amended or supplemented, to the Initial
Purchaser in requisite quantity on a timely basis to permit such
delivery or sending. The Company and each Subsidiary Guarantor also
agree to, jointly and severally, reimburse each Indemnified Person for
any and all fees and expenses (including, without limitation, the fees
and expenses of counsel) as they are incurred in connection with
enforcing such Indemnified Person's rights under this Agreement
(including, without limitation,
22
24
its rights under this Section 8). The Company shall notify the Initial
Purchaser promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this Agreement
which involves the Company, any Subsidiary Guarantor or an Indemnified
Person.
(b) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be
brought or asserted against any of the Indemnified Persons, based upon
any Preliminary Offering Memorandum or the Offering Memorandum or any
amendment or supplement thereto and with respect to which indemnity may
be sought against the Company or any Subsidiary Guarantor, the
Indemnified Person shall promptly notify the Company in writing
(provided, that the failure to give such notice shall not relieve the
Company or any Subsidiary Guarantor of its obligations pursuant to this
Agreement, unless it shall have been determined by a court of competent
jurisdiction that such failure shall have materially adversely affected
the Company or a Subsidiary Guarantor) and the Company shall assume the
defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person and payment of all fees and
expenses (regardless of whether it is ultimately determined that an
Indemnified Person is not entitled to indemnification hereunder). Such
Indemnified Person shall have the right to employ separate counsel in
any such action and participate in the defense thereof, but the
reasonable fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the employment of such counsel has
been specifically authorized in writing by the Company, (ii) the
Company has failed to assume the defense and employ counsel or (iii)
the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and the Company or a Subsidiary
Guarantor, and such Indemnified Person shall have been advised by such
counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the
Company or the Subsidiary Guarantors (in which case the Company shall
not have the right to assume the defense of such action on behalf of
such Indemnified Person, it being understood, however, that the Company
shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for all such Indemnified Persons,
which firm shall be designated in writing by the Initial Purchaser, and
that all such fees and expenses shall be reimbursed as they are
incurred). Neither the Company nor any Subsidiary Guarantor shall be
liable for any settlement of any such action effected without the prior
written consent of the Company, but if settled with the Company's
written consent (which consent will not be unreasonably withheld), the
Company and each Subsidiary Guarantor agree to, jointly and severally,
indemnify and hold harmless any Indemnified Person from and against any
loss claim, damage, liability, judgment, action or expense by reason of
such settlement. 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 release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(c) The Initial Purchaser agrees to indemnify and hold
harmless (i) the Company, (ii) the Subsidiary Guarantors, (iii) each
Controlling Person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) the Company
or any Subsidiary Guarantor and (iv) the respective officers,
directors, partners, employees and agents of the Company, the
Subsidiary Guarantors or any Controlling Person of the Company or the
23
25
Subsidiary Guarantors (any person referred to in clause (i), (ii),
(iii) or (iv) in such capacity may hereinafter be referred to as the
"COMPANY INDEMNIFIED PARTIES"), to the same extent as the foregoing
indemnity from the Company and the Subsidiary Guarantors to each
Indemnified Person but only with respect to claims and actions based on
information relating to the Initial Purchaser furnished in writing by
the Initial Purchaser expressly for use in the Offering Memorandum;
provided however, that, in no case shall the Initial Purchaser be
liable or responsible for any amount in excess of the discounts and
commissions received by the Initial Purchaser as set forth on the cover
page of the Offering Memorandum. In case any action shall be brought
against any Company Indemnified Party in respect of which indemnity may
be sought against the Initial Purchaser, the Initial Purchaser shall
have the rights and duties given to the Company and the Subsidiary
Guarantors (except that if the Company shall have assumed the defense
thereof, the Initial Purchaser shall not be required to do so, but may
employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of
the Initial Purchaser), and the Company Indemnified Parties shall have
the rights and duties given to the Initial Purchaser by Section 8(b)
hereof.
(d) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities, judgments, actions or expenses referred to
herein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities, judgments, actions or expenses (i) in such proportion as
is appropriate to reflect the relative benefits received by the
indemnifying party (or parties, as applicable) on the one hand and the
indemnified party (or parties, as applicable) on the other hand from
the offering of the Series A Senior Notes or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the indemnifying party (or parties, as applicable) and the indemnified
party (or parties, as applicable) as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Subsidiary Guarantors on the one hand and the Initial Purchaser
on the other hand shall be deemed to be in the same proportion as the
total proceeds from the offering of the Series A Senior Notes (net of
the Initial Purchaser's discounts and commissions but before deducting
expenses) received by the Company bear to the total discounts and
commissions received by the Initial Purchaser, in each case, as set
forth in the table on the cover page of the Offering Memorandum. The
relative fault of the Company and the Subsidiary Guarantors on the one
hand and the 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 related to information supplied by the Company
and the Subsidiary Guarantors on the one hand or the Initial Purchaser
on the other hand and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
The Company, the Subsidiary Guarantors and the Initial
Purchaser agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation or
by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities, judgments, actions
or expenses referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
24
26
Notwithstanding the provisions of this Section 8, the Initial Purchaser
shall not be required to contribute any amount in excess of the amount
by which the discounts and commissions applicable to the Series A
Senior Notes received by it exceeds the amount equal to (i) the amount
of any damages which the Initial Purchaser has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission plus (ii) any amount paid or contributed by the
Initial Purchaser pursuant to the Registration Rights Agreement. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
(e) The indemnity and contribution agreements of the Company,
the Subsidiary Guarantors and the Initial Purchaser contained in this
Section 8 are in addition to any liability or obligation which the
Company, the Subsidiary Guarantors and the Initial Purchaser may
otherwise have to the Indemnified Persons and the Company Indemnified
Parties, respectively, referred to above.
9. CONDITIONS OF THE INITIAL PURCHASER'S OBLIGATION. The obligation of
the Initial Purchaser to purchase the Series A Senior Notes under this Agreement
is subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company and
the Subsidiary Guarantors contained in this Agreement shall be true and
correct on the date hereof and on the Closing Date, immediately after
giving effect to the Hewitt-Robins Acquisition, with the same force and
effect as if made on and as of the date hereof and the Closing Date,
respectively. The Company and the Subsidiary Guarantors shall have
performed or complied with all of the agreements and satisfied all
conditions to be performed, complied with or satisfied by it on or
prior to the Closing Date.
(b)(1) The Offering Memorandum shall have been printed and
copies distributed to the Initial Purchaser not later than
9:00 a.m., New York City time, on March 28, 1997, or at such
later date and time as the Initial Purchaser may approve in
writing;
(2) no injunction, restraining order or order of any nature
by a federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent
the issuance of the Series A Senior Notes; and
(3) at the Closing Date, no stop order preventing the use
of the Preliminary Offering Memorandum or the Offering
Memorandum, or any amendment or supplement thereto, or
suspending the qualification or exemption from qualification
of the Series A Senior Notes for sale in any jurisdiction
designated by the Initial Purchaser pursuant to Section 5(f)
hereof shall have been issued and no proceedings for that
purpose shall have been commenced or shall be pending before
or, to the knowledge of the Company or any Subsidiary
Guarantor, be contemplated.
(c)(1) Since the date of the latest balance sheet included in
the Offering Memorandum, except as may be set forth or
contemplated in the Offering Memorandum, there shall not have
been any event that had a Material Adverse Effect, or any
development involving a prospective change that would have a
Material Adverse Effect,
25
27
whether or not arising in the ordinary course of business;
(2) since the date of the latest balance sheet
included in the Offering Memorandum, there has not been any
material change, or any development involving a prospective
change, in the capital stock or in the long-term debt or
material increase in short term debt of the Company and its
subsidiaries, considered in the aggregate, from that set forth
in the Offering Memorandum;
(3) since the date of the Offering Memorandum, there
shall not have been any material adverse change, or
development that is reasonably likely to result in a material
adverse change, in the business and assets to be acquired in
the Hewitt-Robins Acquisition;
(4) immediately after giving effect to the
Hewitt-Robins Acquisition, the Company and its subsidiaries
shall have no material liability or obligation, direct or
contingent, other than those reflected in the Offering
Memorandum; and
(5) on the Closing Date, the Initial Purchaser shall
have received certificates dated the Closing Date, signed on
behalf of the Company and the Subsidiary Guarantors by the
principal executive officer and the principal financial or
accounting officer of the Company and each Subsidiary
Guarantor, confirming as of the Closing Date, all matters set
forth in Sections 9(a), (b) and (c) hereof with respect to the
Company and the Subsidiary Guarantors, as applicable.
