Exhibit 4.7
EXECUTED
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CHC HELICOPTER CORPORATION
(a corporation incorporated under the federal laws of Canada)
7 3/8% Senior Subordinated Notes due 2014
PURCHASE AGREEMENT
Dated: April 21, 2004
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TABLE OF CONTENTS
PURCHASE AGREEMENT
SECTION 1. Representations and Warranties by Company and the Subsidiary
Guarantors ................................................................4
(a) Representations and Warranties ...............................................4
(b) Officer's Certificates ......................................................16
SECTION 2. Sale and Delivery to Initial Purchasers; Closing ............................16
(a) Securities ..................................................................16
(b) Payment .....................................................................16
(c) Denominations; Registration .................................................17
SECTION 3. Covenants of Company and the Subsidiary Guarantors ..........................17
(a) Offering Memorandum .........................................................17
(b) Notice and Effect of Material Events ........................................17
(c) Amendment to Offering Memorandum and Supplements ............................18
(d) Qualification of Securities and Guarantees for Offer and Sale ...............18
(e) Rating of Securities ........................................................18
(f) The Depository Trust Company ................................................18
(g) Use of Proceeds .............................................................18
(h) Restriction on Sale of Securities ...........................................19
(i) PORTAL Designation ..........................................................19
SECTION 4. Payment of Expenses .........................................................19
(a) Expenses ....................................................................19
(b) Termination of Agreement ....................................................20
SECTION 5. Conditions of Initial Purchasers' Obligations ...............................20
(a) Opinions of Counsel for the Company and Certain of its
Subsidiaries .............................................................20
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(b) Opinion of Counsel for Initial Purchasers ...................................21
(c) Officer's Certificate .......................................................21
(d) Accountants' Comfort Letters ................................................21
(e) Bring-down Comfort Letter ...................................................22
(f) Portal Market ...............................................................22
(g) Execution of Transaction Documents ..........................................22
(h) Tender Offer ................................................................22
(i) Credit Facility .............................................................22
(j) Additional Documents ........................................................22
(k) Termination of Agreement ....................................................23
SECTION 6. Subsequent Offers and Resales of the Securities .............................23
(a) Offer and Sale Procedures ...................................................23
(b) Covenants of the Company and the Subsidiary Guarantors ......................25
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A ....................26
(d) Additional Representations and Warranties of Initial Purchasers .............27
SECTION 7. Indemnification .............................................................27
(a) Indemnification of Initial Purchasers .......................................27
(b) Indemnification of the Company and the Subsidiary Guarantors ................28
(c) Actions Against Parties; Notification .......................................28
(d) Settlement Without Consent if Failure to Reimburse ..........................29
SECTION 8. Contribution ................................................................29
SECTION 9. Representations, Warranties and Agreements to Survive Delivery ..............30
SECTION 10.Termination of Agreement ....................................................31
(a) Termination; General ........................................................31
(b) Liabilities .................................................................31
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SECTION 11. Default by One or More of the Initial Purchasers ...........................31
SECTION 12. Notices ....................................................................32
SECTION 13. Parties ....................................................................32
SECTION 14. Appointment of Agent for Service ...........................................32
SECTION 15. GOVERNING LAW AND TIME .....................................................33
SECTION 16. Effect of Headings .........................................................33
SCHEDULES
Schedule A - List of Initial Purchasers .......................................... Sch A-1
Schedule B - Pricing Information ................................................. Sch B-1
Schedule C - List of Subsidiaries ................................................ Sch C-1
Schedule D - List of Process Agents .............................................. Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Xxxxxxxxx Xxxxxx and Xxxxxx Xxxxxxx ................... A-1
Exhibit B - Form of Opinion of Shearman & Sterling LLP ............................... B-1
Exhibit C - Form of Opinion of Xxxxx & Williamsons ................................... C-1
Exhibit D - Form of Opinion of Law Xxxxxxxx .......................................... D-1
Exhibit E - Form of Opinion of Xxxxxx Xxxxxxx ........................................ E-1
Exhibit F - Form of Opinion of White and Case LLP .................................... F-1
Exhibit G - Form of Opinion of IWG Daws .............................................. G-1
Exhibit H - Form of Opinion of Van Doorne. ........................................... H-1
Exhibit I - Form of Opinion of Weirsholm Mellby & Bech advokat firma AS .............. I-1
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CHC HELICOPTER CORPORATION
(a corporation incorporated under the federal laws of Canada)
$250,000,000
7 3/8 % Senior Subordinated Notes due 2014
PURCHASE AGREEMENT
April 21, 2004
Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Scotia Capital (USA) Inc.
c/o Merrill Xxxxx & Co.
Four World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
CHC HELICOPTER CORPORATION, a corporation incorporated under the
federal laws of Canada (the "Company"); each of CHC HELICOPTER HOLDINGS LIMITED,
a corporation incorporated under the federal laws of Canada, CHC HELICOPTERS
INTERNATIONAL INC., a corporation incorporated under the federal laws of Canada,
VIKING HELICOPTERS LIMITED, a corporation incorporated under the federal laws of
Canada, CANADIAN HELICOPTERS (U.K.) LIMITED, a corporation incorporated under
the laws of Scotland, CHC Scotia Limited, a corporation incorporated under the
laws of England, BRINTEL HOLDINGS LIMITED, a corporation incorporated under the
laws of Scotland, BRINTEL HELICOPTERS LIMITED, a corporation incorporated under
the laws of Scotland, FLIGHT HANDLING LIMITED, a corporation incorporated under
the laws of Scotland, BOND HELICOPTER SERVICES LIMITED, a corporation
incorporated under the laws of Scotland, NORTH DENES AERODROME LTD., a
corporation incorporated under the laws of England, COURT AIR (PROPRIETARY)
LTD., a corporation incorporated under the laws of South Africa, COURT
HELICOPTER SERVICES (PROPRIETARY) LIMITED, a corporation incorporated under the
laws of South Africa, COURT FLIGHT SAFETY (PROPRIETARY) LTD., a corporation
incorporated under the federal laws of South Africa, CHC HELICOPTERS (AFRICA)
(PROPRIETARY) LTD., a corporation incorporated under the federal laws of South
Africa, XXXXX HELICOPTER SERVICES LIMITED, a corporation incorporated under the
laws of Scotland, MANAGEMENT AVIATION LIMITED, a corporation incorporated under
the laws of Xxxxxxx, XXXXX HELICOPTER SERVICES PTY. LTD., a corporation
incorporated under the federal laws of Australia, XXXXX OFFSHORE HELICOPTERS
PTY. LTD., a corporation incorporated under the federal laws of Australia, XXXXX
XXXX STRAIT HELICOPTERS PTY. LTD., a corporation incorporated under the federal
laws of Australia, XXXXX HELICOPTERS INTERNATIONAL PTY. LTD. in its own capacity
and as trustee of the The Australian Helicopters Trust, a trust existing under
the laws of Australia, a corporation incorporated under the federal laws of
Australia, XXXXX HELICOPTERS PTY. LTD., a Corpo-
ration incorporated under the federal laws of Australia, CHC HELICOPTERS
(BARBADOS) LIMITED, a corporation incorporated under the laws of Barbados, CHC
CAPITAL (BARBADOS) LIMITED, a corporation incorporated under the laws of
Barbados , CHC LEASING (BARBADOS) LIMITED, a corporation incorporated under the
laws of Barbados, CHC IRELAND LIMITED, a corporation incorporated under the
federal laws of Ireland, CHC Sweden AB, a corporation incorporated under the
federal laws of Sweden, CHC NETHERLANDS BV, a corporation incorporated under the
laws of The Netherlands, XXXXXXXXX LUCHTVAART GROEP BV, a corporation
incorporated under the laws of The Netherlands, CAPITAL AVIATION SERVICES BV, a
corporation incorporated under the laws of The Netherlands, HANDELSMAATSCHAPPIJ
XXXXXXXXX & CO. BV, a corporation incorporated under the laws of The
Netherlands, LUCHTVAARTMAATSCHAPPIJ XXXXXXXXX AIRWAYS BV, a corporation
incorporated under the laws of The Netherlands, XXXXXXXXX AIRCRAFT MAINTENANCE
BV, a corporation incorporated under the laws of The Netherlands, XXXXXXXXX
NORTHSEA HELICOPTERS BV, a corporation incorporated under the laws of The
Netherlands, XXXXXXXXX NORTHSEA HELICOPTERS CV, a limited partnership existing
under the laws of The Netherlands, XXXXXXXXX CANADA LTD., a corporation
incorporated under the federal laws of Canada, XXXXXXXXX ONROEREND GOED BV, a
corporation incorporated under the laws of The Netherlands, AVIATION PERSONNEL
RECRUITMENT AND MANAGEMENT (APRAM) LIMITED, a corporation incorporated under the
laws of Cyprus, XXXXXXXXX TCHAD SA, a corporation incorporated under the laws of
Tchad, 4083423 CANADA INC., a corporation incorporated under the federal laws of
Canada, WHIRLY BIRD SERVICES LIMITED, a corporation incorporated under the laws
of Scotland, and CHC HELICOPTERS (MAURITIUS) LTD., a corporation incorporated
under the laws of Mauritius (collectively, the "Subsidiary Guarantors"), confirm
their agreement with Xxxxxxx Xxxxx & Co. and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated ("Xxxxxxx Xxxxx") and Scotia Capital (USA) Inc. ("Scotia
Capital"), (collectively, the "Initial Purchasers", which term shall also
include any initial purchaser substituted as hereinafter provided in Section 11
hereof), with respect to the issue and sale by the Company and the purchase by
the Initial Purchasers, acting severally and not jointly, of the respective
principal amounts set forth in Schedule A of $250,000,000 aggregate principal
amount of the Company's 7 3/8% Senior Subordinated Notes due 2014 (the
"Securities"). The Securities are to be issued pursuant to an indenture dated as
of April 27, 2004 (the "Indenture") among the Company, each Subsidiary Guarantor
and The Bank of
New York, as trustee (the "Trustee"). The obligations of the
Company under the Indenture and the Securities will be guaranteed (the
"Guarantees") by each of the Subsidiary Guarantors, pursuant to the Indenture.
