1
EXHIBIT 10.1
===============================================================================
WORLDWIDE FLIGHT SERVICES, INC.
AND
WFS HOLDINGS, INC.
AS ISSUERS
WORLDWIDE FLIGHT FINANCE COMPANY
WORLDWIDE FLIGHT SECURITY SERVICE CORPORATION
MIAMI INTERNATIONAL AIRPORT CARGO FACILITIES & SERVICES, INC.
AS INITIAL GUARANTORS
$130,000,000
130,000 UNITS CONSISTING OF
12 1/4% SERIES A SENIOR NOTES DUE 2007 OF WORLDWIDE FLIGHT
SERVICES, INC. AND WARRANTS TO PURCHASE 74,750 SHARES OF
COMMON STOCK OF WFS HOLDINGS, INC.
PURCHASE AGREEMENT
AUGUST 5, 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
AND
CHASE SECURITIES INC.
AS INITIAL PURCHASERS
===============================================================================
2
$130,000,000
130,000 Units Consisting of
12 1/4% Series A Senior Notes due 2007
of Worldwide Flight Services, Inc.
and
Warrants to purchase 74,750 shares of Common Stock
of WFS Holdings, Inc.
PURCHASE AGREEMENT
August 5, 1999
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
Chase Securities Inc.
c/▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Worldwide Flight Services, Inc., a Delaware corporation (the
"COMPANY"), and WFS Holdings, Inc., a Delaware corporation ("HOLDINGS" and,
together with the Company, the "ISSUERS"), propose to issue and sell to
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation ("DLJ") and Chase Securities
Inc. ("CHASE"; DLJ and Chase are each individually referred to herein as an
"INITIAL PURCHASER" and, collectively, as the "INITIAL PURCHASERS") 130,000
units (the "UNITS"), each consisting of $1,000 in aggregate principal amount of
the 12 1/4% Series A Senior Notes due 2007 of the Company (the "SERIES A
NOTES"), together with the Subsidiary Guarantees described below, and one
warrant (the "WARRANTS") to purchase 0.575 of a share of common stock (the
"COMMON STOCK") of Holdings, subject to the terms and conditions set forth
herein. The Series A Notes are to be issued pursuant to the provisions of an
indenture (the "INDENTURE"), to be dated as of the Closing Date (as defined
below), among the Company, the Guarantors (as defined below) and The Bank of New
York, as trustee (the "TRUSTEE"). The Series A Notes and the Series B Notes (as
defined below) issuable in exchange therefor are collectively referred to herein
as the "NOTES." The Notes will be initially guaranteed (the "SUBSIDIARY
GUARANTEES") by each of the domestic subsidiaries of the Company listed on Part
I of Schedule A attached hereto (each, a "GUARANTOR" and, collectively, the
"GUARANTORS"). The Warrants will be issued pursuant to a warrant agreement (the
"WARRANT AGREEMENT"), to be dated as of the Closing Date, between Holdings and
The Bank of New York, as warrant agent (the "WARRANT AGENT"), which shall
reflect the terms of the Warrants set forth in the Offering Memorandum (as
defined below) and shall otherwise be in form customary for transactions of this
type and shall otherwise be reasonably acceptable in form and substance to the
Initial Purchasers and their counsel and the Issuers and their counsel. Shares
of voting common stock
3
of Holdings issuable upon exercise of the Warrants are collectively referred to
herein as the "WARRANT SHARES". The Units, the Notes, the Warrants and the
Warrant Shares are collectively referred to herein as the "SECURITIES."
The Units are being issued and sold in connection with a
series of transactions, including (i) the acquisition by MAS Worldwide Holding
Corporation ("MAS HOLDING"), a direct wholly owned subsidiary of the Company, of
all of the outstanding capital stock of Miami Aircraft Support, Inc., a Delaware
corporation ("MAS"), pursuant to a stock purchase agreement by and among MAS
Holding, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇ are each
individually referred to herein as a "SELLER" and, collectively, as the
"SELLERS"), dated as of May 28, 1999 (the "STOCK PURCHASE AGREEMENT" and,
together with all other documents related thereto, the "ACQUISITION DOCUMENTS"),
(ii) the entering into of a credit agreement by the Company with The Chase
Manhattan Bank, Chase Securities Inc. and DLJ Capital Funding, Inc. (the "CREDIT
AGREEMENT" and, together with all other documents related thereto, the "CREDIT
DOCUMENTS"); and (iii) the repayment by the Company of certain existing
indebtedness as specified in the Offering Memorandum with a portion of the net
proceeds from the sale of the Units to the Initial Purchasers (all documentation
related to the release, discharge or termination, as the case may be, of the
existing indebtedness shall be referred to herein as the "REPAYMENT DOCUMENTS").
This Agreement, the Indenture, the Securities, the Warrant
Agreement, the Common Stock Registration Rights Agreement (as defined below),
the Registration Rights Agreement (as defined below), the Acquisition Documents,
the Credit Documents and the Repayment Documents are hereinafter sometimes
referred to collectively as the "OPERATIVE DOCUMENTS."
1. Offering Memorandum. The Units will be offered and sold to
the Initial Purchasers pursuant to one or more exemptions from the registration
requirements under the Securities Act of 1933, as amended (the "ACT"). The
Company and the Guarantors have prepared a preliminary offering memorandum,
dated July 23, 1999 relating to the Series A Notes (the "PRELIMINARY OFFERING
MEMORANDUM"), and the Issuers and the Guarantors have prepared a final offering
memorandum, dated August 5, 1999 relating to the Units (the "OFFERING
MEMORANDUM").
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture, the Series A Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
-2-
4
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AN "IAI")),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS SUBSIDIARIES,
(B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN
OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR
904 OF REGULATION S OF THE SECURITIES ACT, (D) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF
THIS SECURITY (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE
PRINCIPAL AMOUNT OF SECURITIES LESS THAN $250,000, AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN
COMPLIANCE WITH THE SECURITIES ACT, (F) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION REQUIRING THE
TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY IN
VIOLATION OF THE FOREGOING."
-3-
5
Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Warrant Agreement, the Warrants (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS WARRANT (OR ITS PREDECESSOR) AND THE SHARES OF COMMON STOCK
ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS, EXCEPT AS SET FORTH IN THE NEXT SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A
"QIB"), (B) IT HAS ACQUIRED THIS WARRANT IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE
SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A) (1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"),
(2) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS
WARRANT OR THE WARRANT SHARES EXCEPT (A) TO HOLDINGS OR ANY OF
ITS SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY
BELIEVES IS A QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (C) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S OF THE
SECURITIES ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN IAI THAT,
PRIOR TO SUCH TRANSFER, FURNISHES THE WARRANT AGENT A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS WARRANT OR THE WARRANT SHARES
(THE FORM OF WHICH CAN BE OBTAINED FROM THE WARRANT AGENT) AND
AN OPINION OF COUNSEL ACCEPTABLE TO HOLDINGS THAT SUCH
TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION
OF COUNSEL ACCEPTABLE TO HOLDINGS) OR (G) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION, AND
-4-
6
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
WARRANT OR THE WARRANT SHARES OR AN INTEREST HEREIN OR THEREIN
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.
AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION" AND "UNITED STATES"
HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF REGULATION S UNDER THE
SECURITIES ACT. THE WARRANT AGREEMENT CONTAINS A PROVISION REQUIRING
THE WARRANT AGENT TO REFUSE TO REGISTER ANY TRANSFER OF THIS SECURITY
IN VIOLATION OF THE FOREGOING."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Issuers agree to issue
and sell to the Initial Purchasers, and each Initial Purchaser agrees, severally
and not jointly, to purchase from the Issuers, all of the Units in the amounts
set forth opposite the name of such Initial Purchaser on Schedule B hereto at a
purchase price equal to $945.33 per Unit (the "PURCHASE PRICE").
3. Terms of Offering. The Initial Purchasers have advised the
Issuers that each Initial Purchaser will make offers (the "EXEMPT RESALES") of
the Units purchased hereunder on the terms set forth in the Offering Memorandum,
as amended or supplemented, solely to (i) persons whom such Initial Purchaser
reasonably believes to be "qualified institutional buyers" as defined in Rule
144A under the Act ("QIBs") and (ii) persons permitted to purchase the Units in
offshore transactions in reliance upon Regulation S under the Act (each, a
"REGULATION S PURCHASER") (such persons specified in clauses (i) and (ii) being
referred to herein as the "ELIGIBLE PURCHASERS"). The Initial Purchasers will
offer the Units to Eligible Purchasers initially at a price equal to $975.33 per
Unit. Such price may be changed at any time without notice.
Holders (including subsequent transferees) of the Series A
Notes will have the registration rights set forth in the registration rights
agreement (the "REGISTRATION RIGHTS AGREEMENT"), to be dated the Closing Date,
in substantially the form of Exhibit A hereto, for so long as such Series A
Notes constitute "TRANSFER RESTRICTED SECURITIES" (as defined in the
Registration Rights Agreement). Pursuant to the Registration Rights Agreement,
the Company and the Guarantors will agree to file with the Securities and
Exchange Commission (the "COMMISSION") under the circumstances set forth
therein, (i) a registration statement under the Act (the "EXCHANGE OFFER
REGISTRATION STATEMENT") relating to the Company's 12 1/4% Series B Senior Notes
(the "SERIES B NOTES"), to be offered in exchange for the Series A Notes (such
offer to exchange being referred to as the "EXCHANGE OFFER") and the Subsidiary
Guarantees thereof and (ii) a shelf registration statement pursuant to Rule 415
under the Act (the "SHELF REGISTRATION STATEMENT" and, together with the
Exchange Offer Registration Statement, the "REGISTRATION STATEMENTS") relating
to the resale by certain holders of the Series A Notes and to use its best
efforts to cause such Registration Statements to be declared and remain
effective and
-5-
7
usable for the periods specified in the Registration Rights Agreement and to
consummate the Exchange Offer.