(d) The Initial Purchaser shall have received on the Closing
Date an opinion (satisfactory to the Initial Purchaser and counsel to
the Initial Purchaser) dated the Closing Date, of Squire, Sanders &
Dempsey L.L.P., counsel for the Company and the Subsidiary Guarantors,
to the effect that:
(1) The Company and each of the Subsidiary Guarantors
(A) is a corporation validly existing and in good standing
under the laws of its respective jurisdiction of incorporation
and (B) has requisite corporate power and authority to carry
on its respective business as it is currently being conducted
and to own, lease and operate its respective properties.
(2) The Company has all necessary corporate power and
authority to execute, deliver and perform its obligations
under each of the Operative Documents, and the Revolving
Credit Facility and to consummate the transactions
contemplated by the Operative Documents, and the Revolving
Credit Facility, and to issue, sell and deliver the Series A
Senior Notes pursuant to this Agreement. Continental has all
necessary corporate power and authority to execute, deliver
and perform its obligations under the Hewitt-Robins
Acquisition Agreement and to consummate the Hewitt-Robins
Acquisition.
(3) Each of the Subsidiary Guarantors has all
necessary corporate power and authority to execute, deliver
and perform its obligations under the Operative Documents and
the Revolving Credit Facility and to consummate the
transactions contemplated by the Operative Documents and
Revolving Credit Facility and to issue and deliver the
Subsidiary Guarantees pursuant to this Agreement.
26
28
(4) None of (A) the execution, delivery or
performance by the Company and the Subsidiary Guarantors of
this Agreement, the Revolving Credit Facility and the other
Operative Documents, (B) the performance by Continental of the
Hewitt-Robins Acquisition Agreement and consummation of the
Hewitt-Robins Acquisition, (C) the issuance and sale of the
Senior Notes by the Company, (D) the issuance of the
Subsidiary Guarantees by the Subsidiary Guarantors and (E) the
consummation by the Company and the Subsidiary Guarantors of
the transactions described in the Offering Memorandum under
the caption "Use of Proceeds," will conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, or result in the imposition of a Lien on any
properties of the Company or any of the Subsidiary Guarantors,
or an acceleration of indebtedness pursuant to, (1) the
charter or bylaws of any of the Company or any of the
Subsidiary Guarantors, (2) any bond, debenture, note, or other
evidence of indebtedness or any indenture, mortgage, deed of
trust or other contract, lease or other instrument set forth
on Schedule IV hereto or (3) any law or administrative
regulation applicable to the Company, any of the Subsidiary
Guarantors, or any of their assets or properties, or any
judgment, order or decree of any court or governmental agency
or authority entered in any proceeding to which the Company or
any of the Subsidiary Guarantors was or is now a party or to
which any of them or their respective properties may be
subject or bound and which is known to such counsel.
(5) No consent, approval, authorization or order of,
or filing or registration with, any regulatory body,
administrative agency, or other governmental agency (except as
securities or Blue Sky laws of the various states may require)
or pursuant to the terms of any agreement or other instrument
set forth on Schedule IV hereto, that have not been made or
obtained prior to the Closing Date or, in the case of the
Registration Rights Agreement and the transactions
contemplated thereby, will be obtained or made, is required
for (1) the execution, delivery and performance of the
Operative Documents, the Revolving Credit Facility and the
valid issuance and sale of the Series A Senior Notes and the
Subsidiary Guarantees or (2) the performance by Continental of
the Hewitt-Robins Acquisition Agreement and all documents or
agreements related thereto and the transactions contemplated
hereby and thereby, except (i) such consents, approvals,
authorizations or orders that are not specifically required
pursuant to the terms of the Hewitt-Robins Acquisition
Agreement and (ii) where the failure to obtain such consents,
approvals, authorizations or orders would not have a Material
Adverse Effect.
(6) This Agreement has been duly authorized,
executed and delivered by the Company and the Subsidiary
Guarantors.
(7) The Indenture has been duly authorized, executed
and delivered by the Company and the Subsidiary Guarantors and
(assuming the due execution and delivery thereof by the
Trustee) is a legally valid and binding obligation of the
Company and the Subsidiary Guarantors, enforceable against the
Company and the Subsidiary Guarantors in accordance with its
terms, except as the enforceability thereof may be (i) subject
to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors rights generally and (ii) limited by
general principles of equity (whether considered in a
proceeding at law or in equity).
(8) The Series A Senior Notes have been duly
authorized, issued and authenticated in accordance with the
terms of the Indenture and are the legally valid and
27
29
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as the
enforceability thereof may be (i) subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors
rights generally and (ii) limited by general principles of
equity (whether considered in a proceeding at law or in
equity).
(9) The Series B Senior Notes have been duly
authorized by the Company and, when issued and authenticated
in accordance with the terms of the Registered Exchange Offer
and the Indenture, will be the legally valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability
thereof may be (i) subject to applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws in
effect which affect the enforcement of creditors rights
generally and (ii) limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(10) The Subsidiary Guarantees endorsed on the Series
A Senior Notes by the Subsidiary Guarantors have been duly
authorized, executed and delivered by the respective
Subsidiary Guarantors and are the legally valid and binding
obligations of such Subsidiary Guarantors, enforceable against
the Subsidiary Guarantors in accordance with their terms and
entitled to the benefits of the Indenture (assuming the due
execution and delivery of the Indenture by the Trustee),
except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws in effect which affect the enforcement of
creditors rights generally and (ii) limited by general
principles of equity (whether considered in a proceeding at
law or in equity).
(11) The Subsidiary Guarantees to be endorsed on the
Series B Senior Notes by the Subsidiary Guarantors have been
duly authorized and, when executed and delivered by the
respective Subsidiary Guarantors, will be the legally valid
and binding obligations of such Subsidiary Guarantors,
enforceable against the Subsidiary Guarantors in accordance
with their terms, except as the enforceability thereof may be
(i) subject to applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws in effect which affect the
enforcement of creditors rights generally and (ii) limited by
general principles of equity (whether considered in a
proceeding at law or in equity).
(12) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the
Subsidiary Guarantors and (assuming the due execution and
delivery thereof by the Initial Purchaser) is a legally valid
and binding obligation of the Company and the Subsidiary
Guarantors, enforceable against the Company and the Subsidiary
Guarantors in accordance with its terms, except as the
enforceability thereof may be (i) subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors
rights generally, (ii) limited by general principles of equity
(whether considered in a proceeding at law or in equity) and
(iii) limited by securities laws prohibiting or limiting the
availability of, and public policy against, indemnification or
contribution.
(13) The Hewitt-Robins Acquisition Agreement has been
duly authorized, executed and delivered by Continental and is
a legally valid and binding agreement of Continental,
enforceable against Continental in accordance with its terms,
except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency,
28
30
moratorium, reorganization or similar laws in effect which
affect the enforcement of creditors rights generally, (ii)
limited by general principles of equity (whether considered in
a proceeding at law or in equity) and (iii) limited by
securities laws prohibiting or limiting the availability of,
and public policy against, indemnification or contribution.
(14) The Revolving Credit Facility has been duly
authorized, executed and delivered by the Company and the
Subsidiary Guarantors and (assuming the due execution and
delivery thereof by the other parties thereto) is a legally
valid and binding obligation of the Company and the Subsidiary
Guarantors, enforceable against the Company and the Subsidiary
Guarantors in accordance with its terms, except as the
enforceability thereof may be (i) subject to applicable
bankruptcy, insolvency, moratorium, reorganization or similar
laws in effect which affect the enforcement of creditors
rights generally and (ii) limited by general principles of
equity (whether considered in a proceeding at law or in
equity).
(15) The Tax Payment Agreement has been duly
authorized, executed and delivered by the Company and its
subsidiaries and is a legally valid and binding obligation of
the Company and its subsidiaries, enforceable against the
Company and its subsidiaries in accordance with its terms,
except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws in effect which affect the enforcement of
creditors rights generally and (ii) limited by general
principles of equity (whether considered in a proceeding at
law or in equity).
(16) The Management Agreement has been duly
authorized, executed and delivered by the Company and is a
legally valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms,
except as the enforceability thereof may be (i) subject to
applicable bankruptcy, insolvency, moratorium, reorganization
or similar laws in effect which affect the enforcement of
creditors rights generally, (ii) limited by general principles
of equity (whether considered in a proceeding at law or in
equity) and (iii) limited by securities laws prohibiting or
limiting the availability of, and public policy against,
indemnification or contribution.
(17) The Series A Senior Notes, the Series B Senior
Notes, the Subsidiary Guarantees to be endorsed on the Series
A Senior Notes, the Subsidiary Guarantees to be endorsed on
the Series B Senior Notes, the Indenture, the Registration
Rights Agreement, the Revolving Credit Facility, the Tax
Payment Agreement and the Management Agreement conform in all
material respects to the descriptions thereof contained in the
Offering Memorandum.
(18) None of the Company or the Subsidiary Guarantors
is (a) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended or (b) a "holding company" or
a "subsidiary company" of a holding company or an "affiliate"
thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended or (c) subject to regulation
under the Federal Power Act, the Interstate Commerce Act or
any federal or state statute or regulation limiting its
respective ability to incur indebtedness for borrowed money.