When, in this Agreement, the term "subsidiary" is used uncapitalized in
reference to the Company, it shall signify reference to any one of the Company's
wholly or partly owned subsidiaries, including the Subsidiary Guarantors, and
any other company, partnership or enterprise controlled by the Company at a
given time.
Securities issued in book-entry form will be issued to Cede & Co.
as nominee of The Depository Trust Company ("DTC") pursuant to a letter
agreement, to be dated as of the Closing Time (as defined in Section 2(b)) (the
"DTC Agreement"), among the Company and DTC.
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The holders of Securities will be entitled to the benefits of a
Registration Rights Agreement, in form and substance reasonably satisfactory to
the Initial Purchasers (the "Registration Rights Agreement"), pursuant to which
the Company and the Subsidiary Guarantors agree to file with the Securities and
Exchange Commission (the "Commission"), under certain circumstances, a
registration statement registering notes with terms identical to those of the
Securities (the "Exchange Securities") and which will evidence the same
continuing indebtedness of the Company and the Subsidiary Guarantors, to be
offered in exchange for the Securities, and, under certain circumstances, a
registration statement registering the Securities for resale, in both cases
together with the related Guarantees, under the Securities Act of 1933, as
amended (the "1933 Act").
The Company and each Subsidiary Guarantor understand that the
Initial Purchasers propose to make an offering of the Securities on the terms
and in the manner set forth herein and agree that the Initial Purchasers may
resell, subject to the conditions set forth herein, all or a portion of the
Securities to purchasers ("Subsequent Purchasers") at any time after the date of
this Agreement. The Securities are to be offered and sold through the Initial
Purchasers in the United States without being registered under the 1933 Act, in
reliance upon exemptions therefrom and in Canada in reliance on exemptions from
the requirement to file a prospectus relating to the Securities under the
securities laws, rules, regulations and written policy statements (collectively,
the "Canadian Securities Laws") of any province of Canada in which the
Securities are offered (collectively, the "Relevant Provinces"). Pursuant to the
terms of the Securities and the Indenture, investors that acquire Securities may
only resell or otherwise transfer such Securities if such Securities are
hereafter registered under the 1933 Act or if an exemption from the registration
requirements of the 1933 Act is available (including the exemption afforded by
Rule 144A ("Rule 144A") or Regulation S ("Regulation S") of the rules and
regulations promulgated under the 1933 Act by the Commission or, if such
investors are Canadian residents, pursuant to an available exemption from the
prospectus and registration requirements under applicable Canadian Securities
Laws).
The Company has prepared on behalf of itself and the Subsidiary
Guarantors and has delivered to each Initial Purchaser, copies of a U.S.
preliminary offering memorandum dated April 8, 2004 (the "U.S. Preliminary
Offering Memorandum") and a Canadian preliminary offering memorandum of the same
date (the "Canadian Preliminary Offering Memorandum" and, together with the U.S.
Preliminary Offering Memorandum, the "Preliminary Offering Memorandum") and has
prepared and will deliver to each Initial Purchaser, on the date hereof or the
next succeeding day, copies of a U.S. final offering memorandum dated April 21,
2004 (the " U.S. Final Offering Memorandum") and a Canadian final offering
memorandum of the same date (the "Canadian Final Offering Memorandum" and,
together with the U.S. Final Offering Memorandum, the "Final Offering
Memorandum"), each for use by such Initial Purchaser in connection with its
solicitation of purchases of, or offering of, the Securities. "Offering
Memorandum" means, with respect to any date or time referred to in this
Agreement, the most recent offering memorandum (whether the Preliminary Offering
Memorandum or the Final Offering Memorandum, or any amendment or supplement to
either such document), including exhibits thereto and any documents incorporated
therein by reference, which has been prepared and delivered by the
3
Company to the Initial Purchasers in connection with their solicitation of
purchases of, or offering of, the Securities.
In connection with the offering of the Notes, on April 7, 2004 the
Company commenced an offer to purchase (the "Tender Offer") any and all of its
outstanding (euro)94.3 million 11 3/4% Senior Subordinated Notes due 2007 (the
"2007 Notes"). The Company is also soliciting consents (the "Consent
Solicitation") from the holders of the 2007 Notes to amend the indenture
governing the 2007 Notes to eliminate substantially all of the restrictive
covenants therein and to release the collateral securing the 2007 Notes. The
Company is also seeking consent from the lenders under its senior credit
facility (the "Credit Facility") to allow for the consummation of the Tender
Offer and the offering of the Notes.
Capitalized terms used herein and not otherwise defined shall have
the meanings set forth in the Offering Memorandum.
SECTION 1. Representations and Warranties by Company and the
Subsidiary Guarantors.
(a) Representations and Warranties.
The Company and each of the Subsidiary Guarantors, jointly and
severally, represent and warrant to each Initial Purchaser as of the date hereof
and as of the Closing Time referred to in Section 2(b) hereof, and agree with
each Initial Purchaser, as follows:
(i) Similar Offerings.
None of the Company or any Subsidiary Guarantor or any of their
affiliates, as such term is defined in Rule 501(b) under the 1933
Act (each, an "Affiliate"), has, directly or indirectly, solicited
any offer to buy, sold or offered to sell or otherwise negotiated
in respect of, or will solicit any offer to buy or offer to sell or
otherwise negotiate in respect of, in the United States or to any
United States citizen or resident, any security in a manner that
would result in the integration of such offer or solicitation with
the offering of the Securities contemplated herein and would
require the Securities to be registered under the 1933 Act.
(ii) Offering Memorandum.
The Offering Memorandum does not, and at the Closing Time will
not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided that this representation, warranty
and agreement shall not apply to statements in or omissions from
the Offering Memorandum made in reliance upon and in conformity
with information furnished to the Company in writing by any Initial
Purchaser expressly for use in the Offering Memorandum.
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(iii) Independent Accountants.
The accountants who certified the financial statements and
supporting schedules included in the Offering Memorandum are
independent public accountants with respect to the Company and its
subsidiaries, and Xxxxxxxxx Luchtvaart Groep B.V. ("Xxxxxxxxx") and
its subsidiaries as the case may be, within the meaning of (a) the
Canada Business Corporations Act, (b) Regulation S-X under the 1933
Act and (c) the auditor independence standard adopted by the
Canadian Institute of Chartered Accountants in December 2003.
(iv) Financial Statements.
The consolidated financial statements of the Company and of
Xxxxxxxxx, together with the related schedules and notes, included
in the Offering Memorandum present fairly the financial position of
the Company or of Xxxxxxxxx, as the case may be, and their
respective consolidated subsidiaries at the dates indicated and the
results of operations, changes in stockholders' equity and cash
flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with Canadian generally accepted accounting principles
("Canadian GAAP"), in the case of the Company, and in conformity
with Dutch generally accepted accounting principles ("Dutch GAAP"),
in the case of Xxxxxxxxx, in each case applied on a consistent
basis throughout the periods involved. The supporting schedules, if
any, included in the Offering Memorandum present fairly in
accordance with Canadian GAAP, or Dutch GAAP as the case may be,
the information required to be stated therein. The reconciliations
of the Company's financial statements, as presented in accordance
with Canadian GAAP to the same financial statements, as they would
have been presented under United States generally accepted
accounting principles ("U.S. GAAP"), found in the notes to the
financial statements included in the Offering Memorandum, present
fairly all material differences that would arise in converting the
Company's financial statements from Canadian GAAP to U.S. GAAP. The
selected consolidated historical financial data and the summary
consolidated historical financial data included in the Offering
Memorandum present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited
financial statements included in the Offering Memorandum. The
unaudited pro forma consolidated financial statements of the
Company and its subsidiaries and the related notes thereto included
in the Offering Memorandum present fairly the information shown
therein, have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements
and have been properly compiled on the bases described therein; and
the assumptions used in the preparation thereof are reasonable and
the adjustments made therein are appropriate to give effect to the
transactions and circumstances referred to therein.
(v) No Material Adverse Change in Business.
Since the respective dates as of which information is given in
the Offering Memorandum, except as disclosed therein, (A) there has
been no material adverse change in the
5
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any
of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been
no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(vi) Existence of the Company.
The Company has been duly organized and is validly existing as
a corporation under the laws of Canada and has corporate power and
authority to own, lease and operate its properties and to conduct
its business as described in the Offering Memorandum and to enter
into and perform its obligations under this Agreement and is in
good standing under the laws of Canada; and the Company is duly
qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in
a Material Adverse Effect.
(vii) Good Standing of Subsidiaries.
Each of the Company's subsidiaries has been duly organized and
is validly existing as a corporation, trust or other corporate
entity, as the case may be, in good standing under the laws of the
jurisdiction of its incorporation (to the extent good standing
status is authorized by such jurisdiction), has corporate power and
authority or power and authority under its constituent documents
and the laws of its jurisdiction of organization to own, lease and
operate its properties and to conduct its business as described in
the Offering Memorandum and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Offering Memorandum, all of the issued
and outstanding capital stock of each subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable
and, to the extent set forth under "Percentage of Equity Owned by
the Company" in Schedule C hereto, is owned by the Company,
directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
except as provided in or pursuant to the Senior Credit Facility and
the Trust Indenture governing the Company's 8% Subordinated
Debentures due 2007; none of the outstanding shares of capital
stock of the subsidiaries was issued in violation of any preemptive
or similar rights of any security holder of such subsidiary. Except
as set forth in Schedule C hereto, the Company owns, directly or
indirectly, no material interest in the equity of any person.
6
(viii) Capitalization.
The table presenting the Company's capitalization as set forth
in the Offering Memorandum under the caption "Capitalization"
presents fairly the information shown therein and has been properly
compiled on the bases described therein; and the assumptions used
in preparation thereof are reasonable and the adjustments made
therein are appropriate to give effect to the transactions and
circumstances referred to therein. The issued and outstanding
shares of each class of capital stock of the Company have been duly
authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(ix) Authorization of this Agreement.
The execution, delivery and performance of this Agreement has
been duly authorized by the Company and by each of the Subsidiary
Guarantors and this Agreement has been duly executed and delivered
by such parties.