Holders (including subsequent transferees) of the Warrants and
the Warrant Shares will have the rights set forth in the Warrant Agreement and
in a common stock registration rights agreement (the "COMMON STOCK REGISTRATION
RIGHTS AGREEMENT"), to be dated the Closing Date, and which will reflect the
registration and other rights with respect to the Warrants set forth in the
Offering Memorandum and shall otherwise be in form customary for transactions of
this type and shall otherwise be reasonably acceptable in form and substance to
the Initial Purchasers and their counsel and the Issuers and their counsel.
Pursuant to the Common Stock Registration Rights Agreement, Holdings will agree
to grant to the holders of the Warrants the right, under certain circumstances,
to include in a registration statement filed by the Company (the "WARRANT
REGISTRATION STATEMENT") the Warrant Shares.
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price for, the
Units shall be made at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, New York, New
York or such other location as may be mutually acceptable. Such delivery and
payment shall be made at 9:00 a.m. New York City time, on August 12, 1999 or at
such other time on the same date or such other date as shall be agreed upon by
the Initial Purchasers and the Issuers in writing. The time and date of such
delivery and the payment for the Units are herein called the "CLOSING DATE."
(b) One or more Units in definitive global form, registered
in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"),
having (i) an aggregate principal amount corresponding to the aggregate
principal amount of the Notes sold (a "GLOBAL NOTE") and (ii) an aggregate
amount of Warrants sold (a "Global Warrant" and, together with the Global Notes,
the "GLOBAL UNITS"), shall be delivered by the Issuers to the Initial Purchasers
(or as DLJ directs) in each case with any transfer taxes thereon duly paid by
the Issuers against payment by the Initial Purchasers of the Purchase Price
thereof by wire transfer in same day funds to the order of the Company. The
Global Units shall be made available to the Initial Purchasers for inspection
not later than 9:30 a.m., New York City time, on the business day immediately
preceding the Closing Date.
5. Agreements of the Issuers and the Guarantors. Each of the
Issuers and the Guarantors hereby agrees with the Initial Purchasers as follows:
(a) To advise the Initial Purchasers promptly and, if
requested by any Initial Purchaser, confirm such advice in writing, (i) of the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Securities for offering or
sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the Offering
Memorandum untrue or that requires any additions to or changes in the Offering
Memorandum in order to make the statements therein not
-6-
8
misleading. The Issuers and the Guarantors shall use their best efforts to
prevent the issuance of any stop order or order suspending the qualification or
exemption of any of the Securities under any state securities or Blue Sky laws
and, if at any time any state securities commission or other federal or state
regulatory authority shall issue an order suspending the qualification or
exemption of any of the Securities under any state securities or Blue Sky laws,
the Issuers and the Guarantors shall use their best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those persons
identified by any Initial Purchaser to the Issuers as many copies of the
Offering Memorandum, and any amendments or supplements thereto, as such Initial
Purchaser may reasonably request for the time period specified in Section 5(c).
Subject to each Initial Purchaser's compliance with their representations and
warranties and agreements set forth in Section 7 hereof, the Issuers consent to
the use of the Offering Memorandum, and any amendments and supplements thereto
required pursuant hereto, by the Initial Purchasers in connection with Exempt
Resales.
(c) During such period as in the opinion of counsel for the
Initial Purchasers an Offering Memorandum is required by law to be delivered in
connection with Exempt Resales by the Initial Purchasers and in connection with
market-making activities of the Initial Purchasers for so long as any Units are
outstanding, (i) not to make any amendment or supplement to the Offering
Memorandum of which the Initial Purchasers shall not previously have been
advised or to which the Initial Purchasers shall reasonably object after being
so advised and (ii) to prepare promptly upon the Initial Purchasers' reasonable
request, any amendment or supplement to the Offering Memorandum which may be
necessary or advisable in connection with such Exempt Resales or such
market-making activities.
(d) If, during the period referred to in Section 5(c) above,
any event shall occur or condition shall exist as a result of which, in the
opinion of counsel to the Initial Purchasers, it becomes necessary to amend or
supplement the Offering Memorandum in order to make the statements therein, in
the light of the circumstances when such Offering Memorandum is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering
Memorandum to comply with any applicable law, forthwith to prepare an
appropriate amendment or supplement to such Offering Memorandum so that the
statements therein, as so amended or supplemented, will not, in the light of the
circumstances when it is so delivered, be misleading, or so that such Offering
Memorandum will comply with applicable law, and to furnish to the Initial
Purchasers and such other persons as the Initial Purchasers may designate such
number of copies thereof as the Initial Purchasers may reasonably request.
(e) Prior to the sale of all Units pursuant to Exempt
Resales as contemplated hereby, to cooperate with the Initial Purchasers and
counsel to the Initial Purchasers in connection with the registration or
qualification of the Units for offer and sale to the Initial Purchasers and
pursuant to Exempt Resales under the securities or Blue Sky laws of such
jurisdictions as the Initial Purchasers may request and to continue such
registration or qualification in effect so long as required for Exempt Resales
and to file such consents to service
-7-
9
of process or other documents as may be necessary in order to effect such
registration or qualification; provided, however, that none of the Issuers or
any Guarantor shall be required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to take
any action that would subject it to general consent to service of process or
taxation other than as to matters and transactions relating to the Offering
Memorandum or Exempt Resales, in any jurisdiction in which it is not now so
subject.
(f) So long as the Securities are outstanding, (i) to mail
and make generally available as soon as practicable after the end of each fiscal
year to the record holders of the Securities a financial report of the Company,
MAS and their respective subsidiaries on a consolidated basis (and a similar
financial report of all unconsolidated subsidiaries, if any), all such financial
reports to include a consolidated balance sheet, a consolidated statement of
operations, a consolidated statement of cash flows and a consolidated statement
of stockholders' equity as of the end of and for such fiscal year, together with
comparable information as of the end of and for the preceding year, certified by
the Company's independent public accountants and (ii) to mail and make generally
available as soon as practicable after the end of each quarterly period (except
for the last quarterly period of each fiscal year) to such holders, a
consolidated balance sheet, a consolidated statement of operations and a
consolidated statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such period, and
for the period from the beginning of such year to the close of such quarterly
period, together with comparable information for the corresponding periods of
the preceding year.
(g) So long as any of the Securities remain outstanding and
during any period in which the Issuers and the Guarantors are not subject to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT"), to make available to any holder of the Securities in connection
with any sale thereof and any prospective purchaser of such Securities from such
holder, the information ("RULE 144A INFORMATION") required by Rule 144A(d)(4)
under the Act.
(h) So long as the Securities are outstanding, to furnish to
the Initial Purchasers as soon as available copies of any annual reports,
quarterly reports and current reports filed by the Issuers with the Commission
on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission, and such other reports, documents, information or other
communications as shall be furnished by the Issuers or any of the Guarantors to
the holders of such Securities as may be required by the Indenture or the
Warrant Agreement, as the case may be, or furnished to the Trustee pursuant to
the Indenture or filed with the Commission or any national securities exchange
on which any class of securities of the Issuers or any of the Guarantors is
listed and such other publicly available information concerning the Issuers, MAS
and/or their respective subsidiaries as the Initial Purchasers may reasonably
request.
(i) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or cause to be
paid all expenses incident to the performance of the obligations of the Issuers
and the Guarantors under this Agreement, including: (1) the fees, disbursements
and expenses of counsel to the Issuers and the
-8-
10
Guarantors and independent public accountants of the Issuers and the Guarantors
in connection with the sale and delivery of the Units to the Initial Purchasers
and pursuant to Exempt Resales, and all other fees and expenses (other than fees
and disbursements of counsel to the Initial Purchasers, unless otherwise stated
herein) in connection with the preparation, printing, filing and distribution of
the Preliminary Offering Memorandum, the Offering Memorandum and all amendments
and supplements to any of the foregoing (including financial statements),
including the mailing and delivering of copies thereof to the Initial Purchasers
and each Initial Purchaser's respective designees in the quantities specified by
the Initial Purchasers, (2) all costs and expenses related to the transfer and
delivery of the Units to the Initial Purchasers and pursuant to Exempt Resales,
including any transfer or other taxes payable thereon, (3) all costs of printing
or producing this Agreement, the other Operative Documents and any other
agreements or documents in connection with the offering, purchase, sale or
delivery of the Units, (4) all expenses in connection with the registration or
qualification of the Units for offer and sale under the securities or Blue Sky
laws of the several states and all costs of printing or producing any
preliminary and supplemental Blue Sky memoranda in connection therewith
(including the filing fees and fees and disbursements of counsel for the Initial
Purchasers in connection with such registration or qualification and memoranda
relating thereto), (5) the cost of printing certificates representing the Units,
(6) all expenses and listing fees in connection with the application for
quotation of the Units in the National Association of Securities Dealers, Inc.
("NASD") Automated Quotation System - PORTAL ("PORTAL"), (7) the fees and
expenses of the Trustee and the Trustee's counsel in connection with the
Indenture, the Notes and the Subsidiary Guarantees, (8) the fees and expenses of
the Warrant Agent and the Warrant Agent's counsel in connection with the Warrant
Agreement, (9) the costs and charges of any transfer agent, registrar and/or
depositary (including DTC), (10) any fees charged by rating agencies for the
rating of the Notes, (11) all costs and expenses of the Exchange Offer and any
Registration Statement, as set forth in the Registration Rights Agreement, (12)
all costs and expenses of the Warrant Registration Statement, as set forth in
the Warrant Agreement, (13) all other costs and expenses incident to the
performance of the obligations of the Issuers and the Guarantors hereunder for
which provision is not otherwise made in this Section and (14) all costs and
expenses in connection with the "road show" related to the offering of the Units
(including all costs and expenses of the Initial Purchasers up to a maximum of
$50,000.00 in connection therewith).
(j) To use its best efforts to effect the inclusion of the
Securities in PORTAL and to maintain the listing of the Securities on PORTAL for
so long as the Securities are outstanding.
(k) To obtain the approval of DTC for "book-entry" transfer
of the Securities, and to comply with all of its agreements set forth in the
representation letters of the Issuers and the Guarantors to DTC relating to the
approval of the Securities by DTC for "book-entry" transfer.