(19) When the Series A Senior Notes are issued and
delivered pursuant to this
29
31
Agreement, such Series A Senior Notes will not be of the same
class (within the meaning of Rule 144A under the Securities
Act) as securities of the Company that are listed on a
national securities exchange registered under Section 6 of the
Exchange Act or that are quoted in a United States automated
inter-dealer quotation system.
(20) The Indenture conforms as to form in all
material respects with the requirements of the TIA, and the
rules and regulations of the Commission applicable to an
indenture which is qualified thereunder. The Indenture is not
required to be qualified under the Trust Indenture Act prior
to the first to occur of (i) the Registered Exchange Offer and
(ii) the effectiveness of the Shelf Registration Statement.
(21) No registration under the Securities Act of the
Series A Senior Notes is required for the sale of the Series A
Senior Notes to the Initial Purchaser as contemplated hereby
or for the Exempt Resales as described in the Offering
Memorandum (assuming (i) that the Eligible Purchasers who buy
the Series A Senior Notes in the Exempt Resales are QIBs,
Accredited Institutions or Regulation S Purchasers, (ii) the
accuracy of, and compliance with, the representations of the
Initial Purchaser and those of the Company contained in
Sections 6 and 7 hereof and (iii) the accuracy of the
representations made by each Accredited Institution who
purchases Series A Senior Notes pursuant to an Exempt Resale
as set forth in the letters of representation executed by such
Accredited Institutions in the form of Annex A to the Offering
Memorandum).
(22) To the best knowledge of such counsel, no
injunction, restraining order or order of any nature by a
federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent the
issuance of the Series A Senior Notes and no stop order
preventing the use of the Preliminary Offering Memorandum or
the Offering Memorandum, or any amendment or supplement
thereto, or suspending the qualification or exemption from
qualification of the Series A Senior Notes for sale in any
jurisdiction designated by the Initial Purchaser pursuant to
Section 5(f) hereof shall have been issued and no proceedings
for that purpose shall have been commenced or shall be pending
before or, to the best knowledge of such counsel, be
contemplated.
In addition, such counsel shall state that it has participated
in conferences with representatives of the Company, representatives of
the Subsidiary Guarantors, representatives of the Company's and the
Subsidiary Guarantors' accountants, the Initial Purchaser's
representatives and counsel for the Initial Purchaser, at which
conferences the contents of the Offering Memorandum and related matters
were discussed, and, although such counsel has not independently
verified and is not passing upon and assumes no responsibility for the
accuracy, completeness or fairness of the statements contained in the
Offering Memorandum, lawyers of such counsel responsible for this
matter who actively participated in the preparation of the Offering
Memorandum are not presently aware of any information that came to
their attention in the course of the performance of the services
referred to herein that leads such counsel to believe that the Offering
Memorandum, on the date thereof or on the date of such opinion,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need
express no view with respect to the financial statements, financial
information and related notes included in the Offering Memorandum).
30
32
Such counsel may set forth such assumptions, qualifications
and definitions as are customary in opinions of this nature and may rely upon
certificates as to factual matters and from public officials. Such opinion may
be limited to federal, Delaware, New York and Ohio law.
(e) The Initial Purchaser shall have received on the Closing
Date an opinion (satisfactory to the Initial Purchaser and counsel to
the Initial Purchaser), dated the Closing Date, of David M. Sweeney, as
general counsel for the Company and the Subsidiary Guarantors, to the
effect that:
(1) To the best of such counsel's knowledge, the
Company and each of the Subsidiary Guarantors is duly
qualified and in good standing as a foreign corporation
registered to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so
qualified would not, singly or in the aggregate, have a
Material Adverse Effect.
(2) All of the outstanding shares of capital stock of
or other ownership interests in the Company and each of the
Subsidiary Guarantors has been duly authorized and validly
issued, is fully paid and nonassessable; the outstanding
shares of capital stock of or other ownership interests in
each of the Company's subsidiaries have not been issued in
violation of any preemptive or similar rights and to the best
of such counsel's knowledge are owned free and clear of any
Lien except for Liens granted pursuant to the Revolving Credit
Facility, the Australian Revolving Credit Facility and the
Australian seller notes as set forth in the Offering
Memorandum under the caption "Capitalization."
(3) To the best of such counsel's knowledge, except
as disclosed in the Offering Memorandum, there are not any
outstanding, subscriptions, rights, warrants or options to
acquire, or instruments convertible into or exchangeable for,
any shares of capital stock or other equity interests in the
Company or any of its subsidiaries.
(4) None of the Company or any of the Subsidiary
Guarantors is in violation of its respective charter or
bylaws, or to the best knowledge of such counsel after due
inquiry, none of the Company or any of the Subsidiary
Guarantors is in default in the performance of any material
term, provision, obligation, agreement or condition contained
in any bond, debenture, note or any other evidence of
indebtedness or any indenture, mortgage, deed of trust or
other contract, lease or other instrument, to which the
Company or any of the Subsidiary Guarantors is a party or to
which any of them or their respective properties may be
subject or bound.
(5) To the best knowledge of such counsel after due
inquiry, there is (i) no action, suit, proceeding or
investigation before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign,
now pending, threatened or contemplated to which the Company
or any of its subsidiaries is or may be a party or to which
the business or property of the Company or any of its
subsidiaries is subject, (ii) no law, statute, rule,
regulation or order that has been enacted, adopted or issued
by any governmental agency or proposed by any governmental
body or (iii) no injunction, restraining order or order of any
nature by a federal or state court or other tribunal of
competent jurisdiction applicable to the Company or any of its
subsidiaries has been issued that, in the case of clauses (i),
(ii) and (iii) above in the reasonable judgment of such
counsel, (A) is required to be disclosed in the Offering
Memorandum and that is not
31
33
so disclosed, (B) might have a Material Adverse Effect, (C)
would interfere with or adversely affect the issuance of the
Series A Senior Notes and the Subsidiary Guarantees, or (D) in
any manner draw into question the validity of the Operative
Documents, the Hewitt-Robins Acquisition Agreement, the Series
A Senior Notes or Subsidiary Guarantees.
Such counsel may set forth such assumptions, qualifications
and definitions as are customary in opinions of this nature and may rely upon
certificates as to factual matters and from public officials. Such opinion may
be limited to federal, Delaware and Ohio law.
(f) The Initial Purchaser shall have received on the Closing
Date an opinion (satisfactory to the Initial Purchaser and counsel to
the Initial Purchaser), dated the Closing Date, of Thompson Norrie
Solicitors, counsel for each of CCE Pty. Ltd., BCE Holdings Pty. Ltd.,
Continental Ace Pty. Ltd., Continental ACE Services Pty. Ltd.,
Continental ACE Components Pty. Ltd., A. Crane Pty. Ltd. and Ringway
Pty. Ltd. (each an "Australian Subsidiary" and collectively, the
"Australian Subsidiaries"), substantially in the form of Exhibit B
hereto:
(g) The Initial Purchaser shall have received on the Closing
Date an opinion, dated the Closing Date, of Latham & Watkins, in form
and substance satisfactory to the Initial Purchaser, and the Company
and the Subsidiary Guarantors shall have provided Latham & Watkins
such papers and information as it requests to enable it to pass upon
the matters contained in such opinion.
(h) The Initial Purchaser shall have received letters from
Ernst & Young LLP, independent public accountants with respect to the
Company and Hewitt-Robins, on the date hereof and on the Closing Date,
in form and substance satisfactory to the Initial Purchaser, with
respect to the financial statements and certain financial information
contained in the Offering Memorandum.
(i) The Initial Purchaser shall have received letters from
Coopers & Lybrand, with respect to BCE Holdings Pty. Ltd., on the date
hereof and on the Closing Date, in form and substance satisfactory to
the Initial Purchaser, with respect to the financial statements and
certain financial information contained in the Offering Memorandum.
(j) The Company, the Subsidiary Guarantors and the Trustee
shall have entered into the Indenture and the Initial Purchaser shall
have received counterparts, conformed as executed, thereof.
(k) The Company, the Subsidiary Guarantors and the Initial
Purchaser shall have entered into the Registration Rights Agreement
and the Initial Purchaser shall have received counterparts, conformed
as executed, thereof.
(l) The Company shall have entered into the Revolving Credit
Facility (the form and substance of which shall be reasonably
acceptable to the Initial Purchaser) and the Initial Purchaser shall
have received counterparts, conformed as executed, thereof and of all
other documents and agreements entered into in connection therewith.