(x) Authorization of the Indenture.
The execution, delivery and performance of the Indenture has
been duly authorized by the Company and each Subsidiary Guarantor
and, when executed and delivered by the Company, each Subsidiary
Guarantor and the Trustee, will constitute a valid and binding
agreement of the Company and each Subsidiary Guarantor, enforceable
against the Company and each Subsidiary Guarantor in accordance
with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles
of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law) (the "Enforcement Exceptions"). The
Company has received an exemption order under subsection 82(3) of
the Canada Business Corporations Act exempting the Indenture from
the applicable provisions of Part VIII of the CBCA. No
registration, filing or recording of the Indenture under the
federal laws of Canada or other applicable laws is necessary to
preserve or protect the validity or enforceability of the Indenture
or the Securities issued thereunder.
(xi) Authorization of the Securities and Exchange Securities.
(A) The Securities and the Exchange Securities have been duly
authorized by the Company; (B) at the Closing Time, the Securities
will have been duly executed by the Company and the Subsidiary
Guarantors and, when authenticated, issued and delivered in the
manner provided for in the Indenture (assuming due authorization,
execution and delivery of the Indenture by the Trustee) and
delivered against payment of the purchase price therefor as
provided in this Agreement, will constitute valid and binding
obligations of the Company and the Subsidiary Guarantors,
enforceable against the Company and the
7
Subsidiary Guarantors in accordance with their terms; and (C) the
Exchange Securities, when executed, authenticated, issued and
delivered in exchange for the Securities in accordance with the
terms of the Indenture and the Registration Rights Agreement, will
constitute valid and binding obligations of each of the Company and
the Subsidiary Guarantors entitled to the benefits of the Indenture
and enforceable against each of the Company and the Subsidiary
Guarantors, in accordance with the terms thereof, except, in the
case of (B) and (C), as the enforcement thereof may be limited by
the Enforcement Exceptions, and will be in the form contemplated
by, and entitled to the benefits of, the Indenture.
(xii) Authorization of the Guarantees.
The form, issuance, execution, delivery and performance of the
Guarantees have been duly authorized and, at the Closing Time, will
have been duly executed by the Subsidiary Guarantors and, when
issued and delivered in the manner provided for in the Indenture
for the Securities as provided in this Agreement, will constitute
valid and binding obligations of the Subsidiary Guarantors
enforceable against the Subsidiary Guarantors, in accordance with
their terms (subject to the Enforcement Exceptions), and will be in
the form contemplated by, and entitled to the benefits of, the
Indenture.
(xiii) Authorization of the Registration Rights Agreement.
The Registration Rights Agreement has been duly authorized by
the Company and each Subsidiary Guarantor and, when executed and
delivered by the Company, each Subsidiary Guarantor and the Initial
Purchasers, will constitute a valid and binding agreement of the
Company and each Subsidiary Guarantor, enforceable against the
Company and each Subsidiary Guarantor in accordance with its terms
(subject to the Enforcement Exceptions), and except as rights to
indemnification and contribution under the Registration Rights
Agreement may be limited under applicable law.
(xiv) Description of the Securities and the Transaction
Documents.
The Securities, the Exchange Securities, the Guarantees, the
Indenture and the Registration Rights Agreement will conform in all
material respects to the respective statements relating thereto
contained in the Offering Memorandum and will be in substantially
the respective forms previously delivered to the Initial Purchasers
prior to the date of this Agreement.
(xv) Absence of Defaults and Conflicts.
Neither of the Company nor the Subsidiary Guarantors is in
violation of its charter or by-laws. Neither the Company nor any of
its subsidiaries is in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party
8
or by which or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject (collectively, "Agreements and Instruments"), except for
such defaults as would not result in a Material Adverse Effect; and
the execution, delivery and performance of this Agreement, the
Indenture, the Securities, the Exchange Securities, the Guarantees,
Registration Rights Agreement and any other agreement or instrument
entered into or issued or to be entered into or issued by the
Company or the Subsidiary Guarantors, in connection with the
transactions contemplated hereby or thereby or in the Offering
Memorandum and the consummation of the transactions contemplated
herein and in the Offering Memorandum (including the issuance and
sale of the Securities and the use of the proceeds from the sale of
the Securities as described in the Offering Memorandum under the
caption "Use of Proceeds") and compliance by the Company and the
Subsidiary Guarantors with their respective obligations hereunder
and thereunder have been duly authorized by all necessary corporate
action and do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, the Agreements and Instruments,
except for such conflicts, breaches, defaults, Repayment Events,
liens, charges or encumbrances that, singly or in the aggregate,
would not result in a Material Adverse Effect; nor will such action
result in any violation of the provisions of the charter or by-laws
of the Company or any of its subsidiaries, nor will such action
result in any violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their assets or properties that would result in a Material Adverse
Effect. As used herein, a "Repayment Event" means any event or
condition which expressly gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.
(xvi) Absence of Labor Dispute.
No labor dispute with the employees of the Company or any of
its subsidiaries exists or, to the knowledge of the Company or any
Subsidiary Guarantor, is imminent which may reasonably be expected
to result in a Material Adverse Effect, and neither the Company nor
any Subsidiary Guarantor, is aware of any existing or imminent
labor disturbance by the employees of any of its or any of its
subsidiaries' principal suppliers, manufacturers, customers or
contractors, which, in either case, may reasonably be expected to
result in a Material Adverse Effect.
(xvii) Absence of Proceedings.
Except as disclosed in the Offering Memorandum, there is no
action, suit, proceeding, inquiry or investigation before or by any
court or governmental agency or body, domestic or foreign, now
pending, or, to the knowledge of the Company or any Subsidi-
9
ary Guarantor, threatened, against or affecting the Company or any
of its subsidiaries, taken as a whole, which might reasonably be
expected to result in a Material Adverse Effect, or which might
reasonably be expected materially and adversely to affect the
properties or assets of the Company or any of its subsidiaries or
the consummation of the transactions contemplated by this Agreement
or the performance by the Company and the Subsidiary Guarantors of
their respective obligations hereunder. The pending legal and
governmental proceedings, if any, to which the Company or any of
its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the
Offering Memorandum, including ordinary routine litigation
incidental to the business, are not, in the aggregate, reasonably
expected to result in a Material Adverse Effect.
(xviii) Possession of Intellectual Property.
The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or
other intellectual property (collectively, "Intellectual Property")
necessary to carry on the business now operated by them, and
neither the Company nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict
with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest
of the Company or any of its subsidiaries therein, and which
infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or
in the aggregate, would result in a Material Adverse Effect.
(xix) Absence of Further Requirements.
Except for the registration of the Exchange Securities under
the 1933 Act, the qualification under the Trust Indenture Act of
1939 with respect to the Exchange Securities and compliance with
state securities laws and Canadian Securities Laws in connection
with the offering of the Exchange Securities, no filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company
and the Subsidiary Guarantors of their respective obligations
hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement or for the due execution, delivery
or performance of the Indenture and the Registration Rights
Agreement by the Company and the Subsidiary Guarantors, except such
as have been already obtained.
(xx) Possession of Licenses and Permits.
The Company and its subsidiaries possess such permits,
licenses, approvals, consents and other authorizations
(collectively, "Governmental Licenses") issued by the ap-
10
propriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a
Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except when the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses
to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xxi) Title to Property.
The Company and its subsidiaries have good and marketable title
to all real property owned by the Company and its subsidiaries and
good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security
interests, claims, restrictions or encumbrances of any kind, except
such as (A) are described in the Offering Memorandum or (B) do not,
singly or in the aggregate, affect the value of such property and
do not interfere with the use made and proposed to be made of such
property by the Company or any of its subsidiaries, such that it
would result in a Material Adverse Effect; and all of the leases
and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the
Company or any of its subsidiaries holds properties described in
the Offering Memorandum, are in full force and effect, and neither
the Company nor any of its subsidiaries has any notice of any claim
of any sort that has been asserted by anyone adverse to the rights
of the Company or any of its subsidiaries under any of the leases
or subleases mentioned above, or affecting or questioning the
rights of the Company or any subsidiary thereof to the continued
possession of the leased or subleased premises under any such lease
or sublease, such that it would result in a Material Adverse
Effect.
(xxii) Internal Accounting Controls.
The Company and the Subsidiary Guarantors maintain a system of
internal accounting controls sufficient to provide reasonable
assurances that (A) transactions are executed in accordance with
management's general or specific authorization, (B) transactions
are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (C) access to
assets is permitted only in accordance with management's general or
specific authorization and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals
and appropriate action is taken with respect to any differences.
The Company has taken reasonable measures to ensure that all its
subsidiaries do the same.
11
(xxiii) Insurance.
The Company and the Subsidiary Guarantors carry or are entitled
to the benefits of insurance with financially sound and reputable
insurers, in such amounts and covering such risks as is generally
maintained by companies of established repute engaged in the same
or similar business, and all such insurance is in full force and
effect.
(xxiv) Similar Registration Rights.
Other than pursuant to the Registration Rights Agreement there
are no persons with registration rights or other similar rights to
have any securities registered by the Company or any Subsidiary
Guarantor under the 1933 Act.
(xxv) Solvency.
The Company and the Subsidiary Guarantors are, and immediately
after the Closing Time will be, Solvent. As used herein, the term
"Solvent" means, with respect to the Company and the Subsidiary
Guarantors on a particular date, that on such date (A) the fair
market value of the assets of the Company or each Subsidiary
Guarantor, as the case may be, is greater than the total amount of
its respective liabilities (including contingent liabilities)
taking into consideration its respective contribution rights, (B)
the present fair salable value of the assets of the Company or each
Subsidiary Guarantor, as the case may be, is greater than the
amount that will be required to pay its respective probable
liabilities on its debts as they become absolute and matured, (C)
the Company or each Subsidiary Guarantor, as the case may be, is
able to realize upon its respective assets and pay its respective
debts and other liabilities, including contingent obligations, as
they mature, and (D) the Company or each Subsidiary Guarantor, as
the case may be, does not have unreasonably small capital.