(l) For a period of 90 days from the Closing Date, not to
offer, sell, contract to sell or otherwise transfer or dispose of any debt
securities of the Issuers or any subsidiary or any warrants, rights or options
to purchase or otherwise acquire debt securities of the Issuers or any
subsidiary substantially similar to the Securities (other than (i) the
Securities
-9-
11
and (ii) commercial paper issued in the ordinary course of business),
without the prior written consent of the Initial Purchasers provided, however,
that borrowings under a credit facility shall not be restricted by this clause
(l).
(m) Not to sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the Act) that
would be integrated with the sale of the Units to the Initial Purchasers or
pursuant to Exempt Resales in a manner that would require the registration of
any such sale of the Units under the Act.
(n) Not to voluntarily claim, and to actively resist any
attempts to claim, the benefit of any usury laws against the holders of any
Securities.
(o) Except as stated in the Preliminary Offering Memorandum
and the Offering Memorandum, not to take, directly or indirectly, any action
designed to or that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Securities to facilitate the
sale or resale of the Securities.
(p) To cause the Exchange Offer to be made in the
appropriate form to permit Series B Notes and guarantees thereof by the
Guarantors registered pursuant to the Act to be offered in exchange for the
Series A Notes and the Subsidiary Guarantees and to comply with all applicable
federal and state securities laws in connection with the Exchange Offer.
(q) To cause the Warrant Registration Statement, if required
under the Warrant Agreement, to be made on the appropriate form and to comply
with all applicable federal and state securities laws in connection therewith.
(r) To comply with all of its agreements set forth in the
Registration Rights Agreement.
(s) To comply with all of its agreements set forth in the
Warrant Agreement and the Common Stock Registration Rights Agreement.
(t) To use its best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by it prior
to the Closing Date and to satisfy all conditions precedent to the delivery of
the Units.
6. Representations, Warranties and Agreements of the Issuers
and the Guarantors. As of the date hereof, each of the Issuers and the
Guarantors represents and warrants to, and agrees with, each of the Initial
Purchasers that:
(a) The Offering Memorandum does not, and any supplement or
amendment to them will not, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or omissions
from the Preliminary Offering Memorandum or the Offering Memorandum (or any
supplement or
-10-
12
amendment thereto) based upon information relating to the Initial Purchasers
furnished to the Issuers in writing by the Initial Purchasers expressly for use
therein. No stop order preventing the use of the Preliminary Offering Memorandum
or the Offering Memorandum, or any amendment or supplement thereto, or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Act, has been issued.
(b) Each of the Issuers, MAS and their respective
subsidiaries has been duly incorporated, is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as described in the
Preliminary Offering Memorandum and the Offering Memorandum and to own, lease
and operate its properties, and each is duly qualified and is in good standing
as a foreign corporation authorized to do business in each jurisdiction in which
the nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial condition or
results of operations of the Issuers, MAS and their respective subsidiaries,
taken as a whole, or materially adversely effect the validity or enforceability
of, or the rights of the Initial Purchasers under, this Agreement or the other
Operative Documents (a "MATERIAL ADVERSE EFFECT").
(c) All outstanding shares of capital stock of the Issuers
and MAS have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(d) The entities listed on Part II of Schedule A hereto are
the only Domestic Subsidiaries (as such term is defined in the Offering
Memorandum), direct or indirect, of the Company and MAS. The entities listed on
Part III of Schedule A hereto are the only Foreign Subsidiaries (as such term is
defined in the Offering Memorandum), direct or indirect, of the Company and MAS.
Except as disclosed in the Offering Memorandum, all of the outstanding shares of
capital stock of each of the Company's and MAS' subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and are
owned by the Company or MAS, as the case may be, directly or indirectly through
one or more subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature (each, a "LIEN").
(e) This Agreement has been duly authorized, executed and
delivered by the Issuers and each of the Guarantors.
(f) The Indenture has been duly authorized by the Company
and each of the Guarantors and, on the Closing Date, will have been validly
executed and delivered by the Company and each of the Guarantors. When the
Indenture has been duly executed and delivered by the Company and each of the
Guarantors, the Indenture will be a valid and binding agreement of the Company
and each Guarantor, enforceable against the Company and each Guarantor in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally, (ii) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of
-11-
13
general applicability and (iii) provisions of the Indenture requiring any waiver
of stay or extension laws may be unenforceable under principles of public
policy. On the Closing Date, the Indenture will conform, in all material
respects, to the requirements of the Trust Indenture Act of 1939, as amended
(the "TIA" or "TRUST INDENTURE ACT"), and the rules and regulations of the
Commission applicable to an indenture which is qualified thereunder.
(g) Each of the Issuers has duly and validly authorized the
issuance of the Notes and the Warrants as a Unit. On the Closing Date, the Units
will conform, in all material respects, as to legal matters to the description
thereof contained in the Offering Memorandum.
(h) The Series A Notes have been duly authorized and, on the
Closing Date, will have been validly executed and delivered by the Company. When
the Series A Notes have been issued, executed and authenticated in accordance
with the provisions of the Indenture and delivered to and paid for by the
Initial Purchasers in accordance with the terms of this Agreement, the Series A
Notes will be entitled to the benefits of the Indenture and the Registration
Rights Agreement and will be valid and binding obligations of the Company,
enforceable in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws affecting
creditors' rights generally, (ii) rights of acceleration, if applicable, and the
availability of equitable remedies may be limited by equitable principles of
general applicability and (iii) provisions of the Indenture requiring any waiver
of stay or extension laws may be unenforceable under principles of public
policy. On the Closing Date, the Series A Notes will conform, in all material
respects, as to legal matters to the description thereof contained in the
Offering Memorandum.
(i) On the Closing Date, the Series B Notes will have been
duly authorized by the Company. When the Series B Notes are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Series B Notes will be entitled to the benefits of the Indenture
and the Registration Rights Agreement and will be the valid and binding
obligations of the Company, enforceable against the Company in accordance with
their terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally,
(ii) rights of acceleration, if applicable, and the availability of equitable
remedies may be limited by equitable principles of general applicability and
(iii) provisions of the Indenture requiring any waiver of stay or extension laws
may be unenforceable under principles of public policy.
(j) On the Closing Date, the Warrants will have been duly
authorized by Holdings and, on the Closing Date, will have been validly
delivered by Holdings. When the Warrants are issued, the Warrants will be valid
and binding obligations of Holdings, enforceable against Holdings in accordance
with their terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally,
and (ii) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability. On the Closing Date, the Warrants will conform, in all material
respects, as to legal matters to the description thereof contained in the
Offering Memorandum.
-12-
14
(k) On the Closing Date, the Warrant Shares will have been
duly and validly authorized for issuance by Holdings, and when issued pursuant
to the terms of the Warrants and the Warrant Agreement will be fully paid and
non-assessable and will not be subject to any preemptive or similar rights. On
the Closing Date, the Warrant Shares will conform, in all material respects, as
to legal matters to the description thereof contained in the Offering
Memorandum.
(l) The Subsidiary Guarantee to be endorsed on the Series A
Notes by each Guarantor has been duly authorized by such Guarantor and, on the
Closing Date, will have been duly executed and delivered by each such Guarantor.
When the Series A Notes have been issued, executed and authenticated in
accordance with the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Subsidiary
Guarantee of each Guarantor endorsed thereon will be entitled to the benefits of
the Indenture and the Registration Rights Agreement and will be the valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally, (ii) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (iii) provisions of the Indenture requiring any waiver of stay
or extension laws may be unenforceable under principles of public policy. On the
Closing Date, the Subsidiary Guarantees to be endorsed on the Series A Notes
will conform, in all material respects, as to legal matters to the description
thereof contained in the Offering Memorandum.
(m) The Subsidiary Guarantee to be endorsed on the Series B
Notes by each Guarantor has been duly authorized by such Guarantor and, when
issued, will have been duly executed and delivered by each such Guarantor. When
the Series B Notes have been issued, executed and authenticated in accordance
with the terms of the Exchange Offer and the Indenture, the Subsidiary Guarantee
of each Guarantor endorsed thereon will be entitled to the benefits of the
Indenture and the Registration Rights Agreement and will be the valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally, (ii) rights of acceleration, if applicable, and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (iii) provisions of the Indenture requiring any waiver of stay
or extension laws may be unenforceable under principles of public policy. When
the Series B Notes are issued, authenticated and delivered, the Subsidiary
Guarantees to be endorsed on the Series B Notes will conform, in all material
respects, as to legal matters to the description thereof in the Offering
Memorandum.
(n) The Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, on the Closing Date,
will have been duly executed and delivered by the Company and each of the
Guarantors. When the Registration Rights Agreement has been duly executed and
delivered, the Registration Rights Agreement will be a valid and binding
agreement of the Company and each of the Guarantors, enforceable against the
Company and each Guarantor in accordance with its terms except as (i) the
enforceability thereof
-13-
15
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally, (ii) rights of acceleration, if applicable, and the
availability of equitable remedies may be limited by equitable principles of
general applicability and (iii) rights to indemnification, contribution and
liquidated damages under the Registration Rights Agreement may be limited by
public policy. On the Closing Date, the Registration Rights Agreement will
conform, in all material respects, as to legal matters to the description
thereof in the Offering Memorandum.
(o) On the Closing Date, the Warrant Agreement will have
been duly and validly authorized by Holdings and, when duly executed and
delivered by Holdings, will be a valid and binding agreement of Holdings,
enforceable against it in accordance with its terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally, (ii) rights of acceleration, if
applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability and (iii) rights to
indemnification, contribution and liquidated damages thereunder may be limited
by public policy. On the Closing Date, the Warrant Agreement will conform, in
all material respects, as to legal matters to the description thereof in the
Offering Memorandum.
(p) On the Closing Date, the Common Stock Registration
Rights Agreement will have been duly and validly authorized by Holdings and,
when duly executed and delivered by Holdings, will be a valid and binding
agreement of Holdings, enforceable against it in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights, (ii) rights of
acceleration, if applicable, and the availability of equitable remedies may be
limited by equitable principles of general applicability and (iii) to the extent
that rights to indemnification, contribution and liquidated damages thereunder
may be limited by public policy. On the Closing Date, the Common Stock
Registration Rights Agreement will conform, in all material respects, as to
legal matters to the description thereof in the Offering Memorandum.