(m) Each condition to the initial borrowing under the
Revolving Credit Facility (other than the issuance and sale of the
Series A Senior Notes pursuant hereto) shall have been satisfied
32
34
or waived. There shall exist at and as of the Closing Date (after
giving effect to the transactions contemplated by this Agreement and
the Hewitt-Robins Acquisition Agreement) no conditions that would
constitute a default (or an event that with notice or the lapse of
time, or both, would constitute a default) under the Revolving Credit
Facility. At or prior to the Closing Date, the closing under the
Revolving Credit Facility shall have been consummated on terms that
conform in all material respects to the description thereof in the
Offering Memorandum and the Initial Purchaser shall have received
evidence satisfactory to the Initial Purchaser of the consummation
thereof.
(n) Each condition to the closing contemplated by the
Hewitt-Robins Acquisition Agreement (other than the issuance and sale
of the Series A Senior Notes pursuant hereto) shall have been satisfied
or waived. There shall exist at and as of the Closing Date (after
giving effect to the transactions contemplated by this Agreement) no
conditions that would constitute a default (or an event that with
notice or the lapse of time, or both, would constitute a default) under
the Hewitt-Robins Acquisition Agreement.
(o) On the Closing Date, the Company and its subsidiaries
shall have entered into the Tax Payment Agreement (the form and
substance of which shall be reasonably acceptable to the Initial
Purchaser) and the Initial Purchaser shall have received counterparts,
conformed as executed, thereof.
(p) On the Closing Date, the Company shall have entered into
the Management Agreement (the form and substance of which shall be
reasonably acceptable to the Initial Purchaser) and the Initial
Purchaser shall have received counterparts, conformed as executed,
thereof.
(q) The Company and the Subsidiary Guarantors shall have fully
performed or complied with any of the agreements herein contained and
required to be performed or complied with by the Company and the
Subsidiary Guarantors on or prior to the Closing Date.
(r) Latham & Watkins shall have been furnished with such
documents, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 9 and in order to evidence the
accuracy, completeness or satisfaction in all material respects of any
of the representations, warranties or conditions herein contained.
(s) Prior to the Closing Date, the Company shall have
furnished to the Initial Purchaser such further information,
certificates and documents as the Initial Purchaser may reasonably
request.
10. EFFECTIVE DATE OF AGREEMENT AND TERMINATION. This Agreement shall
become effective upon the execution and delivery of this Agreement by the
parties hereto.
The Initial Purchaser may terminate this Agreement at any time on or
prior to the Closing Date by written notice to the Company if any of the
following has occurred:
(a) Since the respective dates as of which information is
given in the Offering
33
35
Memorandum, any material adverse change or development involving a
prospective material adverse change which would cause a Material
Adverse Effect, on the earnings, affairs, properties, results of
operations or business prospects of the Company or any of its
subsidiaries, whether or not arising in the ordinary course of
business, which would, in the Initial Purchaser's judgment, make it
impracticable to market the Series A Senior Notes on the terms and in
the manner contemplated in the Offering Documents or materially impairs
the investment quality of the Series A Senior Notes;
(b) Any outbreak or escalation of hostilities or other
national or international calamity, crisis or emergency or material
adverse change in economic conditions or financial markets, if the
effect of such outbreak, escalation, calamity, crisis, emergency or
change in economic conditions or financial markets of the United States
or elsewhere would, in the Initial Purchaser's judgment, be material
and adverse and make it impracticable to market the Series A Senior
Notes on the terms and in the manner contemplated in the Offering
Memorandum or to enforce the contracts for the sale of the Series A
Senior Notes;
(c) The suspension or material limitation of trading generally
in securities on the New York Stock Exchange, the American Stock
Exchange or the NASDAQ National Market System or limitation on prices
for securities on any such exchange or national market system;
(d) The enactment, publication, decree or other promulgation
of any federal or state law, statute, regulation, rule or order of any
court or other governmental authority which in the Initial Purchaser's
opinion causes or could cause a Material Adverse Effect;
(e) The declaration of a banking moratorium by either
federal or New York State authorities;
(f) The taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which
in the Initial Purchaser's opinion has a material adverse effect on the
financial markets in the United States and would in the Initial
Purchaser's judgment make it impracticable or inadvisable to market the
Series A Senior Notes or to enforce contracts for the sales of the
Series A Senior Notes; or
(g) Any of securities of the Company or any of the Company's
subsidiaries shall have been downgraded or placed on any "watch list"
for possible downgrading by any nationally recognized statistical
rating organization (as defined for purposes of Rule 436(9) under the
Securities Act).
11. AGREEMENT OF THE INITIAL PURCHASER.
The Initial Purchaser agrees that, upon its receipt of any written
notice from the Company of the existence of any fact or the happening of any
event that requires the making of any additions to or changes in any Offering
Memorandum, Registration Statement or prospectus, or amendment or supplement
thereto, referred to in Section 5(e) hereof in order that such document will not
contain any untrue statement of a material fact or omission to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances existing as of the date such document was delivered, not
misleading, the Initial Purchaser shall forthwith discontinue disposition of the
applicable Senior Notes
34
36
pursuant to such document until (i) the Initial Purchaser receives from the
Company copies of an amended or supplemented document that the Company states in
writing may be used by the Initial Purchaser or (ii) the Initial Purchaser is
advised in writing by the Company that the use of such document may be resumed.
12. MISCELLANEOUS.
(a) Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (i) if to the Company or any
Subsidiary Guarantor, to Continental Global Group, Inc., 438
Industrial Drive, Winfield, Alabama 35594 Attention: Chief Financial
Officer, with a copy to Squire, Sanders & Dempsey L.L.P., 4900 Key
Tower, 127 Public Square, Cleveland, Ohio 44114, Attention: Jeffrey
Margulies, Esq. and (ii) if to the Initial Purchaser, Donaldson,
Lufkin & Jenrette Securities Corporation, 277 Park Avenue, New York,
New York 10172, Attention: Syndicate Department, with a copy to Latham
& Watkins, 885 Third Avenue, New York, New York 10022, Attention: Kirk
Davenport, Esq. or in any case to such other address as the person to
be notified may have requested in writing.
(b) The respective indemnities, contribution agreements,
representations, warranties and other statements set forth in or made
pursuant to this Agreement shall remain operative and in full force
and effect, and will survive delivery of and payment for the Series A
Senior Notes, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any such person, (ii)
acceptance of the Series A Senior Notes and payment for them hereunder
and (iii) termination of this Agreement.
(c) Except as otherwise provided, this Agreement has been
and is made solely for the benefit of and shall be binding upon the
Company, the Subsidiary Guarantors, the Initial Purchaser, any
controlling persons referred to herein and their respective successors
and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of
this Agreement. The term "successors and assigns" shall not include a
purchaser of any of the Series A Senior Notes from the Initial
Purchaser merely because of such purchase.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS APPLIED
TO CONTACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
(e) This Agreement may be signed in various counterparts
which together shall constitute one and the same instrument.
[signature pages follow]
35
37
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Subsidiary Guarantors and the Initial Purchaser.
Very truly yours,
CONTINENTAL GLOBAL GROUP, INC.
By: /s/ C. E. Bryant
------------------------------
Name: C. E. Bryant
Title: President
CONTINENTAL CONVEYOR & EQUIPMENT COMPANY
By: /s/ Jim Dickinson
------------------------------
Name: Jim Dickinson
Title: Vice President
GOODMAN CONVEYOR COMPANY
By: /s/ J. L. Mandia
------------------------------
Name: J. L. Mandia
Title: Vice President
38
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By: /s/ Ajay Patel
--------------------------------
Name: Ajay Patel
Title: Senior Vice President
39
SCHEDULE I
----------
Subsidiary Guarantors
Continental Conveyor & Equipment Company
Goodman Conveyor Company
40
SCHEDULE II
-----------
Direct and Indirect Subsidiaries of the Company
Continental Conveyor & Equipment Company
Goodman Conveyor Company
114119 Canada, Ltd.
CCE Pty. Ltd.
BCE Holdings Pty. Ltd.
Continental ACE Pty. Ltd.
Continental ACE Services Pty. Ltd.
Continental ACE Components Pty. Ltd.
A. Crane Pty. Ltd.
Ringway Pty. Ltd.
41
SCHEDULE III
------------
Employee Pension and Benefit Plans of the Company
1. Continental Conveyor & Equipment Company Revised Negotiated Retirement
Plan for Hourly-Paid Employees (Winfield, AL plant).
2. Continental Conveyor & Equipment Company Savings and Profit Sharing
Plan.
3. Continental Conveyor & Equipment Company Retirement Plan for Salaried
and Hourly (Non-Union) Employees at Salyersville, KY.
4. Continental Conveyor & Equipment Company Life and AD&D for all
employees and weekly indemnity for truck drivers and all hourly
employees.
5. Continental Conveyor & Equipment Company group major medical insurance
plan for all employees.
6. Continental Conveyor & Equipment Company group long-term disability
for all salaried employees.
7. Continental Conveyor & Equipment Company group voluntary AD&D
insurance for salaried employees only.