(xxvi) No Cessation by Supplier.
No supplier of merchandise to the Company or any of the
Subsidiary Guarantors (or any of their subsidiaries) has ceased
shipments to the Company or such subsidiary of merchandise of such
a nature, or in such magnitude, as would reasonably be expected to
result in a Material Adverse Effect.
(xxvii) No Undisclosed Relationships.
No relationship, direct or indirect, exists between or among
any of the Company or any Subsidiary Guarantor or any of their
Affiliates, on the one hand, and any director, officer,
stockholder, customer or supplier of any of them, on the other
hand, which the Company would be required to disclose in a
registration statement on Form S-1 filed with the Commission
pursuant to the 1933 Act, which is not disclosed, to the same
extent as would be required in such a registration statement, in
the Offering Memorandum.
12
(xxviii) Environmental Laws.
Except as described in the Offering Memorandum and except such
matters as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or
foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata)
or wildlife, including, without limitation, laws and regulations
relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, "Environmental
Laws"), (B) the Company and its subsidiaries have all permits,
authorizations and approvals required under any applicable
Environmental Laws and are in compliance with their requirements,
(C) there are no pending or, to the knowledge of the Company,
threatened administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries
and (D) there are no events or circumstances that might reasonably
be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company or
any of its subsidiaries relating to Hazardous Materials or
Environmental Laws.
(xxix) Taxes.
All income tax returns required by law to be filed by or on
behalf of the Company and its subsidiaries have been filed (other
than returns with respect to which failure so to file would not
have a Material Adverse Effect on the Company and its subsidiaries,
considered as a whole) or extensions obtained and all taxes shown
by such returns or otherwise assessed which are due and payable
have been paid, except assessments against which appeals have been
or will be promptly made and as to which adequate reserves have
been provided.
Under current laws and regulations of Canada and any political
subdivision thereof, all interest, principal, premium, if any, and
other payments due or made on the Securities may be paid by the
Company to the holder thereof in United States dollars that may be
converted into foreign currency and freely transferred out of
Canada and without the necessity of obtaining any authorization of
any government in Canada or any political subdivision or taxing
authority thereof or therein.
(1) Under current laws and regulations of Canada and any
political subdivision thereof, no withholding tax imposed under the
federal laws of Canada or any political subdivision thereof will be
payable in respect of the payment or crediting of any discount,
13
commission or fee as contemplated by this Agreement to an Initial
Purchaser that is not resident in Canada, but resident in the
United States or if a partnership, all the members of which are not
resident in Canada but resident in the United States, in each case,
for purposes of the Income Tax Act (Canada) and the Canada-U.S.
Income Tax Convention, 1980 (a "U.S. Purchaser") or any interest or
deemed interest on the resale of Securities by a U.S. Purchaser to
U.S. residents, provided that such U.S. Purchaser deals at arm's
length with the Company and that any such discount, commission or
fee is payable in respect of services rendered by such U.S.
Purchaser outside of Canada, that are performed by such U.S.
Purchaser in the ordinary course of business carried on by it that
includes the performance of such services for a fee; (2) no goods
and services tax imposed under the federal laws of Canada will be
collectible by a U.S. Purchaser in respect of the payment or
crediting of any commission or fee as contemplated by this
Agreement to any U.S. Purchaser; and (3) no stamp duty,
registration or documentary taxes, duties or similar charges are or
will be payable under the federal laws of Canada or any province or
territory of Canada in connection with the creation, issuance, sale
or delivery to a U.S. Purchaser of the Securities or the
authorization, execution, delivery and performance of this
Agreement, the Indenture or the Registration Rights Agreement, the
resale of Securities by a U.S. Purchaser to U.S. residents, or the
issuance of Exchange Securities or the Private Exchange Securities
in exchange for Securities as contemplated by the Registration
Rights Agreement.
(xxx) No Directed Selling Efforts.
With respect to those Securities sold in reliance on Regulation
S, (A) none of the Company, any Subsidiary Guarantor, or any of
their Affiliates or any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company and the
Subsidiary Guarantors, make no representation) has engaged or will
engage in any directed selling efforts within the meaning of
Regulation S and (B) each of the Company and the Subsidiary
Guarantors and their Affiliates and any person acting on its or
their behalf (other than the Initial Purchasers, as to whom the
Company and the Subsidiary Guarantors make no representation) has
complied and will comply with the offering restrictions requirement
of Regulation S.
(xxxi) No Stabilization or Manipulation.
None of the Company and the Subsidiary Guarantors or any of
their officers, directors or controlling persons has 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
Securities.
(xxxii) No Distribution of Unauthorized Materials.
Neither of the Company nor any of the Subsidiary Guarantors has
distributed, and, prior to the later to occur of (A) the Closing
Time and (B) completion of the distri-
14
bution of the Securities, no such party will distribute, any
offering material in connection with the offering and sale of the
Securities other than the Offering Memorandum or other materials,
if any, permitted by the 1933 Act and approved by the Initial
Purchasers.
(xxxiii) Investment Company Act.
The Company is not required to be registered as an investment
company under the Investment Company Act of 1940, as amended.
(xxxiv) Rule 144A Eligibility.
The Securities are eligible for resale pursuant to Rule 144A
and will not be, at the Closing Time, of the same class as
securities listed on a national securities exchange registered
under Section 6 of the Securities and Exchange Act of 1934, as
amended (the "1934 Act"), or quoted in a U.S. automated interdealer
quotation system.
(xxxv) No General Solicitation.
None of the Company, any of the Subsidiary Guarantors, any of
their Affiliates or any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company and the
Subsidiary Guarantors make no representation) has engaged or will
engage, in connection with the offering of the Securities, in any
form of general solicitation or general advertising within the
meaning of Rule 502(c) under the 1933 Act.
(xxxvi) No Registration Required.
Subject to compliance by the Initial Purchasers with the
representations and warranties set forth in Section 2 and the
procedures set forth in Section 6 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to
the Initial Purchasers and to each Subsequent Purchaser in the
manner contemplated by this Agreement and the Offering Memorandum
to register the Securities under the 1933 Act or to qualify the
Indenture under the Trust Indenture Act of 1939, as amended.
There is no order, ruling or direction of any Canadian
securities regulator concerning the Company which would deny the
benefit of an exemption otherwise provided for under applicable
Canadian Securities Laws with respect to the distribution of the
Securities or the Exchange Notes, if any (including resales of
Securities or Exchange Notes, if any, by the Initial Purchasers to
Subsequent Purchasers), and no proceedings which would reasonably
be expected to result in any such order or ruling have been
instituted or to the knowledge of the Company, are pending or
threatened.
(xxxvii) Reporting Company.
The Company is subject to the reporting requirements of Section
13 or Section 15(d) of the 1934 Act.
15
(xxxix) Authorization of the DTC Agreement.
The DTC Agreement has been duly authorized by the Company
and, when duly executed and delivered in accordance with its terms
by each of the parties thereto, will constitute a valid and binding
agreement of the Company, enforceable against the Company, in
accordance with its terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors'
rights generally and as the enforceability of rights to
indemnification and contribution thereunder may be limited by
federal or state securities laws and applicable Canadian securities
laws.
(b) Officer's Certificates.
Any certificate signed by any officer of the Company or any of its
subsidiaries delivered to counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company and such subsidiary to each Initial
Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Initial Purchaser, severally and not jointly, and each Initial
Purchaser, severally and not jointly, agrees to purchase from the Company, at
the price set forth in Schedule B, the aggregate principal amount of Securities
set forth in Schedule A opposite the name of such Initial Purchaser, plus any
additional principal amount of Securities which such Initial Purchaser may
become obligated to purchase pursuant to the provisions of Section 11 hereof.
(b) Payment.
Payment of the purchase price for, and delivery of certificates for, the
Securities shall be made at the offices of Xxxxxx Xxxxxx & Xxxxxxx LLP, 00 Xxxx
Xxxxxx, Xxx Xxxx, XX 00000, or at such other place as shall be agreed upon by
the Initial Purchasers and the Company, at 9:00 A.M. (eastern time) on the
fourth day after the date hereof (unless postponed in accordance with the
provisions of Section 11), or such other time not later than ten business days
after such date as shall be agreed upon by the Initial Purchasers and the
Company (such time and date of payment and delivery being herein called the
"Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Initial Purchasers of global certificates representing the entire aggregate
principal amount of the Securities, interests in which will be credited to the
accounts of each Initial Purchaser in the amounts set forth in Schedule A
hereto. Either one of the Initial Purchasers may (but shall not be obligated to)
make
16
payment of the purchase price for the Securities to be purchased by the other
Initial Purchaser, in the event such other Initial Purchaser shall not have
delivered the requisite funds by the Closing Time, but such payment shall not
relieve the defaulting Initial Purchaser from its obligations hereunder.
(c) Denominations; Registration.
Certificates for the Securities shall be in such denominations ($1,000
or integral multiples thereof and not in excess of $250,000,000 in aggregate) as
the Initial Purchasers may request in writing at least one full business day
before the Closing Time. The certificates representing the Securities shall be
registered in the name of Cede & Co., as nominee for the DTC. and shall be made
available for examination and packaging by the Initial Purchasers in The City of
New York not later than 10:00 A.M. on the last business day prior to the Closing
Time.
SECTION 3. Covenants of Company and the Subsidiary Guarantors.
The Company and each Subsidiary Guarantor covenant with each Initial
Purchaser as follows:
(a) Offering Memorandum.
The Company, as promptly as possible, will furnish to each Initial
Purchaser, without charge, such number of copies of the Preliminary Offering
Memorandum, the Final Offering Memorandum and any amendments and supplements
thereto and documents incorporated by reference therein as such Initial
Purchaser may reasonably request.
(b) Notice and Effect of Material Events.