(q) (i) The Stock Purchase Agreement has been duly
authorized, executed and delivered by the Sellers and MAS Holding and
constitutes a valid and binding agreement of each Seller and MAS Holding,
enforceable against the Sellers and MAS Holding in accordance with its terms
except as (1) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (2) rights
of acceleration, if applicable, and the availability of equitable remedies may
be limited by equitable principles of general applicability; (ii) neither the
Company, MAS Holding nor any of their respective subsidiaries has received any
notice or is aware of any circumstances that would cause either or both of the
Sellers to terminate or give either or both of the Sellers the right to
terminate the Stock Purchase Agreement; (iii) neither the Company, MAS Holding
nor any of their respective subsidiaries is aware of any fact or circumstance
that would cause them not to proceed with the completion of the transactions
contemplated by and contained in the Stock Purchase Agreement; (iv) the
representations and warranties of MAS Holding and the Sellers contained in the
Stock Purchase Agreement are true and correct in all material respects (except
for any such representations and warranty which relates solely to an earlier
date, as to which such representation and warranty was true and correct in all
material respects as of such earlier date);
-14-
16
and (v) there have been no material amendments, alterations, modifications, or
waivers of any provisions of the Stock Purchase Agreement.
(r) The Credit Documents have been duly authorized by the
Company and each of its subsidiaries, as the case may be, and on the Closing
Date, will have been duly executed and delivered by the Company and each such
subsidiary, as the case may be. All of the conditions for funding under the
Credit Agreement have been satisfied or are capable of being satisfied or waived
on or before the Closing Date and the Company has no reason to believe that
funds will not be advanced under the Credit Agreement on the Closing Date in
amounts contemplated by the Offering Memorandum. When the Credit Documents have
been duly executed and delivered, the Credit Documents will be a valid and
binding agreement of the Company and each of its subsidiaries party thereto, as
the case may be, enforceable against the Company and each such subsidiary, as
the case may be, in accordance with the terms thereof except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (ii) rights of acceleration, if
applicable, and the availability of equitable remedies may be limited by
equitable principles of general applicability. On the Closing Date, the Credit
Documents will conform, in all material respects, as to legal matters to the
description thereof in the Offering Memorandum.
(s) None of the Issuers, MAS nor any of their respective
subsidiaries is in violation of its respective charter or by-laws or in default
in the performance of any obligation, agreement, covenant or condition contained
in any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Issuers, MAS and their respective
subsidiaries, taken as a whole, to which the Issuers, MAS or any of their
respective subsidiaries is a party or by which the Issuers, MAS or any of their
respective subsidiaries or their respective property is bound.
(t) The execution, delivery and performance of this
Agreement and the other Operative Documents by the Issuers, MAS and each of
their respective Subsidiaries, as applicable, the compliance by the Issuers, MAS
and their respective Subsidiaries with all provisions hereof and thereof, as
applicable, and the consummation of the transactions contemplated hereby and
thereby, as applicable, will not (i) require any consent, approval,
authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under any federal or
state securities law in connection with the performance by the Company of its
obligations under the Registration Rights Agreement or the performance by
Holdings of its obligations under the Common Stock Registration Rights
Agreement), (ii) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Issuers, MAS or
any of their respective subsidiaries, as applicable, or any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which the
Issuers, MAS or any of their respective subsidiaries, as applicable, is a party
or by which the Issuers, MAS or any of their respective subsidiaries or each of
their respective property is bound, as applicable, (iii) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Issuers, MAS or any of their respective subsidiaries or each of their respective
property, as applicable, (iv) result in the imposition or creation of (or the
obligation to
-15-
17
create or impose) a Lien under, any agreement or instrument to which the
Issuers, MAS or any of their respective subsidiaries, as applicable, is a party
or by which the Issuers, MAS or any of their respective subsidiaries or each of
their respective property is bound, as applicable, or (v) result in the
termination, suspension or revocation of any Authorization (as defined below) of
the Issuers, MAS or any of their respective subsidiaries, as applicable, or
result in any other impairment of the rights of the holder of any such
Authorization, except in the case of clauses (i) through (v) for such conflicts,
breaches, violations, liens, terminations, suspensions or revocations which,
singly or in the aggregate, would not and could not reasonably be expected to
have a Material Adverse Effect.
(u) There are no legal or governmental proceedings pending
or threatened to which the Issuers, MAS or any of their respective subsidiaries
is a party or to which any of its respective property is subject, which is
reasonably likely to result, singly or in the aggregate, in a Material Adverse
Effect.
(v) None of the Issuers, MAS nor any of their respective
subsidiaries has violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("ENVIRONMENTAL LAWS"), any provisions of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), or any provisions of the Foreign
Corrupt Practices Act or the rules and regulations promulgated thereunder,
except for such violations which, singly or in the aggregate, would not have a
Material Adverse Effect.
(w) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(x) Each of the Issuers, MAS and their respective
subsidiaries has such permits, licenses, consents, exemptions, franchises,
authorizations and other approvals (each, an "AUTHORIZATION") of, and has made
all filings with and notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other tribunals, including
without limitation, under any applicable Environmental Laws, as are necessary to
own, lease, license and operate its respective properties and to conduct its
business, except where the failure to have any such Authorization or to make any
such filing or notice would not, singly or in the aggregate, have a Material
Adverse Effect. Each such Authorization is valid and in full force and effect
and each of the Issuers, MAS and their respective subsidiaries is in compliance
with all the terms and conditions thereof and with the rules and regulations of
the authorities and governing bodies having jurisdiction with respect thereto;
and no event has occurred (including, without limitation, the receipt of any
notice from any authority or governing body) which allows or, after notice or
lapse of time or both, would allow, revocation, suspension or termination of any
such Authorization or results or, after notice or lapse of time or both, would
result in any other impairment of the rights of the holder of any such
Authorization; and such Authorizations contain no restrictions that are
burdensome to the Issuers, MAS or any of their respective
-16-
18
subsidiaries; except where such failure to be valid and in full force and effect
or to be in compliance, the occurrence of any such event or the presence of any
such restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(y) The accountants of the Issuers, Ernst & Young LLP, and
the accountants of MAS, KPMG, LLP, that have reviewed and/or certified the
financial statements and supporting schedules included in the Preliminary
Offering Memorandum and the Offering Memorandum are independent public
accountants with respect to the Issuers and MAS, as required by the Act and the
Exchange Act. The historical financial statements, together with related
schedules and notes, set forth in the Preliminary Offering Memorandum and the
Offering Memorandum comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under the Act.
(z) The historical financial statements, together with
related schedules and notes forming part of the Offering Memorandum (and any
amendment or supplement thereto), present fairly the consolidated financial
position, results of operations and changes in financial position of the
Company, MAS and their respective subsidiaries on the basis stated in the
Offering Memorandum at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Offering Memorandum (and any amendment or supplement thereto) are, in all
material respects, accurately presented and prepared on a basis consistent with
such financial statements and the books and records of the Company and MAS.
(aa) The pro forma financial statements included in the
Preliminary Offering Memorandum and the Offering Memorandum have been prepared
on a basis consistent with the historical financial statements of the Company,
MAS and their respective subsidiaries and give effect to assumptions used in the
preparation thereof on a reasonable basis and in good faith and present fairly
the historical and proposed transactions contemplated by the Preliminary
Offering Memorandum and the Offering Memorandum; and such pro forma financial
statements comply as to form in all material respects with the requirements
applicable to pro forma financial statements included in registration statements
on Form S-1 under the Act. The other pro forma financial and statistical
information and data included in the Offering Memorandum are, in all material
respects, accurately presented and prepared on a basis consistent with the pro
forma financial statements.
(bb) Each of the Issuers is not and, after giving effect to
the offering and sale of the Units and the application of the net proceeds
thereof as described in the Offering Memorandum, will not be, an "investment
company," as such term is defined in the Investment Company Act of 1940, as
amended.
(cc) There are no contracts, agreements or understandings
between the Issuers or any Guarantor and any person granting such person the
right to require the Issuers or such Guarantor to file a registration statement
under the Act with respect to any securities of the
-17-
19
Issuers or such Guarantor or to require the Issuers or such Guarantor to include
such securities with the Securities registered pursuant to any registration
statement.
(dd) None of the Issuers, MAS nor any of their respective
subsidiaries nor any agent thereof acting on the behalf of them has taken, and
none of them will take, any action that might cause this Agreement or the
issuance or sale of the Units to violate Regulation T (12 C.F.R. Part 220),
Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the
Board of Governors of the Federal Reserve System.
(ee) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Issuers or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on any Issuer's or
any Guarantor's retaining any rating assigned to the Issuer or any Guarantor,
any securities of any Issuer or any Guarantor or (ii) has indicated to any
Issuer or any Guarantor that it is considering (1) the downgrading, suspension,
or withdrawal of, or any review for a possible change that does not indicate the
direction of the possible change in, any rating so assigned or (2) any change in
the outlook for any rating of any Issuer, any Guarantor or any securities of any
Issuer or any Guarantor.
(ff) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement), (i) there has not occurred any material adverse change
or any development involving a prospective material adverse change in the
condition, financial or otherwise, or the earnings, business, management or
operations of the Issuers, MAS and their respective subsidiaries, taken as a
whole, (ii) there has not been any material adverse change or any development
involving a prospective material adverse change in the capital stock or in the
long-term debt of the Issuers, MAS or any of their respective subsidiaries, and
(iii) none of the Issuers, MAS nor any of their respective subsidiaries has
incurred any material liability or obligation, direct or contingent.
(gg) Each of the Preliminary Offering Memorandum and the
Offering Memorandum, as of its date, contains all the information specified in,
and meeting the requirements of, Rule 144A(d)(4) under the Act.
(hh) When the Securities are issued and delivered pursuant
to this Agreement, none of the Securities will be of the same class (within the
meaning of Rule 144A under the Act) as any security of any Issuer or any
Guarantors that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
(ii) No form of general solicitation or general advertising
(as defined in Regulation D under the Act) was used by any Issuer, the
Guarantors or any of their respective representatives (other than the Initial
Purchasers, as to whom the Issuers and the Guarantors make no representation) in
connection with the offer and sale of the Units contemplated hereby, including,
but not limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio, or
any seminar or
-18-
20
meeting whose attendees have been invited by any general solicitation or general
advertising. No securities of the same class as the Units have been issued and
sold by the Issuers within the six-month period immediately prior to the date
hereof.