8. Goodman Conveyor Retirement Savings Plan.
9. Goodman Conveyor Health/Dental Plan (Fully Insured).
10. Goodman Conveyor Salaried LTD Plan (Fully Insured).
11. Goodman Conveyor Hourly Life Insurance Plan (Fully Insured).
12. Goodman Conveyor Salaried Life Insurance Plan (Fully Insured).
13. Goodman Conveyor Travel & Accident Plan (Voluntary).
42
SCHEDULE IV
-----------
Material Contracts of
Continental Global Group, Inc.,
Continental Conveyor & Equipment Company and
Goodman Conveyor Company
1. Revolving Credit Facility (as amended by Amendments I, II & III) by
and between Bank One Cleveland, NA and Continental Conveyor &
Equipment Company and Goodman Conveyor Company and other relative
exhibits thereto.
2. The Purchase Agreement and relative documents between Continental Pty.
Ltd. and BCE Holdings and related entities.
3. Settlement Agreement between Dresser Industries Inc. and Goodman
Conveyor Company dated March 18, 1996.
4. Purchase Agreement and relative exhibits between Continental Conveyor
& Equipment Company and Process Technologies Inc. for the purchase of
certain assets of Hewitt-Robins.
5. The Subordinated Note Payable by Goodman Conveyor Company to NES
Investments Co. L.P.
6. The Supplier Agreement between Continental Conveyor & Equipment
Company and Cyprus Amex Minerals Co.
7. Form of Supplier Agreement between Continental Conveyor & Equipment
Company and AT Massey Group (unexecuted).
8. The Union Agreement between Continental Conveyor & Equipment Company
and The Aluminum & Brick Workers Union.
9. The Management Agreement between Continental Global Group, Inc. and
Nesco Inc., dated April 1, 1997.
10. The Tax Payment Agreement between Continental Global Group, Inc.,
Continental Conveyor & Equipment Company, Goodman Conveyor Company and
NES Group Inc., dated April 1, 1997.
43
EXHIBIT A
---------
Form of Registration Rights Agreement
44
================================================================================
CONTINENTAL GLOBAL GROUP, INC.
----------------------------------------
$120,000,000
11% SERIES A SENIOR NOTES DUE 2007
----------------------------------------
-------------------
REGISTRATION RIGHTS AGREEMENT
DATED AS OF _______, 1997
-------------------
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
================================================================================
45
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of _______, 1997, by and among Continental Global Group, Inc., a
Delaware corporation (the "COMPANY"), and Continental Conveyor & Equipment
Company, a Delaware corporation ("CONTINENTAL") and Goodman Conveyor Company, a
Delaware corporation ("GOODMAN") (each, a "SUBSIDIARY GUARANTOR" and together,
the "SUBSIDIARY GUARANTORS") and Donaldson, Lufkin & Jenrette Securities
Corporation (the "INITIAL PURCHASER"), who has agreed to purchase the Company's
11% Series A Senior Notes due 2007 (the "SERIES A SENIOR NOTES") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated March
26, 1997 (the "PURCHASE AGREEMENT"), by and among the Company, the Subsidiary
Guarantors and the Initial Purchaser. In order to induce the Initial Purchaser
to purchase the Series A Senior Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchaser set
forth in the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BROKER-DEALER TRANSFER RESTRICTED SECURITIES: Series B Senior Notes
that are acquired by a Broker-Dealer in the Exchange Offer in exchange for
Series A Senior Notes that such Broker-Dealer acquired for its own account as a
result of market-making activities or other trading activities (other than
Series A Senior Notes acquired directly from the Company or any of its
affiliates).
CERTIFICATED SECURITIES: As defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Senior Notes to be issued in the Exchange Offer, (b)
the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof and (c) the delivery by the Company to
the Registrar under the Indenture of Series B Senior Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Senior Notes
tendered by Holders thereof pursuant to the Exchange Offer.
46
DAMAGES PAYMENT DATE: With respect to the Transfer Restricted
Securities, each Interest Payment Date.
EFFECTIVENESS TARGET DATE: As defined in Section 5.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The registration by the Company under the Act of the
Series B Senior Notes pursuant to the Exchange Offer Registration Statement
pursuant to which the Company shall offer the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities for Series B Senior Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer
Restricted Securities tendered in such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchaser
proposes to sell the Series A Senior Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act, to certain
"accredited investors," as such term is defined in Rule 501(a)(1), (2), (3), (5)
or (7) of Regulation D under the Act, and to non-U.S. persons outside the Untied
States in reliance upon Regulation S under the Act.
GLOBAL NOTE HOLDER: As defined in the Indenture.
HOLDERS: As defined in Section 2 hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURE: The Indenture, dated the Closing Date, among the Company,
the Subsidiary Guarantors and Norwest Bank Minnesota, N.A., as trustee (the
"TRUSTEE"), pursuant to which the Senior Notes are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with the
terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture and the Senior
Notes.
NASD: National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: As defined in the Purchase Agreement.
PERSON: Any individual, corporation, partnership, joint venture,
association, jointstock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
2
47
RECORD HOLDER: With respect to any Damages Payment Date, each Person
who is a Holder of Senior Notes on the record date with respect to the Interest
Payment Date on which such Damages Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company and
the Subsidiary Guarantors relating to (a) an offering of Series B Senior Notes
pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) which is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and material
incorporated by reference therein.
RESTRICTED BROKER-DEALER: Any Broker-Dealer which holds Broker-Dealer
Transfer Restricted Securities.
SENIOR NOTES: The Series A Senior Notes and the Series B Senior Notes.
SERIES B SENIOR NOTES: The Company's 11% Series B Senior Notes due 2007
to be issued pursuant to the Indenture (i) in the Exchange Offer or (ii) upon
the request of any Holder of Series A Senior Notes covered by a Shelf
Registration Statement, in exchange for such Series A Senior Notes.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Senior Note, until the earliest to
occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Senior Note has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Senior Note is disposed of by
a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein) or (d) the date on which such Senior Note is distributed to
the public pursuant to Rule 144 under the Act.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Company and the Subsidiary
3
48
Guarantors shall (i) cause to be filed with the Commission, on or prior to 60
days after the Closing Date, the Exchange Offer Registration Statement, (ii) use
their reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 150 days after the Closing Date, (iii) in connection with the
foregoing, (A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause such Exchange Offer
Registration Statement to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Series B Senior Notes
to be made under the Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer and (iv) upon the effectiveness of
such Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the Series B Senior Notes to be offered in exchange for the
Series A Senior Notes that are Transfer Restricted Securities and to permit
sales of Broker-Dealer Transfer Restricted Securities by Restricted
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company and the Subsidiary Guarantors shall use their
reasonable best efforts to cause the Exchange Offer Registration Statement to be
effective continuously, and shall keep the Exchange Offer open, for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Company and the
Subsidiary Guarantors shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Senior Notes shall be included in the Exchange Offer Registration Statement. The
Company and the Subsidiary Guarantors shall use their reasonable best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter.
(c) The Company shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Restricted Broker-Dealer who holds Series A Senior Notes that
are Transfer Restricted Securities and that were acquired for the account of
such Broker-Dealer as a result of market-making activities or other trading
activities, may exchange such Series A Senior Notes (other than Transfer
Restricted Securities acquired directly from the Company or any Affiliate of the
Company) pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection with its
initial sale of each Series B Senior Note received by such Broker-Dealer in the
Exchange Offer, which prospectus delivery requirement may be satisfied by the
delivery by such Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also contain
all other information with respect to such sales of Broker-Dealer Transfer
Restricted Securities by Restricted Broker-Dealers that the Commission may
require in order to permit such sales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose the amount of
Senior Notes held by any such Broker-Dealer except to the extent required by the
Commission as a result of a change in policy after the date of this Agreement.
The Company and the Subsidiary Guarantors shall use their reasonable
best efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions of Section
6(c) below to the extent necessary to ensure that it is available for sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers, and
to ensure that such Registration Statement conforms with the requirements of
this Agreement, the Act and the policies, rules
4
49
and regulations of the Commission as announced from time to time, for a period
of 120 days from the date on which the Exchange Offer is Consummated.
The Company and the Subsidiary Guarantors shall provide sufficient
copies of the latest version of such Prospectus to such Restricted
Broker-Dealers promptly upon request, and in no event later than two days after
such request, at any time during such 120-day period in order to facilitate such
sales.