The Company will immediately notify each Initial Purchaser, and confirm
such notice in writing, of (x) any filing made by the Company of information
relating to the offering of the Securities with any securities exchange or
any other regulatory body in the United States or any other jurisdiction,
and (y) prior to the completion of the placement of the Securities by the
Initial Purchasers as evidenced by a notice in writing from the Initial
Purchasers to the Company, any material changes in or affecting the
condition, financial or otherwise, or the earnings, business affairs or
business prospects, of the Company and its subsidiaries which (i) make any
statement in the Offering Memorandum false or misleading or (ii) are not
disclosed in the Offering Memorandum. In such event or if during such time
any event shall occur as a result of which it is necessary, in the
reasonable opinion of any of the Company, its counsel, the Initial
Purchasers or counsel for the Initial Purchasers, to amend or supplement the
Final Offering Memorandum in order that the Final Offering Memorandum not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the
light of the circumstances then existing, the Company will forthwith amend
or supplement the Final Offering Memorandum by preparing and furnishing to
each Initial Purchaser an amendment or amendments of, or a supplement or
supplements to, the Final
17
Offering Memorandum (in form and substance satisfactory in the reasonable
opinion of counsel for the Initial Purchasers) so that, as so amended or
supplemented, the Final Offering Memorandum will not include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a Subsequent Purchaser, not
misleading.
(c) Amendment to Offering Memorandum and Supplements.
The Company will advise each Initial Purchaser promptly of any proposal
to amend or supplement the Offering Memorandum and will not effect such
amendment or supplement without the consent of the Initial Purchasers.
Neither the consent of the Initial Purchasers, nor the Initial Purchaser's
delivery of any such amendment or supplement, shall constitute a waiver of
any of the conditions set forth in Section 5 hereof.
(d) Qualification of Securities and Guarantees for Offer and Sale.
The Company will use its best efforts, in cooperation with the Initial
Purchasers, to qualify the Securities for offering and sale under the
applicable securities laws of such jurisdictions as the Initial Purchasers
may reasonably designate and will maintain such qualifications in effect as
long as required for the sale of the Securities and the Guarantees;
provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it is not otherwise so subject.
(e) Rating of Securities.
The Company will take all reasonable action necessary to enable Standard
and Poor's Ratings Corporation, a division of the XxXxxx-Xxxx Companies,
("S&P") and Xxxxx'x Investors Service Inc. ("Moody's") to provide their
respective credit ratings of the Securities.
(f) The Depository Trust Company.
The Company will cooperate with the Initial Purchasers and use its
reasonable best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of the DTC.
(g) Use of Proceeds.
The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Offering Memorandum under "Use
of Proceeds."
18
(h) Restriction on Sale of Securities.
During a period of 180 days from the date of the Offering Memorandum,
the Company will not, without the prior written consent of Xxxxxxx Xxxxx and
Scotia Capital, directly or indirectly, issue, sell, offer or agree to sell,
grant any option for the sale of, or otherwise dispose of, any other debt
securities of the Company or securities of the Company that are convertible
into, or exchangeable for, the Securities or such other debt securities.
(i) PORTAL Designation.
The Company will use its best efforts to permit the Securities to be
designated PORTAL securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. ("NASD")
relating to trading in the PORTAL Market.
SECTION 4. Payment of Expenses.
(a) Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, the Securities, the Exchange Securities, the
Guarantees, the Registration Rights Agreement and the Indenture, including (i)
the preparation, printing and any filing of the Offering Memorandum (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) and of each amendment or supplement thereto, (ii) the
preparation, printing and delivery to the Initial Purchasers of this Agreement,
the Indenture, the Registration Rights Agreement and such other documents as may
be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities, the Exchange Securities and the Guarantees, (iii)
the preparation, issuance, delivery and deposit of the certificates for the
Securities in accordance with Section 2(b) hereof, including any charges of The
Depository Trust Company in connection therewith, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
qualification of the Securities and the Guarantees under securities laws in
accordance with the provisions of Section 3(d) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Initial Purchasers in
connection therewith (other than in connection with the private placement of
Notes and Exchange Notes in Canada) and in connection with the preparation of
the blue sky survey, any supplement thereto and any legal investment survey,
(vi) the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee, in connection with the Indenture and the Securities,
(vii) any fees payable in connection with the rating of the Securities, (viii)
one-half (50%) of the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the Securities, including, without limitation, expenses associated with the
production of road show slides and graphics, travel and lodging expenses of the
representatives and officers of the Company and the cost of aircraft and other
transportation chartered in connection with the road show and (ix) any fees and
expenses payable in connection
19
with the initial and continued designation of the Securities as PORTAL
securities under the PORTAL Market Rules pursuant to NASD Rule 5322.
(b) Termination of Agreement.
If this Agreement is terminated by the Initial Purchasers in accordance
with the provisions of Section 5 or Section 10(a)(i) hereof, the Company and the
Subsidiary Guarantors, jointly and severally, shall reimburse the Initial
Purchasers for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations.
The obligations of the several Initial Purchasers hereunder are subject
to the accuracy of the representations and warranties of the Company and the
Subsidiary Guarantors contained in Section 1 hereof or in certificates of any
officer of the Company or any of its subsidiaries delivered pursuant to the
provisions hereof, to the performance by each of the Company and the Subsidiary
Guarantors of its covenants and other obligations hereunder, and to the
following further conditions:
(a) Opinions of Counsel for the Company and Certain of its Subsidiaries.
At the Closing Time, the Initial Purchasers shall have received the
opinions, dated as of the Closing Time, of (i) Xxxxxxxxx Xxxxxx and Xxxxxx
Xxxxxxx, Canadian counsel for the Company and its subsidiaries, in form and
substance substantially as set forth in Exhibit A hereto and in all respects
reasonably satisfactory to counsel for the Initial Purchasers (and, in
giving such opinion may rely, as to all matters governed by the laws of
jurisdictions other than the law of the Relevant Provinces and the federal
law of Canada, upon the opinions of counsel satisfactory to counsel for the
Initial Purchasers), (ii) Shearman & Sterling LLP., U.S. counsel for the
Company and its subsidiaries, in form and substance substantially as set
forth in Exhibit B hereto and in all respects reasonably satisfactory to
counsel for the Initial Purchasers, (iii) Xxxxx & Williamsons, Scottish
counsel for the Company and certain of the Subsidiary Guarantors organized
under the laws of Scotland, in form and substance substantially as set forth
in Exhibit C hereto and in all respects reasonably satisfactory to counsel
for the Initial Purchasers, (iv) Law Xxxxxxxx Barbados counsel for the
Company and certain of the Subsidiary Guarantors organized under the laws of
Barbados, in form and substance substantially as set forth in Exhibit D
hereto and in all respects reasonably satisfactory to counsel for the
Initial Purchasers, (v) Xxxxxx Xxxxxxx, Australian counsel for the Company
and certain of the Subsidiary Guarantors organized under the laws of
Australia, in form and substance substantially as set forth in Exhibit E
hereto and in all respects reasonably satisfactory to counsel for the
Initial Purchasers, (vii) White & Case LLP English counsel for the Company
and certain of the Subsidiary Guarantors organized under the laws of England
and Wales, in form and substance substantially as set forth in Exhibit F and
in all respects reasonably satisfactory to counsel for the Initial
Purchasers, (viii) IWG Daws LLP, special English counsel for the Company and
certain of the Subsidiary Guarantors organized under the laws of Eng-
20
land, in form and substance substantially as set forth in Exhibit G and in
all respects reasonably satisfactory to counsel for the Initial Purchasers,
(ix) Van Doorne, special Dutch counsel for the Company and certain of the
Subsidiary Guarantors organized under the laws of The Netherlands, in form
and substance substantially as set forth in Exhibit H and (x) Weirsholm
Mellby & Bech advokat firma AS, Norwegian counsel for the Company and
certain of its subsidiaries organized under the laws of Norway in form and
substance substantially as set forth in Exhibit J and in all respects
reasonably satisfactory to counsel for the Initial Purchasers. Each of the
above counsels may state that, insofar as their respective opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(b) Opinion of Counsel for Initial Purchasers.
At the Closing Time, the Initial Purchasers shall have received a
satisfactory opinion, dated as of the Closing Time, of Xxxxxx Xxxxxx &
Xxxxxxx LLP and Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP, counsel for the Initial
Purchasers, with respect to the matters customarily covered by opinions to
initial purchasers in similar transactions. In giving such opinion such
counsel may rely upon the opinions of counsel satisfactory to the Initial
Purchasers. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(c) Officer's Certificate.
At the Closing Time, there shall not have been, since the date hereof or
since the respective dates as of which information is given in the Offering
Memorandum, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Initial Purchasers shall
have received a certificate of the President, or the chief financial
officer, or a Vice President, or equivalent senior ranking officer of the
Company and each Subsidiary Guarantor, dated as of the Closing Time, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct with
the same force and effect as though expressly made at and as of the Closing
Time, and (iii) the Company and each Subsidiary Guarantor have complied with
all agreements and satisfied all conditions on their parts to be performed
or satisfied at or prior to the Closing Time.
(d) Accountants' Comfort Letters.
At the time of the execution of this Agreement, the Initial Purchasers
shall have received from Ernst & Young LLP, with respect to the historical
financial data of the Company, Xxxxxxxxx and all pro forma data (other than
pro forma data for the twelve months ended January 31, 2004) contained in
the Offering Memorandum, a letter dated
21
such date, in form and substance satisfactory to the Initial Purchasers,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to Initial Purchasers with respect to the
financial data contained in an offering memorandum.
(e) Bring-down Comfort Letter.
At the Closing Time, the Initial Purchasers shall have received from
Ernst & Young LLP, with respect to the historical financial data of the
Company, Xxxxxxxxx and all pro forma data (other than pro forma data for the
twelve months ended January 31, 2004) contained in the Offering Memorandum,
a letter dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to subsection (d) of this
Section, except that the specified date referred to shall be a date not more
than four business days prior to the Closing Time.
(f) Portal Market.
At the Closing Time, the Securities shall have been designated for
trading on the Portal Market.
(g) Execution of Transaction Documents.
At the Closing Time, the Indenture, and the Registration Rights
Agreement in form and substance reasonably satisfactory to the Initial
Purchasers, shall have been duly executed and delivered and be in full force
and effect.
(h) Tender Offer.