(jj) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the TIA.
(kk) None of the Issuers, the Guarantors nor any of their
respective affiliates or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Issuers and the Guarantors make no
representation) has engaged or will engage in any directed selling efforts
within the meaning of Regulation S under the Act ("REGULATION S") with respect
to the Units.
(ll) The Units offered and sold in reliance on Regulation S
have been and will be offered and sold only in offshore transactions.
(mm) The sale of the Units pursuant to Regulation S is not
part of a plan or scheme to evade the registration provisions of the Act.
(nn) The Issuers, the Guarantors and their respective
affiliates and all persons acting on their behalf (other than the Initial
Purchasers, as to whom the Issuers and the Guarantors make no representation)
have complied with and will comply with the offering restrictions requirements
of Regulation S in connection with the offering of the Units outside the United
States and, in connection therewith, the Offering Memorandum will contain the
disclosure required by Rule 902(g).
(oo) The Units sold in reliance on Regulation S will be
represented upon issuance by a temporary global security that may not be
exchanged for definitive securities until the expiration of the 40-day or
one-year, as the case may be, restricted period referred to in Rule 903(b)(3) of
the Act and only upon certification of beneficial ownership of such Units by
non-U.S. persons or U.S. persons who purchased such Units in transactions that
were exempt from the registration requirements of the Act.
(pp) No registration under the Act of the Units is required
for the sale of the Units to the Initial Purchasers as contemplated hereby or
for the Exempt Resales assuming the accuracy of the Initial Purchasers'
representations and warranties and agreements set forth in Section 7 hereof.
(qq) Each certificate signed by any officer of any Issuer or
any Guarantor and delivered to the Initial Purchasers or counsel for the Initial
Purchasers shall be deemed to be a representation and warranty by such Issuer or
such Guarantor to the Initial Purchasers as to the matters covered thereby.
(rr) The Company, MAS and their respective subsidiaries have
good and marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them which is material to the
business of the Company, MAS and
-19-
21
their respective subsidiaries, in each case free and clear of all Liens and
defects, except such as are described in the Offering Memorandum or such as do
not materially 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, MAS and their
respective subsidiaries; and any real property and buildings held under lease by
the Company, MAS and their respective subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company, MAS and their respective subsidiaries, in each case
except as described in the Offering Memorandum.
(ss) The Company, MAS and their respective subsidiaries own
or possess, or can acquire on reasonable terms, all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names ("INTELLECTUAL
PROPERTY") currently employed by them in connection with the business now
operated by them, except where the failure to own or possess or otherwise be
able to acquire such intellectual property would not, singly or in the
aggregate, have a Material Adverse Effect; and neither the Company, MAS nor any
of their respective subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of such intellectual
property which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(tt) The Company, MAS and each of their respective
subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary
in the businesses in which they are engaged; and neither the Company, MAS nor
any of their respective subsidiaries (i) has received notice from any insurer or
agent of such insurer that substantial capital improvements or other material
expenditures will have to be made in order to continue such insurance or (ii)
has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers at a cost that would not reasonably be expected
to have a Material Adverse Effect.
(uu) There is no (i) significant unfair labor practice
complaint, grievance or arbitration proceeding pending or threatened against the
Company, MAS or any of their respective subsidiaries before the National Labor
Relations Board or any state or local labor relations board, (ii) strike, labor
dispute, slowdown or stoppage pending or, to the Company's knowledge, threatened
against the Company, MAS or any of their respective subsidiaries or (iii) union
representation question existing with respect to the employees of the Company,
MAS or any of their respective subsidiaries, except in the case of clauses (i),
(ii) and (iii) for such actions which, singly or in the aggregate, would not
have a Material Adverse Effect. To the best knowledge of the Company, no
collective bargaining organizing activities are taking place with respect to the
Company, MAS or any of their respective subsidiaries at any of their facilities.
(vv) The Company, MAS and each of their respective
subsidiaries maintains a system of internal accounting controls sufficient to
provide reasonable assurance that
-20-
22
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(ww) All material tax returns required to be filed by the
Company, MAS and each of their respective subsidiaries in any jurisdiction have
been filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or pursuant to
any assessment received by the Company, MAS or any of their respective
subsidiaries have been paid, other than those being contested in good faith and
for which adequate reserves have been provided.
(xx) All indebtedness of the Company, MAS and their
respective Subsidiaries that will be repaid with the proceeds of the issuance
and sale of the Units was incurred, and the indebtedness represented by the
Units is being incurred, for proper purposes and in good faith and each of the
Company and its Subsidiaries was, at the time of the incurrence of such
indebtedness that will be repaid with the proceeds of the issuance and sale of
the Units, and will be on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Units) solvent, and had at
the time of the incurrence of such indebtedness that will be repaid with the
proceeds of the issuance and sale of the Units and will have on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Units) sufficient capital for carrying on their respective business and were, at
the time of the incurrence of such indebtedness that will be repaid with the
proceeds of the issuance and sale of the Units, and will be on the Closing Date
(after giving effect to the application of the proceeds from the issuance of the
Units) able to pay their respective debts as they mature.
(yy) Each of the Company, MAS and their respective
subsidiaries has (i) undertaken such review and assessment of its respective
business and operations as it deems appropriate with respect to Year 2000
Compliance, established an appropriate plan and timetable for addressing Year
2000 Compliance issues on a timely basis and (ii) as from the date of this
Agreement shall implement that plan substantially in accordance with that
timetable. The aggregate costs to and charges by the Company, MAS and their
respective subsidiaries related to Year 2000 Compliance shall not be an amount
which has a Material Adverse Effect. For purposes of this subparagraph (yy)
"Year 2000 Compliance" shall mean all that computer hardware and software that
are material to the business and operations of the Company, MAS and their
respective subsidiaries, taken as a whole, and over which the Company has sole
and direct control, will on a timely basis be able to perform properly
date-sensitive functions for all dates before and after January 1, 2000
including functions with respect to any leap year.
(zz) No action has been taken and no law, statute, rule or
regulation or order has been enacted, adopted or issued by any governmental
agency or body which prevents the execution, delivery and performance of any of
the Operative Documents, the issuance of the
-21-
23
Securities, or suspends the sale of the Units in any jurisdiction referred to in
Section 5(e); and no injunction, restraining order or other order or relief of
any nature by a federal or state court or other tribunal of competent
jurisdiction has been issued with respect to any Issuer or any of its
subsidiaries which would prevent or suspend the issuance or sale of the Units in
any jurisdiction referred to in Section 5(e).
(aaa) Except as disclosed in the Offering Memorandum, no
relationship, direct or indirect, exists between or among any Issuer, MAS or any
of their respective subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Issuers, MAS or their respective
subsidiaries on the other hand, which would be required by the Act to be
described in the Offering Memorandum if the Offering Memorandum were a
prospectus included in a registration statement on Form S-1 filed with the
Commission.
(bbb) As of the Closing Date, International Enterprises
Group, Inc., a Florida corporation ("IEG"), the wholly owned domestic subsidiary
of MAS, will not be a "significant subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such
Regulation is in effect on the date hereof.
(ccc) Holdings is a holding company and does not have any
significant operations or assets other than its ownership of all of the capital
stock of the Company.
Each of the Issuers and the Guarantors acknowledges that the
Initial Purchasers and, for purposes of the opinions to be delivered to the
Initial Purchasers pursuant to Section 9 hereof, counsel to the Issuers and the
Guarantors and counsel to the Initial Purchasers will rely upon the accuracy and
truth of the foregoing representations and hereby consents to such reliance.
7. Initial Purchasers' Representations and Warranties. Each of
the Initial Purchasers, severally and not jointly, represents and warrants to
the Issuers and the Guarantors, and agrees that:
(a) Each Initial Purchaser is either a QIB or an Accredited
Institution, in either case, with such knowledge and experience in financial and
business matters as is necessary in order to evaluate the merits and risks of an
investment in the Units.
(b) Each Initial Purchaser (A) is not acquiring the Units
with a view to any distribution thereof or with any present intention of
offering or selling any of the Units in a transaction that would violate the Act
or the securities laws of any state of the United States or any other applicable
jurisdiction and (B) will be reoffering and reselling the Units only to (x) QIBs
in reliance on the exemption from the registration requirements of the Act
provided by Rule 144A and (y) in offshore transactions in reliance upon
Regulation S under the Act.
(c) Each Initial Purchaser agrees that no form of general
solicitation or general advertising (within the meaning of Regulation D under
the Act) has been or will be used by it or any of its representatives in
connection with the offer and sale of the Units pursuant hereto, including, but
not limited to, articles, notices or other communications published in any
-22-
24
newspaper, magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
(d) Each Initial Purchaser agrees that, in connection with
Exempt Resales, it will solicit offers to buy the Units only from, and will
offer to sell the Units only to, Eligible Purchasers. Each Initial Purchaser
further agrees that it will offer to sell the Units only to, and will solicit
offers to buy the Units only from (A) Eligible Purchasers that it reasonably
believe are QIBs, and (B) Regulation S Purchasers, in each case, that agree or
are deemed to have agreed that (x) the Units purchased by them may be resold,
pledged or otherwise transferred within the time period referred to under Rule
144(k) (taking into account the provisions of Rule 144(d) under the Act, if
applicable) under the Act, as in effect on the date of the transfer of such
Units, only (I) to the Issuers or any of their subsidiaries, (II) to a person
whom the seller reasonably believes is a QIB purchasing for its own account or
for the account of a QIB in a transaction meeting the requirements of Rule 144A
under the Act, (III) in an offshore transaction (as defined in Rule 902 under
the Act) meeting the requirements of Rule 904 of the Act, (IV) in a transaction
meeting the requirements of Rule 144 under the Act, (V) to an Accredited
Investor that, prior to such transfer, (A) in the case of the Series A Notes,
furnishes the Trustee a signed letter containing certain representations and
agreements relating to the registration of transfer of such Series A Notes (the
form of which may be obtained from the Trustee) or (B) in the case of the
Warrants, furnish the Warrant Agent a signed letter containing certain
representations and agreements relating to the registration of transfer of such
Warrants (the form of which may be obtained from the Warrant Agent) and, with
respect to the Series A Notes if such transfer is in respect of an aggregate
principal amount of Series A Notes less than $250,000, an opinion of counsel
acceptable to the Company that such transfer is in compliance with the Act, (VI)
in accordance with another exemption from the registration requirements of the
Act (and based upon an opinion of counsel acceptable to the Issuers) or (VII)
pursuant to an effective registration statement and, in each case, in accordance
with the applicable securities laws of any state of the United States or any
other applicable jurisdiction and (y) they will deliver to each person to whom
such Units or an interest therein is transferred a notice substantially to the
effect of the foregoing.