4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company is not required to file an
Exchange Offer Registration Statement with respect to the Series B Senior Notes
because the Exchange Offer is not permitted by applicable law (after the
procedures set forth in Section 6(a)(i) below have been complied with) or (ii)
if any Holder of Transfer Restricted Securities shall notify the Company within
20 Business Days following the Consummation of the Exchange Offer that (A) such
Holder is prohibited by law or Commission policy from participating in the
Exchange Offer or (B) such Holder may not resell the Series B Senior Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series A Senior Notes acquired directly
from the Company or one of its affiliates, then the Company and the Subsidiary
Guarantors shall (x) cause to be filed on or prior to the earliest of (1) 30
days after the date on which the Company is notified by the Commission or
otherwise determines that it is not required to file the Exchange Offer
Registration Statement pursuant to clause (i) above and (2) 30 days after the
date on which the Company receives the notice specified in clause (ii) above, a
shelf registration statement pursuant to Rule 415 under the Act, (which may be
an amendment to the Exchange Offer Registration Statement (in either event, the
"SHELF REGISTRATION STATEMENT")), relating to all Transfer Restricted Securities
the Holders of which shall have provided the information required pursuant to
Section 4(b) hereof, and (y) use their reasonable best efforts to cause such
Shelf Registration Statement to become effective at the earliest possible time,
but in no event later than 150 days after the date on which the Company becomes
obligated to file such Shelf Registration Statement. If, after the Company has
filed an Exchange Offer Registration Statement which satisfies the requirements
of Section 3(a) above, the Company is required to file and make effective a
Shelf Registration Statement solely because the Exchange Offer shall not be
permitted under applicable federal law, then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements of clause (x)
above. Such an event shall have no effect on the requirements of clause (y)
above, or on the Effectiveness Target Date as defined in Section 5 below. The
Company and the Subsidiary Guarantors shall use their reasonable best efforts to
keep the Shelf Registration Statement discussed in this Section 4(a)
continuously effective, supplemented and amended as required by and subject to
the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for sales of Transfer Restricted Securities by the Holders
thereof entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the date on which such Shelf Registration Statement first becomes effective
under the Act or such shorter period ending when all of the Transfer Restricted
Securities available for sale thereunder have been sold pursuant thereto.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder
5
50
furnishes to the Company in writing, within 20 days after receipt of a request
therefor, such information specified in Item 507 of Regulation S-K under the Act
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to Liquidated Damages pursuant to Section 5 hereof
unless and until such Holder shall have used its best efforts to provide all
such information. Each Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "EFFECTIVENESS TARGET DATE"), (iii) the
Exchange Offer has not been Consummated within 30 Business Days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded within three Business
Days by a post-effective amendment to such Registration Statement that cures
such failure and that is itself declared effective within three Business Days of
filing (each such event referred to in clauses (i) through (iv), a "REGISTRATION
DEFAULT"), the Company hereby agrees to pay to each Holder of Transfer
Restricted Securities, for the first 90-day period immediately following the
occurrence of such Registration Default, liquidated damages in an amount equal
to $.05 per week per $1,000 principal amount of Senior Notes constituting
Transfer Restricted Securities held by such Holder for each week or portion
thereof that the Registration Default continues. The amount of the liquidated
damages payable to each Holder shall increase by an additional $.05 per week per
$1,000 in principal amount of Transfer Restricted Securities with respect to
each subsequent 90-day period until all Registration Defaults have been cured,
up to a maximum amount of liquidated damages of $.50 per week per $1,000
principal amount of Transfer Restricted Securities held by such Holder.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the liquidated damages
payable with respect to the Transfer Restricted Securities as a result of such
clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Global Note Holder
by wire transfer of immediately available funds or by federal funds check and to
Holders of Certificated Securities by wire transfer to the accounts specified by
them or by mailing checks to their registered addresses if no such accounts have
been specified on each Damages Payment Date. All obligations of the Company and
the Subsidiary Guarantors set forth in the preceding paragraph that are
outstanding with respect to any Transfer Restricted Security at the time such
security ceases to be a Transfer Restricted Security shall survive until such
time as all such obligations with respect to such security shall have been
satisfied in full.
6
51
6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company and the Subsidiary Guarantors shall comply with all
applicable provisions of Section 6(c) below, shall use their reasonable best
efforts to effect such exchange and to permit the sale of Broker-Dealer Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (which shall be in a manner consistent with the
terms of this Agreement), and shall comply with all of the following provisions:
(i) If, following the date hereof and prior to Consummation of
the Exchange Offer, there has been published a change in Commission
policy with respect to exchange offers such as the Exchange Offer, such
that in the reasonable judgment of counsel to the Company there is a
substantial question as to whether the Exchange Offer is permitted by
applicable federal law or Commission policy, the Company and the
Subsidiary Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the
Subsidiary Guarantors to Consummate an Exchange Offer for such Series A
Senior Notes. The Company and the Subsidiary Guarantors hereby agree to
pursue the issuance of such a decision to the Commission staff level
but shall not be required to take commercially unreasonable action to
effect a change of Commission policy. In connection with the foregoing,
the Company and the Subsidiary Guarantors hereby agree, however, but
subject to the proviso set forth above, to take all such other actions
as are reasonably requested by the Commission or otherwise required in
connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation of the Exchange Offer, a written
representation to the Company and the Subsidiary Guarantors (which may
be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
affiliate of the Company, (B) it is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with any person
to participate in, a distribution of the Series B Senior Notes to be
issued in the Exchange Offer and (C) it is acquiring the Series B
Senior Notes in its ordinary course of business. Each Holder hereby
acknowledges and agrees that any Broker-Dealer and any such Holder
using the Exchange Offer to participate in a distribution of the
securities to be acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement rely on
the position of the Commission enunciated in MORGAN STANLEY AND CO.,
INC. (available June 5, 1991) and EXXON CAPITAL HOLDINGS CORPORATION
(available May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993, and similar no-action letters
(including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K if the resales are of Series B
Senior Notes obtained by such Holder in exchange for Series A Senior
Notes acquired by such Holder directly from the Company or an affiliate
thereof.
7
52
(iii) To the extent required by the Commission, prior to
effectiveness of the Exchange Offer Registration Statement, the Company
and the Subsidiary Guarantors shall provide a supplemental letter to
the Commission (A) stating that the Company and the Subsidiary
Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in EXXON CAPITAL HOLDINGS
CORPORATION (available May 13, 1988), MORGAN STANLEY AND CO., INC.
(available June 5, 1991) and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a representation
that neither the Company nor any Subsidiary Guarantor has entered into
any arrangement or understanding with any Person to distribute the
Series B Senior Notes to be received in the Exchange Offer and that, to
the best of the Company's and the Subsidiary Guarantors' information
and belief, each Holder participating in the Exchange Offer is
acquiring the Series B Senior Notes in its ordinary course of business
and has no arrangement or understanding with any Person to participate
in the distribution of the Series B Senior Notes received in the
Exchange Offer and (C) any other undertaking or representation required
by the Commission as set forth in any no-action letter obtained
pursuant to clause (i) above.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement the Company and the Subsidiary Guarantors shall comply
with all the provisions of Section 6(c) below and shall use their reasonable
best efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof (as indicated in the information furnished to
the Company pursuant to Section 4(b) hereof), and pursuant thereto the Company
and the Subsidiary Guarantors will prepare and file with the Commission a
Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or methods of
distribution thereof within the time periods and otherwise in accordance with
the provisions hereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement
and any related Prospectus required by this Agreement to permit the sale or
resale of Transfer Restricted Securities Notes (including, without limitation,
any Exchange Offer Registration Statement and the related Prospectus, to the
extent that the same are required to be available to permit sales of
Broker-Dealer Transfer Restricted Securities by Restricted Broker-Dealers), the
Company and the Subsidiary Guarantors shall:
(i) use their reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company shall file
promptly an appropriate amendment to such Registration Statement, (1)
in the case of clause (A), correcting any such misstatement or
omission, and (2) in the case of either clause (A) or (B), use their
reasonable best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, or such shorter
period as will
8
53
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A and 462 as applicable, under the Act
in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company and the Subsidiary Guarantors shall use their reasonable
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to the Initial Purchaser, each selling Holder
under any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing with
the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment
of such Holders and underwriter(s) in connection with such sale, if
any, for a period of at least five Business Days, and the Company will
not file any such Registration Statement or Prospectus or any amendment
or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) if the selling
Holders of the Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s) in connection with such
sale shall provide notice to the Company within five Business Days
after the receipt thereof to the effect that (A) such Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission or
fails to comply with the applicable requirements of the Act or (B) that
any of the information furnished to the Company by such selling Holder
or underwriter, if any, and included in such Registration
9
54
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed is incorrect in any respect;
(v) at reasonable times requested by the selling Holders
and/or the underwriters upon reasonable notice, prior to the filing of
any document that is to be incorporated by reference into a
Registration Statement or Prospectus, provide copies of such document
to the selling Holders and to the underwriter(s) in connection with
such sale, if any, make the Company's and the Subsidiary Guarantors'
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any managing underwriter participating in any
disposition pursuant to such Registration Statement and any attorney or
accountant retained by such selling Holders or any of such
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and the Subsidiary Guarantors
and cause the Company's and the Subsidiary Guarantors' officers,
directors and employees to supply all information reasonably requested
by any such Holder, underwriter, attorney or accountant in connection
with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s) in connection with such sale, if any, promptly include
in any Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering
of the Transfer Restricted Securities to be sold in such offering; and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(viii) furnish to each selling Holder and each of the
underwriter(s) in connection with such sale, if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(ix) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company
and the Subsidiary Guarantors hereby consent to the use (in accordance
with law) of the Prospectus and any amendment or supplement thereto by
each of the selling Holders and each of the underwriter(s), if any, in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(x) enter into such agreements (including an underwriting
agreement) and make such representations and warranties and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any
10
55
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder of Transfer Restricted Securities or
underwriter in connection with any sale or resale pursuant to any
Registration Statement contemplated by this Agreement, and in such
connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration,
the Company and the Subsidiary Guarantors shall:
(A) furnish to each selling Holder and each
underwriter, if any, upon the effectiveness of the Shelf
Registration Statement and to each Restricted Broker-Dealer
upon Consummation of the Exchange Offer:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed on behalf of each of the
Company and the Subsidiary Guarantors by (x) the
President or any Vice President and (y) a principal
financial or accounting officer of each of the
Company and the Subsidiary Guarantors confirming, as
of the date thereof, the matters set forth in
paragraphs (a) through (c) of Section 9 of the
Purchase Agreement and such other similar matters as
the Holders, underwriter(s) and/or Restricted Broker
Dealers may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Company and the
Subsidiary Guarantors, covering matters customarily
covered in opinions requested in Underwritten
Offerings and dated the date of effectiveness of the
Shelf Registration Statement or the date of
Consummation of the Exchange Offer, as the case may
be; and
(3) customary comfort letters, dated as of
the date of effectiveness of the Shelf Registration
Statement or the date of Consummation of the Exchange
Offer, as the case may be, from the Company's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
Underwritten Offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to
Section 9(f) of the Purchase Agreement, without
exception;
(B) set forth in full or incorporated by reference in
the underwriting agreement, if any, in connection with any
sale or resale pursuant to any Shelf Registration Statement
the indemnification provisions and procedures of Section 8
hereof with respect to all parties to be indemnified pursuant
to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by the selling Holders, the
underwriter(s), if any, and Restricted Broker Dealers, if any,
to evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company and the
Subsidiary Guarantors pursuant to this clause (x).