At the Closing Time, the Company shall have received tenders of bonds
and consents from a majority of the existing holders of the outstanding 2007
Notes in connection with the Tender Offer and Consent Solicitation.
(i) Credit Facility.
At the Closing Time, the Company shall have received consents from the
lenders under the Credit Facility and the Credit Facility shall have been
amended such that the issuance of the Notes and the purchase of the 2007
Notes in connection with the Tender Offer (and the payment of all fees
pursuant thereto) are permitted thereunder.
(j) Additional Documents.
At the Closing Time, counsel for the Initial Purchasers shall have been
furnished with such documents and opinions as they may reasonably require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by
22
the Company in connection with the issuance and sale of the Securities as
herein contemplated shall be reasonably satisfactory in form and substance
to the Initial Purchasers and their counsel.
(k) Termination of Agreement.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by
the Initial Purchasers by notice to the Company at any time at or prior to
the Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 4 and except that
Sections 1, 7, 8 and 9 shall survive any such termination and remain in full
force and effect.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures.
Each of the Initial Purchasers and the Company hereby establish and
agree to observe the following procedures in connection with the offer and sale
of the Securities:
(i) Offers and Sales Only to Qualified Institutional Buyers or
Non-U.S. Persons.
Offers and sales of the Securities shall be made only to (A) persons
whom the offeror or seller reasonably believes to be qualified institutional
buyers (as defined in Rule 144A under the Securities Act) or (B) subject to
(C) below, non-U.S. persons outside the United States, as defined in
Regulation S under the 1933 Act, to whom the offeror or seller reasonably
believes offers and sales of the Securities may be made in reliance upon
Regulation S under the 1933 Act or (C) in Canada and to residents of Canada,
in transactions which are exempt from the prospectus requirements of
applicable Canadian Securities Laws. Each Initial Purchaser severally agrees
that it will not offer, sell or deliver any of the Securities 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 Securities in such jurisdictions.
(ii) No General Solicitation or Directed Selling Efforts.
No general solicitation or general advertising (within the meaning of
Rule 502(c) under the 1933 Act), and no directed selling efforts (within the
meaning of Rule 902(c) of Regulation S under the 1933 Act), will be used in
the United States in connection with the offering or sale of the Securities.
None of the Initial Purchasers nor any person acting on their behalf has
made or will make offers or sales of the Securities in the Relevant
Provinces by means of any printed media of general and regular paid
circulation, radio or television or any other form of advertising.
23
(iii) Purchases by Non-Bank Fiduciaries.
In the case of a non-bank Subsequent Purchaser of a Security acting as a
fiduciary for one or more third parties, each third party shall, in the
judgment of the applicable Initial Purchaser, be a Qualified Institutional
Buyer or a non-U.S. person outside the United States eligible to purchase
Securities pursuant to Regulation S.
(iv) Subsequent Purchaser Notification.
Each Initial Purchaser shall take reasonable steps to inform persons
acquiring Securities from such Initial Purchaser in the United States that
the Securities (A) have not been and will not be registered under the 1933
Act, (B) are being sold to them without registration under the 1933 Act in
reliance on Rule 144A, and (C) may not be offered, sold or otherwise
transferred except (1) to the Company, (2) outside the United States in
accordance with Regulation S provided that the Securities may not be
directly or indirectly sold in Canada for a period of four months and one
day from the Closing Time except pursuant to an available exemption from the
prospectus requirements of applicable Canadian Securities Laws, or (3) in
accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or transfer
is being made in reliance on Rule 144A or (y) pursuant to another available
exemption from registration under the 1933 Act.
(v) Minimum Principal Amount.
No sale of the Securities to any one Subsequent Purchaser shall be for
less than $100,000 principal amount and no Security will be issued in a
smaller principal amount. If the Subsequent Purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom it is acting must
purchase at least $100,000 principal amount of the Securities.
(vi) Restrictions on Transfer.
The transfer restrictions and the other provisions set forth in the
Offering Memorandum under the heading "Notice to Investors," including the
legend required thereby, shall apply to the Securities except as otherwise
agreed by the Company and the Initial Purchasers.
(vii) Delivery of Offering Memorandum.
Each Initial Purchaser will deliver to each purchaser of the Securities
from such Initial Purchaser, in connection with its original distribution of
the Securities, a copy of the Offering Memorandum, as amended and
supplemented at the date of such delivery and, in the case of purchasers
resident in Canada, a copy of the Canadian Offering Memorandum, as amended
and supplemented at the date of such delivery.
24
(viii) Canadian Filing Requirements
In connection with sales in Canada, the Initial Purchasers agree to make
all filings reasonably required to be made with securities regulatory
authorities in Canada with respect to the initial resale of the Securities
by the Initial Purchasers to purchasers in Canada, including, without
limitation, any required reports of the trades constituting such initial
resales, and to pay all filing or other fees applicable in connection
therewith.
(b) Covenants of the Company and the Subsidiary Guarantors.
The Company and each Subsidiary Guarantor covenant with each Initial
Purchaser as follows:
(i) Integration.
The Company and each Subsidiary Guarantor agree that they will not and
will cause their Affiliates not to solicit any offer to buy or make any
offer or sale of, or otherwise negotiate in respect of, securities of the
Company of any class if, as a result of the doctrine of "integration"
referred to in Rule 502 under the 1933 Act, such offer or sale would render
invalid (for the purpose of (i) the sale of the Securities by the Company to
the Initial Purchasers, (ii) the resale of the Securities by the Initial
Purchasers to Subsequent Purchasers or (iii) the resale of the Securities by
such Subsequent Purchasers to others) the exemption from the registration
requirements of the 1933 Act provided by Section 4(2) thereof or by Rule
144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information.
The Company agrees that, in order to render the Securities eligible for
resale pursuant to Rule 144A under the 1933 Act, while any of the Securities
remain outstanding, it will make available, upon request, to any holder of
Securities or prospective purchasers of Securities the information specified
in Rule 144A(d)(4), unless the Company furnishes information to the
Commission pursuant to Section 13 or 15(d) of the 1934 Act (such
information, whether made available to holders or prospective purchasers or
furnished to the Commission, is herein referred to as "Additional
Information").
(iii) Restriction on Repurchases.
Until the expiration of two years after the original issuance of the
Securities, the Company and the Subsidiary Guarantors will not, and will
cause their Affiliates not to, purchase or agree to purchase or otherwise
acquire any Securities which are "restricted securities" (as such term is
defined under Rule 144(a)(3) under the 1933 Act), whether as beneficial
owner or otherwise (except as agent acting as a securities broker on behalf
of and for the account of customers in the ordinary course of business in
unsolicited broker's transactions).
25
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A.
Each Initial Purchaser understands that the Securities have not been and
will not be registered under the 1933 Act or qualified under Canadian Securities
Laws and may not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with Regulation S under
the 1933 Act or pursuant to an exemption from the registration requirements of
the 1933 Act. Each Initial Purchaser severally represents and agrees, that,
except as permitted by Section 6(a) above, it has offered and sold Securities
and will offer and sell Securities (i) as part of their distribution at any time
and (ii) otherwise until forty days after the later of the date upon which the
offering of the Securities commences and the Closing Time, only in accordance
with Rule 903 of Regulation S, Rule 144A under the 1933 Act, or another
applicable exemption from the registration provisions of the 1933 Act and in
respect of sales in Canada, pursuant to applicable exemptions from the
prospectus requirements of the Canadian Securities Laws. Accordingly, neither
the Initial Purchasers or their Affiliates nor any persons acting on their
behalf have engaged or will engage in any directed selling efforts with respect
to the Securities, and the Initial Purchasers, their Affiliates and any person
acting on their behalf have complied and will comply with the offering
restriction requirements of Regulation S. Each Initial Purchaser agrees that, at
or prior to confirmation of a sale of Securities (other than a sale of
Securities pursuant to Rule 144A) it will have sent to each distributor, dealer
or person receiving a selling concession, fee or other remuneration that
purchases Securities from it or through it during the restricted period a
confirmation or notice to substantially the following effect:
The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to or for the account or
benefit of U.S. persons (i) as part of their distribution at any time
and (ii) otherwise until forty days after the later of the date upon
which the offering of the Securities commenced and the date of closing,
except in either case in accordance with Regulation S, Rule 144A under
the Securities Act or another exemption from the registration
requirements of the 1933 Act. Terms used above have the meaning given to
them by Regulation S.
Terms used in the above paragraph have the meanings given to them by Regulation
S.
In addition, each Initial Purchaser agrees that it will not offer or
sell any Securities, directly or indirectly, in Canada or to, or for the account
of any resident of Canada in contravention of the securities laws of any
province or territory of Canada and it will advise each dealer to whom it sells
such Securities that there exist restrictions on offers and sales of the
Securities within Canada or to, or for the account of, any resident thereof.
26
(d) Additional Representations and Warranties of Initial Purchasers.
Each Initial Purchaser severally represents and agrees that it has not
entered and will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its Affiliates or with the prior
written consent of the Company.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers.
The Company and each Subsidiary Guarantor, jointly and severally, agree
to indemnify and hold harmless each Initial Purchaser and each person, if any,
who controls any Initial Purchaser within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Offering
Memorandum or the Final Offering Memorandum (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 7(d)
below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Xxxxxxx Xxxxx and Scotia
Capital), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense is
not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser expressly for use in the Offering Memorandum (or any amendment
thereto); provided, further, that the Company and the Subsidiary Guarantors will
not be liable to the Initial Purchasers or any person controlling such Initial
Purchasers with respect to any such untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary Offering Memorandum to
the extent that the Company and the Subsidi-
27
ary Guarantors shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted from the fact that the Initial
Purchasers sold securities to a person to whom such Initial Purchasers failed to
send or give, at or prior to the written confirmation of the sale of such
Securities, a copy of the Final Offering Memorandum (as amended or supplemented)
if the Company and the Subsidiary Guarantors have previously furnished copies
thereof to the Initial Purchasers (sufficiently in advance of the Closing Time
to allow for distribution of the Final Offering Memorandum in a timely manner)
and complied with their obligations under Sections 3(b) and 3(c) hereof and the
loss, liability, claim, damage or expense of the Initial Purchasers resulted
from an untrue statement or omission or alleged untrue statement or omission of
a material fact contained in or omitted from such Preliminary Offering
Memorandum (as amended or supplemented) that was corrected in the Final Offering
Memorandum (as amended or supplemented).
