Exhibit 4.5
EXECUTION COPY
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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: March 15, 2005
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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................................................ 18
SECTION 4. Payment of Expenses......................................................... 19
(a) Expenses......................................................................... 19
(b) Termination of Agreement......................................................... 19
SECTION 5. Conditions of Initial Purchasers' Obligations............................... 19
(a) Opinions of Counsel for the Company and Certain of its Subsidiaries.............. 20
(b) Opinion of Counsel for Initial Purchasers........................................ 20
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(c) Officer's Certificate............................................................ 21
(d) Accountants' Comfort Letters..................................................... 21
(e) Bring-down Comfort Letter........................................................ 21
(f) Portal Market.................................................................... 21
(g) Execution of Registration Rights Agreement and the Securities.................... 22
(h) Credit Facility.................................................................. 22
(i) Additional Documents............................................................. 22
(j) Termination of Agreement......................................................... 22
SECTION 6. Subsequent Offers and Resales of the Securities............................. 22
(a) Offer and Sale Procedures........................................................ 22
(b) Covenants of the Company and the Subsidiary Guarantors........................... 24
(c) Resale Pursuant to Rule 903 of Regulation S or Rule 144A......................... 25
(d) Additional Representations and Warranties of Initial Purchasers.................. 26
SECTION 7. Indemnification............................................................. 26
(a) Indemnification of Initial Purchasers............................................ 26
(b) Indemnification of the Company and the Subsidiary Guarantors..................... 27
(c) Actions Against Parties; Notification............................................ 27
(d) Settlement Without Consent if Failure to Reimburse............................... 28
SECTION 8. Contribution................................................................ 28
SECTION 9. Representations, Warranties and Agreements to Survive Delivery.............. 30
SECTION 10. Termination of Agreement.................................................... 30
(a) Termination; General............................................................. 30
(b) Liabilities...................................................................... 30
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SECTION 11. Default by One or More of the Initial Purchasers............................ 31
SECTION 12. Notices..................................................................... 31
SECTION 13. Parties..................................................................... 31
SECTION 14. Appointment of Agent for Service............................................ 32
SECTION 15. GOVERNING LAW AND TIME...................................................... 32
SECTION 16. Effect of Headings.......................................................... 32
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
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CHC HELICOPTER CORPORATION
(a corporation incorporated under the federal laws of Canada)
$150,000,000
7 3/8% Senior Subordinated Notes due 2014
PURCHASE AGREEMENT
March 15, 2005
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Scotia Capital (USA) Inc.
c/o Merrill ▇▇▇▇▇ & Co.
Four World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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 and Wales, 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 and Wales, 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, ▇▇▇▇▇ HELICOPTER SERVICES LIMITED, a corporation incorporated
under the laws of Scotland, MANAGEMENT AVIATION LIMITED, a corporation
incorporated under the laws of England and Wales, ▇▇▇▇▇ HELICOPTER SERVICES PTY.
LTD., a corporation incorporated under the federal laws of Australia, ▇▇▇▇▇
OFFSHORE HELICOPTERS PTY. LTD., a corporation incorporated under the federal
laws of Australia, ▇▇▇▇▇ ▇▇▇▇ STRAIT HELICOPTERS PTY. LTD., a corporation
incorporated under the federal laws of Australia, ▇▇▇▇▇ 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, ▇▇▇▇▇
HELICOPTERS PTY. LTD., a Corporation 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 laws of Sweden, CHC NETHERLANDS BV, a corporation
incorporated under the laws of The Netherlands, ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ & Co. BV, a corporation incorporated under the
laws of The Netherlands, LUCHTVAARTMAATSCHAPPIJ ▇▇▇▇▇▇▇▇▇ AIRWAYS BV, a
corporation incorporated under the laws of The Netherlands, ▇▇▇▇▇▇▇▇▇ NORTHSEA
HELICOPTERS BV, a corporation incorporated under the laws of The Netherlands,
▇▇▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇▇▇ 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, CHC HELICOPTERS
(MAURITIUS) LTD., a corporation incorporated under the laws of Mauritius,
▇▇▇▇▇▇▇▇▇ COMPONENTS BV, a corporation incorporated under the laws of the The
Netherlands, MULTIFABS SURVIVAL LIMITED, a corporation incorporated under the
laws of Scotland and HELIWORLD LEASING LTD, a company limited by shares duly
organized and existing under the laws of England and Wales (collectively, the
"Subsidiary Guarantors"), confirm their agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇.▇.