(e) Each Initial Purchaser and its respective affiliates or
any person acting on its or their behalf have not engaged or will not engage in
any directed selling efforts within the meaning of Regulation S with respect to
the Units.
(f) The Units offered and sold by each of the Initial
Purchasers pursuant hereto in reliance on Regulation S have been and will be
offered and sold only in offshore transactions.
(g) The sale of the Units offered and sold by each of the
Initial Purchasers pursuant hereto in reliance on Regulation S is not part of a
plan or scheme to evade the registration provisions of the Act.
(h) Each Initial Purchaser agrees that it has not offered
or sold and will not offer or sell the Units in the United States or to, or for
the benefit or account of, a U.S. Person
-23-
25
(other than a distributor), in each case, as defined in Rule 902 under the Act
(i) as part of its distribution at any time and (ii) otherwise until 40 days or
one-year, as the case may be, after the later of the commencement of the
offering of the Units pursuant hereto and the Closing Date, other than in
accordance with Regulation S of the Act or another exemption from the
registration requirements of the Act. Each Initial Purchaser agrees that, during
such 40-day or one-year, as the case may be, restricted period and prior to the
completion of the Exempt Resales, it will not cause any advertisement with
respect to the Units (including any "tombstone" advertisement) to be published
in any newspaper or periodical or posted in any public place and will not issue
any circular relating to the Units, except such advertisements as are permitted
by and include the statements required by Regulation S.
(i) Each Initial Purchaser agrees that, at or prior to
confirmation of a sale of Units by it to any distributor, dealer or person
receiving a selling concession, fee or other remuneration during the 40-day or
one-year, as the case may be, restricted period referred to in Rule 903(b)(3)
under the Act, it will send to such distributor, dealer or person receiving a
selling concession, fee or other remuneration a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933, as amended (the "SECURITIES
ACT"), and may not be offered and sold within the United
States or to, or for the account or benefit of, U.S. persons
(i) as part of your distribution at any time or (ii)
otherwise until 40 days or one-year, as the case may be,
after the later of the commencement of the Offering and the
Closing Date, except in either case in accordance with
Regulation S under the Securities Act (or Rule 144A, if
available, or to Accredited Institutions in transactions that
are exempt from the registration requirements of the
Securities Act). Terms used above have the meanings assigned
to them in Regulation S."
(j) Each Initial Purchaser agrees that the Units offered
and sold in reliance on Regulation S will be represented upon issuance by global
securities that may not be exchanged for definitive securities until the
expiration of the 40-day or one-year, as the case may be, restricted period
referred to in Rule 903(b)(3) of the Act and only upon certification of
beneficial ownership of such Units by non-U.S. persons or U.S. persons who
purchased such Units in transactions that were exempt from the registration
requirements of the Act.
Each Initial Purchaser acknowledges that the Issuers and the
Guarantors and, for purposes of the opinions to be delivered to each Initial
Purchaser pursuant to Section 9 hereof, counsel to the Issuers and the
Guarantors and counsel to the Initial Purchasers will rely upon the accuracy and
truth of the foregoing representations and the Initial Purchasers hereby consent
to such reliance.
8. Indemnification.
(a) The Issuers and each Guarantor agree, jointly and
severally, to indemnify and hold harmless each of the Initial Purchasers, their
respective directors, officers and each person, if any, who controls such
Initial Purchaser within the meaning of Section 15 of
-24-
26
the Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation, any
reasonable legal or other expenses incurred in connection with investigating or
defending any matter, including any action, that could give rise to any such
losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in the
Offering Memorandum (or any amendment or supplement thereto), the Preliminary
Offering Memorandum or any Rule 144A Information provided by the Issuers or any
Guarantor to any holder or prospective purchaser of Units pursuant to Section
5(h) or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to the Initial Purchasers
furnished in writing to the Issuers by the Initial Purchasers; provided,
however, that the foregoing indemnity agreement with respect to any Preliminary
Offering Memorandum shall not inure to the benefit of any Initial Purchaser who
failed to deliver a Final Offering Memorandum, as then amended or supplemented
(so long as the Final Offering Memorandum and any amendment or supplement
thereto was provided by the Issuers to the Initial Purchasers in the requisite
quantity and on a timely basis to permit proper delivery on or prior to the
Closing Date) to the person asserting any losses, claims, damages, liabilities
or judgments caused by any untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Offering Memorandum, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, if
such material misstatement or omission or alleged material misstatement or
omission was cured in the Final Offering Memorandum, as so amended or
supplemented.
(b) Each of the Initial Purchasers, severally and not
jointly, agrees to indemnify and hold harmless the Issuers and the Guarantors,
and their respective directors and officers and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Issuers or the Guarantors, to the same extent as the foregoing
indemnity from the Issuers and the Guarantors to the Initial Purchasers but only
with reference to information that such Initial Purchaser furnished in writing
to the Issuers by such Initial Purchaser expressly for use in the Preliminary
Offering Memorandum or the Offering Memorandum and not with respect to the
information provided by any other Initial Purchaser.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 8(a) or
8(b) (the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchasers). Any indemnified party shall have the right
to employ
-25-
27
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that the joint representation of such parties could be
inadvisable due to potential conflicts of interest or because there may be one
or more legal defenses available to such indemnified party which are different
from or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to assume the defense of such
action on behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for all indemnified parties and all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
DLJ, in the case of the parties indemnified pursuant to Section 8(a), and by the
Issuers, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action effected with its written consent. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the indemnified party is a party and indemnity or contribution has been, or
would be entitled to be, sought hereunder by the indemnified party, unless such
settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are the subject matter of
such action 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 the indemnified
party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Guarantors, on the one hand, and the Initial Purchasers, on the
other hand, from the offering of the Units or (ii) if the allocation provided by
clause 8(d)(i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
8(d)(i) above but also the relative fault of the Issuers and the Guarantors, on
the one hand, and the Initial Purchasers, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
shall be deemed to be in the same proportion as the total net proceeds from the
offering of the Units (after underwriting discounts and commissions, but before
deducting expenses) received by the Issuers, and the total discounts and
-26-
28
commissions received by the Initial Purchasers bear to the total price to
investors of the Units, in each case as set forth in the table on the cover page
of the Offering Memorandum. The relative fault of the Issuers and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Issuers or the
Guarantors, on the one hand, or the Initial Purchasers, on the other hand, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Issuers, the Guarantors and the Initial Purchasers agree
that it would not be just and equitable if contribution pursuant to this Section
8(d) 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 in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages, liabilities or judgments
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses incurred
by such indemnified party in connection with investigating or defending any
matter, including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 8, an Initial Purchaser shall not be required to contribute any amount
in excess of the amount by which the total discounts and commissions received by
such Initial Purchaser exceeds the amount of any damages which the Initial
Purchaser has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Initial Purchasers' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective principal amount
of Series A Notes purchased by each of the Initial Purchasers hereunder and not
joint.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. Conditions of Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase the Units under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Issuers
and the Guarantors contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the Closing
Date.
(b) On or after the date hereof, (i) there shall not have
occurred any downgrading, suspension or withdrawal of, nor shall any notice have
been given of any potential or intended downgrading, suspension or withdrawal
of, or of any review (or of any potential or intended review) for a possible
change that does not indicate the direction of the possible change
-27
29
in, any rating of any Issuer or any Guarantor or any securities of any Issuer or
any Guarantor (including, without limitation, the placing of any of the
foregoing ratings on credit watch with negative or developing implications or
under review with an uncertain direction) by any "nationally recognized
statistical rating organization" as such term is defined for purposes of Rule
436(g)(2) under the Act, (ii) there shall not have occurred any change, nor
shall any notice have been given of any potential or intended change, in the
outlook for any rating of any Issuer or any Guarantor or any securities of any
Issuer or any Guarantor by any such rating organization and (iii) no such rating
organization shall have given notice that it has assigned (or is considering
assigning) a lower rating to the Notes (or the Units) than that on which the
Notes (or the Units) were marketed.
(c) Since the respective dates as of which information is
given in the Offering Memorandum other than as set forth in the Offering
Memorandum (exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement not approved in advance by the Initial Purchasers and
their counsel), (i) there shall not have occurred any change or any development
involving a prospective change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Issuers, MAS and their
respective subsidiaries, taken as a whole, (ii) there shall not have been any
change or any development involving a prospective change in the capital stock or
in the long-term debt of the Issuers or any of their subsidiaries and (iii) none
of the Issuers nor any of their subsidiaries shall have incurred any liability
or obligation, direct or contingent, the effect of which, in any such case
described in clause 9(c)(i), 9(c)(ii) or 9(c)(iii), in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market the
Units on the terms and in the manner contemplated in the Offering Memorandum.
(d) The Initial Purchasers shall have received on the
Closing Date a certificate dated the Closing Date, signed by the President or
Chief Executive Officer and the Chief Financial Officer, Treasurer, Secretary,
Assistant Secretary or any Vice President of the Issuers and each of the
Guarantors, confirming the matters set forth in Sections 6(ff), 9(a) and 9(b)
and stating that each of the Issuers and the Guarantors has complied with all
the agreements and satisfied all of the conditions herein contained and required
to be complied with or satisfied on or prior to the Closing Date.