(b) Indemnification of the Company and the Subsidiary Guarantors
Each Initial Purchaser severally agrees to indemnify and hold harmless
the Company and each Subsidiary Guarantor and each person, if any, who controls
the Company or any Subsidiary Guarantor within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Offering
Memorandum in reliance upon and in conformity with written information furnished
to the Company by such Initial Purchaser expressly for use in the Offering
Memorandum.
(c) Actions Against Parties; Notification.
Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 7(a) above, counsel to the indemnified parties shall be
selected by Xxxxxxx Xxxxx, and, in the case of parties indemnified pursuant to
Section 7(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local or
specialized counsel that may reasonably be required) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 7 or Section
8 hereof (whether or not the indemnified parties are actual
28
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement Without Consent if Failure to Reimburse.
If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with its request prior to
the date of such settlement.
SECTION 8. Contribution.
If the indemnification provided for in Section 7 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Subsidiary
Guarantors on the one hand and by the Initial Purchasers on the other hand from
the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) 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 Company and the
Subsidiary Guarantors on the one hand and of the Initial Purchasers on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
(a) The relative benefits received by the Company and the Subsidiary
Guarantors on the one hand and by the Initial Purchasers on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company, and the total underwriting fees received by
the Initial Purchasers, bear to the aggregate initial offering price of the
Securities.
(b) The relative fault of the Company and the Subsidiary Guarantors on
the one hand and the Initial Purchasers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and any Subsidiary Guarantor
or by the Initial Purchasers and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
29
(c) The Company and the Subsidiary Guarantors and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Initial Purchasers
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 above in this Section 8. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section 8 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
(d) Notwithstanding the provisions of this Section 8, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the total price at which it
purchased the Securities from the Company plus the amount of any damages which
such Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
(e) No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(f) For purposes of this Section 8, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act shall have the same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company or any Subsidiary
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company or the
Subsidiary Guarantors, as the case may be. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 8 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any Subsidiary
Guarantor submitted pursuant hereto shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any Initial
Purchaser or controlling person, or by or on behalf of the Company or any
Subsidiary Guarantor, and shall survive delivery of the Securities to the
Initial Purchasers.
30
SECTION 10. Termination of Agreement.
(a) Termination; General.
The Initial Purchasers may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been,
since the time of execution of this Agreement or since the respective dates as
of which information is given in the Offering Memorandum, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Initial Purchasers, impracticable to
market the Securities or to enforce contracts for the sale of the Securities, or
(iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission, The Toronto Stock Exchange or the
New York
Stock Exchange, if trading generally in the Toronto Stock Exchange or the
New
York Stock Exchange has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other competent authority, or
(iv) if a banking moratorium has been declared by Canadian, U.S. Federal or
New
York authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as
provided in Section 4 hereof, and provided that Sections 1, 7, 8 and 9 shall
survive such termination and remain in full force and effect.
SECTION 11. Default by One or More of the Initial Purchasers.
If either one of the Initial Purchasers shall fail at the Closing Time
to purchase the Securities which it is obligated to purchase under this
Agreement (the "Defaulted Securities"), the other Initial Purchaser shall have
the right, within 24 hours thereafter, to purchase, or make arrangements for one
or more other qualified initial purchasers to purchase, all, but not less than
all, of the Defaulted Securities in such amounts as may be agreed upon and upon
the terms herein set forth; if, however, such other Initial Purchaser shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
aggregate principal amount of the Securities to be purchased hereunder, the
non-defaulting Initial Purchaser shall be obligated to purchase the full amount
thereof; or
31
(b) if the number of Defaulted Securities exceeds 10% of the aggregate
principal amount of the Securities to be purchased hereunder, this Agreement
shall terminate without liability on the part of the non-defaulting Initial
Purchaser.
(c) No action taken pursuant to this Section shall relieve any
defaulting Initial Purchaser from liability in respect of its default.
(d) In the event of any such default which does not result in a
termination of this Agreement, either the Initial Purchasers or the Company
shall have the right to postpone the Closing Time for a period not exceeding
seven days in order to effect any required changes in the Offering Memorandum or
in any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section 11.
SECTION 12. Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Initial Purchasers shall be directed
to Xxxxxxx Xxxxx at Four World Financial Center, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, attention: Xxxxx Xxxxxxx and to Scotia Capital at Xxx Xxxxxxx Xxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention: Xxxx Xxxxxxxxx.
SECTION 13. Parties.
This Agreement shall inure to the benefit of and be binding upon the
Initial Purchasers, the Company, the Subsidiary Guarantors and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Initial Purchasers, the Company, the Subsidiary Guarantors and their respective
successors and the controlling persons and officers and directors referred to in
Sections 7 and 8 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Initial
Purchasers, the Company, the Subsidiary Guarantors and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Initial Purchaser shall be
deemed to be a successor by reason merely of such purchase.
SECTION 14. Appointment of Agent for Service.
The Company and each of the Subsidiary Guarantors have designated CT
Corporation System as their authorized agent upon which process may be served in
any legal action or proceeding, including with respect to any state or federal
securities laws, that may be instituted in any federal court of the United
States or the court of any state thereof and arising out of or relating to this
Agreement. Service of process upon such agent at 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX
00000, or to the Subsidiary Guarantors listed on Schedule D to this Agreement at
the ad-
32
dresses listed thereon, shall be deemed in every respect effective service of
process upon the Company or any Subsidiary Guarantor, in any such legal action
or proceeding. The Company and each of the Subsidiary Guarantors hereby submit
to the nonexclusive jurisdiction of any such court in which any such legal
action or proceeding is so instituted and waive, to the extent they may
effectively do so, any objection they may have now or hereafter to the laying of
the venue of any such legal action or proceeding. The Company and the Subsidiary
Guarantors shall maintain such appointment so long as the Initial Purchasers
shall have any rights pursuant to the terms of this Agreement. The Company and
each of the Subsidiary Guarantors agree to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of such agent.
SECTION 15. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF
NEW YORK. SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY
TIME.
SECTION 16. Effect of Headings.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Initial Purchasers and the Company and the Subsidiary Guarantors in
accordance with its terms.
Very truly yours,
CHC HELICOPTER CORPORATION
By:
-----------------------------------
Name:
Title:
CHC HELICOPTER HOLDINGS LIMITED
By:
-----------------------------------
Name:
Title:
CHC HELICOPTERS INTERNATIONAL INC.
By:
-----------------------------------
Name:
Title:
VIKING HELICOPTERS LIMITED
By:
-----------------------------------
Name:
Title:
CANADIAN HELICOPTERS (U.K.) LIMITED
By:
-----------------------------------
Name:
Title:
34
CHC SCOTIA LIMITED
By:
-----------------------------------
Name:
Title:
BRINTEL HOLDINGS LIMITED
By:
-----------------------------------
Name:
Title:
BRINTEL HELICOPTERS LIMITED
By:
-----------------------------------
Name:
Title:
FLIGHT HANDLING LIMITED
By:
-----------------------------------
Name:
Title:
BOND HELICOPTER SERVICES LIMITED
By:
-----------------------------------
Name:
Title:
NORTH DENES AERODROME LTD.
By:
-----------------------------------
Name:
Title:
35
COURT AIR (PROPRIETARY) LTD.
By:
-----------------------------------
Name:
Title:
COURT HELICOPTER SERVICES
(PROPRIETARY) LTD.
By:
-----------------------------------
Name:
Title:
COURT FLIGHT SAFETY (PROPRIETARY) LTD.
By:
-----------------------------------
Name:
Title:
CHC HELICOPTERS (AFRICA)
(PROPRIETARY) LTD.
By:
-----------------------------------
Name:
Title:
XXXXX HELICOPTER SERVICES LIMITED
By:
-----------------------------------
Name:
Title:
36
MANAGEMENT AVIATION LIMITED
By:
-----------------------------------
Name:
Title:
XXXXX HELICOPTER SERVICES PTY. LTD.
By:
-----------------------------------
Name:
Title:
XXXXX HELICOPTERS PTY. LTD.
By:
-----------------------------------
Name:
Title:
XXXXX OFFSHORE HELICOPTERS PTY. LTD.
By:
-----------------------------------
Name:
Title:
XXXXX XXXX XXXXXX HELICOPTERS PTY. LTD.
By:
-----------------------------------
Name:
Title:
37
XXXXX HELICOPTERS INTERNATIONAL PTY. LTD.,
in its sole capacity and as trustee
for THE AUSTRALIAN HELICOPTERS TRUST
By:
-----------------------------------
Name:
Title:
CHC HELICOPTERS (BARBADOS) LIMITED
By:
-----------------------------------
Name:
Title:
CHC LEASING (BARBADOS) LIMITED
By
-----------------------------------
Name:
Title:
CHC CAPITAL (BARBADOS) LIMITED
By:
-----------------------------------
Name:
Title:
CHC IRELAND LIMITED
By:
-----------------------------------
Name:
Title:
00
XXX XXXXXX XX
By:
-----------------------------------
Name:
Title:
CHC NETHERLANDS BV
By:
-----------------------------------
Name:
Title:
XXXXXXXXX LUCHTVAART GROEP BV
By:
-----------------------------------
Name:
Title:
CAPITAL AVIATION SERVICES BV
By:
-----------------------------------
Name:
Title:
HANDELSMAATSCHAPPIJ XXXXXXXXX & CO. BV
By:
-----------------------------------
Name:
Title:
39
LUCHTVAARTMAATSCHAPPIJ XXXXXXXXX
AIRWAYS BV
By:
-----------------------------------
Name:
Title:
XXXXXXXXX AIRCRAFT MAINTENANCE BV
By:
-----------------------------------
Name:
Title:
XXXXXXXXX NORTHSEA HELICOPTERS BV
By:
-----------------------------------
Name:
Title:
XXXXXXXXX NORTHSEA HELICOPTERS CV
By:
-----------------------------------
Name:
Title:
XXXXXXXXX CANADA LTD.