The above shall be done at each closing under such
underwriting or similar agreement, as and to the extent required
thereunder, and if at any time the representations and warranties of
11
56
the Company and the Subsidiary Guarantors contemplated in (A)(1) above
cease to be true and correct, the Company and the Subsidiary Guarantors
shall so advise the underwriter(s), if any, selling Holders and each
Restricted Broker Dealer promptly and if requested by such Persons,
shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s), if any, may reasonably request and do any
and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the applicable Registration Statement; provided,
however, that neither the Company nor any Subsidiary Guarantor shall be
required to register or qualify as a foreign corporation where it is
not now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xii) issue, upon the request of any Holder of Series A Senior
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Series B Senior Notes, having an aggregate principal amount
equal to the aggregate principal amount of Series A Senior Notes
surrendered to the Company by such Holder in exchange therefor or being
sold by such Holder; such Series B Senior Notes to be registered in the
name of such Holder or in the name of the purchaser(s) of such Senior
Notes, as the case may be; in return, the Series A Senior Notes held by
such Holder shall be surrendered to the Company for cancellation;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and to register such
Transfer Restricted Securities in such denominations and such names as
the Holders or the underwriter(s), if any, may request at least two
Business Days prior to such sale of Transfer Restricted Securities;
(xiv) use their reasonable best efforts to cause the
disposition of the Transfer Restricted Securities covered by the
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriter(s), if any, to consummate
the disposition of such Transfer Restricted Securities, subject to the
proviso contained in clause (xi) above;
(xv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
12
57
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter")
that is required to be retained in accordance with the rules and
regulations of the NASD, and use their reasonable best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xviii) otherwise use their reasonable best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Act);
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders of Senior Notes to effect such changes to
the Indenture as may be required for such Indenture to be so qualified
in accordance with the terms of the TIA; and execute and use its
reasonable best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner; and
(xx) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(i) or any notice from the Company of the existence of any fact of
the kind described in Section 6(c)(iii)(D) hereof, such Holder will immediately
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xv) hereof,
or until it is advised in writing by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (the "Advice"). If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of either such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section 6(c)(i)
or Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such
13
58
Registration Statement shall have received the copies of the supplemented or
amended Prospectus contemplated by Section 6(c)(xv) hereof or shall have
received the Advice.
7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the Subsidiary
Guarantors' performance of or compliance with this Agreement will be borne by
the Company, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
(including filings made by any Initial Purchaser or Holder with the NASD (and,
if applicable, the fees and expenses of any "qualified independent underwriter")
and its counsel that may be required by the rules and regulations of the NASD);
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Senior Notes to be issued in the Exchange Offer
and printing of Prospectuses); (iv) all fees and disbursements of counsel for
the Company, the Subsidiary Guarantors and, in accordance with Section 7(b)
below, the Holders of Transfer Restricted Securities; (v) all messenger and
delivery services and telephone expenses of the Company and the Subsidiary
Guarantors; (vi) all application and filing fees in connection with listing the
Senior Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof and (vii) all fees and disbursements of
independent certified public accountants of the Company and the Subsidiary
Guarantors (including the expenses of any special audit and comfort letters
required by or incident to such performance).
The Company will, in any event, bear its and the Subsidiary Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Subsidiary Guarantors.
(b) In connection with any Registration Statement required by this
Agreement, as applicable, (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the Company and
the Subsidiary Guarantors will reimburse the Initial Purchaser and the Holders
of Transfer Restricted Securities being tendered in the Exchange Offer and/or
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be chosen by the Holders of a majority in principal
amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared; provided however, that such fees and disbursements
shall in no event exceed $10,000.
8. INDEMNIFICATION
(a) The Company and each Subsidiary Guarantor, jointly and severally,
agree to indemnify and hold harmless (i) the Initial Purchaser, (ii) each
Holder, (iii) each person, if any, who controls (within the meaning of Section
15 of the Act or Section 20 of the Exchange Act) the Initial Purchaser or Holder
(any of the persons referred to in this clause (iii) being hereinafter referred
to as a "Controlling Person") and (iv) the respective officers, directors,
partners, employees and agents of the Initial Purchaser or any Holder or any
Controlling Person (any person referred to in clause (i), (ii), (iii) or (iv)
may hereinafter be referred to as an "INDEMNIFIED HOLDER"), to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation, and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced
14
59
or threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder) directly or indirectly caused by, related to, based upon,
arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto),
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages, liabilities, judgments, actions or expenses are
caused by any such untrue statement or alleged untrue statement or omission or
alleged omission that is made in reliance upon and in conformity with
information relating to the Initial Purchaser or any of the Holders furnished in
writing to the Company by the Initial Purchaser or any of the Holders expressly
for use therein; provided however, that the indemnification contained in this
paragraph (a) with respect to any preliminary prospectus shall not inure to the
benefit of any Holder (or to the benefit of any person controlling any Holder)
on account of any such loss, claim, damage, liability, judgment, action or
expense arising from the sale of Series A Senior Notes by such Holder to any
person if a copy of the Prospectus, as it may be amended or supplemented, shall
not have been delivered or sent to such person, at or prior to the written
confirmation of such sale, and the untrue statement or alleged untrue statement
or omission or alleged omission of a material fact contained in any preliminary
prospectus was corrected in the Prospectus, as it may have been amended or
supplemented; provided that the Company has delivered the Prospectus, as it may
be amended or supplemented, to such Holder in requisite quantity on a timely
basis to permit such delivery or sending. The Company and each Subsidiary
Guarantor also agree to, jointly and severally, reimburse each Indemnified
Holder for any and all fees and expenses (including, without limitation, the
fees and expenses of counsel) as they are incurred in connection with enforcing
such Indemnified Holder's rights under this Agreement (including, without
limitation, its rights under this Section 8).