(e) The Initial Purchasers shall have received on the
Closing Date an opinion (satisfactory to each of you and counsel for the Initial
Purchasers), dated the Closing Date, of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for
the Issuers and the Guarantors, to the effect that:
(i) Each of the Issuers and the Guarantors ((the
"DESIGNATED GUARANTORS"), which term excludes Miami International Airport Cargo
Facilities & Services Inc. ("MIAMI INTERNATIONAL") and International Enterprises
Group, Inc., a Florida corporation ("IEG")), is incorporated and validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its business
as described in the Offering Memorandum and to own, lease and operate its
properties.
-28-
30
(ii) All of the outstanding shares of capital stock
of the Issuers have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(iii) (a) All of the outstanding shares of capital
stock of each of the Designated Guarantors have been duly authorized and validly
issued and are fully paid and non-assessable and are owned of record, by the
Company, free and clear of any Lien (except for the Liens described in the
Offering Memorandum), and (b) to the best of such counsel's knowledge, all of
the outstanding shares of capital stock of MAS have been duly authorized and
validly issued and are fully paid and non-assessable and are owned of record, by
the Company, free and clear of any Lien, except as disclosed in the Offering
Memorandum.
(iv) Each of the Issuers has duly and validly
authorized the issuance of the Notes and the Warrants as a Unit.
(v) The Series A Notes have been duly authorized by
the Company and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, will be entitled to
the benefits of the Indenture and will be valid and binding obligations of the
Company, enforceable in accordance with their terms except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally; (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability; and (z) a waiver of rights under any usury or stay law
may be unenforceable; we express no opinion, however, as to the applicability
(and, if applicable, the effect) of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy
Code or any comparable provision of state law to the questions addressed above
or on the conclusions expressed with respect thereto.
(vi) The Warrants have been duly authorized by
Holdings and, on the Closing Date, when countersigned by the Warrant Agent and
issued and delivered in accordance with the terms of this Agreement and the
Warrant Agreement, the Warrants will be valid and binding obligations of
Holdings, enforceable against Holdings in accordance with their terms, except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally, and (ii) rights of
acceleration, if applicable, and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(vii) The Warrant Shares have been duly and validly
authorized for issuance by Holdings, and when issued and delivered upon payment
of the exercise price pursuant to the terms of the Warrants and the Warrant
Agreement will be fully paid and non-assessable and will not be subject to any
preemptive or similar rights.
(viii) The Subsidiary Guarantees of the Designated
Guarantors have been duly authorized and, when the Series A Notes are executed
and authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Initial Purchasers in accordance with the terms
of this Agreement, the Subsidiary Guarantees endorsed
-29-
31
thereon will be entitled to the benefits of the Indenture and will be valid and
binding obligations of the Designated Guarantors, enforceable against the
Designated Guarantors in accordance with their terms and, assuming due
authorization thereof, and, when the Series A Notes are executed and
authenticated in accordance with the provisions of the Indenture and delivered
to and paid for by the Initial Purchasers in accordance with the terms of this
Agreement, the Subsidiary Guarantee for Miami International endorsed thereon
will be entitled to the benefits of the Indenture and will be a valid and
binding obligation of Miami International, enforceable against it in accordance
with its terms; except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally;
(y) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and (z) a waiver of
rights under any usury or stay law may be unenforceable; we express no opinion,
however, as to the applicability (and, if applicable, the effect) of ▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code or any comparable provision of state law to
the questions addressed above or on the conclusions expressed with respect
thereto.
(ix) The Indenture has been duly authorized,
executed and delivered by the Company and each Designated Guarantor and,
assuming due authorization thereof by Miami International, has been duly
executed and delivered by Miami International, and (assuming due authorization,
execution and delivery thereof by the Trustee) is a valid and binding agreement
of the Company and each such Designated Guarantor, enforceable against the
Company and each Designated Guarantor in accordance with its terms except as (x)
the enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally; (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability; and (z) a waiver of rights under any usury or stay law
may be unenforceable; we express no opinion, however, as to the applicability
(and, if applicable, the effect) of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy
Code or any comparable provision of state law to the questions addressed above
or on the conclusions expressed with respect thereto.
(x) This Agreement has been duly authorized,
executed and delivered by the Issuers and the Designated Guarantors and,
assuming due authorization thereof by Miami International, has been duly
executed and delivered by Miami International.
(xi) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and the Designated Guarantors,
and assuming due authorization thereof by Miami International, has been duly
executed and delivered by Miami International, and (assuming due authorization,
execution and delivery thereof by the Initial Purchasers) is a valid and binding
agreement of the Company and each Designated Guarantor, enforceable against the
Company and each Designated Guarantor in accordance with its terms, except as
(x) the enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally; (y) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability; and (z) rights to indemnification,
contribution and liquidated damages under the Registration Rights Agreement may
be limited by public policy.
-30-
32
(xii) The Warrant Agreement has been duly and validly
authorized, executed and delivered by Holdings, and is a valid and binding
agreement of Holdings, enforceable against it in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally, (ii) rights of
acceleration, if applicable, and the availability of equitable remedies may be
limited by equitable principles of general applicability and (iii) rights to
indemnification, contribution and liquidated damages thereunder may be limited
by public policy.
(xiii) The Common Stock Registration Rights Agreement
has been duly and validly authorized, executed and delivered by Holdings, and is
a valid and binding agreement of Holdings, enforceable against it in accordance
with its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights, (ii) rights
of acceleration, if applicable, and the availability of equitable remedies may
be limited by equitable principles of general applicability and (iii) to the
extent that rights to indemnification, contribution and liquidated damages
thereunder may be limited by public policy.
(xiv) The Stock Purchase Agreement has been duly
authorized, executed and delivered by MAS Holding and (assuming due
authorization, execution and delivery thereof by the Sellers) is a valid and
binding agreement of MAS Holding, enforceable against MAS Holding in accordance
with its terms, except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
(b) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(xv) The Credit Agreement has been duly authorized,
executed and delivered by the Company and the Designated Guarantors and
(assuming due authorization, execution and delivery by parties thereto other
than the Company and the Designated Guarantors) is a valid and binding agreement
of the Company and each such Designated Guarantor, enforceable against the
Company and each such guarantor in accordance with its terms, except as (x) the
enforceability thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability.
(xvi) The Series B Senior Notes have been duly
authorized.
(xvii) The statements under the captions "Related
Party Transactions," "Description of the Senior Secured Credit Facility,"
"Description of Units," "Description of Notes," "Description of Warrants" and
"Plan of Distribution" in the Offering Memorandum, insofar as such statements
constitute a summary of the legal matters, documents or proceedings referred to
therein, fairly present in all material respects such legal matters, documents
and proceedings, and the statements made in the Offering Memorandum under the
heading "Material United States Federal Income Tax Consequences," insofar as
they summarize certain federal income tax laws of the United States, constitute
a fair summary of the principal U.S. federal income tax consequences of an
investment in the Series A Notes.
-31-
33
(xviii) The execution, delivery and performance of this
Agreement, the Stock Purchase Agreement, the Warrant Agreement, the Common Stock
Registration Rights Agreement, the Registration Rights Agreement, the Securities
and the Indenture by Holdings, the Issuers and each of the Designated
Guarantors, as applicable, the compliance by the Issuers and each of the
Designated Guarantors with all provisions hereof and thereof, as applicable, and
the consummation of the transactions contemplated hereby and thereby, as
applicable, will not: (a) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or agency
(except such as may be required under any U.S. federal securities laws other
than as set forth in sub-paragraph (xxii) of this Section 9(e) or Blue Sky or
state securities laws); (b) conflict with or constitute a breach of any of the
terms or provisions of, or a default under, the charter or by-laws of the
Issuers or any of the Designated Guarantors, as applicable, or any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to the Issuers and the Designated Guarantors, taken as a whole, to
which the Issuers or any of the Designated Guarantors, as applicable, is a party
or by which the Issuers or any of the Designated Guarantors or their respective
property is bound, as applicable; (c) violate or conflict with any applicable
law or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the Issuers, any of their
subsidiaries or their respective property, as applicable; (d) result in the
imposition or creation of (or the obligation to create or impose) a Lien under
any agreement or instrument to which the Issuers or any of their subsidiaries is
a party, as applicable, or by which the Issuers or any of their subsidiaries or
their respective property is bound, as applicable; or (e) result in the
termination, suspension or revocation of any Authorization (as defined below) of
the Issuers or any of their subsidiaries, as applicable, or result in any other
impairment of the rights of the holder of any such Authorization, except where
any such termination, suspension or revocation would not, singly or in the
aggregate, have a Material Adverse Effect.
(xix) Each of the Issuers is not and, after giving
effect to the offering and sale of the Units and the application of the net
proceeds thereof as described in the Offering Memorandum, will not be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended.
(xx) To such counsel's knowledge, there are no
contracts, agreements or understandings between the Issuers or any Guarantor and
any person granting such person the right to require the Issuers or such
Guarantor to file a registration statement under the Act with respect to any
securities of the Issuers or such Guarantor or to require the Issuers or such
Guarantor to include such securities with the Units registered pursuant to any
Registration Statement (other than in the Registration Rights Agreement or the
Common Stock Registration Rights Agreement).
(xxi) The Indenture complies as to form in all
material respects with the requirements of the TIA, and the rules and
regulations of the Commission applicable to an indenture which is qualified
thereunder. It is not necessary in connection with the offer, sale and delivery
of the Units to the Initial Purchasers in the manner contemplated by this
Agreement or in connection with the Exempt Resales to qualify the Indenture
under the TIA.
-32-
34
(xxii) No registration under the Act of the Units is
required for the sale of the Units to the Initial Purchasers as contemplated by
this Agreement or for the Exempt Resales assuming (i) that each Initial
Purchaser is a QIB or a Regulation S Purchaser, (ii) the accuracy of, and
compliance with, such Initial Purchasers' representations and agreements
contained in Section 7 of this Agreement, and (iii) the accuracy of the
representations of the Issuers and the Guarantors set forth in Sections 5(h) and
(m) and 6(gg), (hh), (ii), (jj), (kk) and (mm) of this Agreement.