▇▇▇▇▇▇ Securities Inc. and Scotia Capital (USA) Inc. (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
$150,000,000 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, as supplemented from time
to time (the "Indenture") among the Company, each Subsidiary Guarantor and The
Bank of New York, as trustee (the "Trustee"), pursuant to which $250,000,000 of
notes of the same series were previously issued. 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.
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 March 14, 2005 (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 March 15,
2005 (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 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, the Company is seeking
an amendment to its Second Amended and Restated Credit Facility, dated December
22, 2004 (the "Credit Facility") to allow for 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.
(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 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, together with
the related schedules and notes, included in the Offering Memorandum
present fairly the financial position of the Company and its 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") 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, 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 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.
(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 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 Credit Facility; 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.
(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 the Indenture
has been duly executed and delivered by the Company and each Subsidiary
Guarantor and constitutes 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, 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, enforceable against the Company 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 the Company, entitled to the benefits of the
Indenture and enforceable against the Company 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.
(a) The form, issuance, execution, delivery and performance of the
Guarantees have been duly authorized and have been duly executed by the
Subsidiary Guarantors and when the Securities are 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
the Securities are delivered against payment of the purchase price therefor
as provided in this Agreement, the Guarantees 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.
(b) The form, issuance, execution, delivery and performance of the
guarantees of the Exchange Securities have been duly authorized and have
been duly executed by the Subsidiary Guarantors and when the Exchange
Securities are 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 the Exchange Securities are delivered
against payment of the purchase price therefor as provided in this
Agreement, the Guarantees of the Exchange Securities 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
guarantees of the Exchange Securities, 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 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, the guarantees of the Exchange
Securities, the 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 Subsidiary 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 appropriate 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.
(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.
(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, 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 distribution 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.
(xxxix) Authorization of the DTC Agreement.
The DTC Agreement has been duly authorized by the Company and
constitutes 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, 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
fifth business 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. Any of the Initial Purchasers may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any 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 $150,000,000 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 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 and the Guarantees 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 ▇▇▇▇▇▇-▇▇▇▇
Companies, ("S&P") and ▇▇▇▇▇'▇ 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."
(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
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.
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 Registration Rights Agreement and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities and 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 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 as of the date hereof and the Closing Time 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) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Canadian counsel for the Company and its subsidiaries, in form and
substance 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 and in all respects reasonably satisfactory to counsel for
the Initial Purchasers, (iii) ▇▇▇▇▇ & Williamsons, Scottish counsel for the
Company and certain of the Subsidiary Guarantors organized under the laws
of Scotland, in form and substance and in all respects reasonably
satisfactory to counsel for the Initial Purchasers, (iv) Harridyahl &
▇▇▇▇▇, Barbados counsel for the Company and certain of the Subsidiary
Guarantors organized under the laws of Barbados, in form and substance and
in all respects reasonably satisfactory to counsel for the Initial
Purchasers, (v) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Australian counsel for the Company and
certain of the Subsidiary Guarantors organized under the laws of Australia,
in form and substance and in all respects reasonably satisfactory to
counsel for the Initial Purchasers, (vii) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, English
counsel for the Company and certain of the Subsidiary Guarantors organized
under the laws of England and Wales, in form and substance and in all
respects reasonably satisfactory to counsel for the Initial Purchasers,
(viii)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 and in all respects reasonably satisfactory to counsel for
the Initial Purchasers and (ix) Wiersholm 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 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇ LLP and Davies ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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 (exclusive of any amendment or supplement thereto after
the date hereof), 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, the Chief Financial
Officer, 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 and all pro forma data contained in the
Offering Memorandum, a letter dated 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 and all pro forma data 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 Registration Rights Agreement and the Securities.