By:
-----------------------------------
Name:
Title:
XXXXXXXXX ONROEREND GOED BV
By:
-----------------------------------
Name:
Title:
40
AVIATION PERSONNEL RECRUITMENT AND
MANAGEMENT (APRAM) LIMITED
By:
-----------------------------------
Name:
Title:
XXXXXXXXX TCHAD SA
By:
-----------------------------------
Name:
Title:
4083423 CANADA INC.
By:
-----------------------------------
Name:
Title:
WHIRLY BIRD SERVICES LIMITED
By:
-----------------------------------
Name:
Title:
CHC HELICOPTERS (MAURITIUS) LTD.
By:
-----------------------------------
Name:
Title:
41
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By:
-----------------------------------
Name:
Title:
SCOTIA CAPITAL (USA) INC.
By:
-----------------------------------
Name:
Title:
42
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Securities
------------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ................... $ 125,000,000
Scotia Capital (USA) Inc. ............................................ $ 125,000,000
Total ................................................................ $ 250,000,000
--------------
SCHEDULE B
CHC HELICOPTER CORPORATION
$250,000,000
7 3/8 % Senior Subordinated Notes due 2014
1. The initial offering price of the Securities shall be 99.455% of the
principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 99.455% of the principal amount thereof; in addition, 1.75%
of 100% of the principal amount of the Securities will be remitted by the
Company to the Initial Purchasers as fees in connection with this offering.
3. Interest on the Notes shall be payable on May 1 and November 1 of
each year, commencing November 1, 2004. The Notes will mature on May 1, 2014.
4. The interest rate on the Securities shall be 7 3/8 % per annum.
5. Except in the circumstances described in paragraphs 6 and 7 below,
the Notes shall not be redeemable at the option of the Company at any time prior
to May 1, 2009. The Notes shall be redeemable at the option of the Company, as a
whole or from time to time in part, at any time on or after May 1, 2009, at the
redemption prices (expressed as percentages of principal amount) set forth
below, together with accrued interest, if any, to the redemption date, if
redeemed during the 12-month period beginning on May 1 of the years indicated
below (subject to the right of holders of record on relevant record dates to
receive interest due on an interest payment date):
Redemption
Year Price
---- ----------
2009............................................. 103.688%
2010............................................. 102.458%
2011............................................. 101.229%
2012 and thereafter.............................. 100.00%
Before May 1, 2009, the Company may also redeem the Notes, as a whole or
from time to time in part, at a redemption price equal to 100% of the principal
amount thereof, plus the Applicable Premium (as defined in the Indenture) as of,
and accrued and unpaid interest and additional interest thereon, if any, to, the
date of redemption (the "Redemption Date").
6. In addition, at any time or from time to time prior to May 1, 2007,
the Company, at its option, may redeem up to 35% of the original aggregate
principal amount of the Notes plus any Additional Notes (as defined in the
Indenture), within 90 days of one or
more Public Equity Offerings (as defined in the Indenture, with the net proceeds
of such offering at a redemption price equal to 107.375% of the principal amount
thereof, together with accrued interest, if any, to the redemption date (subject
to the right of holders of record on relevant record dates to receive interest
due on relevant interest payment dates); provided that immediately after giving
effect to any such redemption at least 65% of the original aggregate principal
amount of the Notes originally issued plus any Additional Notes remains
outstanding.
7. The Notes shall also be subject to redemption as a whole, but not in
part, at the option of the Company at any time, on not less than 30 nor more
than 60 days' prior written notice to the Holders (which notice shall be
irrevocable), at 100% of the principal amount, together with accrued interest
thereon to the redemption date, and all Additional Amounts (as defined in the
Indenture), if any, then due or becoming due on the redemption date, in the
event the Company or any Subsidiary Guarantor is, has become or would become
obligated to pay, on the next date on which any amount would be payable with
respect to the Notes, any Additional Amounts or indemnification payments (other
than in respect of Documentary Taxes) as a result of a change or amendment in
the laws (including any regulations or rulings promulgated thereunder) of a
Taxing Jurisdiction or any change in or new or different position regarding the
application, administration or interpretation of such laws, treaties,
regulations or rulings (including a holding, judgment or order by a court of
competent jurisdiction), which change is announced or becomes effective on or
after the date of the offering memorandum; provided that the Company determines,
in its business judgment, that the obligation to pay such Additional Amounts
cannot be avoided by the use of reasonable measures available to the Company or
a Subsidiary Guarantor.
Notwithstanding the foregoing, no such notice of redemption shall be
given earlier than 90 days prior to the earliest date on which the Company or a
Subsidiary Guarantor would, but for such redemption, be obligated to make such
payment or withholding or later than 365 days after the Company or a Subsidiary
Guarantor first becomes liable to make such payment or withholding or later than
365 days after the Company or a Subsidiary Guarantor first becomes liable to
make such payment or withholding. Prior to the mailing of any notice of
redemption of the Notes pursuant to the foregoing, the Company will deliver to
each Trustee an opinion of an independent tax counsel of recognized
international standing to the effect that the circumstances referred to above
exist. Each Trustee shall accept such opinion as sufficient evidence of the
satisfaction of the conditions precedent above, in which event it shall be
conclusive and binding on the Holders.
8. Upon the occurrence of a Change of Control (as defined in the
Indenture), the Company will be obligated to make an offer to purchase all
outstanding Notes at a price of 101% of the principal amount thereof (determined
at the date of purchase), plus accrued and unpaid interest, if any, to the date
of purchase. Upon the occurrence of an Asset Sale (as defined in the Indenture)
(subject to the limits described within if the offer to purchase is made within
the first five years after the Notes are issued), the Company may be required to
make an offer to purchase all or a portion of the outstanding Notes at a price
of
Sch B-2
100% of the principal amount thereof (determined at the date of purchase), plus
accrued and unpaid interest, if any, to the date of purchase.
SCHEDULE C
List of Subsidiaries
Percentage of Equity
owned by the Company
Subsidiary Guarantors (directly or indirectly)
4083423 Canada Inc. 100%
The Australian Helicopters Trust 100%
Aviation Personnel Recruitment and
Management (APRAM) Limited 100%
Bond Helicopter Services Limited 100%
Brintel Helicopters Limited 100%
Brintel Holdings Limited 100%
Canadian Helicopters (U.K.) Limited 100%
Capital Aviation Services BV 100%
CHC Capital (Barbados) Limited 100%
CHC Helicopter Holdings Limited 100%
CHC Helicopters (Africa) (Proprietary) Ltd. 100%
CHC Helicopters (Barbados) Limited 100%
CHC Helicopters International Inc. 100%
CHC Helicopters (Mauritius) Ltd. 100%
CHC Ireland Limited 100%
CHC Leasing (Barbados) Limited 100%
CHC Netherlands BV 100%
CHC Scotia Limited 100%
CHC Sweden AB 100%
Court Air (Proprietary) Ltd. 100%
Court Flight Safety (Proprietary) Ltd. 100%
Court Helicopter Services (Proprietary) Ltd. 100%
Flight Handling Limited 100%
Handelsmaatschappij Xxxxxxxxx & Co. BV 100%
Xxxxx Xxxx Xxxxxx Helicopters Pty. Ltd. 100%
Xxxxx Helicopter Services Limited 100%
Xxxxx Helicopter Services Pty. Ltd. 100%
Xxxxx Helicopters Pty. Ltd. 100%
Xxxxx Helicopters International Pty. Ltd. 100%
Xxxxx Offshore Helicopters Pty. Ltd. 100%
Luchtvaartmaatschappij Xxxxxxxxx Airways BV 100%
Management Aviation Limited 100%
North Denes Aerodrome Ltd. 100%
Sch B-3
Xxxxxxxxx Aircraft Maintenance BV 100%
Xxxxxxxxx Canada Ltd. 100%
Xxxxxxxxx Luchtvaart Groep BV 100%
Xxxxxxxxx Northsea Helicopters BV 100%
Xxxxxxxxx Northsea Helicopters CV 100%
Xxxxxxxxx Onroerend Goed BV 100%
Xxxxxxxxx Tchad SA 100%
Viking Helicopters Limited 100%
Whirly Bird Services Limited 100%
Restricted Subsidiaries
APAC Limited 100%
Bond Rotary Wing Limited 100%
Canadian Helicopters (International) Limited 100%
CHC Denmark ApS 100%
CHC Helicopters (South Africa) (Proprietary) Limited 75%
CHC Helikopter Services AS 100%
CHC Reinsurance SA 100%
Heliwest AS 100%
Heliworld Leasing Limited 100%
Inter Aviation Support (IAS) Limited 100%
Integra Leasing AS 100%
Xxxxxxxxx Air Target Services BV 100%
Xxxxxxxxx Components BV 80%
Unrestricted Subsidiaries
CHC Composites Inc. 100% (of
Common Shares)
Sch C-2
SCHEDULE D
Service of Process
Current addresses for service of process in The Netherlands (as such addresses
for service of process may change if the offices of the relevant companies
change)
Capital Aviation Services BV Xxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: Managing Director
XXX Xxxxxxxxxxx XX Xxxxx 00
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: Managing Director
Handelmaatschappij Xxxxxxxxx & Co. BV Xxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: Managing Director
Luchtvaartmaatschappij Xxxxxxxxx Airways BV Xxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: Managing Director
Xxxxxxxxx Aircraft Maintenance BV Xxxxxxxxxx 00
0000 XX Xxxxxxxxxx-Xxxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: Managing Director
Xxxxxxxxx Luchtvaart Groep BV Xxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: The President
Xxxxxxxxx Northsea Helicopters BV Xxxxxxxxxxxxx 00
0000 XX Xxx Xxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: Managing Director
Xxxxxxxxx Northsea Helicopters CV Xxxxxxxxxxxxx 00
0000 XX Xxx Xxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: Managing Director
Xxxxxxxxx Onroerend Goed BV Xxxxxxxxxxx 0
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Fax: + 00 00 0000000
Attn: Managing Director
Sch C-2
[EXHIBITS ATTACHED]