The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP described in Section
9(e) above shall be rendered to you at the request of the Issuers and the
Designated Guarantors and shall so state therein. In addition, ▇▇▇▇▇▇▇ ▇▇▇▇ &
▇▇▇▇▇ LLP shall state that it has participated in the preparation of the
Offering Memorandum and any amendments or supplements thereto, if applicable,
and that although such counsel has not independently verified the accuracy,
completeness or fairness of the statements contained therein, except as stated
in paragraph (xvii), no facts have come to such counsel's attention to cause it
to believe that, as of the date of the Offering Memorandum or as of the Closing
Date, the Offering Memorandum, as amended or supplemented, if applicable (except
for the financial statements and other financial data included therein or
omitted therefrom, as to which such counsel need not express any belief)
contained or contains any untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(f) ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special Florida counsel for
the Company, shall have furnished to the Initial Purchasers an opinion in a form
acceptable to the Initial Purchasers and their counsel, dated the Closing Date.
(g) The Initial Purchasers shall have received on the
Closing Date an opinion, dated the Closing Date, of O'Melveny & ▇▇▇▇▇ LLP,
counsel for the Initial Purchasers, in form and substance reasonably
satisfactory to the Initial Purchasers.
(h) The Initial Purchasers shall have received, at the time
this Agreement is executed and at the Closing Date, letters dated the date
hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers from Ernst & Young LLP and KPMG, LLP,
independent public accountants of the Issuers and MAS, respectively, containing
the information and statements of the type ordinarily included in accountants'
"comfort letters" to the Initial Purchasers with respect to the financial
statements and certain financial information contained in the Offering
Memorandum.
(i) The Securities shall have been approved by the NASD for
trading and duly listed in PORTAL.
(j) The Initial Purchasers shall have received a
counterpart, conformed as executed, of the Indenture which shall have been
entered into by the Company, the Guarantors and the Trustee.
-33-
35
(k) The Company and the Guarantors shall have executed the
Registration Rights Agreement and the Initial Purchasers shall have received an
original copy thereof, duly executed by the Company and the Guarantors.
(l) Holdings shall have executed the Warrant Agreement and
the Common Stock Registration Rights Agreement and the Initial Purchasers shall
have received an original copy thereof, duly executed by Holdings.
(m) The Company and the Guarantors, as the case may be,
shall have executed the Credit Documents and the Initial Purchasers shall have
received a copy thereof, duly executed by the Company and such Guarantors, as
the case may be and all conditions to funding under the Credit Documents which
are required to be performed or complied with by the Company and the Guarantors,
as the case may be, shall have been satisfied or waived by the lenders party to
the Credit Documents or their agent.
(n) (i) All conditions to the purchase of equity securities
of MAS pursuant to and contained in the Stock Purchase Agreement shall have been
satisfied without waiver (unless such waiver is not materially adverse in any
manner to the Initial Purchasers) and (ii) substantially simultaneously
herewith, MAS Holding shall have purchased from the Sellers one-hundred percent
(100%) of the outstanding capital stock of MAS.
(o) The Initial Purchasers shall have received an original
counterpart to this Agreement, duly executed by MAS and its subsidiary.
(p) No court of competent jurisdiction shall have entered
any order, decree or rule or taken any other action restraining, enjoining
(temporarily or permanently) or otherwise prohibiting the consummation of the
transaction contemplated by the Stock Purchase Agreement or the transactions
contemplated by the Credit Agreement.
(q) None of the Issuers nor the Guarantors shall have
failed at or prior to the Closing Date to perform or comply in any material
respect with any agreement herein contained and required to be performed or
complied with by the Issuers or the Guarantors, as the case may be, at or prior
to the Closing Date.
(r) The Initial Purchasers shall have received an FAA
opinion from ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., the Issuers' special counsel on FAA
matters, in a form reasonably satisfactory to the Initial Purchasers.
(s) The Company shall have received an equity contribution
of $10.0 million from Holdings.
10. Effectiveness of Agreement and Termination. (a) This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
(b) This Agreement may be terminated at any time on or
prior to the Closing Date by the Initial Purchasers by written notice to the
Issuers if any of the following has
-34-
36
occurred: (i) any outbreak or escalation of hostilities or other national or
international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in the Initial
Purchasers' judgment, is material and adverse and, in the Initial Purchasers'
judgment, makes it impracticable to market the Units on the terms and in the
manner contemplated in the Offering Memorandum, (ii) the suspension or material
limitation of trading in securities or other instruments on the New York Stock
Exchange, the American Stock Exchange, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq
National Market or limitation on prices for securities or other instruments on
any such exchange or the Nasdaq National Market, (iii) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
the Initial Purchasers' opinion materially and adversely affects, or will
materially and adversely affect, the business, prospects, financial condition or
results of operations of the Issuers, MAS and their respective subsidiaries,
taken as a whole, (v) the declaration of a banking moratorium by either federal
or New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal affairs
which in the Initial Purchasers' opinion has a material adverse effect on the
financial markets in the United States.
(c) If on the Closing Date any one or more of the Initial
Purchasers shall fail or refuse to purchase the Units which it or they have
agreed to purchase hereunder on such date and the aggregate number of Units
which such defaulting Initial Purchaser or Initial Purchasers, as the case may
be, agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of Units to be purchased on such date by all Initial
Purchasers, each non-defaulting Initial Purchaser shall be obligated severally,
in the proportion which the number of Units set forth opposite its name in
Schedule B bears to the aggregate number of Units which all the non-defaulting
Initial Purchasers, as the case may be, have agreed to purchase, or in such
other proportion as the non-defaulting Initial Purchasers may specify, to
purchase the Units which such defaulting Initial Purchaser or Initial
Purchasers, as the case may be, agreed but failed or refused to purchase on such
date; provided that in no event shall the aggregate number of Units which any
Initial Purchaser has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Units without the written consent of such Initial Purchaser. If
on the Closing Date any Initial Purchaser or Initial Purchasers shall fail or
refuse to purchase the Units and the aggregate number of Units with respect to
which such default occurs is more than one-tenth of the aggregate number of
Units to be purchased by all Initial Purchasers and arrangements satisfactory to
the Initial Purchasers and the Issuers for purchase of such Units are not made
within 48 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Initial Purchaser and the Issuers.
In any such case which does not result in termination of this Agreement, either
the non-defaulting Initial Purchasers or the Issuers shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Offering Memorandum or any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Initial Purchaser from liability in respect of
any default of any such Initial Purchaser under this Agreement.
-35-
37
11. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Issuers or any
Guarantor, to Worldwide Flight Services Inc., 4255 ▇▇▇▇ ▇▇▇▇▇▇ Blvd., MD 4237,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a required copy to
▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and (ii)
if to the Initial Purchasers, to both (a) ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Syndicate Department and (b) Chase Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Issuers, the Guarantors
and the Initial Purchasers set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Units, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Initial Purchaser, the officers
or directors of any Initial Purchaser, any person controlling any Initial
Purchaser, the Issuers, any Guarantor, the officers or directors of the Issuers
or any Guarantor, or any person controlling the Issuers or any Guarantor, (ii)
acceptance of the Units and payment for them hereunder and (iii) termination of
this Agreement.
If for any reason the Units are not delivered by or on behalf
of the Issuers as provided herein (other than as a result of any termination of
this Agreement pursuant to Section 10(c)), the Issuers and each Guarantor,
jointly and severally, agree to reimburse the Initial Purchasers for all
out-of-pocket expenses (including the fees and disbursements of counsel)
incurred by them. Notwithstanding any termination of this Agreement, the Issuers
shall be liable for all expenses which it has agreed to pay pursuant to Section
5(i) hereof.
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Issuers, the
Guarantors, the Initial Purchasers, each Initial Purchaser's directors and
officers, any controlling persons referred to herein, the directors of the
Issuers and the Guarantors and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under, or by virtue of, this Agreement. The term "successors
and assigns" shall not include a purchaser of any of the Units from the Initial
Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank; signature pages to follow]
-36-
38
Please confirm that the foregoing correctly sets forth the
agreement among the Issuers, the Guarantors and the Initial Purchasers.
Very truly yours,
WORLDWIDE FLIGHT SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Executive Officer
WORLDWIDE FLIGHT FINANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
WORLDWIDE FLIGHT SECURITY SERVICE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
MIAMI INTERNATIONAL AIRPORT CARGO
FACILITIES & SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
CHASE SECURITIES INC.
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
-37-
39
WFS HOLDINGS, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and Treasurer
AGREED TO AND ACCEPTED AS OF
THE CLOSING DATE:
MIAMI AIRCRAFT SUPPORT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
INTERNATIONAL ENTERPRISES
GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
-38-
40
SCHEDULE A
GUARANTORS
PART I - Initial Guarantors
Worldwide Flight Finance Company
Worldwide Flight Security Service Corporation
Miami International Airport Cargo Facilities & Services, Inc.
PART II - Domestic Subsidiaries
Of the Company:
Worldwide Flight Finance Company
Worldwide Flight Security Service Corporation
Miami International Airport Cargo Facilities & Services, Inc.
Of MAS:
International Enterprises Group, Inc.
PART III - Foreign Subsidiaries
Worldwide Flight Services (U.K.) Limited
Worldwide Flight Services Fueling (Hong Kong) Limited
Worldwide Flight Services and Logistics of Mexico, S.A. de C.V.
Worldwide Flight Services France Holding, S.A.*
Societe de Fret et de Services*
SF Maintenance SARL**
SF Formation SARL**
Etudes Realisation et de Services Informatiques SARL**
SFS Servicios Aeroportuarios, S.A.***
--------------------------
* Its directors own 6 shares and 12 shares, respectively, each representing
less than 1%.
** Worldwide Flight Services France Holding, S.A. owns 490 shares and Societe
de Fret et de Services owns 10 shares of each.
*** Worldwide Flight Services France Holding, S.A. owns 1746 shares and
Worldwide Flight Services and Societe de Fret de Services each owns 2
shares.
Schedule A
41
SCHEDULE B
Initial Purchasers Number of Units
------------------ ---------------
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities Corporation............. 87,100
Chase Securities Inc............................................ 42,900
-------
Total........................................................... 130,000
=======
Exhibit A-1