In case any action or proceeding (including any governmental
or regulatory investigation or proceeding) shall be brought or asserted against
any of the Indemnified Holders with respect to which indemnity may be sought
against the Company or any Subsidiary Guarantor, the Indemnified Holder shall
promptly notify the Company in writing (provided, that the failure to give such
notice shall not relieve the Company or the Subsidiary Guarantors of their
obligations pursuant to this Agreement, unless it shall have been determined by
a court of competent jurisdiction that such failure shall have materially
adversely affected the Company or a Subsidiary Guarantor) and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and payment of all fees and expenses
(regardless of whether it is ultimately determined that an Indemnified Holder is
not entitled to indemnification hereunder). Such Indemnified Holder shall have
the right to employ separate counsel in any such action and participate in the
defense thereof, but the reasonable fees and expenses of such counsel shall be
at the expense of such Indemnified Holder unless (i) the employment of such
counsel has been specifically authorized in writing by the Company, (ii) the
Company has failed to assume the defense and employ counsel or (iii) the named
parties to any such action (including any impleaded parties) include both such
Indemnified Holder and the Company or a Subsidiary Guarantor, and such
Indemnified Holder has been advised by such counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Company or the Subsidiary Guarantors (in which case the
Company shall not have the right to assume the defense of such action on behalf
of such Indemnified Holder, it being understood, however, that the Company shall
not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all such Indemnified Holders, which firm shall be designated in writing by the
Indemnified Holders, and that all
15
60
such fees and expenses shall be reimbursed as they are incurred). Neither the
Company nor any Subsidiary Guarantor shall be liable for any settlement of any
such action effected without prior written consent of the Company, but if
settled with the Company's written consent (which consent will not be
unreasonably withheld) the Company and each Subsidiary Guarantor agree to,
jointly and severally, indemnify and hold harmless each Indemnified Holder from
and against any loss, claim, damage, liability, judgment, action or expense by
reason of such settlement. 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 release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Subsidiary Guarantors, each Controlling Person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company
or any Subsidiary Guarantor, and the officers, directors, partners, employees
and agents of each such person (the "Company Indemnified Parties"), to the same
extent as the foregoing indemnity from the Company and the Subsidiary Guarantors
to each of the Indemnified Holders, but only with respect to claims and actions
based on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action shall be
brought against any Company Indemnified Party in respect of which indemnity may
be sought against a Holder of Transfer Restricted Securities, such Holder shall
have the rights and duties given the Company and the Subsidiary Guarantors, and
the Company Indemnified Parties shall have the rights and duties given to each
Holder by the preceding paragraph. In no event shall any Holder be liable or
responsible for any amount in excess of the amount by which the total received
by such Holder with respect to its sale of Transfer Restricted Securities
pursuant to a Registration Statement exceeds (i) the amount paid by such Holder
for such Transfer Restricted Securities and (ii) the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities,
judgments, actions or expenses in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party (or parties, as
applicable), on the one hand, and the indemnified party (or parties, as
applicable), on the other hand, from the initial placement and the sale of
Transfer Restricted Securities pursuant to the applicable Registration Statement
or if such allocation is not permitted by applicable law, the relative fault of
such indemnifying party, on the one hand, and of such indemnified party, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Subsidiary Guarantors shall be deemed to be equal to the total proceeds
from the initial placement (net of the Initial Purchaser's commissions, but
before deducting expenses) as set forth on the cover page of the Offering
Memorandum. The relative benefits of the Initial Purchaser shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover
page of the Offering Memorandum and benefits received by any other Indemnified
Holders shall be deemed to be equal to the total proceeds received by such
Holder upon its sale of Series A Senior Notes. The relative fault of such
indemnifying party, on the one hand,
16
61
and of such indemnified party, 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 such indemnifying party on the one hand or by
such indemnified party, on the other hand and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Subsidiary Guarantors, the Initial Purchaser
and each Holder of Transfer Restricted Securities agree that it would not be
just and equitable if contribution pursuant to this Section 8(c) were determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, judgments, actions or expenses referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, neither the
Initial Purchaser nor its related Indemnified Holders shall be required to
contribute, in the aggregate, any amount in excess of the amount equal to (A)
the amount of the total purchase discounts and commissions applicable to such
Transfer Restricted Securities less (B) any amount paid or contributed by the
Initial Purchaser under the Purchase Agreement; nor shall any Holder or its
related Indemnified Holders be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of its Transfer Restricted Securities pursuant to a
Registration Statement exceeds the sum of (A) the amount paid by such Holder for
such Transfer Restricted Securities plus (B) the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The obligations of the Initial Purchaser and the
Holders to contribute pursuant to this Section 8(c) are several in proportion to
the respective principal amount of Series A Senior Notes held by each of the
Holders hereunder and not joint.
The indemnity and contribution agreements of the Company, the
Subsidiary Guarantors and the Initial Purchaser contained in this Section 8 are
in addition to any liability or obligation which the Company, the Subsidiary
Guarantors and the Initial Purchaser may otherwise have to the Indemnified
Holders and the Company Indemnified Parties, respectively, referred to above.
9. RULE 144A
The Company and the Subsidiary Guarantors hereby agree with each
Holder, for so long as any Transfer Restricted Securities remain outstanding and
during any period in which the Company and the Subsidiary Guarantors are not
subject to Section 13 or 15(d) of the Securities Exchange Act, to make
available, upon request of any Holder of Transfer Restricted Securities, to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
17
62
10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in customary underwriting arrangements entered
into in connection therewith and (b) completes and executes all reasonable
questionnaires, powers of attorney, lock-up letters and other documents required
under the terms of such underwriting arrangements.
11. SELECTION OF UNDERWRITERS
For any Underwritten Offering of Senior Notes, the investment banker or
investment bankers and manager or managers for any Underwritten Offering of
Senior Notes, that will administer such offering will be selected by the Holders
of a majority in aggregate principal amount of the Transfer Restricted
Securities included in such offering. Such investment bankers and managers are
referred to herein as the "underwriters."
12. MISCELLANEOUS
(a) REMEDIES. Each Holder, in addition to being entitled to exercise
all rights provided herein, in the Indenture, the Purchase Agreement or granted
by law, including recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement. The Company and the
Subsidiary Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by them of the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor any Subsidiary
Guarantor will, on or after the date of this Agreement, enter into any agreement
with respect to its securities that is inconsistent with the rights granted to
the Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither the Company nor any Subsidiary Guarantor has previously entered into any
agreement granting any registration rights with respect to its securities to any
Person. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's and the Guarantors' securities under any agreement in effect on the
date hereof.
(c) ADJUSTMENTS AFFECTING THE SENIOR NOTES. Neither the Company nor any
Subsidiary Guarantor will take any action, or voluntarily permit any change to
occur, with respect to the Senior Notes that would materially and adversely
affect the ability of the Holders to Consummate any Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 12(d)(i), the Company has obtained the written consent
of the Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer and
that does not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may
18
63
be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities subject to such Exchange Offer.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture;
With a copy to:
Latham & Watkins
885 Third Avenue
New York, New York 10022
Telecopier No.: (212) 751-4864
Attention: Kirk A. Davenport
(ii) if to the Company or any Subsidiary Guarantor:
Continental Global Group, Inc.
438 Industrial Drive
Winfield, Alabama 35594
Telecopier No.: (205) 487-4233
Attention: Chief Financial Officer
With a copy to:
Squire, Sanders & Dempsey L.L.P.
4900 Key Tower
127 Public Square
Cleveland, Ohio 44114
Telecopier No.: (216) 479-8793
Attention: Jeffrey J. Margulies
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless
19
64
and to the extent such successor or assign acquired Transfer Restricted
Securities directly from such Holder at a time when such Holder could not
transfer such Transfer Restricted Securities pursuant to a Shelf Registration
Statement. Each Holder of Transfer Restricted Securities agrees to be bound by
and comply with the terms and provisions of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
[signature page follows]
20
65
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CONTINENTAL GLOBAL GROUP, INC.
By:
---------------------------------------
Name:
Title:
CONTINENTAL CONVEYOR & EQUIPMENT
COMPANY
By:
---------------------------------------
Name:
Title:
GOODMAN CONVEYOR COMPANY
By:
---------------------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
-------------------------------
Name:
Title:
66
EXHIBIT B
---------
Opinion of Australian Counsel
(1) Each of the Australian Subsidiaries (A) is a corporation validly
existing and in good standing under the laws of its respective jurisdiction of
incorporation, (B) has requisite corporate power and authority to carry on its
respective business as it is currently being conducted and to own, lease and
operate its respective properties and (C) to the best of such counsel's
knowledge, is duly qualified and in good standing as a foreign corporation
registered to do business in each jurisdiction in which the nature or its
business or ownership or leasing or property requires such qualification, except
where the failure to be so qualified would not, singly or in the aggregate, have
a material adverse effect on the assets, property, business, results of
operations (financial or otherwise) or prospects of the Australian Subsidiaries
taken as a whole.
(2) All of the outstanding shares of capital stock of or other
ownership interests in each of the Australian Subsidiaries has been duly
authorized and validly issued, is fully paid and nonassessable; the outstanding
shares of capital stock of or other ownership interests in each of the
Australian Subsidiaries have not been issued in violation of any preemptive or
similar rights and to the best of such counsel's knowledge are owned free and
clear of any Lien except for Liens granted pursuant to the Australian Revolving
Credit Facility.
(3) To the best knowledge of such counsel after due inquiry, none of
the Australian Subsidiaries is in violation of its respective charter or bylaws
in default in the performance of any material term, provision, obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or any indenture, mortgage, deed of trust or other
contract, lease or other instrument, to which any of the Australian Subsidiaries
is a party or to which any of them or their respective properties may be subject
or bound.