At the Closing Time, the Securities 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) 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 scheduled payments of
interest thereon are permitted thereunder.
(i) 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 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.
(j) 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.
(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.
(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).
(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, 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.
(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇), 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 Subsidiary 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇,
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 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 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.
(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 ▇▇▇▇ ▇▇▇) 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.
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 (exclusive of any
amendment or supplement thereto after the date hereof), 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 any 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
(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ at Four World Financial Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, attention: ▇▇▇▇▇ ▇▇▇▇▇.
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 ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, or to the Subsidiary Guarantors listed on Schedule D to this Agreement at
the addresses 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.
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: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Senior Vice President and
Chief Financial Officer
CHC HELICOPTER HOLDINGS LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Senior Vice President and
Chief Financial Officer
CHC HELICOPTERS INTERNATIONAL INC.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Senior Vice President and
Chief Financial Officer
VIKING HELICOPTERS LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Vice President
CANADIAN HELICOPTERS (U.K.) LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Attorney Duly Appointed
CHC SCOTIA LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Director & Attorney Duly Appointed
HELIWORLD LEASING, LTD
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
BRINTEL HOLDINGS LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Attorney Duly Appointed
BRINTEL HELICOPTERS LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Attorney Duly Appointed
FLIGHT HANDLING LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Attorney Duly Appointed
BOND HELICOPTER SERVICES LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director & Attorney Duly Appointed
NORTH DENES AERODROME LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Attorney Duly Appointed
COURT AIR (PROPRIETARY) LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Authorized Signatory
COURT HELICOPTER SERVICES
(PROPRIETARY) LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Director
COURT FLIGHT SAFETY (PROPRIETARY) LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Authorized Signatory
CHC HELICOPTERS (AFRICA)(PROPRIETARY) LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Authorized Signatory
▇▇▇▇▇ HELICOPTER SERVICES LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Attorney Duly Appointed
MANAGEMENT AVIATION LIMITED
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Attorney Duly Appointed
▇▇▇▇▇ HELICOPTER SERVICES PTY. LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Director
▇▇▇▇▇ HELICOPTERS PTY. LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Director
▇▇▇▇▇ OFFSHORE HELICOPTERS PTY. LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Director
▇▇▇▇▇ ▇▇▇▇ STRAIT HELICOPTERS PTY. LTD.
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Director
▇▇▇▇▇ HELICOPTERS INTERNATIONAL PTY. LTD.,
in its sole capacity and as trustee for
THE AUSTRALIAN HELICOPTERS TRUST
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Director
CHC HELICOPTERS (BARBADOS) LIMITED
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: President
CHC LEASING (BARBADOS) LIMITED
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: President
CHC CAPITAL (BARBADOS) LIMITED
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: President
CHC IRELAND LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
CHC SWEDEN AB
By: /s/ Jo ▇▇▇▇ Zurel
--------------------------------------
Name: Jo ▇▇▇▇ Zurel
Title: Authorized Signatory
CHC NETHERLANDS BV
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
▇▇▇▇▇▇▇▇▇ LUCHTVAART GROEP BV
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
CAPITAL AVIATION SERVICES BV
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
HANDELSMAATSCHAPPIJ ▇▇▇▇▇▇▇▇▇ & CO. BV
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
LUCHTVAARTMAATSCHAPPIJ ▇▇▇▇▇▇▇▇▇
AIRWAYS BV
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
▇▇▇▇▇▇▇▇▇ NORTHSEA HELICOPTERS BV
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
▇▇▇▇▇▇▇▇▇ COMPONENTS BV
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
MULTIFABS SURVIVAL LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
▇▇▇▇▇▇▇▇▇ ONROEREND GOED BV
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
AVIATION PERSONNEL RECRUITMENT AND
MANAGEMENT (APRAM) LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney
▇▇▇▇▇▇▇▇▇ TCHAD SA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
WHIRLY BIRD SERVICES LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
CHC HELICOPTERS (MAURITIUS) LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
HELIWORLD LEASING, LTD.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
WHIRLY BIRD SERVICES LIMITED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED
By: (signed)
-------------------------------
Name:
-----------------------------
Title:
----------------------------
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SCOTIA CAPITAL (USA), INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Director
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Securities
------------------------- ---------------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ........... $105,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. .................................. $ 22,500,000
Scotia Capital (USA) Inc. .................................... $ 22,500,000
Total ........................................................ $150,000,000
------------
SCHEDULE B
CHC HELICOPTER CORPORATION
$150,000,000
7 3/8% Senior Subordinated Notes due 2014
1. The initial offering price of the Securities shall be 103.5% 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 103.5% of the principal amount thereof; in addition, 1.00%
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 May 1, 2005. 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
Sch D-2
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 100% of the principal amount thereof (determined at the date of purchase),
plus accrued and unpaid interest, if any, to the date of purchase.
Sch D-3
SCHEDULE C
List of Subsidiaries
PERCENTAGE OF EQUITY
OWNED BY THE COMPANY
(DIRECTLY OR INDIRECTLY)
------------------------
SUBSIDIARY GUARANTORS
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 ▇▇▇▇▇▇▇▇▇ & Co. BV 100%
Heliworld Leasing, Ltd. 100%
▇▇▇▇▇ ▇▇▇▇ Strait Helicopters Pty. Ltd. 100%
▇▇▇▇▇ Helicopter Services Limited 100%
▇▇▇▇▇ Helicopter Services Pty. Ltd. 100%
▇▇▇▇▇ Helicopters Pty. Ltd. 100%
▇▇▇▇▇ Helicopters International Pty. Ltd. 100%
▇▇▇▇▇ Offshore Helicopters Pty. Ltd. 100%
Luchtvaartmaatschappij ▇▇▇▇▇▇▇▇▇ Airways BV 100%
Management Aviation Limited 100%
North Denes Aerodrome Ltd. 100%
▇▇▇▇▇▇▇▇▇ Components BV 100%
▇▇▇▇▇▇▇▇▇ Luchtvaart Groep BV 100%
Sch C-1
▇▇▇▇▇▇▇▇▇ Northsea Helicopters BV 100%
▇▇▇▇▇▇▇▇▇ Onroerend Goed BV 100%
▇▇▇▇▇▇▇▇▇ Tchad SA 100%
Multifabs Survival Limited 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%
▇▇▇▇▇▇▇▇▇ Air Target Services BV 100%
▇▇▇▇▇▇▇▇▇ Components BV 80%
UNRESTRICTED SUBSIDIARIES
None
Sch D-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 ▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇▇▇▇▇
Attn: Managing Director
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇▇▇▇▇
Attn: Managing Director
Handelmaatschappij ▇▇▇▇▇▇▇▇▇ & Co. BV ▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇▇▇▇▇
Attn: Managing Director
Luchtvaartmaatschappij ▇▇▇▇▇▇▇▇▇ Airways BV ▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇▇▇▇▇
Attn: Managing Director
▇▇▇▇▇▇▇▇▇ Luchtvaart Groep BV ▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇▇▇▇▇
Attn: The President
▇▇▇▇▇▇▇▇▇ Northsea Helicopters BV ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇▇▇▇▇
Attn: Managing Director
▇▇▇▇▇▇▇▇▇ Onroerend Goed BV ▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax: + ▇▇ ▇▇ ▇▇▇▇▇▇▇
Attn: Managing Director
▇▇▇▇▇▇▇▇▇ Components BV ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Fax + ▇▇ ▇▇ ▇▇▇▇▇▇▇
Attn: Managing Director